Invoice to Harkins

    IN THE
UNITED STATES DISTRICT COURT
FOR THE .
WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

 

GEORGE SIMKINS, RALPH GINGLES,
Plaintiffs,
v.

STATE BOARD OF ELECTIONS OF

NORTH CAROLINA: KENNETH R. BABB,
JOHN L. STICKLEY, SR., RUTH
SEMAXHKO, SYDNEY F. C. BARNWELL
and SHIRLEY HERRING, individually
and in their official capacities
as members of the State Board of
Elections of North Carolina,

Civil Action

No.

Defendants.

 

COMPLAINT

I

Jurisdiction

Jurisdiction of this Court is invoked pursuant to 28
U.S.C. §§l33l and 1343. Plaintiffs' claims for relief arise
under A2 U.S.C. §§1973 and 1983. Plaintiffs seek injunctive
relief and a declaratory judgment pursuant to 28 U.S.C. §§22Dl

and 2202.
II
Class Action

Plaintiffs bring this action on their own behalf and on
behalf of all other persons similarly situated, pursuant to
Rule 23(a) and Rule 23(b)(c), Federal Rules of Civil Procedure.
Plaintiffs represent the class of black citizens residing in'

Guilford. County and Gaston County who are registered to vote

in federal, state, and local elections in Guilford County

and Gaston County. Said class members are adversely

affected by the practices of defendants challenged herein and
will continue to be adversely affected as long as such prac-
tices remain in effect. The class constitutes and identifiable
social, racial and political minority in the counties in which
they reside. There are common questions of law and fact
affecting the rights of the members of the class. The class

is so numerous that joinder of all members is impracticable.
The claims of the plaintiffs are typical of the claims of the
class. Plaintiffs will fairly and adequately protect the ina
terests of the class. Defendants have acted or refused to act
on grounds generally applicable to members of the class. The
prosecution of separate actions by individual members of the
class would create a risk of inconsistent and varying adjudica-
tions with respect to individual members of the class and would
establish incompatible standards of conduct for the party op-
posing the class. Moreover, the prosecution of separate actions
by individual members of the class would create a risk of
adjudications with respect to individual members of the class
which would, as a practical matter, be dispositive of the inter—

ests of other members not parties to the adjudications.

III

'Plaintiffs

A. Plaintiff George Simkins is a black citizen of the
State of North Carolina who resides in Guilford County, North
Carolina. Plaintiff is a registered voter in Guilford County
who is properly registered to Vote forelections to the House
of Representatives and the Senate of the General Assembly of
the State of North Carolina.

B. Plaintiff Ralph Gingles is a black citizen of the

State of North Carolina who resides in Gaston County, North

Carolina. Plaintiff is a registered voter in Gaston
County who is properly registered to vote in elections to
the House of Representatives and the Senate of the General

Assembly of the State of North Carolina.
IV

Defendants

A. Defendant State Board of Elections of North Carolina
is granted, pursuant to General Statutes of North Carolina,
§l63—22, "general supervision over the primaries and elections
in the State." It has specific statutory authority to "make
such reasonable rules and regulations with respect to the
conduct of primaries and elections as it may deem advisable,"
G.S. §l63-22. Pursuant to statute, it also has authority,
where the election laws have been violated, to "order that a
new primary, general or special election be held, either state—
wide, or in any counties, electoral districts, special districts,
or municipalities over whose elections it has Jurisdiction."
G.S. §l63,22.l.

B. Defendant Kenneth R. Babb is a member Of the North
Carolina State Board of Elections and also serves as Chairman
of the State Board of Elections in accordance with G.S. §163—23.

C. Defendants John L. Stickley, Ruth Semaxhko, Sydney
F. C. Barnwell, and Shirley Herring, are members of the State
Board of Elections in accordance with G.S. §l63—l9.

D. As members of the State Board of Elections, defendants
Kenneth R. Babb, John L. Stickley, Ruth Semaxhko, Sidney F.

C. Barnwell, and Shirley Herring, are authorized, pursuant
to the provisions of G.S. §§l63—l9, 163—22, to exercise the

powers and duties of the State Board of Elections.

