Opposition Brief — Hunt v. Republican Party

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> Sess Note eeretee 3

In The

Supreme Court Of The United States

OCTOBER TERM, 1992

hn ety i

aoe Com, U.

" age

JAMES B. HUNT, JR.,

GOVERNOR OF NORTH CAROLINA, et al.,

Petitioners,

Vv.

REPUBLICAN PARTY OF

NORTH CAROLINA, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

C. Allen Foster*

Robert N. Hunter, Jr.

Marshall R. Hurley

PATTON, BOGGS #

& BLOW

P. O. Drawer 20004

Greensboro, NC 27401

(919) 273-1733

Counsel for Respondents

*Counsel of Record

LAWYERS PRINTING COMPANY 7th & Franklin Bidg. Richmond. Virginia 23219 (604) 648-3664 OF

j 4)

rarer £e rer

QUESTIONS PRESENTED

Since the reestablishment of Democratic party

control over state politics after the Civil War, North

Carolina has maintained a unique method of selecting its

superior court judges. Candidates are nominated in party

primaries from local judicial districts but are thereafter

elected in partisan, statewide general elections. The use of

this election method intentionally submerges Republican

voters in the statewide Democratic majority. At the time

this suit was brought, no Republican had been elected

superior court judge in this century. In a federal court

challenge to this discriminatory election structure, the

following questions are presented:

:. Is a challenge to the state’s method of electing

superior court judges under the Equal Protection

Clause of the Fourteenth Amendment barred by

considerations of justiciability merely because the

public officials elected are judges?

ra Is a complaint sufficient, under Davis v. Bandemer,

to state an Equal Protection claim when it alleges,

inter alia, that the discriminatory voting customs,

practices, and procedures:

(a) -. were established and are maintained with the

intent and for the purpose of consistently

degrading the influence of Republican voters

on the political process as a whole;

(b) have the effect of denying Republican voters

an equal opportunity to elect judicial candi-

dates of their choice;

Republicans from superior court judgeships

for more than eight decades;

‘i

(d) _ have almost eliminated Republican candidate

recruitment for superior court judgeships be-

cause of the widespread recognition that a

campaign is hopeless and there is a resulting

inability to raise campaign funds; and

(e) are an integral part of an overall political

structure established and maintained by the

State which consistently degrades the influ-

ence of Republican voters on the political

process as a whole?

Is plenary consideration by this Court, before trial

on the merits, appropriate when, as the Court of

Appeals noted, “our conclusion that the [Republican

Party of North Carolina] has set forth sufficient

allegations of a violation of the Fourteenth Amend-

ment to survive a motion to dismiss for failure to

State a claim, we emphasize, is narrow and wholly

dependent upon the egregious nature of the alleged

systemic discrimination"?

eee

TABLE OF CONTENTS

Page

STATEMENT OF THECASE............. 1

:. INTRODUCTION. ................ 1

II. STATE CONSTITUTIONAL AND STAT-

UTORY BACKGROUND ........... 4

REASONS WHY THE PETITION

SHOULD BE DENIED ...............-. 9

I. THE COURT BELOW FULLY CONSID-

ERED AND CORRECTLY DECIDED

THAT THE PLAINTIFFS’ CLAIMS PRES-

ENT A JUSTICIABLE CASE UNDER

THE EQUAL PROTECTION CLAUSE OF

THE FOURTEENTH AMENDMENT IN

ACCORDANCE WITH THE CONTROL-

LING DECISION OF DAVIS __V.

a 9

A. __ Well-Developed and Familiar Judi-

cial Standards Exist to Analyze

Fourteenth Amendment Challenges

to Elections in General. ........ 9

B. The Election of Judges is Analytical-

ly and Practically No Different From

Any Other Election............ 12

il The Inapplicability of the "One

Person, One Vote" Principle to the

Election of Judges is a Question of

Remedy, Not of Justiciability..... . 16

D. Principles of Federalism do not

Prevent Judicial Examination of the

Plaintiffs’ Claims. ............ 19

II. THE PLAINTIFFS HAVE PROPERLY

STATED CLAIMS UPON WHICH RE-

LIEF MAY BEGRANTED........... 21

Ill. | THERE IS NO CONFLICT IN THE CIR-

CUITS ON ANY QUESTION SUFFI-

CIENT TO WARRANT THIS COURT’S

GRANT OF CERTIORARI. .......... 26

Og a a a a 29

TABLE OF AUTHORITIES

Page

Cases

Alexander v, Martin,

No. 86-1048-CIV-5 (E.D.N.C.

et) 3, 6, 12, 19

Badham y, Eu,

694 F. Supp. 664 (N.D. Cal. 1988),

aff'd mem., 488 U.S. 1024 (1989) ..... 26-28

Baker v, Carr,

369 U.S. 186 (1962)............. 10, 11

Chisom y, Roemer,

__ U.S. ___, 111 S. Ct. 2354 (1991)... 15

261 N.C. 140, 134 S.E.2d 168 (1964)... . 22

Clayton v, North Carolina State Bd. of

317 F. Supp. 915 (E.D.N.C. J, an 11

Connor y, Finch,

431 U.S. 407 (1977) .............. 18-20

vi ;

476 U.S. 109 (1986) ............. passim

Drum vy, Seawell

249 F. Supp. 877 (M.D.N.C. 1965),

aff'd, 383 U.S. 831 (1966).......... 23

Dunston vy, Scott,

336 F. Supp. 206 (E.D.N.C. er 23

Weprin,

No. 92-CV-283 (N.D.N.Y. May 28, 1992) . . 28

Fun j nv

Weprin,

796 F. Supp. 662 (N.D.N.Y.), aff'd

- North Caroli United

States,

395 U.S. 285 (1969).............2.. 23

ing] isten,

590 F.Supp. 345, aff'd in

Part, rev'd in part sub nom

Thornburg v, Gingles, 478 U.S. 30

eects Oia Ce ee ee 22

reav ions,

508 F. Supp. 78 (E.D.N.C. 1980) ......., 11

Gregory v, Ashcroft,

U.S. __, 111 S. Ct. 2395 (1991)... 19

Growe v, Emison,

Wale — _Jisn. C 105 (a 20

Had] ni i r

397 U.S. 50 (1970) ......... 12, 14, 18

Vii

633 F. Supp. 454 (W.D.N.C. 1986) ... 11, 22

Ww ler,

817 F. Supp. 617 (S.D. W. Va. 1992),

113 S. Ct. 1378 (1993)... 27, 28

335 F. Supp. 928 (M.D.N.C. 1971),

affd mem,, 409 U.S. 807 (1972) ....... 2, 3

Houston Lawyers’ Association y, Attorney

General of Texas

U.S. ___, 111 S. Ct. 2376 a ne 15

(ee

nkin i .

395 U.S. 411 (1969) .......0.0... 21, 29

New Alliance Party v, State Bd. of

Elections,

697 F. Supp. 904 (E.D.N.C. 1988)....... 11

Elections,

538 F. Supp. 864 (E.D.N.C. a 11

lope v, Blue,

809 F. Supp. 392 (W.D.N.C.),

affdmem., _U‘S. aa.

113.S. Ct. 30 (1992)... .....,...-. 27, 28

R li i in,

980 F.2d 943 (4th Cir. 5 Sn 4

LE COPY

Vili

Reynolds vy, Sims,

377 U.S. 533 (1964)... .......

Rizzo v, Goode,

423 U.S. 362 (1976) ..........

R ” , inois,

497 U.S. 62 (1990) ..........

Shaw vy, Reno

No. 92-357, 1993 WL 224459

(U.S. June 28, 1993) .........

wann - r f

Education,

402 U.S.1(1971) ...........

Thornburg v, Gingles,

478 U.S. 30 (1986) ..........

in velopmen

Corp.,

429 U.S. 252 (1977) ..........

V f

Wells v :

347 F.Supp. 453 (M.D.La. 1972)

aff'd, 409 U.S. 1095 (1973) .....

W. ins,

118 U.S. 356 (1886) ..........

Statutes

OR Ss mm a2

N.C. Const., art. IV, §9(1).............. 5, 12

ee D ) 8

N.C. Const., art. IV, § 12(3) ............... 8

N.C. Const., art. 1V,§16 ................ 19

N.C. Gen. Stat. § 163-140.1 ............... 22

N.C. Gen. Stat. § 7A-45.................. 3

U.S. Const. amend XIV ............... passim

U.S. Const. amend XV............... 3, 15, 17

Other

Lefler and Newsome, North Carolina, The History of

a Souther State (1973)................... 23

= Dixon, Democratic Representation, Reapportionment

n Law and Politics (1968)................. 14

rganization 7, Tables 7 and 20

(1988) (National Center for State a 5

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

JAMES B. HUNT, JR.,

GOVERNOR OF NORTH CAROLINA, ET AL.

Petitioners,

REPUBLICAN PARTY OF NORTH CAROLINA, ET AL.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

I. INTRODUCTION.

The procedure by which North Carolina elects its 82

Superior court judges is indisputably unique among the

States.’ As a result, this case, while important to the

parties, is limited to its peculiar facts and has little or no

national legal significance warranting additional appellate

review.

In North Carolina, nominees for superior court

judge are selected in closed party primaries in local judicial

districts, but must then run in a partisan statewide general

' See Petition for Writ of Certiorari (hereinafter “Pet."), 7-8 n.8.

election. As noted infra at p. 5, the Petitioners ("NCSBE")

concede that there is no statutory authority for the practice

of nomination by local judicial district.’

Republican voters’ comprise a voting majority in

several judicial districts. In those districts, Republican

voters routinely elect candidates for judicial offices that are

nominated and elected solely in those districts, such as

district court judges, district attorneys and clerks of court.

At the same time, these Republican voters also provide

local majorities for Republican candidates for superior

court judge, but those local Republican majorities are

predictably submerged and cancelled by the overall state-

wide Democratic majority. At the time of the filing of this

lawsuit, because of the statewide general election procedure

and other systematic discrimination against Republican

voters, no Republican nominee had ever been elected to the

office of superior court judge in modern times.

