Defendants Response to Motion to Join and Substitute Parties

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IN THE I]NITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

MLEIGH DIVISION
NO. 81-803-CrV-5

MLPH GINGLES, et a1. , )
)

Plaintiffs, \( MOTIoN TO FILE THrRD

v. a SUPPLEMENT TO COMPIA.TNT
{ aND To AMEND CoMPLAINT
)

RUFUS EDMISTEN, et a1., )
)

Defendants. )

Pursuant to Rule 15(a) and (d) of the Federal Rules

of Civil Procedure, plaintiffs move to further supplemenE

and to amend their complaint. PLaintiffs seek to supple-

ment their complaint to a11eie changes in the apportionment

of the North Carolina General Assembly which have been enacted

since the Complaint in this action was Last supplemented on

March 17, 1982. Plaintiffs seek to amend their complainE to

conform with the amendments to 52 of the Voting Rights Act

of L965, which became law on June 29, L982. See 5 U.S. Code

Congressional and Administrative News, 96 Stat 131 (Ju1y L982) .

Plaintiffs'proposed Third Supplement to the Complaint

and Amendment Eo the ComplainE is aEtached hereto.

Plaintiffs further request that defenCants be ordered

to file an answer to the Supplement and Amendment to the

Complaint.

This / A day of C*u,n- t- , Lg82.--T



a

Chambers, Ferguson, Watt, Wallas,
Adkins & Fuller, P.A.

Suite 730 East Independence PLaza
951 South Independence Boul-evard
Charlotte, North Carolina 28202
704 / 375-846L

JACK GREENBERG
NAPOLEON WILLIAMS
I.ANI GUINIER
Suite 2030
L0 Columbus Circle
New York, New York L00L9

Attorneys for Plaintiffs

gg r v-r.r- I

LESLIE J. W

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MLPH GINGLES, et al. ,

Plaintiffs,
v.

RUFUS EDMISTEN, et al.,
Defendants.

/'()
8-d s

MEMOMNDUM IN SUPPORT OF
PI.AINTIFFS' MOTION TO EILE
THIRD SUPPLEMENT TO COMPIJ.INT

AND TO AMEND COMPLAINT

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

IIALEIGH DIVISION
N0. 81-803-Crv-5

I. Nature of Case

Plaintiffs in this action are the class of black resi-
dents of the State of North CaroLina who are registered

to vote. The complaint in this action alleges that the

provisions of the North Carolina Constitution which prohibit
dividing counties in the apportionment of districts for
the North Carolina House of Representatives and the North

Carolina Senate have the purpose and effect of diluting
the voting strength of black citizeins in violation of the

Voting Rights Act of 1965, as amended, 42 U.S.C. SS1983 and

L973c, the Fourteenth and Fifteenth Amendments to the United

States Cons.titution, and 42 U.S.C. SL981. The Complaint and

the Supplements to the Complaint further aL1ege that the succes-

sive apportionments of the North Carolina General Assembly each

dilute black voting strength in violation of the Voting Rights

Act and the Fourteenth and Fifteenth Amendments to the United

States Constitution. On November L9, 1981 and on March 17, L982

plaintiffs filed supplements to the Complaint Eo reflect



oa
changes in the apportionment of the North carolina senate and

House of Representatives enacted after this action was

fiLed.

II. Faets Relevant to this Motion

Subsequent to the fiLing of rhe second supplement ro
the complaint on March 17, Lglz, the united states Depart

ment of Justice entered objections to the apportionments

of the North carolina General Assembry which had been
enacted on February 11 , L982.

On April 26, L982, the General Assembly convened

for the purpose of amending the apportionments of the

North carolina General Assembly. These ner^l apportionments

vrere enacted on April 27, L982, and are contained in Chapters

1 and 2 of the Second Extra Session Laws of 1982

Plaintiffs file this motion to.further suppLement

their complaint to put the apportionments which qTere enacted

subsequent to the filing of the second supplement to the
complaint in this action and plaintiffs' challenges to them

before the Court. A proposed Third Supplement to the complaint

is attached to plaintiffs' 'motion.

In addition, on June 29, L982 the L9B2 Amendments to
the Voting Rights Acr of 1965 \rere signed into law.

These amendments include an amendment to g2 of the Voting
Rights Act of L965 which changes the standard for determining
whether there is a violation of the Act. see 5 u.s. code

congressional and Administrative News, 9G stat r3r and

Senate Report at L77 , et seq. , (Ju1y , LIBZ) . Section 3 of

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the amendnent amends g2 of the AcE to prohibit all voting
practices and procedures "which result in a denial or
abridgement of the right of any citizen of the united states
to vote on account of race or color... ."