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V

Statement of Facts

 

1. In 1965, Congress enacted the Voting Rights Act,
42 U.S.C. §§l973 - 1973L. Pursuant to the provisions of
the Act, §§1973b of Title 42 of the United States Code,
approximately forty counties in the State of North Carolina,
including Guilford County and Gaston County, were made sube
ject to Section 5 of the Voting Rights Act of 1965, as amended,
42 U.S.C. §l973c. Under §l973c, political subdividions sub-
ject to the requirements of 42 U.S.C. §l973b are prohibited
from enacting or administering 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, without first (1) submitting the same
to the Attorney General of the United States for approval
pursuant to 42 U.S.C. §1973c or (2) obtaining, pursuant to
42 U.S.C. §1973c, a declaratory judgment from the District Court
for the District of Columbia that such qualification or pre—
requisite or standard or practice or procedure does not haVe
the purpose and will not have the effect of denying or abridging
the right to vote on account of race or color.

2. The Constitution of the State of North Carolina makes
the following provisions with respect to election of members
to the Senate and the House of Representatives:

Art. II, §3. Senate districts; apportion—
ment of Senators. The Senators shall be
elected from districts. The General Assembly,
at the first regular session convening after the
return of every decennial census of population
taken by order of Congress, shall revise the
Senate districts and the apportionment of Senators
among those districts, subject to the following
requirements:

(1) Each Senator shall represent, as nearly
as may be, an equal number of inhabitants, the
number of inhabitants that each Senator represents
being determined for this purpose by dividing the

population of the district that he represents by
the number of Senators apportioned to that district.

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(2) Each senate district shall at all
times consist of contiguous territory;

3. In 1967, Art. II, §3, was amended to provide that:
"(3) No county shall be divided in the formation of a senate
district."

4. Article II, §5, of the Constitution of the State of)
North Carolina provides that:

Sec. 5. Representative districts; appor-
tionment of Representatives. The Representatives
shall be elected from districts. The General
Assembly, at the first regular session convening
after the return of every decennial census of
population taken by order of Congress, shall
revise the representative districts and the
apportionment of Representatives among those
districts, subject to the following requirements.

 

 

(1) Each Representative shall represent,
as nearly as may be, an equal number of inhabi-
tants, the number of inhabitants that each
Representative represents being determined for
this purpose by dividing the population of the
district that he represents by tMBnumber of
Representatives apportioned to that district;

_ (2) Each representative district shall
at all times consist of contiguous territory;

5. In 1967, Art. II, §5, of the Constitution of North
Carolina was amended to provide that "(3) No county shall
be divided in the formation of a representative district."

6. Neither the 1967 amendment to Art. II, §3, nor the
1967 amendment to Art. II, §5, has been submitted for approval,
pursuant to the terms of 42 U.S.C. §1973c, to the Attorney
General of the United States. Since adoption of the amendments,
no action has been instituted, on behalf of Guilford County
or Gaston County or on behalf of the State of North Carolina,
in the District Court of the District of Columbia to obtain,
pursuant to 42 U.S.C. §1973c, a declaratory judgment that the
aforementioned amendments to the North Carolina Constitution
do not have, with respect to the aforesaid counties, the-pur-"
pose and will not have the effect of denying or abridging the
right to vote on account of race or color.

7. Pursuant to the provisions of Art. II, §3(3), 5(3) of

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the North Carolina Constitution, the State of North Carolina
implemented a reapportionment of the House of Representatives
and Senate of the General Assembly of the State of North
Carolina. The reapportionment determined the nature, shape,
and location of election districts composing all or parts of
Guilford County and Gaston County in accordance with the
provision of Art. II, §3 that "(n)o county shall be divided

in the formation of a senate district" and in accordance with
the provision of Art. II, §5 that "(n)o county sha11,be divided
in the formation of a representative district."

8. Pursuant to the above described apportionment,
the defendant State Board of Elections and the defendant members
of the State Board of Elections, have promulgated and imple—
mented rules and regulations governing the conduct of primaries
and elections. Moreover, said defendants have acted to compel
observance of the requirements of Art. II, §§3, 5 of the North
Carolina Constitution for elections to the House of Representa—
tives and the Senate of the General Assembly of the State of
North Carolina.