Given this stark pattern of consistent electoral

defeat, political or racial minorities have brought three

federal court challenges to the structural vote dilution

inherent in this statewide election scheme. The first

challenge, Holshouser v. Scott, 335 F. Supp. 928, 932-3

2 In fact, plaintiffs’ complaint alleges that local nomination districts

are part of a discriminatory scheme that is intended to and has the

effect of degrading the influence of Republican voters on the political

process as a whole. Complaint { 27, appearing in the Appendix to this

brief (hereinafter “App.") at 14a.

> Republican voters, as defined in { 2 of the Complaint, App. 4a,

include registered Republicans and those voters who, although not

registered as Republicans, predictably vote for Republican candidates

for superior court judge. Registered Republicans comprise 26% of

registered voters. Republican nominees for superior court judge

regularly command over 46% of the statewide vote. Complaint { 32,

App. 16a.

(M.D.N.C. 1971), aff'd mem., 409 U.S. 807 (1972),

decided that the one Person, One vote rule does not apply

In 1987, African-American voters Challenged the

statewide election procedure under Section 2 of the Voting

in, No. 86-1048-CIV-5 (E.D.N.C. Nov

25, 1989). In direct response to that Challenge, the state

eliminated eight appointed Republican Superior court

the voting age population. Chapter 509 of the North

Carolina Session Laws of 1987 ("Chapter 509"). Upon

Passage of this Act, the Claims of the African-American

community were settled by consent.

("RPNC"), the Respondents herein, filed this Equal

by the g80vernor, then a Republican. See N.C. Gen. Stat. § 7A-45,

repealed by Chapter 509 of the Session Laws of 1987.

A unanimous panel of the United States Court of

Appeals for the Fourth Circuit held that, under the unique

facts of this case,

[oJur conclusion that the RPNC has set forth

sufficient allegations of a violation of the

Fourteenth Amendment to survive a motion

to dismiss for failure to state a claim, we

emphasize, is narrow and wholly dependent

on the egregious nature of the alleged sys-

temic discrimination.

Republican Party of North Carolina v, Martin, 980 F.2d

943, 958 (4th Cir. 1992); Appendix to Petition (hereinafter

"Pet. App.”) 33a. Defendants petitioned for rehearing and

suggested rehearing in banc. Both were denied, by a vote

of 8-3.° The instant Petition presents no new issues or

principles of widespread application and should be denied.

Il. STATE CONSTITUTIONAL AND STATUTORY

BACKGROUND

Article IV, Section 16 of the Constitution of North

Carolina directs that the “qualified voters” elect superior

court judges for eight-year terms and provides that superior

court judges may be elected by the qualified voters of the

state, or by the voters of their districts, as determined by

* Chief Judge Ervin disqualified himself from participating. Pet.

App. 86a. Judge Phillips wrote a dissent in which no other judge

joined. The Petitioners seek to bolster their argument here by the

erroneous (but oft repeated) statement that the two other judges who

voted for rehearing joined in his dissent. See Pet. 5, 140.11, 15 0.12,

19, 30.

eee

the General Assembly.* Since 1875, despite this constitu-

tional ability to choose election by districts, the General

Assembly has determined that superior court judge elec-

tions must be statewide. North Carolina stands in Stark

relief as the Only jurisdiction that elects trial judges of

general jurisdiction by statewide vote. State Court

iZati 7, Tables 7 and 20 (1988) (National

Center for State Courts). See also Pet. 7-8 n.8.

Martin, 980 F.2d at 947; Pet. App. 5a n.6. Candidates in

the general election thereafter run On a statewide basis.

Article IV, § 9(1) of the North Carolina Consti-

‘ution requires the General Assembly to "divide the State

iNtO a Convenient number of superior court judicial districts

The counties of the State of North Carolina are

Organized into four judicial divisions which, until 1987,

“cre divided into a total of 34 judicial districts. Each

vivision and judicial district then contained one or more

‘ounties and one or more resident superior court judges.

Most of those judicial districts encompassed more than one

county and all districts followed county boundary lines.

Seventeen of the judicial districts had more than one judge

and those districts had 43 of the 60 resident superior court

judges.

In 1987, African-American citizens brought a suit

alleging that the system of electing superior court judges

statewide had the purpose and effect of abridging non-white

voting strength in violation of Section 2 of the Voting

Rights Act, 42 U.S.C. § 1973, and of the Fourteenth

Amendment. That litigation ended by a consent decree

upon adoption by the General Assembly of Chapter 509.

See Alexander v, Martin, No. 86-1048-CIV-S.

Pursuant to Chapter 509, eight of the then-existing

judicial districts were divided into 26 subdistricts, solely to

create eight nomination districts for African-Americans. In

forming these new districts, counties frequently were split,

and some districts now consist of bits of more than one

county. Sixteen of the new judicial districts do not contain

a courthouse and have no separate clerk of court, public

defender, district court judge or other officials associated

with traditional judicial districts, except for the resident

superior court judge nominated therein. As a result, these

new judicial districts have no role in the administration of

justice and serve only as local partisan nomination dis-

tricts.’ See Complaint { 20, App. 11a.

7 These districts were also designed to include an incumbent

Democratic superior court judge in each district and to place existing

Republican superior court judges (who had been appointed by the then-

Republican governor to fill vacancies) into districts in which they did

not reside and would thereby be ineligible to run for election. See

Complaint 4 12, App. 8a-9a. That configuration, coupled with

continued statewide election, is further evidence of the defendants’

intent to perpetuate the Democratic dominance of the superior court

judiciary.

During consideration of Chapter 509, Republican

legislators offered amendments (which were Supported by

the then-Republican Governor) that would have eliminated

the statewide election of resident Superior court judges and,

instead, would have Provided for district election. Such

district election would have remedied the degradation of

both Republican and African-American voting strength.

The Democratic majority, however, defeated all such

amendments on party-line votes. On at least eight occa-

elections for superior court judges. The Overwhelmingly

Democratic General Assembly has defeated each effort.

The Democratic majority defeated these bills and amend-

Republican nominee to be elected to a superior court

judgeship. See Complaint ] 21, App. 12a.

Before the enactment of Chapter 509, eight special

Superior court judges, who were appointed rather than

elected (and, therefore, could be Republicans when there

was a Republican governor), were available to hold court

in districts where court overload or protracted or sensitive

litigation required assistance from outside judges. Chapter

509, however, eliminated these judgeships, each of which

was then held by a Republican.

The North Carolina Constitution mandates that,

after they are elected, superior court judges rotate among

the judicial districts in their respective judicial divisions.

Rotation of Superior court judges has been Cited by the

NCSBE as its Principal "rational" justification for statewide

elections.* Pet. 3. From October 1, 1990, to April 1,

1991, however, the constitutionally required, and much

vaunted, "rotation" feature was suspended by the North

Carolina Administrative Office of the Courts.

In addition to mandated rotation, the Chief Justice

may assign superior court judges to hold court outside their

divisions, N.C. Const., art. IV, § 11, as these judges have

Statewide jurisdiction. N.C. Const., art. IV, § 12(3).

Such assignment out of division is rare and only three

percent of all assignments were out of division in the seven

years before the filing of this action.

Only one Republican candidate for superior court

judge has been elected in this century. The election of

Republican Howard E. Manning, Jr., in November 1988,

occurred one year after the filing of this action. No

Republican has been elected since the District Court

dismissed the action.®

In contrast to the election of superior court judges,

State district court judges are elected within the judicial

district in which they serve, even though they, too, have

statewide jurisdiction. N.C. Const., art. IV, § 11.

Between 1968 and 1986, the voters of nine judicial districts

have elected Republican candidates for District Court judge

in these district-wide elections. In the same time period,

Republican candidates for superior court, Court of Appeals

judgeships and state supreme court justices have out-polled

* The constitutional requirement of rotation applies regardless of

how judges are selected. Further, rotation cannot justify statewide

election because the constitutional rotation is w ial division,

not statewide.

* There has been no election since the decision of the Court of

Appeals.

their opponents in at least 14 judicial districts. On the

plaintiffs’ motion for preliminary injunction, their experts

offered evidence that, if the Superior court judgeships

elections were conducted on a district, rather than Statewide

basis, Republican voters would have sufficient cohesive

voting strength to elect Republican superior court judges in

at least seven existing judicial districts.

REASONS WHY THE PETITION

SHOULD BE DENIED

AND CORRECTLY DECIDED THAT THE

A. Well-Developed and Familiar Judicial

Standards Exist to Analyze Fourteenth

Amendment Challenges to Elections in

General.

In Davis v, Bandemer, 478 U.S. 109 (1986),

this Court examined a Claim that the legislative apportion-

had adjudicated claims of racial gerrymandering’? and

concluded, in general terms, that a complaint of vote

dilution “by a political group, rather than a racial group,

does not distinguish it in terms of justiciability." 478 U.S.

at 125.

Thus, despite the protests of the NCSBE, the issue

of justiciability of claims of political gerrymandering has

been decided, and this Court has recognized that Equal

Protection claims properly may be advanced by political

groups. The Fourth Circuit’s determination that the

complaint of the RPNC presented justiciable claims is

entirely consistent with Bandemer.

The justiciability argument of the NCSBE is

twofold: (1) the absence of judicially manageable standards

to fashion a remedy should render this case non-justiciable,

and (2) the Bandemer justiciability holding cannot be

applied to a challenge outside the context of elected

“representatives.” These very points were rejected by the

Court of Appeals and do not merit further review here.

The Court of Appeals properly examined the

relevant criteria specified by this Court in Baker v, Carr,

369 U.S. 186 (1962), as did the six-justice Bandemer

majority, and resolved that, in this case, the issues are not

ones for resolution by a coequal branch of government,

there is no risk of embarrassment or disturbance if the case

is adjudicated and, because this Court has articulated

'© Justice White, author of the Bandemer analysis, recently noted,

"Although Davis [v. Bandemer] involved political groups, the principles

were expressly drawn from the Court’s racial gerrymandering cases.

