Cleveland County Ass'n v. Cleveland County Board of Commissioners

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 3, 1998 Decided May 1, 1998

No. 97-7097

Cleveland County Association for

Government by the People,

An Unincorporated Association, et al.,

Appellants

v.

Cleveland County Board of Commissioners, et al.,

Appellees

United States of America,

Amicus Curiae

Appeal from the United States District Court

for the District of Columbia

(No. 96cv01447)

Robinson O. Everett and Neil C. Williams, III argued the

cause and filed the briefs for appellants.

Kevin J. Lanigan argued the cause for appellee National

Association for the Advancement of Colored People, with

whom Sarah L. Kinnick was on the brief.

Michael Crowell argued the cause for appellee Cleveland

County Board of Commissioners, with whom E. Hardy Lewis

was on the brief.

Bill Lann Lee, Acting Assistant Attorney General, United

States Department of Justice, Mark L. Gross and Michelle

M. Aronowitz, Attorneys, were on the brief for amicus curiae

United States.

Harvey L. Pitt and Douglas W. Baruch were on the brief

for amicus curiae Harvey L. Pitt.

Before: Edwards, Chief Judge, Wald and Ginsburg,

Circuit Judges.

Opinion for the Court filed Per Curiam.

Per Curiam: As part of the settlement of a suit brought by

the National Association for the Advancement of Colored

People ("the NAACP") that challenged the method of voting

for members of the Board of Commissioners of Cleveland

County, North Carolina ("the Board"), the Board agreed to

adopt a plan that increased its size from five to seven

members and provided that voters would be permitted to cast

only four votes for the seven positions. The settlement

further provided that until elections could be held to fill the

two additional slots, these positions would be filled by appoin-

tees who were "representative of the black community" in the

county. Soon after the district court issued a consent decree

incorporating the parties' agreement, the Cleveland County

Association for Government by the People, an unincorporated

association of voters in the county, and six individual plain-

tiffs, all of whom are white (collectively, "the CCAGP"),

brought suit against the Board and the NAACP, challenging

the adoption of the plan as a violation of their constitutional

rights and as contrary to state law. The district court,

finding none of their challenges to be meritorious, granted

summary judgment in favor of the defendants. We conclude,

however, that the Board was without authority under state

law to consent to such a change in the election plan, and thus

we vacate the decree. Because the decree was invalid under

state law, we need not reach the CCAGP's constitutional

claims.

I. Background

From 1966 to 1994, the Board consisted of five members

elected at large every two years for staggered, four-year

terms. During that time, no African Americans had ever

been elected to the Board although they constituted 20.9

percent of the county's total population and 18.8 percent of its

voting age population in 1990. Between 1988 and 1994, there

had been attempts by five African Americans, all Democrats,

to win a seat on the Board, but none survived the primary

elections.

After the local chapter of the NAACP approached the

Board with concerns that the at-large method of election

thwarted the representation of African Americans on the

Board, the Board voted on March 16, 1992, to establish the

Special Commissioners Committee on County Governance

("the Committee"), which consisted of five members appoint-

ed by the Board and four members from the local NAACP

chapter. On November 2, 1992, the Committee recom-

mended the adoption of a new election method in which five

commissioners would be elected from single-member districts

and two commissioners would be elected from the county at

large. The Committee also recommended consideration of

three redistricting plans, each of which contained a majority-

minority district. The Board voted to accept these recom-

mendations and requested that the members of the General

Assembly representing Cleveland County introduce legisla-

tion authorizing a change in the election method and permit-

ting the Board to select a redistricting plan. Chapter 89 of

the North Carolina Session Laws of 1993, which authorized

these changes, was ratified on June 1, 1993, although it

expired by its own terms in January 1994 when the Board

was unable to agree on a redistricting plan.1

__________

1 On October 5, 1993, a motion to proceed with one of the

recommended redistricting plans failed by a vote of two to three.

The NAACP and several individual plaintiffs thereafter

filed suit against the Board, challenging the county's at-large

electoral system. On July 22, 1994, after mediation, the

Board and the NAACP entered into a consent decree, signed

by the district court below,2 which instituted two primary

changes in the structure and election of the board: the

expansion of the Board from five to seven members, all

elected at large, and the adoption of limited voting. Camp-

bell v. Cleveland County Bd. of Comm'rs, No. 94-0845-S

(D.D.C. July 22, 1994). Beginning in 1998, the entire seven-

member Board would be elected for concurrent four-year

terms in partisan primary and general elections, with each

voter to be allocated only four votes in each election. After

the 1998 election, the district court would be permitted, on

the NAACP's petition, to reduce from four to three the

number of votes that could be cast by each voter if the

election system used in 1998 had not "provided an equal

opportunity, based on the totality of the circumstances, for

black citizens to nominate and elect candidates of their

choice." (The Board could effect a similar reduction on its

own by adoption of a resolution.3)

__________

2 The suit had originally been filed in North Carolina, but because

it concluded that the Board was raising a constitutional challenge to

the Voting Rights Act as a defense, the district court in North

Carolina, relying on 42 U.S.C. s 1973l (1994), transferred the suit to

the U.S. District Court for the District of Columbia.