9. Pursuant to the terms of Art. II, §§3, 5, the General
Assembly, at the first regular session convening after the
return of every decennial census of population taken by order of
Congress, has the responsibility of revising the Senate and
Representative districts and the apportionment of Senators
and Representatives from those districtfl Pursuant to said
reapportionment, defendants will promulgate rules and regulations
governing primaries and elections in the districts for election
to the General Assembly. Unless restrained by the Court, de-
fendants will effectuate the terms of the apportionment in
accordance with the requirements of Art. II, §§3, 5, the 1967
amendments to,the North Carolina Constitution, that no county
is to be divided in the formation of either a Senate district or

a Representativecdistrict.

VI

Claim For Relief

1. As a claim for relief, plaintiffs allege that
defendants’ enforcement of, and compliance with, the 1967
amendments of Art. II, §3, §5, of the North Carolina
Constitution providing that no county shall be divided in the
formation of a Senate or Representative district, constitute
a "standard, practice, or procedure with respect to voting
different from that in force or effect on November 1, 1964"
in the counties of Guilford and Gaston, North Carolina.

2. Defendants' actions in assisting or administering
in 1968, 1970, 1972, 1974, 1976, 1978, 1980, the election
of Representatives and Senators from Guilford County and Gaston
County, have resulted in use of a "standard, practice, or pro—
cedure with respect to voting different from that in force
or effect on November 1, 1964" in said counties.

3. On information and belief, plaintiffs allege that,
in 1981 or 1982, the defendants will administer the election
to the General Assembly of Senators and Representatives
representing the people of Guilford County and Gaston County
in accordance with Art. II, §3(3), §5(3), will thereby apply
in those counties a standard, practice, or procodure with
respect to voting different from that in force or effect on
November 1, 1964" in said counties.

4. Since 1967, defendants have instituted and applied in
the aforementioned counties, the above described standard,
practice, or procedure with respect to voting that is different
from that in effect on November 1, 1964, without having submitted
the standard, practice, or procedure to the Attorney General
of the United States for approval pursuant to 42 U.S.C. §1973c,
that the proposed standard, practice, or procedure, will not
have the purpose or the effect of denying or abridging the right

to vote on account of race or color.

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5. Defendants' implementation and execution of Art. II,
§3(3) and Art. II, §5(3), have the purpose and effect of deny—
ing or abridging plaintiffs' and class members' right to vote
on account of race or color. The implementation and enforce—
ment of Art. II, §3(3), §5(3) also have the purpose and effect
of diluting the voting strength of minority voters and deny-
ing minority candidates for election to the General Assembly
an equal opportunity for winning election.

6. Defendants' actions in implementing and enforcing Art.II,
§§3(3), §5(3) of the North Carolina Constitution with respect
to voting in Guilford County and Gaston County, violate 42 U.S.C.

§1973c, and entitle plaintiffs to relief.

WHEREFORE, plaintiffs pray that this Court issue:

(a) A declaratory judgment requiring defendants
to conduct elections to the General Assembly for Guilford County
and Gaston County without regard to the provisions of Art. II,
§3(3) and Art. 11, §5(3), of the North Carolina Constitution;

(b) A declaratory judgment that the election of‘
Senators and Representatives for the counties of Guilford and
Gaston in accordance with the provisions of Art. II, §3(3),
§5(3) of the North Carolina Constitution, is specifically pro-
hibited by federal law;

(c) An injunction enjoining defendants and their
successors from conducting any election in Gaston County and
Guilford County to the House of Representatives or the Senate
of the State of North Carolina in accordance with the provisions
specified in Art. II, §3(3), §5(3) of the Constitution of North
Carolina.

(d) An injunction enjoining defendants and their
successors from conducting elections in the counties of Guilford
and Gaston to the North Carolina House of Representatives and
Senate in accordance with any apportionment of the House of

Representatives or Senate where the apportionment of seats

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representing citizens of the State residing in the aforesaid
counties is based upon compliance with Art. II, §3(3), §5(3),
of the North Carolina Constitution; and

(e) An order granting such other and further
relief to the plaintiffs and the class they represent as
the Court may consider just and proper.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS
LESLIE WINNER

Chambers, Ferguson, Watt, Wallas,
Adkins & Fuller, P. A.
Suite 730
951 So. Independence Boulevard
Charlotte, North Carolina 28202
(704) 375—8461

By:

 

JULIUS LeVONNE CHAMBERS
Attorney for Plaintiffs

Date: