IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CIVIL NO. 4:86CV00291 NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL., Plaintiffs, PLAINTIFFS MEMORANDUM IN RESPONSE TO DEFENDANT S REQUEST THAT COURT DETERMINE v. ELECTION SCHEDULE CITY OF THOMASVILLE, NORTH CAROLINA; CITY COUNCIL OF THOMASVILLE, NORTH CAROLINA, ET AL., Defendants, Plaintiffs respectfully submit this Response to Defendant City of Thomasville s Request That Court Determine Election Schedule filed February 28, 2006 [hereinafter Request ]. The City of Thomasville [hereinafter the City ] asks the Court to specify whether all seven seats on the City Council will be up for election in 2007, as required by the referendum approved by the voters on April 15, 2003, or whether only four of the seven seats should be elected. The City takes no position on which is the proper method of implementing the referendum. The Court should deny the defendant s request that it enter a supplemental order because the Order and Judgment entered on November 23, 2005, (Docket Number 63 clearly required full implementation of the 2003 referendum in the 2007 City Council
elections and there are no grounds to vary from the referendum or from this Court s Judgment. I. STATEMENT OF CASE Plaintiffs, the National Association for the Advancement of Colored People (NAACP, and two African American registered voters, originally filed this action on March 31, 1986, alleging that the City s at-large method of electing city council members had the purpose and/or effect of diluting minority voting strength in violation of Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C 1973. Approximately a year later the parties reached an agreement and on March 18, 1987, the Court entered a consent judgment finding that the at-large election procedure violated Section 2 of the Voting Rights Act. Judgment, March 18, 1987, (Docket No. 18. The Court ordered the City of Thomasville to amend its charter to provide that the City would be divided into five single-member electoral wards (electing one member from each ward to four-year staggered terms, and that two members of the Council be elected at-large every two years. The new plan was first implemented in the City s 1987 election. On April 15, 2003, voters approved referenda that changed the length of city council members terms to two years and changed the method of election to an at-large system with no ward residency requirements. Memorandum Opinion, November 23, 2005, (Docket No. 62 at pg. 4 [hereinafter Memorandum Opinion ]. Plaintiffs then sought to enjoin implementation of the at-large election system and on October 10, 2003 the Court granted a preliminary injunction prohibiting the City from conducting elections for mayor and members of the City Council by any method other than that provided in 2
the Consent Judgment entered March 18, 1987. Order and Preliminary Injunction, Docket No. 24. On December 6, 2004, Defendants filed a Motion for Relief from Judgment pursuant to Rule 60(b of the Federal Rules of Civil Procedure requesting that the Court terminate its 1987 Judgment. After two hearings on the motion, the Court held that although voting in the City is still racially polarized, the election method established by the 2003 referenda would have significantly fewer barriers than the at-large method before the court in 1987 and therefore will not dilute minority voting strength. Memorandum Opinion, slip op. at 30. The Court ordered that the 1987 judgment be vacated to allow the 2007 elections for seats on the Thomasville City Council to be conducted utilizing the seven seat at-large election method approved by the voters in the April 15, 2003, referendum. On February 28, 2006, the City filed a Request That Court Determine Election Schedule asking the Court to rule whether all seven seats on the City Council should be up for election or only four seats, the latter option allowing Council members elected to seats in 2005 to serve four-year terms and not stand for election until 2009. II. STATEMENT OF FACTS Currently there is one African-American elected to the City Council, George Burton, who was most recently elected from the majority-black Ward 3 in a delayed election held in February 2004. Memorandum Opinion, slip op. at 4 & 6. If the Court were to alter its Order and Judgment to allow the City Council members elected from Wards 1, 2 and 4 to serve until 2009, Mr. Burton, a candidate of choice of black voters, 3
would have to run in 2007 in an at-large election where only four seats would be up for election. The changes approved by the voters in the April 2003 referenda will mean that the Thomasville City Council will consist of seven members elected concurrently every two years in at-large, non-partisan, plurality elections. Memorandum Opinion, slip op. at 11. In dissolving the 1987 Consent Judgment, the Court directed the City to conduct the 2007 elections utilizing the election method approved by the voters in the April 15, 2003, referendum. Memorandum Opinion, slip op. at 31; See also, Order and Judgment, November 23, 2005, Docket No. 63 (same. The Court s Memorandum Opinion dated November 23, 2005 contains extensive findings of fact concerning elections for the Thomasville City Council and the patterns of polarized voting that characterize those elections. For the purposes of this post-judgment motion, the significant fact is that black voters ability to elect candidates is enhanced by the elimination of staggered terms and residency districts so that candidates for all seven seats run together in non-partisan, plurality elections for two-year terms, allowing the use of single-shot or bullet voting (refraining from casting all seven votes in order to avoid the risk of giving lower-ranked candidates enough votes to defeat higher-ranked choices. Memorandum Opinion, slip op. at 11. Moreover, the Court concluded that [a]n election method in which all seven seats for the City Council are elected at the same time in a non-partisan plurality election, with the elimination of staggered terms and residency districts, has significantly fewer barriers than the at-large election method before the court in 1987, is suitably tailored to the changed circumstances since the 1987 judgment, and does not have a significant 4
likelihood of diluting minority voting strength in violation of Section 2 of the Voting Rights Act. Memorandum Opinion, slip op. at 30. Indeed, with seven seats available in each biennial plurality election, and the availability of single-shot voting, black voters should be able to duplicate or even exceed the success that they have had under the current method. Memorandum Opinion at 31. These findings and conclusions were well supported by evidence in the record. For example, Plaintiffs expert witness testified that single-shot or bullet voting (refraining from casting all seven votes in order to avoid the risk of giving lower-ranked candidates enough votes to defeat higher-ranked choices is an effective strategy of electing minority candidates of choice in at large elections. Deposition of O. Vernon Burton, April 20, 2005 at pg. 9, (Docket No. 58 [hereinafter Burton Deposition ]. In addition, increasing the number of seats elected concurrently increases the effectiveness of single-shot voting because adding more candidates increases the opportunity for minority voters to eliminate lower ranked candidates by casting all of their votes for higher ranked candidates and increases the possibility that the majority voters will distribute their votes among numerous lower ranked candidates. Burton Deposition at 11. III. ARGUMENT A. ALL SEVEN SEATS FOR THE CITY COUNCIL SHOULD BE ELECTED AT THE SAME TIME AND ALL TERMS SHOULD BE TWO YEARS Plaintiffs will be severely disadvantaged in their efforts to elect candidates of their choice if the Court alters, amends, or vacates its order to allow less than seven candidates to run in the 2007 election. The effect of minority voters single-shot votes would be 5
significantly weakened. The Court emphasized the importance of the single shot voting method providing greater opportunities when seven seats are open, as a basis for its order of November 23, 2005. Memorandum Opinion, slip op. at 11, 22, and 31. With fewer seats available, African American voters in Thomasville would have less opportunity to use the single shot vote to elect candidates of their choice. Granting the City s motion and adopting this method of implementing the referendum would eviscerate the very basis for the Court s conclusion that the proposed method of election would not violate Section 2 of the Voting Rights Act. In circumstances where the Court s Judgment that the referenda limiting city council members terms to two years and that all seven seats for the city council be elected at one time should be fully implemented in 2007 is clear, where the City takes no position on the course the Court should take, and where changing the method of election would prejudice the Plaintiffs, it is clear that the City s motion should be denied. In addition, there is no legal basis for the Court to take the action requested by the City. B. THE CITY S REQUEST DOES NOT MEET THE STANDARDS FOR A MOTION IN THESE CIRCUMSTANCES The City labeled its pleading a Request That Court Determine Election Schedule. In it, the City presents the question of whether all seven council seats are subject to election in 2007 or whether those members elected to ward seats in 2005 may serve four-year terms and not stand for election until 2009, and requests that the Court enter a supplemental order specifying the offices to be elected in 2007. Request at 1. However, the City offers no legal basis for the Court s entry of such a supplemental order. 6
