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May 19, 1997


The opinion of the court was delivered by: SPORKIN

 The plaintiffs in this case are individual registered voters of Cleveland County, North Carolina, and the Cleveland County Association for Government by the People ("CCAGP"), an unincorporated association. *fn1" This matter is before the Court now on (1) Plaintiffs' Motion for Judgment on the Pleadings or, in the alternative, for Summary Judgment; (2) Defendant Cleveland County Board of Commissioners' (the "Board of Commissioners") Motion to Dismiss; and (3) Defendant National Association for the Advancement of Colored People's (the "NAACP") Motion to Dismiss. The Court has considered the motions and the opposition thereto, and has received and considered amicus curiae briefs from the United States; the mediator (the "Mediator") in the case of Campbell v. Cleveland County Board of Commissioners, Civ. No. 94-0845-SS (the " Campbell Case"), Mr. Harvey L. Pitt, Esq. *fn2" ; and the Center for Voting and Democracy. *fn3" The Court heard oral argument on May 6, 1997.


 From 1966 to 1994 the Cleveland County Board of Commissioners in Cleveland County, North Carolina, consisted of five members elected from the county at-large in partisan elections for four-year staggered terms. Elections were held in even-numbered years. In the 1990 census, African-Americans constituted 20.9 percent of the county's total population of 84,714 and 18.8 percent of the voting age population. Through the 1994 election, no black citizen ever had been elected to the Board of Commissioners.

 Following a 1991 request from the local chapter of the NAACP, the Board of Commissioners initiated a study of Cleveland County's election method and whether it could be modified to improve the ability of black citizens to elect candidates of their choice. In October 1992 a study committee created by the commissioners recommended expansion to a seven-member board, five to be elected from districts and two at-large. One of the districts would have had a majority of black citizens. Legislation to authorize the county to adopt such a plan was enacted by the North Carolina General Assembly in 1993. The legislation expired by its own terms in January 1994, however, as the Board of Commissioners was unable to agree on a districting plan.

 In January 1994 M.L. Campbell, other black citizens of Cleveland County, and the NAACP filed the Campbell Case in the United States District Court for the Western District of North Carolina, contending that the method of electing county commissioners violated Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (the "Voting Rights Act"). The Campbell Case was transferred to the District of Columbia on April 15, 1994. On May 19, 1994, the Court appointed the Mediator, without objection from the parties, to assist the parties in resolving their disputes. The Campbell Case was resolved by the Court's approval of a consent decree on July 22, 1994 (the "Consent Decree").

 The Consent Decree adopted an election plan (the "Election Plan") that provided for an expansion of the Board of Commissioners to seven members, and the eventual adoption of at-large, limited voting in the election of Commissioners. For the 1994 and 1996 elections, the old methods remained in place with two notable exceptions: (1) the members of the Board of Commissioners elected in 1996 would serve only two years; and (2) after the 1994 election, two additional Commissioners who were "representative of the black community in Cleveland County" would be appointed to the Board for four-year terms. Consent Decree P 5a. Beginning with the 1998 election all seven seats would be elected at the same time, with newly-elected commissioners to serve at-large. In both party primaries and the general election, each voter would be allowed to cast up to four votes for different candidates, with the top seven candidates to be elected.

 The Consent Decree was subject to preclearance under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. It was submitted and was precleared by the United States Attorney General on September 26, 1994. The Board of Commissioners thereafter appointed the two new commissioners and those appointments were approved by the Court. Both new commissioners took office in September 1995.

 Plaintiffs filed the immediate case in the Western District of North Carolina on January 5, 1996. This case was transferred to this Court in June 1996. Plaintiffs' Second Amended Complaint asserts two causes of action: (1) the Consent Decree violates (a) the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because the Consent Decree is allegedly "race based" and (b) the Fifteenth Amendment because it allegedly abridges Plaintiffs' right to vote on account of Plaintiffs' race by denying them the right to vote for the two appointed Board members; and (2) this Court lacked authority to issue an order implementing the Consent Decree because the Consent Decree is contrary to North Carolina law and the Court made no finding that the old method of electing members of the Board of Commissioners violated federal law. It is the contention of Plaintiffs that the recent cases of Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993) (" Shaw I") and Shaw v. Hunt, 135 L. Ed. 2d 207, 116 S. Ct. 1894 (1996) (" Shaw II") are controlling here. *fn4" Plaintiffs have moved for judgment on the pleadings or, in the alternative, for summary judgment, and ask that the Court vacate the Consent Decree, provide additional injunctive relief, and award fees.

 The United States argued in its amicus brief that Shaw I does not require that every consent decree entered to resolve Section 2 litigation automatically states a claim for an equal protection violation or that all such consent decrees are automatically subject to strict scrutiny. The government claims that Defendant Board of Commissioners' motion to dismiss should be granted, at least in part because Plaintiffs have failed to allege facts to establish that the permanent limited voting plan embodied in the Consent Decree violates the Equal Protection Clause of the Fourteenth Amendment.

 The Mediator argued in his amicus brief that the Consent Decree does not violate the Fourteenth Amendment or the Fifteenth Amendment and that the Court had authority to enter the Consent Decree. The Center for Voting and Democracy claimed in its amicus brief that the limited voting plan adopted by Cleveland County has, at most, a modest effect on election outcomes, since it does not guarantee any seats on the Board of Commissioners to blacks, nor does it give black voters any more voting power than other voters.


 I. Plaintiffs' Have a Proper Basis For Bringing this Action

 A. Plaintiffs Have Standing

 Defendants Board of Commissioners and the NAACP challenge Plaintiffs' standing to bring this case, so the Court will address standing as a threshold matter.

 "In order to establish standing under Article III, a complainant must allege (1) a personal injury-in-fact that is (2) 'fairly traceable' to the defendant's conduct and (3) redress able by the relief requested." Branton v. Federal Communications Comm., 301 U.S. App. D.C. 244, 993 F.2d 906, 908 (D.C. Cir. 1993); (quoting Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984)), cert. denied, 511 U.S. 1052, 114 S. Ct. 1610, 128 L. Ed. 2d 338 (1994). In addition, "the alleged injury must be 'distinct and palpable.'" Branton, 993 F.2d at 908 (quoting Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975)). "A plaintiff who seeks to challenge [governmental] practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would benefit in a tangible way from the court's intervention." Warth, 422 U.S. at 508. More particularly, an association must allege that it has been injured by the challenged action or "that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justifiable case had the members themselves brought suit." Warth, 422 U.S. at 511.

 Plaintiffs have standing in this case. They are registered voters and citizens of Cleveland County bringing an action concerning an alleged violation of the Equal Protection Clause with respect to the election procedures used in their county. In Shaw II and United States v. Hays, 515 U.S. 737, 132 L. Ed. 2d 635, 115 S. Ct. 2431 (1995), the Supreme Court made clear that a plaintiff who resides in a district which is the subject of a racial gerrymandering claim had standing to challenge the legislation which created that district. It would be consistent with the governing principles established by the Supreme Court in those cases to conclude that standing should also extend to resident voters who make a colorable claim that they have been subjected to an alleged constitutionally impermissible voting scheme brought about as the result of the settlement of litigation by their elected representatives. *fn5"

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