Plaintiffs move to amend their complaint to put arle-
gations made prior to the amendment to 52 in conformity with
the newly enacted standard.

III. Argr:ment

Rule 15(d) of the Federal Rules of CiviL Procedure states:
(d) Supplemental Pleadings. Upon motion of

a party the court o8y, upon reasonable notice and
upon such terms as are just, permit him Eo serve a
suppLemental pleading setting forth transactions
or occurrences or events which have happened since
the date of the pleading sought to be iirpplemented.
Permission may _be granted even Ehough thl- original
pleading is defective in its staEement of a claim
for relief or defense. If the court deems it
advisable that Ehe adverse party plead to the sup-plemeltaI pleading, it shall so- oider, specifyin-gthe time therefor.
Just as this court entered orders allowing p1-aintiffs to

file the First and second supplements to the complaint, plain-
tiffs should now be allowed to file rhis Third supplemenr.

. The Third Supplement to the Complaint which plaintiffs seek

to file sets forth transactions; occurrences, and events which

happened subsuquent to Ehe filing of the last prior supple-

ment. The parties remain indentical. The Third supplement to
the Complaint asserts facts which are necessary Eo a meaningful

determination of the issues already before the court, and it

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oo

asserts claims which raise issues which are the same or
are similarto the issues already before Ehe court. rn

addition, the cl-aims in plaintiffs' proposed Third supple-

ment to the complaint require a three judge court under

28 v.s.c. 52284 as do the original and suppl-ementaL complaints

Thus judicial economy requires that p]-aintiffs again be

allowed to supplement their complaint.

rn addition, plaintiffs move to amend the complaint and

previous supplements to the complaint to put those aLlega-

tions in conformity with subsequent amendments to 52 of the

Voting Righrs Acr.

Rule L5(a), F.R.Civ.P., provides in pertinent part
that a party may amend a pleading by leave of court "and leave

shall be freely given when justice so requires. "
Justice requires that leave be given in this instance.

Plaintiffs, of course, had no way of predicting when the

original complaint and supplements were filed that, or in
what manner, 52 of the voting Rights Act wourd be amended.

Thus is is only fair to allow plaintiffs to amend their
allegations about past occurrences in tight of new regal
requirements.

Furth.ermore, defendants will not be prejudiced by

this amendment. Ifhile Ehe evidence under the new allega-
tions may vary from the evidence presented under the previous

allegations, plaintiffs and defendants have stipulated that

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discovery should be extended for a time sufficient to a11ow

alL parties to gather and di.scover the newly relevant evidence.

Plaintiffs therefore request thaE the Court enter an

order aLLowing plaintiffs to file their Third supplemenr to

the Complaint and Amendmenc to the Complaint and requiring
defendants to file an answer within 20 days after the Court's

Order allowing the Supplement and Amendment to be filed.
This )A day of , LIBZ.

,J

LESLIE J. trJt,INNER
Chambers, Ferguson, Watt, Wallas,

Adkins & Fuller, P.A.
Suite 730 East Independence PLaza
951 South Independence Boulevard
Charlotte, North Carolina 28202
704 / 37s-8461

JACK GREENBERG
NAPOLEON WILLIAMS
LANI GUINIER
Suite 2030
10 Columbus Circle
New York, New York L0019

Attorneys for PLaintiff

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CERTIFICATE OF SERVICE

r certify that r have served the foregoing Motion to
File Third supplement and to Amend complaint with artached
proposed Supplement and Amendment and Memoranduu in support

of Plaintiffs' Motion to File Third supplement to complaint
and to Amend complaint on all other parties by placing a

copy thereof enclosed in a postage prepaid properly addressed

wrapper in a post office or official depository under the

exclusive care and custody of the United States Postal. Service,
addressed to:
l,Ir. James WalLace, Jr.
Deputy Attorney General for

Legatr Affairs
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602

Mr. Jerris Leonard
900 ITth Streer, NW
suire 1020
Washington, DC 20006
Hamilton C. Horton, Jr.
trrlhiting, Horton & Hendrick
450 NCI{B PLaza
I.iinston-Salem, North Carolina 27L01

This /A day of ,4 ^ i

l,Ir. Robert N. Hunter, Jr.
Attorney at Law
Post Office Box 3245
201 West Market Street
Greensboro, North Carolina 27402

Mr. Arthur J. Donaldson
Burk, Donaldson, Holshouser

& Kenerly
309 N. Main Streer
Salisbury, North Carolina 28L44

, L982.
u

ECorne),
I

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