The Court should treat the Request as a Motion to Alter or Amend a Judgment pursuant to Rule 59(e of the Federal Rules of Civil Procedure. Motions are properly treated according to their substance rather than their labels. See, Marine Midland Bank v. Slyman, 995 F.2d. 362, 365 (2d. Cir. 1993 (holding that a pleading while not formally styled as a motion under rule 59, it may appropriately be treated as one. and since it was filed within the time limit imposed by rule 59(e and served to amend the final judgment, it was functionally equivalent to a rule 59(e motion; United States v. City of Chicago, 631 R.2d 469, 474 (7 th Cir. 1980 ( Any motion that draws into question the correctness of the judgment is functionally a motion under Civil Rule 59(e, whatever its label. Cf. Gonzalez v. Crosby, U.S., 125 S.Ct. 2641, 2647, 162 L.Ed.2d 480 (2005 (Rule 60(b motions should be treated as a successive habeas petition if it presents the same claims. Here, the Defendant s Request is, in substance, a Rule 59(e motion because it requests that the Court enter a supplemental election schedule specifying the offices to be elected in 2007 and suggests that the Court might delay implementation of the at-large election method (approved by the voters in the 2003 referendum until 2009, after the Court has already ordered the 2007 elections for seats on the Thomasville City Council to be conducted utilizing the election method approved by the voters in the April 15, 2003, referendum [that all seven City Council seats be elected at-large]. Memorandum Opinion, slip op. at 31. Therefore, if the Court permits only four seats (or any number less than seven to be elected at-large in the 2007 election, such a change would amount to an amendment or an alteration of the Court s order and would be subject to the limitations of Rule 59(e. 7
The Court should deny the defendant s Request pursuant to Rule 59(e because it fails to state sufficient grounds for alteration or amendment of the judgment and only raises a question which could have been raised prior to the issuance of the judgment. There are three grounds for amending a previously entered judgment: (1 to accommodate an intervening change in controlling law (2 to account for new evidence not available at trial (3 to correct a clear error of law or prevent manifest injustice. Pacific Insurance Co. v. American National Fire Insurance Co., 148 F.3d 396, 403 (4 th. Cir. 1998; See also, EEOC v. Lockhead Martin Corp. Aero & Naval Sys., 116 F.3d 10 (4 th Cir. 1997; Hutchinson v. Staton, 994 F.2d. 1076 (4 th Cir. 1993. Rule 59(e motions may not be used, however, to raise arguments which could have been raised prior to the issuance of judgment. Pacific Insurance Co, 148 F.3d at 403. The City alleges no intervening change in controlling law or discovery of new evidence that was not available at trial since entry of the judgment. Nor does the City allege that there is any error of law in the Court s judgment or that alteration or amendment of the judgment is necessary to prevent manifest injustice. The Request hints at the possibility of concern over whether those members elected to ward seats in 2005 should be permitted to serve four-year terms. However, such concerns are without significance where the voters have already spoken and decided, by referendum, to limit all seats to two-year terms. Moreover, the City failed to raise such concerns prior to entry of the judgment. The Court should also deny the defendant s Request pursuant to Rule 59(e because it was untimely filed. The Rule provides that: any motion to alter or amend a judgment shall be filed no later than ten days after entry of the judgment. Fed. R. Civ. 8