3 On February 4, 1998, the district court ordered, on the joint

motion of the NAACP and the Board, a modification to the consent

decree that staggers the terms of the seven-member Board while

maintaining limited voting (i.e., two votes for either three or four

seats). The modification also provides that following the 2000

election and prior to July 1, 2001, any registered voter may petition

the court to reduce from four to three the number of votes that may

be cast over a four-year election cycle; in determining whether to

grant the petition, the court will consider "whether the election

method used in 1998 and 2000 has provided an equal opportunity,

based on the totality of the circumstances, for all citizens to

nominate and elect candidates of their choice without regard to

race." Campbell v. Cleveland County Bd. of Comm'rs, No.

94-0845-S (Feb. 4, 1998).

The decree also established an interim policy for the period

between the adoption of the consent decree and the 1998

elections. Of the original five members, the two elected in

1994 would serve four-year terms, as previously scheduled,

and the three elected in 1996 would serve only two-year

terms. The two new positions, however, were to be filled

after the 1994 election by the appointment of two persons

who were "representative of the black community in Cleve-

land County"; these officials were to be selected from a list,

created by the Board, of those citizens who it felt met that

criterion. The NAACP was permitted to review this list and

voice its objections to any person included. If the Board

ultimately selected someone to whom the NAACP had object-

ed, the Board's decision was subject to judicial review; other-

wise, the Board's selections were final. The plan was pre-

cleared under section 5 of the Voting Rights Act, 42 U.S.C.

s 1973c (1994), by the U.S. Attorney General on September

26, 1994.

Pursuant to the consent decree, the Board developed a list

of twenty-two potential candidates, all of whom were African

American, for the two newly created positions and, after

submitting it to the NAACP, selected two members from the

list. The NAACP had objected to both, and the district

court, exercising its review authority under the consent de-

cree, approved the appointment of Bobby C. Malloy but

rejected the other candidate. The Board then appointed

Mary Accor to the remaining position; both Malloy and Accor

are now serving as members of the Board.

On January 6, 1995, the CCAGP filed suit against the

Board to challenge the election plan, alleging that because the

two new members of the Board were to be appointed on the

basis of their race and because subsequent elections of Board

members were to be conducted in a race-based manner, the

plan violated the CCAGP's rights under the Fourteenth and

Fifteenth Amendments and the North Carolina Constitution.4

__________

4 The CCAGP filed an amended complaint on September 21, 1995,

to eliminate the Cleveland County Board of Elections, its members,

its supervisor, and Julian B. Wray, Cleveland County Attorney, as

On February 18, 1997, the district court denied the CCAGP's

motion for judgment on the pleadings and ordered that the

NAACP, as a party to the consent decree, be added as a

defendant.5 After filing an amended complaint,6 the CCAGP

renewed its motion for judgment on the pleadings or, in the

alternative, for summary judgment; both the Board and the

NAACP filed motions to dismiss. On May 19, 1997, the

district court denied the CCAGP's motion and granted sum-

mary judgment in favor of the Board and the NAACP.

Cleveland County Ass'n for Gov't by the People v. Cleveland

County Bd. of Comm'rs [hereinafter CCAGP], 965 F. Supp.

72 (D.D.C. 1997). The court first concluded that the CCAGP

had standing to bring the action, noting that "[t]hey are

registered voters and citizens of Cleveland County bringing

an action concerning an alleged violation of the Equal Protec-

tion Clause with respect to the election procedures used in

their county." Id. at 76. It also rejected the NAACP's

argument that the plaintiffs were estopped from bringing the

action because their interests were adequately represented in

Campbell, concluding that the CCAGP's interests and those

of Cleveland County "arguably are materially different." Id.

at 77.

__________

defendants and to update the chronology of the case. As the

district court noted, CCAGP's late involvement in these proceedings

was due to the fact that "there were no public hearings on the

Consent Decree prior to its acceptance by the Board of Commis-

sioners and little publicity was given to the case within Cleveland

County." Cleveland County Ass'n for Gov't by the People v.

Cleveland County Bd. of Comm'rs, 965 F. Supp. 72, 77 (D.D.C.

1997).

5 The CCAGP had originally filed in the Western District of

North Carolina, but the court there transferred the case on June 5,

1996, to the district court below, concluding that "the interest in

judicial economy" dictated that the same court that had entered the

consent decree hear the CCAGP's challenge to it.

