Defendant-Intervenors' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgement and in Support of Defendants' and Defendant-Intervenors' Motions for Summary Judgment

    IN THE UNITED STATES DISTRTICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GINGLES, et al.,
Plaintiffs,
v. No. 81—803-CIV-5

RUFUS L. EDMISTEN, et al.,
Defendants.

 

ALAN V. PUGH, et al.,
Plaintiffs,
v. No. 8l-lO66—CIV-5

JAMES B. HUNT, JR., et al.,
Defendants.

 

JOHN J. CAVANAGH, et al.,
Plaintiffs,

V. No. 82-545—CIV-5

ALEX K. BROCK, et al.,
Defendants,
-and-

RALPH GINGLES, et al.,
Defendant-Intervenors.

vvvvvvvvvvvvvvvvvVVVVVVVVVVVV

DEFENDANT-INTERVENORS' MEMORANDUM IN OPPOSITION
TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND IN
SUPPORT OF DEFENDANTS' AND DEFENDANT-INTERVENORS'

MOTIONS FOR SUMMARY JUDGMENT

I. Statement of the Case

 

The Cavanagh plaintiffs challenge the apportionment of the
North Carolina House of Representatives and of the North Carolina
Senate on the single ground that Forsyth County is divided in

contravention of Article II §3(3) and 55(3) of the North Carolina

1/

Constitution.
On October 1, 1981, the State submitted Article II §3(3) and
§5(3) of the North Cagolina Constitution to the Attorney General
of the United States —/ pursuant to §5 of the Voting Rights Act
of 1965, as amended, 42 U.S.C. §l973c (hereafter "§5“ or "§5 of
the Voting Rights Act"). The Attorney General interposed a
timely objection on November 30, 1981. The Attorney General's
objection was directed to the 40 of the North Carolina's 100
counties which are covered by SS. His objection did not address
Forsyth County which is a county not covered by SS. North
Carolina has not filed an action for a declaratory judgment in
the District Court of the District of Columbia seeking a 93 3929
hearing to obtain §5 preclearance of Article II §3(3) and §5(3).
Plaintiffs makes two arguments in support of their motion
for summary judgment. The first is that the Attorney General's
objection was not valid and is of no effect. The second is that
even if the objection is valid, the State Constitution's prohibi-
tion agahwt dividing counties is still in full force and effect
in the 60 counties not subject to §5, including Forsyth County.
Defendant-intervenors are the class of plaintiffs in

Gingles v. Edmisten, which consists of all black residents of

 

 

1/

_ Article II §3 provides, "(3) No county shall be divided
in the formation of a senate districts;... ." Article II §5
provides, "(3) No county shall be divided in the formation of a

representative district;... ."

2/
Hereafter, as used in this Memorandum, "Attorney General"
will refer to the Attorney General of the United States acting
through his designee, the Assistant Attorney General, Civil

Rights Division, in accordance with 28 C.F.R. §51.3.

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North Carolina who are registered to vote. The Gingles class
agrees with plaintiffs and defendants that there are no genuine
issues of material fact and summary judgment is appropriate in

Cavanagh v. Brock. The Gingles class contends that defendants

 

are entitled to judgment as a matter of law for the following
reasons:

1. This Court does not have jurisdiction to review the
Attorney General's objection to Article II §3(3) and §5(3) of
the North Carolina Constitution.

2. Even if this Court does have jurisdiction to review the
Attorney General's determination, the decision that the adoption
of Article II §3(3) and §5(3) was subject to §5 preclearance is
correct.

3. Those defendant-intervenors who live in counties not
covered by SS are denied equal protection of the laws if the
legislature is prohibited from dividing those 60 counties in
apportioning the legislature but is not prohibited from dividing
the 40 counties which are subject to §5.

4. Because Article II §3(3) and §5(3) are not severable, if
they are not enforceable in 40 counties they are also unenforc—
able in the remaining 60 counties.

5. In addition, defendant—intervenors adopt defendants'
argument that Supremancy Clause, Article VI §2 of the United
States Constitution, justifies the division of Forsyth County
because that division was necessary for the State to be able to
comply with one person—one vote requirements of the equal pro—
tection clause of the Fourteenth Amendment to the United States

Constitution.

II. Article II §3(3) and §5(3) of the North Carolina
Constitution have not been precleared under §5 of
the Voting Rights Act and are not enforcable.