See 478 U. S., at 131 n.12 (plurality opinion)." Shaw v. Reno, No.

92-357, 1993 WL 224459 at *22 n.3 (U.S. June 28, 1993) (White, J.,

dissenting). This observation is not disputed and was not affected by

the majority opinion in Shaw.

guiding standards by which to resolve the issues presented,

none of the other identifying characteristics of a "political

question" case is present. Martin, 980 F.2d at 95 1; Pet.

App. 13a-14a.

The NCSBE relies upon only one of the six factors

identified in Baker, asserting that the lack of "recognized

and judicially manageable standards" renders this case non-

justiciable and that "a decision in the plaintiffs’ favor

necessarily would involve making a policy decision about

the appropriate structure of the state’s judicial elec-

tions.""" Pet. 10-11. The Circuit Court rejected this

argument, recognizing that "judicial Standards under the

Equal Protection Clause are wel] developed and familiar."

Martin, 980 F.2d at 95 1; Pet. App. 15a, citing Bandemer

and Baker.

Furthermore, the Circuit Court recognized that

objections based upon speculations regarding a remedy are

premature. "[Ql]uestions pertaining to the goals and

justifications offered by NCSBE for its scheme of electing

Superior court judges are not presently before us because

they are not relevant to whether RPNC has stated a claim

upon which relief may be granted." Martin, 980 F.2d at

953; Pet. App. 19a-20a. Even if, upon a finding of a

violation, the legislature defaulted in its duty to remedy that

' In contrast, federal courts in North Carolina have adjudicated

Fourteenth Amendment challenges to state election Statutes and

procedures despite their inevitable impact on judicial elections. See

Hendon v. No roli late Bd. of Elections, 633 F. Supp. 454

(W.D.N.C. 1986) (ballot counting rules); Greaves v. State Bd. of

Elections, 508 F. Supp. 78 (E.D.N.C. 1980) (ballot access); North

li alist Workers Party v. No roli tate Bd. of

Elections, 538 F. Supp. 864 (E.D.N.C. 1982) (ballot access); New

li v. State Bd. lections, 697 F. Supp. 904 (E.D.N.C.

1988) (ballot access); Clayton v. North Carolina State Bd. of Elections,

317 F. Supp. 915 (E.D.N.C. 1970) (electioneering rules).

violation and the District Court was thereby compelled to

fashion a remedy, the non-dilutive remedy sought by the

RPNC (district-based elections) is specifically authorized by

the North Carolina Constitution.’ As a result, requiring

elections on that basis would not involve any policy choice

by the district court that has not already been approved by

the people of North Carolina. The NCSBE’s ominous

assertion that relief, if ordered in this case, would result in ©

a fundamental reconstruction of the state’s judicial organi-

zation, Pet. 24-25, is baseless hyperbole, particularly given

the express approval of the plaintiffs’ form of relief in the

state constitution.’

B. The Election of Judges is Analytically and

Practically No Different From Any Other

Election.

NCSBE’s attempt to distinguish judges from

other government representatives for gerrymandering

purposes is equally unavailing. Throughout this litigation,

the NCSBE has created a false dichotomy between the

function of judges and other elected officials which should

not divert the Court from appropriate constitutional analy-

sis. While the NCSBE would limit constitutional protec-

tions to the context of elected representatives only, this

Court has established that "the guarantee of equal voting

strength for each voter applies in all elections of govern-

mental officials... .”

Metro. Kansas City, Mo., 397 U.S. 50, 58 (1970).

'2 See N.C. Const., art. IV, § 9(1).

'> Moreover, the state itself readily consented to the creation of

minority nomination districts in obtaining a settlement of Alexander v.

Martin, evincing its recognition of that traditional means of remedying

dilutive election mechanisms.

Sn |

In Hadley, voters brought a Fourteenth Amendment

challenge to the apportionment of local districts for the

election of "trustees" who "conduct and Manage the

necessary affairs" of junior colleges. Because the trustees

performed "important governmental functions," the voters

were entitled to protection under the Fourteenth Amend-

ment:

This Court has consistently held in a

long series of cases, that in situations in-

volving elections, the States are required to

insure that each Person’s vote counts as

much, insofar as it is practicable, as any

other person’s. We have applied this princi-

ple in congressional elections, state legisla-

tive elections, and local elections. The

consistent theme of those decisions is that

the right to vote in an election is protected

by the United States Constitution against

dilution or debasement. While the particular

Offices involved in these cases have varied,

in each case a constant factor is the decision

of the government to have citizens partici-

pate individually by ballot in the selection of

certain people who Carry Out governmental

functions. Thus in the case now before US,

while the office of junior college trustee

differs in certain respects from those offices

considered in prior cases, it is exactly the

same in the one crucial factor -- these offi-

Cials are elected by popular vote.

When a court is asked to decide

whether a State is required by the Constitu-

tion to give each qualified voter the same

Power in an election open to all, there is no

discernible, valid reason why constitutional

distinctions should be drawn on the basis of

the purpose of the election.

397 U.S. at 54-55 (footnote omitted).

As in the present case, the Hadley defendants

attempted to avoid the plaintiffs’ claims by raising the

spurious distinction between elected officials who per-

formed legislative duties, on the one hand, and those who

performed other governmental functions, on the other hand.

This Court forcefully rejected that argument, holding:

whenever a state or local government de-

cides to select persons by popular election to

perform governmental functions, the Equal

Protection Clause of the Fourteenth Amend-

ment requires that each qualified voter must

be given an equal opportunity to participate

in that election... .

397 U.S. at 56.

Although Hadley was a "one person, one vote

case,” the basic challenge there, as here, was to the denial

of the “equal opportunity to participate” in the election of

superior court judges. As one commentator has noted in

this context: “If any set of offices, including judicial

offices, is made elective, thus creating expectation of direct

citizen control over the officers, how can it be just to give

some voters more influence than others by the device of

malapportionment?" R. Dixon, Democratic Representation,

Reapportionment in Law and Politics 564 (1968) (emphasis

in original). The premise of the NCSBE, if adopted,

would sanction a legally and logically untenable result,

permitting the state to maintain an invidiously discriminato-

ry electoral system for the selection of any and all public

Officials who are not legislators.“ Such a conclusion falls

far short of the constitutional necessity reinforced by

Bandemer, that of €qual voting power.

Two cases decided by this Court under the Voting

Rights Act, 42 U.S.C. § 1973, Chisom v. Roemer,

U.S. ___, 111 S. Ct. 2354 (1991) and n Lawyers’

A lation v. Attorn n f xas,__ U.S. si,

There, in the context of a Voting Rights Act Claim,

the Court reasoned that the term "representatives" describes

"the winners of representative, popular elections."

If executive Officers, such as prosecutors,

Sheriffs, state attorneys general, and State

treasurers, can be considered "representa-

tives" simply because they are chosen by

popular election, then the same reasoning

' In North Carolina, such # group would include not only judges,

but also elected clerks of court, registers of deeds, sheriffs and other

elected state officials, none of whom is a representative in the legis-

lative sense. See Rutan v. Republican Party of Illinois, 497 U.S. 62

'S The RPNC readily acknowledges that both of these cases were

decided on Statutory grounds. It would, however, be wholly inconsis-

tent to hold that judges are “representatives” for Purposes of the Voting

Rights Act, which was passed to effectuate the commands of the Fif-

teenth Amendment, see Chisomv. Roemer, _U.S. __» 111 S. Ce.

__US. _, 111 S. Ct. 2354 at 2366."

The unequivocal and expansive reading of the term

“representative” (making it synonymous with "elected

governmental official," as this Court presaged in Hadley)

should be applied to this case to effectuate -- and not to

defeat -- the plaintiffs’ fundamental right to vote. Surely

if the method of electing a state’s judiciary is subject to a

challenge pursuant a congressional statute, it is also subject

to challenge under the Fourteenth Amendment.

c. The Inapplicability of the "One Person,

One Vote" Principle to the Election of

Judges is a Question of Remedy, Not of

Justiciability.

The Respondents recognize that, under Wells

v, Edwards, 347 F. Supp. 453 (M.D. La. 1972), aff'd, 409

U.S. 1095 (1973), the one person, one vote requirement

does not now apply to judicial elections. Wells did not

hold, however, that all Fourteenth Amendment challenges

to judicial selection schemes are barred. This Court has

specifically recognized political gerrymandering claims that

do not necessarily involve a one person, one vote remedy.

For example, the districts Bandemer challenged met the

one person, one vote standard. "The issue here . . . does

not concern districts of unequal size." Bandemer, 478

U.S. at 124. It is not, therefore, surprising that one

Circuit Court has articulated the need for alternative relief

where a Fourteenth Amendment violation is found and a

remedy based upon one person, one vote is not available.

'6 In addition, the Court signaled that the well-established recogni-

tion that judges engage in policymaking indicates that judges should be

treated like other elected policymakers. _ U.S. at _—s, IIIS.

Ct. at 2366 0.27.

Rouge, 612 F.2d 208 (5th Cir. 1980), plaintiffs alleged that

the at-large voting schemes of electing city judges invidi-

ously diluted the voting strength of African-American

citizens in violation of the Fourteenth and Fifteenth

Amendments."” As in the present case, the district court

dismissed the action for failure to State a claim upon which

relief could be granted, basing its decision upon the

principle that the one person, one vote remedy does not

apply to the election of judges, and citing Wells. On

appeal, the United States Court of Appeals for the Fifth

Circuit held that the District Court had erred in dismissing

the complaint:

The problem with the District Court’s opin-

ion, however, is that it assumes the ‘one

man one vote’ principle was the exclusive

theory of the plaintiffs’ complaints... .