6 The amended complaint alleged violations of the CCAGP's Four-

teenth and Fifteenth Amendment rights, its due process rights,

violations of North Carolina law, and its rights under Article I,

sections 19 and 32, of the North Carolina Constitution.

Having found standing on the part of the CCAGP to

challenge the consent decree, the court next considered its

attack on that decree. The court first concluded that, con-

trary to the CCAGP's assertion, it was unnecessary to find a

violation of section 2 of the Voting Rights Act before it

entered the decree, noting that if courts were required to find

violations before entering decrees, parties would have little

incentive to settle claims. Id. at 78. Next, the court conclud-

ed that the Board was not barred by state law from entering

the agreement, concluding that "counties may settle lawsuits

through consent decrees or by any other means" and that

limited voting had been approved several times by the North

Carolina General Assembly. Id. at 79.

Finally, the district court addressed the CCAGP's constitu-

tional arguments. It rejected the claim that the election plan

triggered strict scrutiny, noting that "[t]he Consent Decree

does not contemplate any racial classification among vot-

ers.... It does not guarantee any seats on the Board of

Commissioners to blacks, nor does it give black voters any

more voting power than other voters." Id. at 80. With

respect to the interim appointment of two additional Board

members who are "representative of the black community,"

the court noted that although the provision "ha[d] certain

racial overtones," it was not sufficient to subject the consent

decree as a whole to strict scrutiny. "The provision is strictly

an interim measure to facilitate the agreement to adopt a

permanent racially neutral election process," it concluded.

"It does not require on its face that any black commissioners

be appointed." Id. The court thus declined to vacate the

decree and granted the motions of the Board and the

NAACP.7 The CCAGP's appeal followed.

__________

7 Although the Board's and the NAACP's motion were styled as

motions to dismiss, the district court's consideration of materials

outside the CCAGP's pleadings transformed those motions, as well

as the CCAGP's motion, into motions for summary judgment. See

Fed. R. Civ. P. 12(b) ("If, on a motion asserting the defense [of

failure to state a claim upon which relief can be granted], matters

outside the pleading are presented to and not excluded by the court,

the motion shall be treated as one for summary judgment....");

II. Analysis

A.The CCAGP's Standing to Challenge the Consent Decree

Before we proceed to the merits of the CCAGP's complaint,

we must, as did the district court, determine whether the

CCAGP has standing to challenge the consent decree. De-

spite the exhortation of the NAACP to the contrary, we find

that the hurdle of standing in this case has been surmounted.

In order to establish standing under Article III, a com-

plainant must allege (1) a personal "injury in fact" that is

"concrete and particularized" and "actual or imminent, not

conjectural or hypothetical," (2) a causal connection between

the injury and the conduct complained of, and (3) that it is

"likely," rather than merely "speculative," that the injury will

be redressed by the relief requested. See, e.g., Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Branton

v. FCC, 993 F.2d 906, 908 (D.C. Cir. 1993). The NAACP's

challenge focuses on the first of these requirements: namely,

it contends that the CCAGP has failed to show that it has

suffered any injury as a result of the implementation of the

election plan in the consent decree. According to the

NAACP, the CCAGP's opposition to the consent decree is

nothing more than a generalized grievance, an "abstract

injury in nonobservance of the Constitution" rather than the

"particularized" injury necessary to confer standing. See,

e.g., Allen v. Wright, 468 U.S. 737, 754 (1984) (asserted right

to have the government "act in accordance with law" not

sufficient to confer standing).

We are not persuaded by the NAACP's arguments. The

CCAGP has put forward a claim that as a result of the

consent decree, its members have been denied the opportuni-

ty to vote for a full slate of the elected officials of their

choice--officials who would thereafter be deemed to repre-

sent them.8 Like plaintiffs who reside in a district that is the

__________

Fed. R. Civ. P. 12(c) (same as to motion for judgment on the

pleadings).

8 This harm is arguably made more palpable by the fact that the

two appointees to the Board were required to be "representative of

subject of a racial gerrymander challenge, see, e.g., United

States v. Hays, 515 U.S. 737, 744-45 (1995), the CCAGP

asserts that the election procedure adopted by its local legis-

lature has violated its members' protected voting rights.

This alleged injury is certainly sufficient to grant standing--

indeed, it is akin to the injury to voting rights claimed by the

plaintiffs in Campbell that engendered the current controver-

sy. It would be anomalous for us to assume that the Camp-

bell plaintiffs had standing to challenge the county's method

of voting but to hold that the CCAGP does not.9

It is important to recognize that standing is a threshold

inquiry; it " 'in no way depends on the merits of the [petition-

er's] contention that particular conduct is illegal.' " Whit-

more v. Arkansas, 495 U.S. 149, 155 (1990) (quoting Warth v.