The Cavanagh plaintiffs assert, in support of their motion
for summary judgment, that the Attorney General's November 1981
objection to Article II §3(3) and §5(3) of the North Carolina
Constitution has no effect because the 1968 adoption of the
provision was not a change in election procedure which was
subject to the preclearance requirements of §5. See Memorandum
supporting plaintiffs' motion for summary judgment at 7—14. This
argument does not entitle the Cavanagh plaintiffs to summary
judgment because (a) this Court is without jurisdiction to review
the determination of the Attorney General; and (b) the provisions
in question were a change in voting procedures subject to the
requirement of §5 preclearance.

A. This Court does not have jurisdiction to review the
Attorney General's determination under §5 that the adoption of
Article II §3(3) and §5(3) of the North Carolina Constitution
constituted a change requiring preclearance.

Article II §3(3) and §5(3) of the North Carolina Constition
were enacted by the General Assembly during the 1967 Session,

Chapter 640 of the Session Laws of 1967, and ratified by vote of

the people in 1968. In September, 1981, Gingles v. Edmisten, 81-

 

803-Civ-5, was filed in this Court. Gingles is, in part, a

proceeding to enforce §5 which claims that the pertinent North
Carolina constitutional provisions were subject to the §5 pre-
clearance requirements and which seeks to enjoin their enforce—

ment pending §5 preclearance. See Gingles v. Edmisten Complaint,

 

Count One, Paragraph 24—46, and Prayer for Relief, Paragraph 3.

On October 1, 1981, North Carolina submitted the 1967 amendments

to the Attorney General of the United States under the procedure
specified in 42 U.S.C. §l973c. By letter dated 30 November 1981,
the Attorney General interposed objection to the two proposed
amendments. See Stipulation, fll, filed February 22, 1982 in

Gingles v. Edmisten and Pugh v. Hunt, 81—1066—Civ-5, and

 

Attachment A thereto.

The Attorney General has established regulations for enforce-
ment of §5, 28 C.F.R. Part 51. E/Subpart E of the regulations
requires the Attorney General to determine, prior to processing a
submission, if the submission is appropriate. 28 CFR §51.33.
Such a determination involves a review of the submission to see
if any standards, practices, or procedures have been changed. If
the Attorney General determines that no changes covered by SS are
involved or that in another way the submission is inappropriate,
he does not make a response on the merits but instead so notifies
the submitting authority. Id; Since, in this instance, the
Attorney General did not notify the State that the submission was
inappropriate but ruled on the merits, the Court must presume
that the Attorney General concluded that the adoption of these
provisions was a change which required preclearance.

This Court's jurisdiction is extremely limited. When the

State submitted the constitutional amendments to the Attorney

General for §5 review, this Court lost its jurisdiction as to the §5

 

3/

The regulations were upheld by the Supreme Court in
Georgia v. United States, 411 U.S. 526 (1973).

 

_5_

issues with the exception that the Court always retains the power
to enjoin enforcement of changes which have not been precleared.
The Attorney General's timely objection to the provisions is
final and not reviewable by this or any other Court. This Court
is without jurisdiction to review the validity of the Attorney
General's determination there was a change or his objection.

The United States Supreme Court first considered the review—
ability of the Attorney General's §5 determinations in Morris v.
Gressette, 432 U.S. 491 (1977). The Court held that the Attorney
General's failure to interpose a timely objection under §5 of the
Voting Rights Act is not reviewable. Id; at 506. In Morris v.
Gressette, the Attorney General deferred to the decision of South
Carolina District Court that the South Carolina Senate reapportion—
ment did not violate the Fifteenth Amendment to the United States
Constitution and, therefore, declined to object under §5.
Plaintiffs, who were black citizens residing in South Carolina,
claimed that the Court could decide whether the Attorney General
had applied an improper legal standard in deferring to the District
Court instead of conducting independent §5 review. The Supreme
Court concluded that "Congress intended to preclude all judicial
review of the Attorney General's exercise of discretion or failure
to act." Id; at 506-507 and n.24. It is important to note that
the Court reached this decision dispite the fact that it deprived
the plaintiffs in the action of all access to a judicial forum.

On the same day that the Supreme Court decided Morris v.
Gressette, supra, it also decided Briscoe v. Bell, 432 U.S. 404

(1977), holding that the Court does not have jurisdiction to

review the determination of the Department of Justice and the
Bureau of the Census that a jurisdiction is subject to the
provisions of §5 in accordance with §4(b) of the Voting Rights
Act of 1965, as amended, 42 U.S.C. §1973b(b). Section 4(b)
provides that the determination is not reviewable. The District
Court and Court of Appeals held that courts can not review
findings of fact but can review to determine if the Act has

been correctly interpreted as a matter of law. The Supreme Court
reversed, reasoning that Congress intended to preclude all review
in order to effectuate the purpose of the Act to eradicate dis-
crimination with all possible speed. Id; at 410, 415.