To hold that a system designed to

dilute the voting Strength of black citizens

and prevent the election of blacks as Judges

is immune from attack would be to ignore

both the language and purpose of the Four-

teenth and Fifteenth Amendments . . mo

plaintiffs can prove that the Purpose and

operative effect of such purpose of the at-

large election schemes in Baton Rouge is to

dilute the voting strength of black citizens,

h ntitl i

'’ No Voting Rights Act claim was asserted in Voter Information

Project; thus, the holding in that case is clearly based on the same

constitutional principles at issue here.

612 F.2d at 211-12 (emphasis added). The Fifth Circuit

properly took no position regarding what relief would be

appropriate. 612 F.2d at 212 n.5.

The reasoning of Voter Information Project is

persuasive. There, even though the one person, one vote

principle did not apply, the Circuit Court permitted the

plaintiffs to go forward to offer their proof that an at-large

system of electing judges diluted their votes in contraven-

tion of the Fourteenth Amendment. Neither the judicial

function of the elected judges nor the unavailability of the

one person, one vote remedy justified dismissal or preclud-

ed the plaintiffs from presenting their case, as properly

recognized by the Fourth Circuit in this case. Martin, 980

F.2d at 954; Pet. App. 23a-24a. Similarly, the present

plaintiffs should be permitted to go forward. If they

prevail, a remedy can then be considered. Logically, the

question of remedy -- of any type -- cannot and should not

determine justiciability. To permit post-trial considerations

to govern threshold issues is simply premature." Sce

Martin, 980 F.2d at 953; Pet. App. 19a-20a.

Although Hadley was itself a one person, one vote

case, the opinion indicated, in dicta, that the duties of some

government officials may not always require a remedy

involving one person, one vote principles under Reynolds

vy. Sims, 377 U.S. 533 (1964). Neither that dicta nor

Hadley’s reasoning in any way limits the holding which,

still today, requires an "equal opportunity to participate” in

the electoral process. In other words, while one person,

one vote might not be the remedy for every Fourteenth

'* See also Connor v. Finch, 431 U.S. 407 (1977) (after a finding

that an election scheme is unlawful, the legislature is entitled to an

opportunity to create a lawful remedy).

Amendment violation, €very such violation would neverthe-

less require some remedy.

D. Principles of Federalism do not Prevent

Judicial Examination of the Plaintiffs’

Claims.

The NCSBE insists that "[a]n order granting

. Telief would be an unprecedented assumption of a

federalism." Pet. 24. Implicit in this argument are two

assumptions, both of which are incorrect,

nity to cure the violation, inch, 431 U.S. 407

(1977), Furthermore, the remedy sought is identical to the

by the state in Chapter 509 to remedy the racial discrimj-

nation in in -- redrawing the boundaries

Second, the NCSBE’s argument misapprehends the

concept of federalism. The Principles of federalism

discussed in Vv yo ae.

Ct. 2395 (1991) -- upon which the NCSBE relies -- involve

power to alter the form or the method of functioning of a

state’s government with limits upon the power of a federal

court to entertain an Equal Protection claim. See Pet. 26.

There is no principle of federalism that provides a prophy-

lactic cloak to bar federal judicial scrutiny of a state’s

discriminatory manipulation of the election of its judiciary.

In fact, Rizzo v, Goode, 423 U.S. 362 (1976), cited

by the Petitioners in support of the proposition that federal-

ism “conditions and limits the power of federal courts to

interfere with state governmental structures," Pet. 26,

actually states that federal courts may in fact intervene,

when a federal constitutional violation is present, “under

the well-established rule that federal ‘judicial powers may

be exercised . . . on the basis of a constitutional viola-

tion." 423 U.S. at 377 citing Swann v, Charlo':

Mecklenburg Board of Education, 402 U.S. 1 il

Similarly, the NCSBE’s reliance upon Growe vy, Em

__ U.S. ___, 113 S. Ct. 1075 (1993), is unavailing. T

case resolved a controversy that arose when iden‘.

claims relating to a state’s reapportionment process ».

simultaneously asserted in state and federal courts. |

Court held that the federal district court erred in failing

defer to a state court’s timely efforts to redraw legisla:. -

and congressional districts. No similar issues are presen!«.

by the Petition in the present case. Finally, as explained

above, any concerns about the possibility of feder.

intrusions should be allayed by the fact that, if the Distnct

Court here finds that North Carolina’s statewide election

scheme is unconstitutional, it will properly defer to the

legislature to structure a remedy before imposing one.

Connor v, Finch, 431 U.S. 407 (1977).

Ii. THE PLAINTIFFS HAVE PROPERLY STATED

CLAIMS UPON WHICH RELIEF MAY BE

GRANTED.

Consistent with Bandemer, the plaintiffs have

properly stated a claim for relief under the Fourteenth

Amendment. The plaintiffs allege "intentional discrimina-

tion against an identifiable political group." Bandemer,

478 U.S. at 127. Republicans in North Carolina are as

much an identifiable group as Democrats were in Indi-

ana.!®

In addition to establishing the existence of an

identifiable group, the plaintiffs have offered ample

historical evidence of disproportionate electoral results

coupled with a consistent pattern of invidious legislative

decisions designed to disadvantage Republicans and other

minority groups.”°

'? The Petition challenges whether “Republican voters,” as defined

in { 2 of the Complaint, can be identified “so that its numbers, hence

its potential voting strength, can be determined; and the appropriate

geographical areas within which its potential voting strength can be

measured." Pet. 18, quoting Judge Phillips’ dissenting opinion at Pet.

App. 97a. Aside from the fact that such an assertion ignores the

development of sophisticated political demography over the last 40

years, On a motion to dismiss, the allegations of the Complaint must be

taken as true. Jenkins v. McKeithen, 395 U.S. 411 (1969). The

Complaint clearly alleges that such identification can be and has been

done. See | 30, App. 15a.

® This Court discussed the types of proof available to plaintiffs to

prove official discrimination under similar circumstances in Village of

i i v. Met i i Vv t Corp., 429

U.S. 252 (1977), a case involving allegations of racially discriminatory

zoning decisions:

Determining whether invidious discriminatory pur-

pose was a motivating factor demands a sensitive

For over two hundred years, the state has used both

direct and indirect methods to abridge the political rights of

racial** and political” groups. This Court has partici-

pated in several attempts to remedy election practices and

procedures maintained by the State of North Carolina to

inquiry into such circumstantial and direct evidence

of intent as may be available . . . Sometimes a clear

pattern, unexplainable on grounds other than race,

emerges from the effect of the state action even when

the governing legislation appears neutral on its face.

Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064,

30 L. Ed. 220 (1886).

429 U.S. at 266. See also 429 U.S. at 267 n.13. In addition,

Arlington Heights provided a nonexclusive list of other types of proof

that plaintiffs may properly use: historical evidence, legislative or

administrative history, contemporary statements by members of the

decision-making body and minutes of its meetings or reports.

2! For a discussion of the history of official voting mechanisms

designed to minimize or cancel the potential voting strength of minority

citizens in North Carolina, see Gingles v. Edmisten, 590 F.Supp. 345,

aff'd in part, rev'd in part sub nom Thormburg v. Gingles, 478 U.S. 30

(1986).

2 Some examples of official voting mechanisms designed to

minimize or cancel the potential voting strength of minority political

groupe in North Carolina include:

— _ party loyalty oaths (see Clark v. Meyland, 261 N.C.

140, 134 S.E.2d 168 (1964));

- ballot counting rules that unlawfully prevented cross-

over voting, found to disadvantage Republican

candidates and voters (see Hendon v. North Carolina

State Bd, of Elections, 710 F.2d 177 = Cir.

1983)); and

- ballot position rules that favor Democrat candidates

(see N.C. Gen. Stat. § 163-140.1).

deny full exercise of the fundamental right to vote. See

well, 249 F. Supp. 877 (M.D.N.C. 1965),

aff'd, 383 U.S. 831 (1966) (apportionment of the State for

the election of members of the legislature and representa-

tives to Congress was unconstitutionally discriminatory and

therefore void); lina v, Unit

States, 395 U.S. 285 (1969) (use of a literacy test as a

prerequisite to registering to vote has the effect of denying

or abridging the right to vote on account of race or color):

v. Gingles, 478 U.S. 30 (1986) (multi-member

districts found to dilute the votes of minority voters): Shaw

vy. Reno, No. 92-357, 1993 WL 224459 (U.S. June 28,

1993) (congressional reapportionment scheme is so irratio-

nal on its face that it can be understood only as an effort to

segregate voters on the basis of race).

Over time, successful Fourteenth Amendment

challenges have altered the nature of some of the discrimi-

natory election schemes imposed by the State of North

Carolina, but they have not been eliminated entirely. As

a result, recent legislatures changed past methods of overt

discrimination to a less blatant approach. For example, the

notorious "grandfather clause" of 1900 -- conspicuously

designed to disenfranchise African-American voters -- gave

way to more discrete poll taxes and literacy requirements.

See generally Lefler and Newsome,

i h (1973). Later still, "numbered

seat" and “anti-single shot" laws, while facially neutral,

operated to discriminate against minorities. See Dunston

y. Scott, 336 F. Supp. 206 (E.D.N.C. 1972).

AS a part of this historical backdrop, North Carolina

Republicans have been effectively excluded from the

Superior court judicial selection process. More than four

decades ago, in the most comprehensive and authoritative

Study of politics in the American South, Professor V.O.

Key recognized and documented every element of proof

required of the plaintiffs in this action:

The west[ern part of North Carolina], how-

ever, elects virtually all the Republican

legislators and local officials. There Demo-

crats must gerrymander to keep Republican

victories to a minimum.

x «x ©

Western Democrats are grateful also for

such fortuities of North Carolina politics as

the election of circuit [superior court] judges

by the state at large. Democratic nominees,

selected in primaries held by districts, some

of which unavoidably contain large numbers

of Republicans, are elected by the party’s

majority in the state as a whole.

V.O. Key, Southern Politics in State and Nation, 220, 2-6

(1949).*

The NCSBE asserts that, in order to succeed in

a political gerrymandering claim, plaintiffs must allege (hat

they have been completely shut out of the political process

as a whole. There is no dispute that, under Bandemer, a

political gerrymandering claim must allege: (1) intentional

discrimination against an identifiable political group, +78

U.S. at 127, (2) an actual discriminatory effect on that

group, Id., and (3) that the challenged election system is

2 The RPNC acknowledges the anomalous election of one

Republican candidate to the office of superior court judge in November,

1988. One electoral victory in eighty-eight years does not offer any

evidence of a fair selection process. As this Court noted, it is proper

to consider the effect of the pendency of this litigation in assessing the

significance of this single electoral success. See Thornburg v. Gingles,

478 U.S. 30, 75-76.

arranged in a manner that will consistently degrade the

plaintiffs’ influence on the Political process as a whole.

958; Pet. App. 33a. Ina Straightforward fashion, the

Circuit Court Opinion considered whether Bandemer

requires plaintiffs to Plead total exclusion from the political

Process and “declin[ed] to adopt a construction of

Bandemer that would render nugatory [this Court’s] holding

that political groups may bring claims of Partisan gerry-

mandering." Id.: Pet. App. 32a.

Although certain district Courts have construed the

"political process as a whole” language narrowly to restrict

Political gerrymandering claims,™ the better guide to its

meaning is the real-life political arena in the State of

Indiana, from which Bandemer arose. In Bandemer,

Indiana Democrats had clearly enjoyed electoral Success in

State legislative elections.25 That success, however, was

* See Pet. 30-31.

not sufficient to bar the Democrats’ challenge to legislative

districting, because the Democrats’ voting strength was sig-

nificantly diminished by the intentional discrimination

practiced by the defendant Republicans. Because an

even more severe diminution has been pled by the RPNC,

a rejection of this complaint, based on the NCSBE’s con-

struction of Bandemer, would effectively reject its holding.

Il. THERE IS NO CONFLICT IN THE CIRCUITS

ON ANY QUESTION SUFFICIENT TO WAR-

RANT THIS COURT’S GRANT OF CERTIO-

RARI.

Notwithstanding the indisputably unique facts of this

case, the NCSBE asserts the existence of a serious conflict

between the Fourth Circuit in the present case and the

holdings of lower courts that have considered claims of

political gerrymandering since Bandemer. No such conflict

warranting examination by this Court exists. In each

previous case cited by the Petitioners, there was either a

failure to plead or to prove a consistent degradation of the

influence of a cognizable group on the political process as

a whole. As shown below, in every case cited, plaintiffs

raised gerrymandering claims against plans under which

significant numbers of the minority party had been elected

to the very office under challenge. In contrast, Republican

votes in the present case have effectively been cancelled

entirely by the challenged election mechanism.

478 U.S. at 134.

% This Court ultimately dismissed the Democrats’ claims in

Bandemer because their proof included only a single election, thereby

failing to establish discriminatory effect over time. 478 U.S. at 135.

In contrast, here plaintiffs have pled a century of being shut out of

judicial elections.

In Badham v, Eu, 694 F. Supp. 664 (N.D. Cal.

1988), aff'd mem., 488 U.S. 1024 (1989), California

Republicans alleged political gerrymandering in the redis-

tricting of that state’s congressional seats, 40 percent of

which were held by Republicans. The Badham court

dismissed the complaint specifically because of its failure

to make factual allegations regarding California Republi-

cans’ role in the political process as a whole. 694 F. Supp.

at 670.

In Holloway v. Hechler, 817 F. Supp. 617 (S.D.

aff d mem,

W. Va. 1992), la ee, 813 S. Cr.

1378 (1993), a challenge by Republicans to West Virginia’s

legislative apportionment on political gerrymandering (and

other) grounds, the court found that the plaintiffs’ evidence

at trial failed to prove "intentional discrimination against an

identifiable political group" and that any gerrymandering

that may have occurred was merely de minimis. 817 F.

Supp. at 628. At the time of the ruling, 26 of 100 dele-

gates to the West Virginia House of Delegates were

Republicans.

Pope v. Blue, 809 F. Supp. 392 (W.D.N.C.), aff'd

mem.,___ U.S. ___—,: 113 S. Ct. 30 (1992), presented a

political gerrymandering challenge to North Carolina

congressional districts. The district court held that the

Republicans’ complaint failed to meet Bandemer’s require-

ment for alleging discriminatory effect. "The plaintiffs do

not allege, nor can they, that the state’s redistricting plan

has caused them to be ‘shut out of the political process.’"

809 F. Supp. at 397. At the time Pope was filed, four of

North Carolina’s 11 members of Congress were Republi-

cans.

No pleading defect was identified in Fund _ for

i Weprin, 796 F.

Supp. 662 (N.D.N.Y.), aff'd mem., U.S. , 113

S. Ct. 650 (1992). There, the court denied a pretrial

motion to dismiss a political gerrymandering claim. Fund

j in, No.

92-CV-283, slip op. (N.D.N.Y., May 28, 1992) (three-

judge court). The panel stated that the complaint:

sets forth in more than adequate detail alle-

gations of intentional discrimination and

significant harms this plan allegedly will

cause. . . . we think the increased particu-

larity in pleading required under Bandemer

has been satisfied and we cannot conclude

beyond doubt that plaintiffs can prove no set

of facts upon which relief might be warrant-

ed under the Constitution.

Id. at 9-10.

Subsequently, however, the plaintiffs’ proof of their

case on the merits failed to establish liability. “Plaintiffs’

evidence, even when considered in its most persuasive

light, falls short of proving that the Assembly apportion-

ment plan deprives Republicans of an opportunity to

‘influence [New York State’s] political process as a

whole.’" 769 F. Supp. at 669 (emphasis added). Republi-

cans held a majority of the New York state senate seats at

that time.

In sharp contrast to the decisions in Badham, Pope

and Holloway, the RPNC’s complaint does “contain

allegations of an effect that goes beyond mere dispropor-

tionate election results,” Martin, 980 F.2d at 957; Pet.

App. 30a, and which "are sufficient in number, detail, and

variety of particulars to avoid the problem of repetitive or

conclusory statements." Martin, 980 F.2d at 957 n.26;

McKeithen, 395 U.S. 411, 421 (1969).

CONCLUSION

For the reasons stated herein, the Petition for Writ

of Certiorari should be denied.

Respectfully submitted,

C. Allen Foster*

Robert N. Hunter, Jr.

Marshall R. Hurley

Patton, Boggs & Blow

P.O. Drawer 20004

Greensboro, NC 27401

(919) 273-1733

Counsel for Respondents

*Counsel of Record

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

NORTH CAROLINA

GREENSBORO DIVISION

REPUBLICAN PARTY

OF NORTH CAROLINA,

BRUCE BRIGGS,

WILLIAM R. SIGMON,

MARVIN K. GRAY,

R. HOWARD RIDDLE,

LLOYD FOWLER

JOE R. WILSON,

R. WALTER WHITE, Civil Action

EDGAR A. READLING, No. C-87-779-G

JR., FREDERIC M.

GALLAGHER, and

RALPH A. WALKER,

Plaintiffs, MPLAINT

[FILED -

JAMES G. MARTIN, NOVEMBER 4, 1987]

Governor of

North Carolina;

THE NORTH CAROLINA

STATE BOARD OF

ELECTIONS;

ROBERT N.

HUNTER, JR.,

Chairman of the

North Carolina State

Board of Elections,

THOMAS A. FARR,

)

vs. )

)

WILLIAM A. MARSH, )

JR., RUTH TURNER )

SEMASHKO, and )

JUNE K. YOUNGBLOOD, )

members of the )

North Carolina )

State Board of )

Elections, DURHAM )

COUNTY BOARD OF )

ELECTIONS, FORSYTH _)

COUNTY BOARD )

OF ELECTIONS, and )

GUILFORD COUNTY )

BOARD OF ELECTIONS, )

)

Defendants.

Plaintiffs, complaining of the Defendants, allege and

say:

INTRODUCTION AND SUMMARY

This case is brought under the First and Fourteenth

Amendments to the United States Constitution. It challeng-

es the voting custom, practice or procedure of district

nomination followed by statewide election of state resident

Superior Court judges in that (1) statewide election was and

is maintained for the purpose and has the effect of restrict-

ing the free exercise of the fundamental rights of freedom

of speech and association because it penalizes Republican

Voters (as defined herein) solely because of their party

affiliation, political beliefs and associations and chills

public debate on issues of public importance and (2) it

consistently degrades the influence of Republican Voters on

the political process as a whole.

This cas also challenges the voting custom, practice

Or procedure of "numbered posts" for resident Superior

Court judgeships as a result of which candidates may run

only for a judgeship for a particular judicial district, rather

than running at-large for all resident Superior Court

judgeships which are up for election in a given year. Such

voting custom, practice or procedure has no state Statutory

authority and was implemented and was and is maintained

for the purpose and has the effect of consistently degrading

the influence of Republican Voters on the political process

as a whole.

Process which is an integral part of the “numbered post"

System. There is no state statutory authority for district,

rather than statewide, nomination of Superior Court judges.

The district nomination process in combination with

Statewide election was implemented and was and is main-

tained for the purpose and has the effect of consistently

degrading the influence of Republican Voters on the

political process as a whole.

Finally, this case also challenges the recently

enacted requirement that candidates for resident Superior

Court judge must reside in the district for which they seek

election. Such voting custom, practice or procedure is

contrary to the Constitution of North Carolina and was

implemented and was and is maintained for the purpose and

has the effect of consistently degrading the influence of

Republican Voters on the political process as a whole.

The four voting customs, Practices and procedures

Challenged in this case, in conjunction with other facts

alleged herein, result in the overwhelming predictability of

the success of Democratic Candidates for resident Superior

Court judge and constitute the structural dilution of the

_ voting franchise of Republican Voters.