Seldin, 422 U.S. 490, 500 (1975)). Thus, whether the CCAGP

ultimately succeeds on its constitutional and state law claims

is of no import to the standing analysis. What is important is

whether the CCAGP10 has succeeded in establishing the

__________

the black community." On its face this prerequisite does not

narrow the scope of these members' representation; however, when

a representative office "obviously is created solely to effectuate the

perceived common interests of one racial group, elected officials are

more likely to believe that their primary obligation is to represent

only the members of that group, rather than their constituency as a

whole." Shaw v. Reno, 509 U.S. 630, 648 (1993).

9 The remaining two prongs of the standing inquiry warrant little

discussion; indeed, the NAACP has not presented a challenge

pursuant to either of them. The "causation" analysis ensures that

the alleged injury is "fairly traceable" to the actions of the defen-

dant rather than to the actions of an absent third party. See, e.g.,

Lujan, 504 U.S. at 560. The "redressability" inquiry determines

whether the relief sought, if granted, would remedy the alleged

injury. Id. at 561. Because the consent decree is the source of the

county's new election plan, which, in turn, is the source of the

CCAGP's grievance, the vacating of the decree will provide ade-

quate relief for the CCAGP's injury. We are thus satisfied that the

CCAGP has standing to bring this case.

10 We recognize that although the term "CCAGP," as we have

used it thus far, comprises both the Cleveland County Association

presence of a case or controversy, and it has surely met this

burden here.

B.The CCAGP's Representation Below

In its second procedural challenge, the NAACP renews its

argument, rejected by the district court, that the CCAGP and

its members are precluded from challenging the consent

decree because, as citizens and voters in the county, they

were adequately represented in the Campbell litigation by the

Board, which is composed of their own elected officials.

Here, again, we agree with the district court.

In general, "[a] judgment or decree among parties to a

lawsuit resolves issues as among them, but it does not con-

clude the rights of strangers to those proceedings." Martin

v. Wilks, 490 U.S. 755, 762 (1989). This rule is merely, as the

Supreme Court has noted, a necessary corollary to the oft-

stated principle that " 'everyone should have his own day in

court.' " Id. (quoting 18 Charles Alan Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Proce-

dure s 4449 (1981)). Thus, unless one is joined as a party to

an action, one is generally not bound by the result, no matter

__________

for Government by the People and the individual plaintiffs, the

standing of the former, as an association, is subject to a separate

analysis. In order for the CCAGP to have standing, it must satisfy

a three-part test: (1) its members would have standing to sue on

their own; (2) the interests it seeks to protect are germane to its

purpose; and (3) its claim and requested relief do not require

participation by individual members. Hunt v. Washington State

Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). All three require-

ments are satisfied in this case. First, as the CCAGP is an

association of county voters, its members could and, indeed, have

brought suit individually. Second, the interest CCAGP seeks to

protect--a lawful method of electing the Board in Cleveland Coun-

ty--is germane to its purpose, which is "that the electoral process

in Cleveland County is not manipulated to achieve unconstitutional

objectives and that this electoral process is not distorted in an

unconstitutional, race-based manner." And, finally, the partic-

ipation of individual members is not required to assert this claim or

to obtain the relief requested.

whether that result is reached voluntarily by the parties or

imposed upon them by the court. Id. at 765, 768.

This does not mean, however, that a noninterested plaintiff

may seek relitigation of a dispute between two parties simply

because he disagrees with the outcome. As we have previ-

ously noted, Martin v. Wilks stands for the proposition that

"[o]ne may challenge a judgment rendered in one's absence if

(and only if) it affects one's legal right." Frederick County

Fruit Growers Ass'n v. Martin, 968 F.2d 1265, 1270 (D.C.

Cir. 1992). And one may not bring such a challenge "when,

in certain limited circumstances, [he,] although not a party,

has his interests adequately represented by someone with the

same interests who is a party." Wilks, 490 U.S. at 762 n.2

(citing Hansberry v. Lee, 311 U.S. 32 (1940) (class action

suits); Montana v. United States, 440 U.S. 147 (1979) (control

of litigation on behalf of one of the parties)). Our resolution

of the standing dispute obviates a rehearsal of the first point:

the CCAGP and the individual plaintiffs clearly have asserted

that the consent decree has inflicted an injury to their legal

rights. As to the second point, we agree with the district

court and conclude that the Board was not a sufficient

representative of the CCAGP in Campbell.

As the district court noted, CCAGP, 965 F. Supp. at 77, the

facts of this case are similar to those of Meek v. Metropolitan

Dade County, Fla., 985 F.2d 1471 (11th Cir. 1993). In Meek,

the district court had denied intervention to a group of

registered voters for purposes of appeal of a Voting Rights

Act case because it deemed the interests of the movants to be

identical to those of the defendant county commissioners.

The Eleventh Circuit reversed the denial, concluding that the

interests of the two parties were indeed different:

The intervenors sought to advance their own interests in

achieving the greatest possible participation in the politi-

cal process. Dade County, on the other hand, was

required to balance a range of interests likely to diverge

from those of the intervenors. For example, the County

Commissioners had to consider the overall fairness of the

election system to be employed in the future, the expense

of litigation to defend the existing system, and the social

and political divisiveness of the election issue. In addi-

tion, the County Commissioners were likely to be influ-

enced by their own desires to remain politically popular

and effective leaders.

Id. at 1478. The interests of the Board in this case and the

CCAGP are similarly divergent. The Board, in negotiating

the consent decree, was seeking to resolve a dispute over

what had been challenged as an unlawful method of electing

its members. It can therefore be presumed that the peaceful

resolution of the dispute--and the preservation of the com-

missioners' positions, to the extent possible--were not insig-

nificant considerations. The CCAGP, by contrast, is not

motivated by the need to save the Board from protracted

litigation; indeed, it seeks an election plan devised free from

that constraint. The interests of the Board and the CCAGP

cannot therefore be deemed to have been aligned such that

the CCAGP is precluded from challenging the consent decree.

The fact that the members of the previous Board were the

CCAGP's elected representatives is of no moment, for those

commissioners were equally the representatives of all county

citizens--including their opponents in Campbell. It cannot

be said, therefore, that the Board functioned as an adequate

representative of the CCAGP's interests. Cf. Rafferty v.

City of Youngstown, 54 F.3d 278, 282 (6th Cir. 1995) (plain-

tiffs precluded from challenging consent decree because their

collective bargaining representative was defendant-intervenor

in underlying case). As the CCAGP notes, if elected officials

were deemed always to be representative of their constituents

in the sense contemplated by footnote two of Wilks, consent

decrees to which the government was a party would be

immune from challenge regardless of their effect on individu-

al rights. We decline to reach such a conclusion.11

__________

11 The Supreme Court has not yet decided "whether public offi-

cials are always constitutionally adequate representatives of all

persons over whom they have jurisdiction when ... the underlying

right is personal in nature." Richards v. Jefferson County, Ala.,

C.Mootness

As a last jurisdictional parry, the Board, the NAACP, and

the United States as amicus curiae argue that the CCAGP's

challenge to the interim appointment provisions is moot be-

cause the 1998 campaigns for these two seats have already

begun. In other words, the parties contend, the only remedy

we could order would be to open these positions to election,

and this process is already under way. We find no merit to

these claims. A question is moot only if "intervening events

make it impossible to grant the prevailing party effective

relief." Burlington N. R.R. Co. v. Surface Transp. Bd., 75

F.3d 685, 688 (D.C. Cir. 1996). This is not the case here. To

begin with, the November 1998 elections for the seats now

held by appointees have not yet taken place, so there is

nothing constituting an "intervening event" that would render

the CCAGP's challenge to the appointment provisions moot.

Cf. Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam) (passage

of 1968 election made injunctive relief from state residency

requirement "impossible to grant"). More important, howev-

er, is that because the CCAGP challenges the Board's author-

ity to enter the consent decree at all, a finding in the

CCAGP's favor would invalidate the decree and eliminate the

authorization for these two positions altogether, returning the

structure and manner of election of the Board to the status

quo ante. The availability of such a remedy means that the

CCAGP's challenge to the interim appointments remains a

live controversy, and so we reject any arguments to the

contrary.

__________

116 S. Ct. 1761, 1767 n.6 (1996). But see Town of Lockport v.

Citizens for Community Action at the Local Level, Inc., 430 U.S.

259, 263 n.7 (1977) (voting rights challenge by county residents not

barred by county's earlier suit); 18 Charles Alan Wright, Arthur

R. Miller & Edward H. Cooper, Federal Practice and Procedure

s 4458 (1981) ("Voting rights may deserve special protection be-

cause they lie so close to the core of democratic government that

litigation by public servants should not bind their voting masters.").

D.The CCAGP's State Law Claims

Having disposed of the preliminary challenges to the

CCAGP's presence before this court, we move to the merits.

We begin by addressing the CCAGP's assertion that the

adoption of the election plan violated state law, for if the

resolution of this claim proves dispositive, we need not--and,

indeed, should not--reach the CCAGP's constitutional con-

cerns. See, e.g., National Black Police Ass'n v. District of

Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997) (noting that "it

is a well-established principle that courts should avoid unnec-

essarily deciding constitutional questions"). We review the

district court's grant of summary judgment to the Board and

the NAACP de novo. Federal Deposit Ins. Corp. v. Bender,

127 F.3d 58, 63 (D.C. Cir. 1997). Because no party on appeal

contends that there existed any genuine issue of material fact

with respect to the state law issue, we need decide only

whether the Board and the NAACP were indeed entitled to

judgment as a matter of North Carolina law. We conclude

that it was, in fact, the CCAGP that was entitled to summary

judgment.12

North Carolina law reserves to the state, or to the voters of

the county, authority over the structure and method of elec-

tion of county boards. See N.C. Const. art. 7, s 1 ("The

General Assembly shall provide for the organization and

government ... of counties, cities and towns, and other

governmental subdivisions, and, except as otherwise prohibit-

ed by this Constitution, may give such powers and duties to

counties, cities and towns, and other governmental subdivi-

__________

12 The NAACP argues that the CCAGP's failure to include with

its motion a separate statement of material facts as to which it

contended there was no genuine issue, as required by Local Rule

108(h), mandated judgment against the CCAGP. While it is true

that the CCAGP failed to comply with Rule 108(h) in this regard, it

was within the district court's discretion to consider its motion

despite this lapse. See, e.g., Gardels v. Central Intelligence Agency,

637 F.2d 770, 773 (D.C. Cir. 1980) ("The District Court, in its

discretion, may consider a motion for summary judgment even in

the absence of a proper [Rule 108(h)] Statement."). That discretion

was not abused here.

sions as it may deem advisable."); N.C. Gen. Stat. s 163-22.2

(1991) (if form of election of any county Board of Commission-

ers is held invalid by a state or federal court, state Board of

Elections has authority to make interim rules and regula-

tions). The benchmark in this regard is established by North

Carolina General Statute section 153A-34, which provides

that the structure and manner of election of the Board of

Commissioners in each county "shall remain as it is on

February 1, 1974, until changed in accordance with law."

N.C. Gen. Stat. s 153A-34 (1991). Subsequent changes in

the structure and election of any board must take place in

accordance with a specifically prescribed procedure. First,

the Board of Commissioners in a county must initiate any

such change by adopting a resolution that describes the

proposed alterations and the manner of transition, defines

electoral districts, and calls a special referendum on the

question of the adoption of the alterations. N.C. Gen. Stat.

s 153A-60 (1991).13 If a majority of the votes cast in the

referendum vote are in the negative, the plan may not be put

into effect. N.C. Gen. Stat. s 153A-61 (1991). If the plan is

approved, it becomes the basis for the nomination and elec-

tion of the board at the next election and is formally put into

place on the first Monday in December after the general

election. N.C. Gen. Stat. s 153A-62 (1991). These procedur-

al requirements are accompanied by one substantive criterion

relevant here: If commissioners are elected at large rather

than by district, the entire board must be nominated and

elected by county voters. N.C. Gen. Stat. s 153A-58(3)(a)

(1991).14

__________

13 We should note that while section 153A-34 refers to the

"structure and manner of election" of a board, section 153A-60, on

its face, requires a referendum only for changes in a board's

"structure." However, we read "structure" in the latter section to

encompass the manner of election as well, given that section

153A-58 provides that "[a] county may alter the structure of its

board of commissioners by adopting one or any combination of the

options prescribed by this section," options that include changes to

the manner of election. See N.C. Gen. Stat. s 153A-58 (1991).

14 This method of election is one of several options permitted by

section 153A-58, but it is the only method permitted when board

members are elected at large rather than by district.

It is undisputed that this statutorily mandated scheme was

not followed in this case: No referendum on the election plan

provided for in the consent decree was ever held, and the

interim appointment provisions run afoul of section

158A-58(3)(a) by prohibiting the county voters from nominat-

ing and electing two of the seven commissioners. Although

the district court's call for "a thorough research of the facts

and law based on valuable input from counsel for all parties,"

CCAGP, 965 F. Supp. at 79, seems to acknowledge some

perplexity on the issue, these provisions of state law appear

to us quite clear; indeed, it is we who are perplexed as to the

basis on which the district court concluded that "there was no

facial violation of North Carolina election law in the settling

of [Campbell]." Id. Read on its face, state law denies the

Board the authority unilaterally to alter its structure and

manner of election simply by agreeing to do so. Cf. Keith v.

Volpe, 118 F.3d 1386, 1393 (9th Cir. 1997) (parties to consent

decree "could not agree to terms which would exceed their

authority and supplant state law"); Perkins v. City of Chica-

go Heights, 47 F.3d 212, 216 (7th Cir. 1995) (same). As the

Seventh Circuit aptly stated in Perkins,

some rules of law are designed to limit the authority of

public officeholders, to make them return to other

branches of government or to the voters for permission

to engage in certain acts. They may chafe at these

restraints and seek to evade them, but they may not do

so by agreeing to do something state law forbids.