The decisions on Morris v. Gressette, supra, and Briscoe

 

v. Bell, supra, have been followed in a variety of circumstances

to establish the principle that no Court has jurisdiction to

review any exercise of discretion by the Attorney General under

§5 of the Voting Rights Act. In Harris v. Bell, 562 F.2d 772,

774 (5th Cir. 1977), the Court held that it is wholly without
jurisdiction to determine whether the Attorney General has followed
federal regulations in withdrawing an objection under §5. In

Harris v. Bell, as in Morris v. Gressette, plaintiffs were,

 

thereby, wholly deprived of a judicial forum.

More importantly, in City of Rome v. United States, 450

 

F.Supp. 378 (D.D.C. 1978), affiig 93 9thg£ grounds 446 U.S. 156

(1980), the Court dismissed for lack of subject matter jurisdic-
tion the portion of the Complaint which claimed that, in inter-
posing an objection, the Attorney General applied §5 to the City

of Rome in an unconstitutional manner. The Court noted that it

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is of no consequence whether the challenge is couched in terms of
improper procedure or in terms of improper substantive result.
Id; at 381, n.2. The Court held "[T]his Court is without juris-
diction over plaintiffs' challenge to the procedures used by the
Attorney General in deciding to interpose an objection to the
City of Rome's proposed electoral changes." Id; at 381. The
Court noted the distinction between the holding of Morris v.
Gressette, supra, that a Court cannot review the failure to
object, and the request in City of Rome to review the entry of an
objection. The Court concluded that the legislative scheme of
the Voting Rights Act, when viewed as a whole, compels the con—
clusion that the decision of the Attorney General to interpose an
objection was also not intended to be the subject of judicial
review. Instead, the only relief from a decision to object is
for the covered jurisdiction to seek a declaratory judgment dg
ngyg in the District Court for the District of Columbia. Id; at
381.

The fact that the plaintiffs in Cavanagh v. Brock cannot

 

initiate a gg novo action in the District of Columbia District
Court is not determinative. The private plaintiffs in Morris

v. Gressette, supra, and in Harris v. Bell, supra, were similarly

 

left without a judicial forum. See also Pitts v. Carter, 380
F.Supp. 4 (N.D.Ga. 1974) in which the Court held that it had
jurisdiction to enjoin procedures which had not been precleared

but no jurisdiction to allow enforcement of a procedure to which
an objection had been interposed. Id; at 7-8. In Pitts v. Carter,

the party seeking enforcement of the provision to which the

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Attorney General had objected was, as here, a private individual
with no alternative judicial forum.

Finally, in Dotson v. City of Indianola, Miss., 521 F.Supp.

 

934, 943 (N.D. Miss. 1981), afglg ____U.S.____, 73 L.Ed.2d

1296 (1982), the Court held that it does not have jurisdiction to
review the Attorney General's authority to preclear part of a §5
submission while objecting to another part of the same submission.
Plaintiffs in Dotson were private citizens seeking to hold City
officials in contempt for enforcing the submitted annexation

after the Attorney General objected. The City defended by saying
that the objection letter was not valid because the Attorney
General was required to preclear or object to the whole submission.

The Court cites Morris v. Gressette, supra, and City of Rome,

 

supra, in concluding that it cannot review either the Attorney
General's failure to object or his objection.

In this case the Attorney General's determination under 28
CFR §51.33 that the submission was appropriate and that the
provisions were changes subject to §5 preclearance is not review-
able by this Court just as the determinations in Morris v.

Gressette, supra, City of Rome, supra, and Dotson v. City of

 

 

Indianola, supra, were not subject to judicial review.
Defendant-Intervenors have been able to locate only one

possible exception to this chain of cases, Garcia v. Uvalde County,

 

455 F.Supp. 101 (W.D. Tex. 1978), aff'd 439 U.S. 1059 (1979).
In Uyalde, the Court held that it had jurisdiction to determine
whether or not the Attorney General's objection letter was

timely. This decision is not probative of the question at hand.

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§5 of the Voting Rights Act, 42 U.S.C. §l973c, provides in

pertinent part:
Provided, that such qualification, pre—
requisite, standard, practice, or procedure
may be enforced without such proceeding [in
the District Court for the District of
Columbia] if the qualification, prerequisite,
standard, practice, or procedure has been
submitted by the chief legal officer or other
appropriate official of such State or sub-
division to the Attorney General and the
Attorney General has not interposed an objec—
tion within 60 days after such submission,...

Thus, in an action by private citizens to enjoin enforcement
of a procedure to which the Attorney General had objected, it was
appropriate for the Court to determine whether or not the
Attorney General had interposed an objection within 60 days after
the submission. It was not reviewing the substance or procedure
of the objection letter but only determining whether or not there
was an objection letter within the time specified in the statute.
In this case, in contrast to Garcia v. Uvalde, there is no dispute
that there was an objection letter interposed within the requisite
60 days. There is nothing in Garcia v. Uvalde that suggests that
once the court determines that there was a timely objection
letter, it can review any aspect of the Attorney General's
determination including that the submitted provisions constituted

a change within the meaning of the Act.

Nor is the holding in Allen v. State Board of Elections, 393

 

U.S. 544 (1969), to the contrary. In Allen, the Court held that
local three judge courts have jurisdiction in a §5 enforcement
proceedings to determine if the particular state enactment is

subject to the provisions of §5 and therefore, must be submitted

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for approval before enforcement. Id; at 560. This does not
suggest that once the provision has been submitted a private
party can litigate to determine if the submission was required.

The reasoning of the Court in Allen, that there is a private
right of action to enforce §5 and that local three judge district
courts have jurisdiction in enforcement proceeding to determine
if preclearance will be required, does not logically extend to a
post—submission review of whether or not a submission which has
already been made was required.

In Allen the Court noted that §5 was designed to protect
minority citizens from denial of the right to vote because an
authority fails to submit a new enactment for preclearance.
Because the statute was designed to protect that class of
citizens, and because the staff of the Attorney General was
deemed to be too small to adequately monitor the changes in all
submitting jurisdictions, implication of a private right of
action was necessary to make the Act more than a empty promise.
The individual citizen was, therefore, held to have standing to
ensure that his local government complies with the §5 approval
standards. 393 U.S. at 556—557.

In contrast, in the context of the case at hand, plaintiffs
seek to avoid §5, not to enforce it. Plaintiffs are not members
of the class which the Act is designed to protect. Indeed, they
are not even residents of a covered jurisdiction. The Attorney
General's staff has already performed its task of examining and
investigating the submission. There is no question of the

Attorney General's capacity to accomplish the purpose of the Act.

.11.

In short, there is nothing in Allen that suggests that a private
litigant should be able to undo the determination of the Attorney
General that the submission was appropriate and that the sections
of the state constitution in question constituted a change.

In conclusion, the Gingles class points out that this is not
a situation in which no judicial determination of whether §5
preclearance was required was available. In response to the

Complaint in Gingles v. Edmisten, defendants could have argued

 

that the enactment of the North Carolina Constitution's pro-
visions was not a change and that they would not submit the
provisions for preclearance until this Court determined that
preclearance was required. Defendants did not choose that route.
The submission has been made, and the Attorney General has both
determined that there was a change and that it was objectionable.
The only way for the provisions to become enforceable now is for
the State to file a declaratory judgment action in the District
Court for the District of Columbia seeking a g3 ppyp determina—
tion that the provisions do not have the purpose will not have
the effect of denying or abriding the right to vote on account of

race. City of Rome V. United States, 450 F.Supp. at 381. This

 

Court does not have jurisdiction now, at the request of third
parties, to review the accuracy of the Attorney General's deter-
mination.

B. The adoption of Article II §§3(3) and 5(3) were changes
subject to §5 preclearance.

Assuming, arguendo, that this Court has jurisdiction to
determine the validity of the Attorney General's objection, the

objection is valid.

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Section 5 of the Voting Rights Act applies whenever a
covered jurisdiction, "shall enact or seek to administer any
voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting different from that
in force or effect on November 1, 1964... .“ 42 U.S.C. §1973c.
The adoption of the provisions of the North Carolina Constitution
that prohibit dividing counties in the creation of legislative
districts constitutes a change within the meaning of §5.

1. The history of the North Carolina Constitutions's
provisions concerning apportionment of the General Assembly.

Prior to November 1, 1964, the North Carolina Constitution
provided that the 120 members of the House of Prespresentatives
were apportioned such that each of the 100 counties had at least
one representative. The remaining 20 representatives were
divided among the most populous counties. North Carolina
Constitution Article II, §6 (1875); Drum v. Seawell, 249 F.Supp.
877, 880 (M.D.N.C. 1965). Thus, representatives were apportioned
by county instead of by population. Under these provisions,
according to the 1960 census, on November 1, 1964, there were 11
counties which were at least 50% black in population and one more
which was over 50% non—white. (See United States Census, North
Carolina, Table 28, attached as Exhibit A.) Thus eleven majority
non-white representative districts were required by the pre-l964
provisions of the North Carolina Constitution.

In 1965, the Court in Drum v. Seawell, supra, held this

 

method of apportionment to be in violation of the one person-one
vote requirement of the equal protection clause of the Fourteenth

Amendment to the United States Constitution. 249 F.Supp. at 880.