P. 59(e. The judgment was entered on November 23, 2005, and the defendant s Request was not filed until February 28, 2006. Therefore, the motion is barred because it was filed more than ten days after entry of the judgment. In the alternative, if the Court treats the City s Request as a Motion for Relief from Judgment pursuant to Rule 60(b of the Federal Rules of Civil Procedure, the Court should deny the motion because it fails to state sufficient grounds for such relief. Before a party may seek relief under Rule 60(b, a party must show timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and exceptional circumstances. Dowell v. State Farm Fire & Casualty Auto. Inc. Co., 993 F.2d 46, 48 (4 th Cir. 1993, (citing Werner v. Carbo, 731 F.2d 204, 207 (4 th Cir. 1984. After a party has crossed this initial threshold, the party then must satisfy one of the six specific sections of Rule 60(b which includes the following: (1 mistake, inadvertence, surprise, or excusable neglect (2 newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b (3 fraud, misrepresentation or other misconduct of an adverse party (4 the judgment is void (5 the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application (6 any other reason justifying relief from the operation of the judgment. Werner, 731 F.2d 207. Here, the City alleges no exceptional circumstances justifying vacating the Court s order under Rule 60(b. The defendant also alleges no facts satisfying any one of the six specific sections of Rule 60(b. 9
C. THE COURT DOES NOT HAVE THE LEGAL AUTHORITY AT THIS STAGE TO OVERRIDE THE METHOD OF ELECTION REQUIRED BY THE 2003 REFERENDA The Court has no authority to alter or amend the April 2003 referendum as the request of the City at this stage in the case. The tenth amendment to the U.S. Constitution provides: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Outside a field in which state law is completely and expressly preempted by state law or one in which federal law is so pervasive that it leaves little room for state law, state law is only preempted to the extent that it conflicts with federal law. Pacific Gas and Elec. Co. v. State Energy Resources Conservation & Dev. Com., 461 U.S. 190, 103 S. Ct. 1713, 75 L.Ed.2d 752 (1983. North Carolina law reserves to the state authority over the structure and method of election of city boards. See N.C. CONST. art. 7, 1 ("The General Assembly shall provide for the organization and government... of counties, cities and towns, and other governmental subdivisions, and, except as otherwise prohibited by this Constitution, may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.". See also, N.C. Gen. Stat. 160A-101 (6 (prescribing modes of election for city councils. Subsequent changes in the structure and election of any board must take place in accordance with a specifically prescribed procedure. N.C. Gen. Stat. 160A-102. The April 2003 referendum was adopted by the City Council and approved by the voters in accordance with North Carolina law. Therefore, the Court can only alter or amend it to the extent that it conflicts with federal law. The defendant does not, however, offer any 10
legal basis for amending the referendum to allow for any number less than all of the seats to be elected concurrently. IV. CONCLUSION The City of Thomasville must conduct the 2007 City Council election utilizing the method of election approved by the voters in the April 15, 2003 referendum (the at-large election of all seven candidates in full accordance with the Court s order of November 23, 2005. For the reasons set forth above, the Court should deny the City s request that it enter a supplemental order modifying the election schedule. Respectfully submitted, this 22nd day of March, 2006. /s/ Anita S. Earls Anita Earls Bar Number 15597 Attorney for Plaintiffs UNC Center for Civil Rights CB# 3380, Van Hecke-Wettach Hall Chapel Hill, N.C. 27599 Telephone: (919 843-7896 E-mail: earls@email.unc.edu Angela Ciccolo Kimberly Perkins NAACP Legal Department 4805 Mt. Hope Drive Baltimore, MD 21215-3297 Romallus O. Murphy N.C. Bar No. 3177 P. O. Box 20383 Greensboro, N.C. 27420 (336 273-1698 11
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL., Plaintiffs, Case No. 4:86 CV 291 v. CITY OF THOMASVILLE, NORTH CAROLINA; CITY COUNCIL OF THOMASVILLE, NORTH CAROLINA, ET AL., Defendants, CERTIFICATE OF SERVICE I hereby certify that on March 22, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Michael Crowell, Attorney for Defendants, and I hereby certify that I have mailed the document to the following non CM/ECF participants: Paul R. Mitchell, Thomasville City Attorney, 17 Randolph Street, Thomasville, N.C. 27360. Respectfully submitted, /s/ Anita S. Earls Anita S. Earls UNC Center for Civil Rights CB# 3380, Van Hecke-Wettach Hall Chapel Hill, N.C. 27599-3380 Phone: (919 843-7896 E-mail: earls@email.unc.edu N.C. Bar Number 15597 12