Memorandum in Support of Plaintiffs' Motion to File Third Supplement to Complaint and to Amend Complaint; Motion to File Third Supplement to Complaint and to Amend Complaint

    RALPH GINGLES, et 41. ,

Plaintiffs,

v.

RUFUS EDMISTEN, €t a1.,

Defendants.

8 ;6' s z

MEMOMNDUM IN SUPPORT OF
PLAINTIFFS, MOTION TO FILE
THIRD SUPPLE},IENT TO COMPLAINT

AND TO AMEND COMPLAINT

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

ITALEIGH DIVISION
N0. 81-803-Crv-5

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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 aetion all-eges 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 citizejns in violation of the

Voting Rights Act of 1965, as amended, 42 u.S.C. S51983 and

L973c, the Fourteenth and Fifteenth Amendments to the United

States Constitution, and 42 U.S.C. S198f. The Complaint and

the Supplements to the Complaint further a11ege 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 L7, 1982

plaintiffs filed supplements to the Complaint to reflect



changes in the apportionment of the North carolina senate and

House of Representatives enacted after this action was

filed.

II. Facts Relevant to this Motion

subsequent to the filing of the second supplement to
the complaint on March 17, L982, the united states Depart-

ment of Justice entered objections to the apportionments

of the North carolina General Assembly 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 new apportionments

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

1 and 2 of the Second Extra Session Laws of L982.

Plaintiffs file this motion to further supplement

their complaint to put the apportionments which were 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 L982 Amendments to
the Voting Rights Act of 1965 v/ere 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, 96 stat 131 and

Senate Report at L77 , et seq. , (Ju1y , L982) . Section 3 of

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the amendment amends 52 of the Act 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 a1le-

gations made prior to the amendment to 52 in conformity with

the newly enacted standard.

III. Argument

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

a party the court f,ay, upon reasonable notice and
upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions
or occurrences or events which have happened since
the date of the pleading sought to be supplemented.
Permission may be granted even though the original
pleading is defective in its statement of a claim
for relief or defense. If the court deems it
advisable that the adverse party plead to Lhe sup-
plemental pleading, it shall so order, specifying
the time therefor.

Just as this Court entered Orders allowing plaintiffs to

file the First and Second Supplements to the Complaint, plain-

tiffs should now be allowed to file this Third Supplement.

The Third Supplement to the Complaint which plaintiffs seek

to file sets forth transactions, occurrences, and events which

happened subsuquent to the filing of the last prior supple-

ment. The parties remain indentical. The Third Supplement to

the Complaint asserts facts which are necessary to a meaningful

determination of the issues already before the Court, and it

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asserLs claims which raise issues which are the same or

are similarto the issues already before the Court. In

addition, the claims in plaintiffs' proposed Third Supple-

ment to the Complaint require a three judge court under

28 U.S.C. 52284 as do the original and supplemental complaints.

Thus judicial economy requires that plaintiffs again be

allowed to supplement their complaint.

In 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 Rights Act.

Rule 15(a), F.R.Civ.P., provides in pertinent part

that a party may amend a pleading by leave of court "and leave

sha1l 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 would be amended.

Thus is is only faLr to allow plaintiffs to amend their
allegations about past occurrences in light of new legal

requirements.

Furth.ermore, defendants will not be prejudiced by

this amendment. While the 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 allow
all parties to gather and discover the newly relevant evidence.

Plaintiffs therefore request that the Court enter an

order allowing plaintiffs to file their Third supplemenr to

the Complaint and Amendment 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 fi1ed.
This lt" day of , Lg82.

,:)

LESLIE J.

l/rw-\-

Suite 730 East Independence Plaza
951 South Independence Boulevard
Charlotte, North Carolina 28202
704 / 37s-8461

JACK GREENBERG
NAPOLEON WILLIAMS
LAN] GU]NIER
suite 2030
10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiff

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CERT]FICATE OF SERVICE

I certify that I have served the foregoing Motion to
File Third supplement and to Amend complaint with atraehed

proposed supplement and Amendment and Memorandum in support

of Plaintiffs' Motion to File Third supplement to complaint

and to Arnend Complaint on all other parties by placing a

copy thereof enclosed in a postage prepaid properi-y addressed

wrapper in a post office or official depository under the

exclusive care and. custody of the United States Postal Service,

addressed to:
Mr. 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 Street, NW
Suite 1020
Washington, DC 20006

Hamilton C. Horton, Jr.
I,trhitirg, Horton & Hendrick
450 NCNB Plaza
Winston-Salem, North Carolina 27L01

Mr. 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 Street
Salisbury, North Carolina 28L44

This /A day of O :^---L , L982.
L/

ttorney.

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8",'',,

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

MLEIGH DIVISION
NO. 81-803-CrV-5

MLPH GINGLES. et 41. ,

Plaintiffs,

v.

RUFUS EDMISTEN, €t aL.,

Defendants.

MOTION TO FILE THIRD
SUPPLEMENT TO COMPLAINT
AND TO AMEND COMPLAINT

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

of Civil Procedure, plaintiffs move to further supplement

and to amend their complaint. Plaintiffs seek to suPPle-

ment their complaint to al1ege 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 L7, L982. Plaintiffs seek to amend their complaint 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 (July Lg82).

Plaintiffs'proposed Third Supplement to the Complaint

and Amendm'ent to the Complaint is attached hereto.

Plaintiffs further request that defendants be ordered

to file an answer to the Supplement and Amendment to the

Complaint.

This / a day of Crra"- t- , Lggz.
U



.:

f."

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

Suite 730 East Independence PLaza
951 South Independence BouLevard
Charlotte, North Carol-ina 28202
704 / 37s-8461

JACK GREENBERT,
NAPOLEON WILLIAMS
LANI GUINIER
Suite 2030
10 Columbus Circle
New York, New York 10019

Attorneys for Pl-aintiffs

LESLIE J.

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