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In 1966 the General Assembly, without changing the North
Carolina Constitution, adOpted a new apportionment of the House
of Representatives. Chapter 5 of the Session Laws of 1966. In
1967, the General Assembly adopted the questioned constitutional
provisions which were ratified by the voters in 1968.

Prior to November 1, 1964, the North Carolina Constitution
provided for the 50 members of the Senate to be apportioned such
that, "each Senate District shall contain, as nearly as may be,
an equal number of inhabitants, excluding aliens and Indians not
taxed, and shall remain unaltered until the return of another
enumeration, and shall at all times consist of contiguous terri-

tory; and pp County shall pg divided 2p the formation pf a Senate

 

 

District, unless such county shall pg equitably entitled 39 two
pp more Senators." North Carolina Constitution, Article II, §5
(1868) (renumbered Article II, §4 in 1875) (emphasis added).

The Court in Drum v. Seawell, supra, did not declare this

 

provision unconstitutional but did hold that the particular
apportionment then in effect violated the equal protection
clause. 249 F.Supp. at 881.

The General Assembly adopted a new apportionment of the
Senate in 1966. Chapter 1 of the Session Laws of 1966. The
provision of the North Carolina Constitution prohibiting the
division of counties in apportioning the Senate was adopted in
1967 and ratified in 1968 at the same time that the House pro—
vision was adopted.

2. The 1967 Amendments to the North Carolina Constitution

 

were changes subject to §5 preclearance.

 

-l4-

It has been recognized that in enacting §5, Congress meant
"to reach any state enactment which altered the election law of a

covered State in even a minor way." Dougherty County Ga. V. White,

 

439 U.S. 32, 37 (1978); Allen v. State Board of Elections, 393

 

U.S. 544, 566 (1969). In 1982 Congress extended the expiration
date of §5 for 25 years. The continuing intent of Congress to
cover all changes relating to elections, those which are complex
as well as those which are subtle, is reflected in the legislative
history of Voting Rights Amendments of 1982. Voting Rights
Amendments of 1982, Sec. 2, P.L. 97-205, 96 Stat. 131; Report of
the Committee of the Judiciary of the United States Senate on
S.B. 1992, Report No. 97-417, at 9-12 (copy attached as Exhibit
B) (hereafter "Senate Report").

There can be no serious question that 55 of the Voting
Rights Act covers the apportionment of state legislatures.

McDaniel v. Sanchez, 452 U.S. 130 (1981); United Jewish Organizations

 

 

v. Carey, 430 U.S. 144 (1977); Georgia v. United States, 411
U.S. 526, 535 (1973). Indeed, the Senate Report notes, "The
continuing problem with reapportionments is one of the major
concerns of the Voting Rights Act.“ Senate Report at 12, n.31.
In fact, the Senate Report at p. 12 specifically notes the Attorney
General's objectionsto the redistricting of the North Carolina
General Assembly as evidence of the continuing need for §5.

The Cavanagh plaintiffs contend, however, that the 1967
amendments to the State constitution prohibiting division of
counties were not "different from [those] in force or effect on

November 1, 1964" because the practice had never been to divide

-]_5-

counties. This argument is counter to common sense and applicable
case law.

As a matter of common sense, changing from an apportionment
scheme which apportioned representatives to counties without
regard to population, which required that each county have at
least one representative, and which, because of actual propula-
tion, resulted hiatleast eleven majority non—white districts toa
scheme which apportions according to population, prohibits division
of counties, and has no assurance of any majority black representa-
tive districts Constitutes the adoption of a method of apportion-
ment which is different. Whether the difference had the purpose
or effect of diluting minority voting strength, is, of course,

not for this Court to determine. See Morris v. Gressette, 430

 

U.S. 491 (1977); part IIA, supra.

Similarly, changing the Senate apportionment provisions
from a rule which specifically allows the division of some
counties to a rule which specifically prohibits the division of
any county is different. In fact, under the pre-1967 rule, the
division of Forsyth County, which is entitled to two or more
senators, would have been specifically allowed.

It defies logic to say that the State went to the trouble to
amend its constitution by promulgating an amendment that was not
different and did not change it.

Case law supports the conclusion that adopting a rule which
incorporates a prior practice is a change subject to the pro-
visions of §5. Continuing to use one feature of an election

process in a new form of government was held to be subject to

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§5 preclearance in City of Lockhart v. United States, Civil

 

Action No. 80-364 (3 judge court) (D.D.C. 1981), appeal pending
____U.S.____, 50 U.S.L.W. 3695 (1982) (COpy attached as Exhibit
C). In City of Lockhart, the City changed from a "general law"
government with a three member commission with numbered posts to
a "home rule" government with a five member city council, also
with numbered posts. The Court held that the inclusion of
numbered posts in a new election scheme was a change and that the
inclusion of that feature was subject to SS preclearance.

City of Lockhart, slip. 0p. at 7.

The Court based its ruling primarily on two reasons.

First, the City had "abolished completely the commission form of
government and substituted in its stead an entirely new form of
city government with an entirely new election scheme.“ id; at 8.
Similarly, even though the pre-l964 apportionment of the North
Carolina House of Representatives used whole counties as building
blocks, that method of apportionment was completely abandoned and
an entirely different method, based on population rather than on
local government representation, was substituted. In the Senate
a system that allowed legislative discretion as to the division
of counties was abandoned for a system which eliminated all
legislative discretion.

Second, in City of Lockhart the previous use of numbered
posts had been illegal under state law. Id; at 8-9. “[T]he
numbered post provision, illegitimate at inception, must be
treated for §5 purposes as if it had never existed until it

appeared legitimately pursuant to Texas law in the 1975 Lockhart

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City Charter." 19; at 9.

Similarly, the pre-l965 method of apportioning the North
Carolina House of Representatives requiring that each county have
at least one representative was unconstitutional. In Drum v.
Seawell, 249 F.Supp. at 880, the Court held that provision of the
State Constitution to be "null and void." Since it had been
unconstitutional from its inception, it to must be treated for §5
purposes as if it never existed. As the Court concluded in

City of Lockhart, supra, the validation of this previously

 

illegal aspect of the apportionment scheme represents a change in
voting procedures subject to Section 5 preclearance. Slip opinion
at 9.

In County Council of Sumter Co., South Carolina v. United

 

States, Civil Action No. 82-0912 (D.D.C. 1983) (3 judge court)
(copy attached as Exhibit D), the Court concluded that adopting a
rule which incorporates a previous practice is subject to §5
preclearance. Plaintiffs argued that the g3 jppg change to an at
large election of the county governing body was not required to
be precleared under §5 since the previous g3 fgppp governing body
had also been elected at large. The Department of Justice had
not objected to the change in form of government but only to the
at large aspect of the election. The Court noted that g3 'ure
changes, that is changes in rules, as well as pg facto changes,
changes in practice, are subject to preclearance. The Court held
that adoption of the at—large election system required preclearance.
Slip opinion at 9—11.

The Sumter County case is in many aspects similar to the

question at bar. In Sumter County, plaintiffs argued that the

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power to govern Sumter County before 1964 lay in the at large
elected legislative delegation. Subsequently, South Carolina
enacted a local bill changing the government to an at large
elected county council. This change was required to be pre—

cleared but was not. See Blanding v. Dubose, 454 U.S. 393, 70

 

L.Ed.2d 576, 579 (1982). Subsequently, the South Carolina
General Assembly enacted a Home Rule Act requiring counties to
choose between an at large and a district representation form of
governance. Whether Sumter County's choice of a form of govern—
ment under the Home Rule Act was subject to the requirements of

SS preclearance was the question in Sumter County v. U.S., supra.

 

The Court held that this choice, adopting the alternative of at
large elections, was subject to preclearance even though, as a
matter of practice, it was not disputed that the governing body
had been elected at large before.

Similarly, in this situation, even if as a matter of practice
counties had not been divided in apportioning the legislature
before 1964, the State made a g2 jppg change in the parameters
for apportioning the Senate by taking away the legislative option
of dividing counties. This decision was a real change. It took
away, for example, the ability of black citizens to try to pursuade
their representatives to create majority black districts by
dividing counties.

The change is even more striking in the House, because the
whole method of apportionment was changed. To be sure, the

4/
General Assembly was required to make the change. — See

 

4/

_ Legislative changes made in response to court orders are
nonetheless subject to the preclearance requirements of §5.
McDaniel v. Sanchez, 452 U.S. 130 (1981).

 

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Drum v. Seawell, supra. But in fashioning a new scheme, they,

 

like the Sumter County Council, chose between a myriad of options.
That choice itself is subject to §5 scrutiny to assure that it
had neither the purpose nor the effect of diluting black voting
strenth.

Because the substitution of the prohibition against dividing
counties contained in Article II §5(3) is different from the
express permission to divide counties contained in Article II S4
in 1965, North Carolina has adopted an election procedure with
regard to opportioning the North Carolina Senate different than
that in effect on November 1, 1964. Because North Carolina
fundamentally changed the entire method of apportioning the House
of Representatives,from one which apportioned representative
districts to counties in an unconstitutional way and assured at
least 11 majority non-white representative districts to one which
apportions representatives according to population, selected the
option of making counties the subunits of representative districts,
and does not assure any majority non-white representative districts,
North Carolina adopted an election procedure with regard to
apportionment of the House of Representatives different than than
in effect on November 1, 1964. The adoption of each provision
was a change subject to the preclearance of §5 of the Voting
Rights Act, and the objection of the Attorney General is binding.

III. Since Article II §§3(3) and 5(3) are unenforcable

in the 40 counties covered by §5, they are not
enforcable in the other 60 counties either.

A. The equal protection clause of the Fourteenth Amendment

prohibits application of the prohibition against dividing counties
in come counties but not others.

The effect of the Attorney General's objection to Article II
§§3(3) and 5(3) is that those provisions may not be enforced in

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the 40 counties of North Carolina which are jurisdictions covered
by Section 5 of the Voting Rights Act. 42 U.S.C. §1973c;
Conner v. Finch, 431 U.S. 407 (1977).

Thus, North Carolina's counties have been divided into two
groups: (1) the 40 in which the legislature can use its best
judgment as to whether to divide counties in the apportionment of
the legislature; and (2) the 60 in which the legislature may not
exercise that discretion. This dichotomy denies defendant-
intervenors equal protection of the law in violation of the
Fourteenth Amendment to the United States Constitution.

Because the requirements for the apportionment of the
legislature affectsthe fundamental right of citizens to vote, the
differentation in the treatment of counties must be closely
scrutinized. The Court may not uphold the distinction unless the
Court finds that it is justified by a compelling state interest.
Harper v. Virginia State Board of Elections, 383 U.S. 663, 670
(1966); Dunston v. Scott, 336 F.Supp. 206, 212 (E.D.N.C. 1972);

Clayton v. North Carolina State Board of Elections, 317 F.Supp.

 

915, 920 (E.D.N.C. 1970).

The issue of the application of election laws to some
counties in North Carolina and not to others was addressed by the
Court in both Dunston v. Scott, supra, and Clayton v. North
Carolina State Board of Elections, supra.

In Clayton v. State Board, supra, the Court held that a law
setting the distance from polling places within which no electioneering
was allowed denied equal protection since it applied only to 6 of
North Carolina's 100 counties. As in Clayton, there is no demo—

graphic reason to treat the 40 §5 counties differently than the

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60 not covered by §5. The 40 are "dissimilar among themselves,
each has its counterpart among one or more of the remaining
[sixty] with regard to size, racial composition, and rural or
urban character." 317 F.Supp. at 921. For example Guilford,
which is covered by §5, is more similar to Forsyth in terms of
size, location, racial composition, and urban character than it
is to Bertie County or Cleveland County, both of which are also
included in the 40.

In Dunston, supra, the Court held both a numbered seat law
and an anti-single shot vote provision which applied in some
multimember legislative districts and not others to deny equal
protection of the laws. The Court "preceive[d] no justification
for adopting the law for some districts and exempting others."
386 F.Supp. at 206.

In this instance, it is also hard to justify the differentia-
tion between counties. The State does not attempt to supply a
rationale. Indeed, in its Response to Plaintiffs' Motion for
Summary Judgment and Cross—Motion for Summary Judgment, the
State argues that the provisions were never intended to apply to
only some counties. lg; at 10—12. The State not only does not
justify but also does not want the lack of uniformity. This is
apparently the intention of the legislature as well since, once
the provision was unenforcable in some counties, the legislature
acted as if it was unenforcable in the rest as well.

The only possible rational difference between the 40 and the

60 is that the 40 are covered by §5 and the 60 are not. This,

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5/

however, does not justify the difference. Section Sldoes not
prohibit the non-covered counties from being treated the same,
and there is no apparent reasons why the legislature should not
be allowed to use its best judgment about when and if to divide
the 60 counties as well as the 40.

This reasoning was recognized with regard to the numbered
seat law in Dunston, supra. The State argued that the numbered
seat law made the multi—member districts more like single member
districts and less likely to offend the Fourteenth Amendment.
The Court responded by saying that even if that were correct,
there was no reason not to use this remedy for all multi-member
districts.

Similarly, if the prohibition against dividing counties
causes dilution of minority voting strength, as the Attorney
General found in his objection letter of November 30, 1981,
there is no reason to allow the legislature to avoid that result
in some counties and not in others. The General Assembly adopted
the criteria of dividing counties when necessary "to avoid the
dilution of the voting rights of racial minorities... ." See
Reapportionment Criteria, paragraphs 2 and 4, attached as Hale
Affidavit No. 2, Exhibit A' to defendants' Response and Cross-
Motion.