The relief sought is a declaration establishing and

protecting plaintiffs’ constitutional rights, a preliminary and

permanent injunction prohibiting the defendants from

conducting elections for resident Superior Court judge

under the existing system, and an order that such elections

shall be conducted by judicial district for both nomination

and general election (without a candidacy residency

requirement) in such a fashion that does not unlawfully

discriminate against Republican candidates and Voters.

Plaintiffs also pray that the Court award to the plaintiffs the

costs of this action, including reasonable attorneys’ fees.

IURISDICTION

3 Jurisdiction is conferred upon the Court by

28 U.S.C. §§1343(3) and (4) and plaintiffs have a right to

bring this suit pursuant to 42 U.S.C. §§1981, 1983 and

1988. Plaintiffs also seek declaratory relief pursuant to 28

U.S.C. §§2201 and 2202.

PARTIES

2. Plaintiff Republican Party of North Carolina

(the "“NCGOP") is a statutorily recognized political party

with elections and other activities throughout the State of

North Carolina. The NCGOP represents and promotes the

interests of both voters who are registered as Republicans

and voters who, although not registered as Republicans,

predictably vote for Republican candidates (taken together,

hereinafter referred to as "Republican Voters").

3. Plaintiff Bruce Briggs is a registered Repub-

lican Voter in the 24th Judicial District. In 1984, he was

the Republican candidate for resident Superior Court judge

for the 24th Judicial District. In that election, he received

a statewide total of 868,201 votes and his Democratic

Opponent received a total of 1,017,819 votes. In the 24th

Judicial District, however, Plaintiff Briggs received 20,170

votes and his Democratic Opponent received only 17,464

votes. But for the requirement of Statewide election of

resident Superior Court judges imposed by the defendants

or their predecessors in Office, Plaintiff Briggs would have

been elected.

4. Plaintiff William R. Sigmon is a registered

Republican Voter in what was the 25th Judicial District.

{The Superior Court judicial districts were extensively

modified by Chapter 509 of the Session Laws of 1987.

N.C.G.S. §7-A-41. See the allegations of paragraphs 12,

20 and 21, infra.] In 1968, he was the Republican candi-

date for resident Superior Court judge for what was then

the 25th Judicial District. In that election, he received a

Statewide total of 589,361 votes and his Democratic

Opponent received a total of 798,484 votes. In what was

then the 25th Judicial District, however, Plaintiff Sigmon

received 39,751 votes and his Democratic opponent

received only 32,536 votes. But for the requirement of

statewide election of resident Superior Court judges

imposed by the defendants or their predecessors in Office,

Plaintiff Sigmon would have been elected.

5. Plaintiff Marvin K. Gray is a registered

Republican Voter in what was the 26th Judicial District.

In 1986, he was appointed a resident Superior Court judge

for that district to fill and unexpired term. In 1986, he was

the Republican candidate for one of two resident Superior

Court judgeships for what was then the 26th Judicial

District. In that election, he received a Statewide total of

627,539 votes and his two Democratic opponents, Robert

Burroughs and W. Terry Sherrill, received a total of

785,816 votes and 793,428 votes, respectively. In what

was then the 26th Judicial District, however, Plaintiff Gray

received 49,135 votes, Burroughs received only 42,825

votes and Sherrill received only 44,753 votes. But for the

requirement of statewide election of resident Superior Court

judges imposed by defendants, Plaintiff Gray would have

been elected.

6. Republicans who are potential candidates for

resident Superior Court judge are aware of the election

Statistics recited in paragraphs 3 through 5 hereof. Asa

result thereof, they are chilled or prevented from offering

themselves as candidates for resident Superior Court judge

and the electorate is thereby deprived of choice in the

selection of resident Superior Court judges.

7. Plaintiff R. Howard Riddle is a registered

Republican Voter in Madison county in the 24th Judicial

District. In 1984, he voted for Bruce Briggs for resident

Superior Court judge for the 24th Judicial District. For

many years, he has been affiliated with the Republican

Party, has voted for the Republican candidates for resident

Superior Court judge and other offices and intends to do so

in the future. Because of the custom or practice of state-

wide election of resident Superior Court judges imposed

and maintained by the defendants and their predecessors in

office, he has been and is deprived of his ability to partici-

pate equally in the political process and to elect judges of

his choice and his influence on the political process as a

whole has been and is consistent degraded.

8. Plaintiffs Lloyd Fowler and Joe R. Wilson

are registered Democratic Voters in Madison County in the

24th Judicial District. In 1984, they voted for Bruce’

Briggs for resident Superior Court judge for the 24th

9. Plaintiff R. Walter White is a registered

Republican Voter in Davie County in the 22nd Judicial

District. In 1968, he voted for Arthur S. Beckham, Jr.,

for resident Superior Court judge for the 22nd Judicial

District (see the allegations of Paragraph 35, infra). For

10. _— Plaintiff Edgar A. Readling, Jr., is a regis-

tered Republican Voter in Catawba County in what was the

Because of the custom or practice of statewide election of

resident Superior Court judges imposed and maintained by

the defendants and their predecessors in office he has been

and is deprived of his ability to participate equally in the

political process and to elect judges of his choice and his

influence on the political process as a whole has been and

is consistently degraded.

11. Plaintiff Frederic M. Gallgaher is a regis-

tered Republican Voter in Mecklenburg County in what

was the 26th Judicial District. In 1986, he voted for

Marvin Gray for resident Superior Court judge for what

was then the 26th Judicial District. For many years, he

has been affiliated with the Republican Party, has voted for

the Republican candidates for resident Superior Court judze

and other offices and intends to do so in the fut...

Because of the custom or practice of statewide electio”

resident Superior Court judges imposed and maintaine«:

the defendants, he has been and is deprived of his ab:| .

participate equally in the political process and to .

judges of his choice and his influence on the po.

process as a whole has been and is consistently degra.

, -

12. Plaintiff Ralph A. Walker is a regist. d

Republican Voter in Guilford County in what was the .*1

Judicial District. He is currently serving as a resicen

Superior Court Judge in what is now called the |*'" 83

Judicial District, having been appointed by the Governor to

replace Edward K. Washington who retired. Plainutf

Walker resides in what is now called the 18th-E Judicial

District. Pursuant to Section 13 of Chapter 509 of the

Session Laws of 1987 [G.S. §163-106(i)], Plaintiff Walker

is prohibited from running for election for the judgeship

which he now holds because he is not a resident of the so-

called 18th-B Judicial District. This residency requirement

was implemented for the purpose and has the effect of

T BEST AVAILA

preventing Republicans from being successful Candidates

for Superior Court judge. Attached to this complaint as

this allegation and which States that “the restriction of

Candidate residence was articulated . . . to prevent wealthy

white Republican lawyers from being able to {run-in}... .

against Republican Candidates and Voters.

13. The Defendant James G. Martin is the

Governor in and for the State of North Carolina and, in

‘14. The Defendants Robert N. Hunter, Jr.,

Thomas A. Farr, William A. Marsh, Jr., Ruth Turner

Semashko, and June K. Youngblood are the members of

dants have the duty and authority, pursuant to N.C.G.S.

§163-33 and N.C.G.S. §163-109, to prepare, print distrib-

10a

of herein and on information and belief, these defendants

will perform their duties and exercise their powers in the

manner complained of herein. In particular, the defendants

will conduct primaries which constitute a district, rather

than a statewide nomination process and will require

candidates to run for "numbered posts." In addition, the

Defendant Guilford county Board of Elections will refuse

to allow Plaintiff Walker to run as a candidate in the

primary for Superior Court Judge for the so-called 18th-B

Judicial District.

16. By performing their respective duties with

regard to the challenged statutes, electoral system, voting

customs, practices and procedures or processes and

nomination districts, defendants and each of them, in their

respective official capacities, act under color of state

statutes, ordinances, regulations, customs and uses of the

State of North Carolina which have the purpose of and

have resulted and will result in a deprivation of the rights

guaranteed to the plaintiffs, as Republican Voters and

candidates, by the Constitution and laws of the United

States.

VENUE

17. Venue in the United States District Court for

the Middle District of North Carolina is proper under 28

U.S.C. §1392.

NOTICE

18. Pursuant to N.C.G.S. §1-260, notice of this

action has been given to the Attorney General of the State

of North Carolina by sending him a copy of this Complaint

via certified mail.

lla

FACTS

19. The counties of the State of North Carolina

are Organized into four (4) judicial divisions which, until

1987, were divided into a totai of 34 judicial districts.

Each division and judicial district had the counties and the

number of residents Superior Court judges set forth in the

table attached hereto as Exhibit A-] [omitted]. Most of the

judicial districts encompassed more than one county and all

district followed county boundary lines. Seventeen of the

judicial districts had more than one judge and these districts

had 43 of the 60 resident Superior Court judges.

20. _ Pursuant to Section 1 of Chapter 509 of the

Session Laws of 1987 (hereinafter referred to as "Chapter

509") (N.C.G.S. §7A-41), many of these Judicial Districts

were split and there are now 70 so-called Judicial Districts.

In the case of seven old Judicial Districts, they were split

into sub-districts which are called judicial districts but

which, in reality, have no legitimate judicial function or

Purpose. The divisions and judicial districts, geographical

areas included therein and the number of Superior Court

judges in each are set forth in the table attached hereto as

Exhibit A-2 [omitted]. The new so-called Judicial Districts

frequently split counties or consist of partes of more than

one county. Sixteen of the new so-called Judicial Districts

do not contain a courthouse and have no separate Clerk of

Court or other official of a true judicial district, except for

the resident Superior Court judge assigned thereto.

Chapter 509 established and maintains Judicial Districts

solely for the purpose of perpetuating in office the existing

Superior Court judges who are all Democrats (with the

exception of three who have been appointed by the Gover-

nor), ensuring that black Democrats are elected Superior

Court judges in some sub-districts and perpetuating the

degradation of the influence of Republican Voters on the

12a

political process as a whole and the structural dilution of

the voting franchise of Republican Voters.

| 21. ‘In its consideration of Chapter 509, the

General Assembly had presented to it amendments offered

by Republican legislators and supported by the Republican

Governor which would have eliminated the statewide

election of resident Superior Court judges and, instead,

would have provided for district election in accordance

with the relief prayed for herein. Such amendments were

defeated by the overwhelming Democratic majority, on

party line votes. Chapter 509 continues statewide election

and the other voting customs, practices and procedures

complained of herein for the purpose and with the effect of

consistently degrading the influence of Republican Voters

on the political process as a whole.

22. The total number of resident Superior Court

judges, the composition of the divisions and judicial

districts and the assignment of judges to districts was not

established by the North Carolina Constitution or General

Assembly at any one particular time, but has resulted from

various acts passed from time to time increasing the

number of judges in a given district or establishing new

districts or divisions.

23. | The method of selection of resident Superior

Court judges has not been consistent in the historical past,

the same having varied from (a) appointment by the

Governor for life or for a term, (b) election by the General

Assembly and (c) election by the people. Since 1968, the

Constitution of North Carolina has provided that resident

Superior Court judges "may be elected by the qualified

voters of the State or by the voters of their respective

districts, as the General Assembly may prescribe.” N.C.

Const. Art. IV, Sec. 16.

13a

24. The &eographical areas served by resident

Superior Court judges have not been constant in the

historical past, the same having varied from (a) rotation

throughout the entire State, (b) rotation within a division

and (Cc) service in and for only one judicial district. Since

1915, resident Superior Court judges have rotated within a

judicial division. Although resident Superior Court judges

may, upon proper commissioning, exercise their authority

throughout the state, only rarely are they assigned outside

their division. Resident Superior Court judges exercise

numerous unique statutory powers in the judicial district for

which they are elected.

25. By custom or practice imposed and main-

tained by defendants and their predecessors in Office,

resident Superior Court judges are nominated by judicial

district, although there is no Statutory requirements to this

effect. In fact, a fair and impartial reading of the North

Carolina election laws would lead to the conclusion that

resident Superior Court judges should be nominated

statewide. In particular, N.C.G.S. §163-1(a) provides that:

elections for the Officers listed in the tabulation

contained in this section Shall be conducted in all

election precincts of the territorial units specified

under the column headed "Jurisdiction" eta

The relevant section of the tabulation is as follows:

"Office Jurisdiction

“xk &

Judges of Superior

Court State"

l4a -

N.C.G.S. §163-1(6) makes subsection (a) and the above-

quoted table applicable to primaries.

26. Resident Superior Court judges are then

selected from these nominees by statewide vote pursuant to

N.C.G.S. §163-1(a). Nowhere in this section is thee any

requirement that candidates for resident Superior Court

judge run for a specific judgeship for a particular judicial

district. Rather, a fair and impartial reading of this section

would require all candidates for resident Superior Court

judgeships to run at-large for all available seats, with the

top votegetters being successful as to the number of

judgeships being elected in a particular year. The only

requirement is that, once elected, resident Superior Court

judges must reside in the judicial district for which they are

elected. N.C. Const. Art. [TV §9(1).

27. The voting custom, practice or procedure of

district, rather than statewide, nomination of resident

Superior Court judges, together with the voting custom,

practice or procedure of requiring candidates for resident

Superior Court judge to run for a specific judgeship for a

particular judicial district, constitutes a “numbered post”

system, established and maintained for the purpose and

having the effect of consistently degrading the influence of

Republican Voters on the political process as a whole.

28. Plaintiffs named or described in Paragraphs

3 through 7, and 9 through 12 are registered Republicans,

are affiliated with the North Carolina Republican Party and

are associated with others similarly situated across the State

of North Carolina to advance and advocate commonly held

policies and beliefs by, among other things, supporting and

voting to elect Republican Candidates for resident Superior

Court judge and thereby to transform mutually held beliefs

into public policies. Each such plaintiff predictably votes

{

Le |

15a

for Republican Candidates for public office, including

resident Superior Court judge.

advance and advocate policies and beliefs held by Republi-

cans, they support and vote in general elections to elect

Republican candidates for resident Superior Court judge

and thereby to transform such mutually held beliefs into

public policies. Such plaintiffs predictably vote in general

elections for Republican candidates for public Office,

including resident Superior Court judge.

30. In North Carolina, there are identifiable

groups of voters whose voting behavior is consistent and

can be ascertained from past elections and predicted in

future elections with reasonable accuracy. Republican

voting strength in specific geographical areas, Particularly

judicial districts, can be so ascertained and predicted. The

core of Republican Strength is registered Republicans, such

as the plaintiffs named in Paragraphs 3 through 7 and 9

through 11, to which are added others who, although not

registered Republicans, predictably and do in fact vote for

Republican candidates, such as the plaintiffs named in

Paragraph 8. The geographical distribution in North

Carolina of this group of Republican Voters is sufficiently

ascertainable by judicial district that it could have been,

was, can be and is taken into account in the intent and

Purpose by which defendants and their predecessors in

Office have instituted, maintained and maintain the voting

customs, practices and procedures complained of in this

action. The same facts are true of Democratic voting

strength.

31. Plaintiffs are an identifiable, quantifiable and

politically salient group of voters whose voting behavior

16a

can be ascertained and predicted with reasonable accuracy.

Plaintiffs are Republican Voters who in fact vote for

Republican candidates and will predictably do so in the

future. Plaintiffs and other Republican Voters have

suffered harm and irreparable injury because the voting

customs, practices and procedures complained of herein

operaie, and were and are intended to operate, to minimize

or cancel their votes and voting strength. Plaintiffs’ votes

and the votes of other Republican Voters are persistently

degraded and cancelled in the election of resident Superior

Court judges because of such voting customs, practices and

procedures. Republican Voters do not have the same

opportunity as do Democrats (or, as a practical matter, any

opportunity) to elect candidates of their choice for resident

Superior Court judge. In fact, their opportunity to do so

is eliminated by the voting customs, practices and proce-

dures complained of herein, which were designed for and

were and are maintained for such purpose by defendants

and their predecessors in office. |

32. | The proportion of all voters who are Repub-

lican Voters varies widely throughout the State of North

Carolina. For example, at the time of the 1984 general

election, 26% of all voters were registered Republicans,

70% were registered Democrats, and 4% were registered

to vote but unaffiliated with either party. In the 1984

general election, approximately 46% of all voters who

voted for Superior Court judges voted for the Republican

candidates, and approximately 54% voted for the Demo-

cratic candidates. In the 24th Judicial District, however,

54% of the voters who voted for Superior Court judge

voted for the Republican candidate for Superior Court

judge for that district and 46% voted for the Democratic

candidate. Similarly, in what were then the 15A, 17B, 18,

19A, 19B, 21, 22, 23, 24, 25, 26, 27A, 28 and 29 Judicial

Districts, a majority of voters who voted for Superior

i 17a

Court judge voted for the Republican candidates. No

Republican resident Superior Court judges were elected

because of the structural dilution of Republican votes by

the voting customs, practices and procedures complained of

herein.

33. At the time of the 1986 general election,

27% of all voters were registered Republicans, 69% were

registered Democrats and 4% were registered to vote

unaffiliated with either party. In the 1986 general election,

approximately 43% of all voters who voted for resident

Superior Court judges voted for the Republican candidates

and approximately 57% voted for the Democratic candi-

dates. In what was then the 26th Judicial District, howev-

er, 52% of the voters who voted for resident Superior

Court judge voted for the Republican candidate for Superi-

or Court judge for that district and approximately 48%

voted for the Democratic candidates. Similarly, in what

were then the 19A, 19B, 22, 23, 24, 25, 26, 27A and 29

Judicial Districts, a majority of voters who voted for

resident Superior Court judge voted for the Republican

candidates. No Republican resident Superior Court judges

were elected because of the structural dilution of Republi-

can votes by the voting customs, practices and procedures

complained of herein.

34. Since 1968, 10 Republicans have run for

resident Superior Court judge. In 4, or 40%, of these

contests, the Republican candidate would have been

successful if resident Superior Court judges were elected by

the qualified voters of the judicial district in question,

rather than by statewide election. Since 1900, no Republi-

can has been elected resident Superior Court judge in North

Carolina because of the voting customs, practice and

procedures complained of herein. The custom or practice

of state-wide election of resident Superior Court judge has

18a

been imposed and maintained by the defendants and their

predecessors in office for the purpose and with the effect

of consistently degrading the influence of Republican

Voters on the political process as a whole.

35. Arthur S. Beckhan, Jr., was a registered

Republican Voter in the 22nd Judicial District. In 1968, he

was the Republican candidate for resident Superior Court

judge for the 22nd Judicial District. In that election, he

received a State-wide total of 597,234 votes and his

Democratic opponent received a total of 763,487 votes. In

the 22nd Judicial District, however, Beckham received

38,823 votes and his Democratic opponent received only

33,138 votes. But for the requrement of statewide election

of resident Superior Court judges imposed by the defen-

dants or their predecessors in office, Beckham would h..e

been elected.

36. The terms of regular Superior Court;. . 5

have been so established so that the dates for their ele.

election and in 1986, 22 were up for election. In con::

in 1980, only 8 were up for election and, in 1984, on’. 8

were up for election. The terms for resident Supe: .r

Court judges have been so established for the purpose .°d

with the effect of consistently degrading the influence of

Republican Voters on the political process as a whole.