Perkins, 47 F.3d at 216 (citation and internal quotation

omitted).15

__________

15 The NAACP and amici cite Lawyer v. Department of Justice,

117 S. Ct. 2186 (1997), for the proposition that a government

entity's ability to settle litigation supersedes any state law that

purports to limit that authority. This is a misreading of Lawyer,

which held only that the authority generally held by a state to make

its own redistricting decisions is fully realized when the state agrees

to a consent decree that includes a redistricting plan. Id. at 2197.

Cleveland County, as a legislative unit subordinate to the state of

The applicability in the abstract of the North Carolina

provisions discussed above, however, does not end our inqui-

ry. Rather, these provisions may be superseded in either of

two ways: (1) if such supersession is necessary to remedy a

violation of federal law or (2) by a local act of the General

Assembly (i.e., by special amendment of state law). Because

neither of these circumstances is present here, however, the

consent decree must comply with state law; as it does not, it

must be vacated.

Pursuant to the Supremacy Clause of Article VI of the U.S.

Constitution, state law is preempted when it " 'stands as an

obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.' " Washington Serv.

Contractors Coalition v. District of Columbia, 54 F.3d 811,

815 (D.C. Cir. 1995) (quoting Hines v. Davidowitz, 312 U.S.

52, 67 (1941)). In other words, if a violation of federal law

necessitates a remedy barred by state law, the state law must

give way; if no such violation exists, principles of federalism

dictate that state law governs. See, e.g., Perkins, 47 F.3d at

216; United States v. Yonkers Bd. of Educ., 902 F.2d 213, 219

(2d Cir. 1990); Hoots v. Pennsylvania, 672 F.2d 1124, 1132

(3d Cir. 1982). In this case, then, if the election plan set forth

in the consent decree were intended to remedy an admitted

or adjudged violation of the Voting Rights Act, the fact that

the Board's actions collided with the state statutory scheme

just discussed would not stand in the way of the plan's

implementation. Notably, however, the consent decree in

this case specifically provides that no violation of the Voting

Rights Act is to be inferred,16 and the Supreme Court has

specifically held that consent decrees should be construed

__________

North Carolina, has only the authority that the General Assembly

grants it. See N.C. Const. art 7, s 1.

16 See CCAGP, 965 F. Supp. at 77 n.6 (quoting Stipulation 9 of the

consent decree) ("Nothing in this Consent Decree is intended as an

adjudication of the lawsuit, nor is the entry of this decree intended

in any manner to imply that the county's election system has

violated Section 2 of the Voting Rights Act or the Fourteenth

Amendment.").

simply as contracts, without reference to the legislation that

motivated the plaintiffs to bring suit. See United States v.

ITT Continental Baking Co., 420 U.S. 223, 236-37 (1975); see

also Paralyzed Veterans of Am. v. Washington Metro. Area

Transit Auth., 894 F.2d 458, 461 (D.C. Cir. 1990) (same).

Nor is there any other basis for concluding that the consent

decree was anything more than a settlement of the NAACP's

claims against the county: The fact that the plan received

section 5 preclearance from the Attorney General is irrele-

vant,17 as is the fact that the district court in Campbell might

ultimately have concluded that the county's previous election

method was in violation of the Voting Rights Act 18--neither

circumstance establishes that a Voting Rights Act violation

did indeed exist, and none is to be presumed from the fact of

the consent decree's existence. See, e.g., Citizens for a Better

Env't v. Gorsuch, 718 F.2d 1117, 1125 (D.C. Cir. 1983) ("[T]he

long-standing rule is that a district court has power to enter a

consent decree without first determining that a statutory

violation has occurred.").

Alternatively, of course, the General Assembly of North

Carolina could have come to the rescue by enacting a special

__________

17 Section 5 provides that a covered jurisdiction may not imple-

ment any change in a voting "qualification, prerequisite, standard,

practice, or procedure" without first obtaining preclearance of that

change from the Attorney General or from the District Court for

the District of Columbia. 42 U.S.C. s 1973c (1994). A jurisdiction

bears the burden of showing that the change "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." Id. As the Supreme

Court has construed it, this section focuses only on whether a

proposed change would lead or was intended to lead to a retrogres-

sion in the position of minority voters. See Reno v. Bossier Parish

Sch. Bd., 117 S. Ct. 1491, 1497, 1502 (1997). Thus, while consider-

ation of the events leading up to the plan's adoption may be

relevant to a section 5 inquiry, see id. at 1503, preclearance neither

turns on nor is evidence of a plan's remedial nature.