As in Dunston, the need to avoid dilution of minority

voting strength in the §5 counties does not justify not doing it

 

5/

_ The basis for determining coverage under SS is whether
the jurisdiction used a literacy test on November 1, 1964 and
whether less than half of the voting age population voted in the
1964 Presidential election. 42 U.S.C. §l973b. This test bears
no relation to whether there is a need to divide a county in
order to avoid diluting minority voting strength.

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in the other 60 counties.

There is no rational reason for the distinction, much less a
compelling state interest in treating the counties differently.
Applying Article II, §§3(3) and 5(3) to the 60 counties not
covered by §5 of the Voting Rights Act while it is not enforce-
able in the 40 counties covered by SS denies those defendant-
intervenors who live in the 60 non-covered counties equal pro—
tection of the laws and violates the equal protection clause of
the Fourteenth Amendment to the United States Constitution.

B. Article II, §§3(3) and 5(3) are not severable; if they
are not enforceable in all counties, they are not enforceable in
any counties.

Under North Carolina law, if one part of a statute is held
to be invalid, the rest of the statute retains its validity only

if the remaining part is independent or separable and complete

unto itself. Flippin v. Jarrell, 301 N.C. 108, 270 S.E. 2d 482,

 

488—9 (1980); State v. Smith, 143 S.E. 2d 293, 298, 296 N.C. 173
(1965).

This rule applies equally when a portion of the state
constitution or any provision of it is invalid because it
violates the Constitution of the United States. Constantian v.
Anson Co., 244 N.C. 221, 93 S.E. 2d 163, 168 (1956). The logic
applies equally, of course, when the State constitutional pro-
vision is partially unenforceable because it violates a federal
statute, such as the Voting Rights Act, as when it is invalid
because it violates the United States Constitution.

The question is whether the legislature, and the people,

intended the provisions to be severable or whether the legislature

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intended to create an interelated, "carefully meshed system."

Flippin v. Jarrell, 270 S.B. 2d at 489. The Court does not have

 

to find that it would be impossible to apply Article II §§3(3)
and 5(3) to some counties and not others, but rather the Court
should determine whether the legislature intended to create a
unitary, uniform scheme of apportionment. Thus, in Flippin,
supra, it would have been possible to apply the constitutional
part of the malpractice statute of limitations without applying
the unconstitutional part. The Court held that the constitu—
tional part was part of a system of time limitations for mal-
practice actions and refused to apply one part and not the rest.

Similarly, in passing the 1967 amendments to the North
Carolina Constitution, it is apparent that the legislature
intended to create the parameters for a uniform system of
apportionment of the legislature that was to be applied state—
wide. There is no evidence that anyone intended some parts of
the state to be apportioned by different rules than others.
Indeed, the legislation adopting the new apportionment scheme
provided, "The amendments set out in Section 1 through 6 of this
Act shall be submitted pp 3 ppip to the qualified voters of the
State at the next general election." Chapter 640 of the Session
Laws of 1967, Section 7 (emphasis added). The voters did not
have the option of adopting the amendments for only some counties;
it was an all or nothing proposal.

Of course, there is nothing to suggest that the legislature
or the people anticipated that the provisions would be partially

unenforceable, but there is nothing about Article II, §§3, 4, 5

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and 6, which deal with apportionment, to suggest that anyone
intended for the General Asembly to have different restrictions
for some parts of the State than for others.

The North Carolina Constitution creates an integrated
system of apportionment. The provision must stand or fall and
not be applied in one county but not another. Thus the state
constitutional provision cannot be enforced in Forsyth while not
enforced in 40 other counties. Plaintiffs are not, therefore,
entitled to the relief they seek.

IV. Conclusion

The Attorney General has acted pursuant to §5 of the Voting
Rights Act by objecting to Article II §3(3) and §5(3) of the
North Carolina Constitution and has rendered those provisions
unenforceable in the 40 counties covered by §5. Since the
provisions are not uniformly enforceable, they are not enforce—
able in any county, including Forsyth. Plaintiffs base their
claim for relief entirely on the enforceability of these pro—
visions of the North Carolina Constitution. Since, as a matter
of law, the provisions may not be enforced, summary judgment
should be allowed for the Gingles class.

This Z day of February, 1983.

Respectfully submitted,

/)111 .4? “MW/w-
J.JLEVONNE CHAMBERS
LESLIE J. WINNER
Chambers, Ferguson, Watt, Wallas,
Adkins & Fuller, P.A.
951 South Independence Boulevard
Charlotte, North Carolina 28202
704/375—8461

 

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JACK GREENBERG

LANI GUINIER

Suite 2030

10 Columbus Circle

New York, New York 10019

Attorneys for Defendant—Intervenors

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