37. In North Carolina, the General Assembly has

been consistently and overwhelmingly controlled by

Democrats in numbers far in excess of the proportionate

voting strength of Democratic voters. Through the gerry-

mandering of legislative district lines and other voting

customs, practices and procedures such as (1) large

multimember districts with little or no community of

19a

interest other than a Preponderance of Democratic voters

and the submergence of Republican Voters therein, (2)

numbered seats, (3) ballot counting rules which, until

recently, canceled crossover votes, (4) manipulation of tax

checkoff campaign funds, (5) ballot Position rules, (6)

closed primary rules, (7) runoff primaries, (8) anti-single

Shot voting rules, (9) rotation agreements and (10) mal-

apportionment of state resources, the votes of Republican

Voters have been persistently degraded and diluted in the

election of members of the General Assembly and the

influence of Republican Voters on the political process as

a whole has been and is consistently degraded. The

consistent and Overwhelming control of the General

Assembly by Democrats far in disproportion to Democratic

voting strength is evidence that the electoral System is

38. In the General Assembly, Republican

members are discriminated against and humiliated by

Customs and practices imposed by the Overwhelming

Democratic majority such as (1) being segregated in the

rear of the Assembly chambers as racial minorities were on

public transportation and places of public assembly in the

past, (2) having their Proposed laws receive no fair or

impartial consideration, (3) having their proposed laws

Substituted by substantially identical Proposed laws with

Democratic sponsors, (4) being denied seats on committees

in proportion to their relative strength in the General

Assembly, (5) being denied any influence in the selection

or appointment of legislative staff and, (6) being denied the

same level of legislative services enjoyed by Democrats.

These specific items of discrimination and humiliation are

evidence that the electoral System is arranged in such a

20a

manner that will consistently degrade the influence of

Republican Voters on the political process as a whole.

39. In North Carolina, the Governor has no veto

power and is unable to operate as a constitutional check or

balance on the unbridled power of the overwhelming

control of the General Assembly by Democrats. Despite

the fact that opinion polls indicate that a majority of all

voters in North Carolina favor the gubernatorial veto, the

General Assembly persistently refuses to adopt a constitu-

tional amendment providing for the veto and even refuses

to allow a referendum on the issue. The refusal of the

Democratic General Assembly to adopt the gubernatorial

veto or to allow a referendum on the issue is evidence that

the electoral system is arranged in such a manner that will

consistently degrade the influence of Republican voters on

the political process as a whole.

40. | When the Governor is a Republican, which

has occurred only twice in this century, the Democratic

controlled General Assembly regularly and consistently

passes laws which deprive the Governor of his historic and

traditional powers, even to the point of depriving him of

his power to name his own legal counsel when he challeng-

es the same, and other arbitrary, capricious and unconstitu-

tional legislation; instead, the General Assembly imposes

upon him the legal representation of the Attorney General

who is a Democrat and who controls litigation in a manner

contrary to the desires and policies of the Governor.

Similarly; Chapter 509 abolished the position of Special

Superior Court Judge, which positions were filled by

appointment by the Governor, effective December 31,

1988, and even sought to deprive the Governor of his

appointive power until that date by purporting to continue

in office the Democrats whose terms were due to expire on

June 30, 1987. The deprivation of the Governor’s historic

2la

and traditional powers when he is a Republican is evidence

that the electoral system is arranged in such a manner that

will consistently degrade the influence of Republican

Voters on the political process as a whole.

41. The North Carolina congressional delegation

has been consistently and overwhelmingly controlled by

Democrats in numbers far in excess of the proportionate

voting strength of Democratic voters, through the gerry-

mandering of congressional district lines which, for

example, include in such districts counties with little

community of interest, exclude from such districts counties

which have communities of interest, shift counties in and

out of districts to reduce the name recognition value of

incumbent Republicans and other similar devices. Such

gerrymandering is possible because of the consistent and

overwhelming control of the General Assembly by Demo-

crats and the lack of the gubernatorial veto. The consistent

and overwhelming control of the congressional delegation

by Democrats far in excess of the proportionate voting

strength of voters is evidence that the electoral system is

arranged in such a manner that will consistently degrade

the influence of Republican Voters on the political process

as a whole.

42. The State of North Carolina has no strong

policy favoring statewide election of resident Superior

Court judges. In fact, statewide election chills the desire

of Republicans to be candidates for resident Superior Court

judge and the ability of Plaintiff NCGOP to recruit candi-

dates for resident Superior Court judge. In the 1984 and

1986 general elections, for example, of 40 resident Superi-

or Court judgeships up for election, only 4 were contested.

Since 1968, of 181 resident Superior Court judgeships up

for election, only 10 have been contested. As a result,

22a

statewide election of resident Superior Court judges chills

public debate on issues of public importance.

43. The North Carolina Code of Judicial Ethics

prohibits candidates for resident Superior Court judge from

discussing their views on disputed legal or political issues,

such as their views regarding the death penalty or other

issues of public importance. As a result, contested races,

when they occur, are entirely controlled by the party voting

preference and habit of the electors statewide. Thus, the

overwhelming statewide registration advantage enjoyed by

the Democratic party guarantees the election of the Demo-

cratic candidate, and in the context of the Code of Judicial

Ethics, chills public debate on issues of public importance.

44. The carefully created structure of statewide

election coupled with the prohibitions on effective cam-

paigning imposed by the Code of Judicial Ethics also chills

the ability of Republican candidates to raise campaign funds

in order to promote name recognition and thereby amelio-

rate and overcome the statewide Democratic registration

advantage. |

45. Asa result of all the foregoing factors, only

a very small number of voters, if any, have any knowledge

about the candidates for resident Superior Court judge

outside the Judicial District in which a particular voter

resides. Predictably, the above pled factors and the lack of

voter knowledge chill all voters in the exercise of the

electoral franchise and result in a marked decrease in the

percentage of voters who bother to vote in the judicial

races. For example, in the 1984 general election, a total

of 2,226,727 voters voted in the election for Governor but

on 1,886,020 voters voted in the contested election for

resident Superior Court judge for the 24th Judicial District

and only 1,945,656 voters voted in the contested election

I a

a coaseeaenaeeneaiiaaiaiiaie enamide

_- - Ee

23a

for resident Superior Court judge for the 2nd Judicial

District. Similarly, in the 1986 general election, a total of

1,591,330 voters voted in the election for U.S. Senator but

only 1,400,751 voters voted in the contested election for

resident Superior Court judge for the 2nd Judicial District.

Thus, the voting customs, practice and procedures com-

plained of herein chill public debate on issues of public

importance and chill the exercise of the electoral franchise.

VIOLATIONS

46. The adoption and maintenance of statewide

; election of resident Superior Court judges was and is

| intended consistently to degrade, and has the effect of

consistently degrading, the influence of Republican Voters

| on the political process as a whole. Statewide election of

| resident Superior Court judges is a voting custom, practice

or procedure which is part of a complete electoral system

which is arranged in a manner that is intended consistently

to degrade, and has the effect of consistently degrading, the

influence of Republican Voters on the political process as

a whole.

47. The custom, practice or procedure of

requiring that candidates for resident Superior Court judge

run for specific judgeships ("numbered posts") instead of

running at-large for all judgeships up for election in a given

year has no authority in law and is contrary to the provi-

sions of N.C.G.S. §163-1(a) and (b). The adoption and

maintenance of numbered posts was and is intended

consistently to degrade, and has the effect of consistently

degrading, the influence of Republican Voters on the

political process as a whole. Numbered posts is a voting

custom, practice or procedure which is part of a complete

electorial system which is arranged in a manner that is

intended consistently to degrade, and has the effect of

24a

consistently degrading, the influence of Republican Voters

on the political process as a whole.

48. The use of district, rather than statewide,

nomination for resident Superior Court judges has no

authority in law and is contrary to the provisions of

N.C.G.S. §163-1. The adoption and maintenance of

district nomination was and is an integral part of the

"numbered post" system and was and is intended consis-

tently to degrade, and has the effect of consistently degrad-

ing, the influence of Republican Voters on the political

process as a whole. District nomination of resident

Superior Court judges is a voting custom, practice and

procedure which is part of a complete electoral system

which is arranged in a manner that is intended consistently

to degrade, and has the effect of consistently degrading, the

influence of Republican Voters on the political process as

a whole.

49. The requirement that a candidate for resident

Superior Court Judge must reside in the Judicial District

for which he seeks election before he can file a notice of

candidacy is a voting custom, practice and procedure

which, by itself and as a part of a complete electoral

system, is arranged in a manner that is intended consistent-

ly to degrade, and has the effect of consistently degrading,

the influence of Republican Voters on the political process

as a whole.

50. The voting customs, practices and proce-

dures complained of herein, alone and in combination with

the other facts alleged herein, are intended to and result in

the overwhelming predictability of the success of Demo-

cratic candidates for resident Superior Court judge over

Republican candidates and were and are intended to and did

and do constitute structural dilution of the voting franchise

de a ee ee Se en) SR Seal ee Oe Bed

—

25a

of Republican Voters in violation of the Fourteenth Amend-

ment to the United States Constitution.

51. The voting customs, practices and proce-

dures complained of herein, alone and in combination with

the other facts alleged herein, are intended to and restrict

the free exercise of the fundamental rights of free speech

and association in violation of the First Amendment to the

United States Constitution.

RELIEF

Wherefore Plaintiffs pray for:

i A declaration that the voting customs,

practices and procedures complained of herein constitute

unlawful structural dilution of the voting franchise of

Republican Voters and an unlawful restriction of their

fundamental rights of freedom of speech and association.

2. A preliminary and permanent injunction

Prohibiting the defendants from conducting elections for

resident Superior Court judge under the existing system and

an order that such elections be conducted by judicial

district (without a candidacy residency requirement) for

both nomination and election in such a manner as does not

unlawfully discriminate against Republican candidates and

Voters.

: 7 The costs of this action, including reasonable

attorneys’ fees.

4, Such other and further relief as to the Court

may seem just and proper.

26a

Respectfully submitted,

/S/ C, ALLEN FOSTER

C. Allen Foster

LS/ CHARLES B, ROBSON, JR,

Charles B. Robson, Jr.

LS/ ROBERT G. MCIVER

Robert G. McIver

Attorneys for Plaintiffs

OF COUNSEL:

FOSTER, CONNER, ROBSON & GUMBINER, P.A.

104 North Elm Street

P. O. Drawer 20004

Greensboro, North Carolina 27420

919/273-1733

and

700 Raleigh Federal Building

One Exchange Plaza

P. O. Box 786

Raleigh, North Carolina 27602

919/832-4111

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.