18 To the extent that Armstrong v. Adams, 869 F.2d 410, 414 (8th

Cir. 1989) (state law limit on authority of county election board

vitiated "by the authority of the district court to remedy constitu-

tional violations that may have occurred during the election") may

suggest otherwise, we find it unpersuasive.

legislative act authorizing an election plan that would other-

wise contravene state law. This would not be an unusual

occurrence--indeed, the General Assembly had already done

so for the first plan proposed by the Board in 1993, which

suggests that this has been a course of action available to the

Board throughout this litigation.19 No such approval, howev-

er, was sought or obtained for the plan outlined in the consent

decree; without this approval, the Board was without authori-

ty under state law to reform its structure and method of

election.

In an attempt to diffuse the provisions of the statutory

scheme, the Board and the NAACP point to Moore v. Beau-

fort County, N.C., 936 F.2d 159 (4th Cir. 1991), in which, they

claim, the Fourth Circuit rejected a state law challenge to a

limited voting plan similar to the one presented here. Unfor-

tunately, their reading of Moore stretches its holding too far.

Like this case, Moore involved the settlement of a case

brought pursuant to section 2 of the Voting Rights Act in

which the parties agreed that a limited voting plan for Board

of County Commissioners elections would be implemented (in

that case, in Beaufort County, North Carolina). When the

Beaufort County board subsequently rejected the agreement

that the attorneys for each side had drafted, the plaintiffs

moved to enforce the agreement as written, and the district

court granted their motion. After rejecting the county's

arguments that no final, binding agreement existed, the

Fourth Circuit addressed the county's contention that limited

voting was contrary to the "public policy" of North Carolina

and held that it was not. Id. at 164.

To the extent that Moore is relevant at all, it is entirely

consonant with our discussion here. We do not hold today

that the limited voting scheme provided for in the consent

decree is itself contrary to the "public policy" or even the law

__________

19 At oral argument, counsel for the Board was unable to offer a

reason why legislative approval of the plan had not been sought. It

could be that the Board's hesitancy had something to do with the

"representative" nature of the interim appointment provisions of the

plan, about which we have serious constitutional doubts.

of North Carolina--indeed, as the Moore court noted, it has

been successfully implemented in several other jurisdictions

in the state.20 See id. Rather, the consent decree fails

because state law prevents the Board from unilaterally agree-

ing to any change in its structure or method of election.21 No

such impediment was present in Moore because the county's

lawyer validated its admission that its previous election meth-

od violated section 2 of the Voting Rights Act. See id. at 162.

In other words, the fact that the plan delineated in the Moore

consent decree was necessary to remedy a violation of federal

law made it unnecessary for the Fourth Circuit to consider

the ramifications of state law. By disclaiming any such

violation, the Board in this case confined its settling authority

to the boundaries of North Carolina law.

III. Conclusion

The Cleveland County Board of Commissioners is, like any

other party, free to choose settlement of a suit over the threat

of prolonged litigation. But like any other party, it may not

do so in a manner that disregards applicable state law. The

county's failure to abide by this principle in settling the

Campbell case renders the consent decree invalid as a matter

of law. The district court was thus in error in granting

summary judgment in favor of the Board and the NAACP.

We therefore reverse the district court and remand this case

__________

20 It should be noted, however, that of the four jurisdictions cited

by the Fourth Circuit in support of its conclusion, three were

noncounty entities to which the statutory scheme described above

does not apply (the Clinton City Board of Education, the Sampson

County Board of Education, and the Town of Benson); the fourth

jurisdiction, Bladen County, had obtained approval of its limited

voting scheme by the General Assembly, an action not accomplished

in this case. See Moore, 936 F.2d at 164.

21 As the Board notes, the record reflects the existence of other

consent decrees in which North Carolina counties agreed to a

change in the structure and election of their Boards of Commission-

ers in apparent contravention of state law. See, e.g., Joint Appen-

dix at 198 (Vance County). We have no evidence, however, that

challenges to these agreements were ever brought.

with directions to enter summary judgment in favor of the

CCAGP and the individual plaintiffs and to vacate the consent

decree in its entirety.22

Our mandate in this case shall issue in the normal course.

We advise the Board and the NAACP, however, that if, prior

to that time, they reach an alternative settlement in Campbell

that adequately addresses the constitutional and state law

concerns we raise today, which may involve securing legisla-

tive approval, they may petition this court for an early release

of the mandate to permit them to return swiftly to the district

court with a permissible agreement in hand to seek the

court's validation.

It is so ordered.

__________

22 Because we order that the entire consent decree be vacated, we

need not address the government's argument that the provisions of

the consent decree are severable.