On June 27, 2002, this Court denied the Counterclaimants' Emergency Motion for Injunctive Relief, for reasons to be more fully stated in a memorandum to be filed. This is that memorandum.
On November 13, 2001, the North Carolina General Assembly enacted a redistricting plan for the state Senate and House based on the 2000 census ("the General Assembly's 2001 plan"). On February 11, 2002, the Department of Justice precleared the General Assembly's 2001 plan pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c.
On the same day that the General Assembly enacted its 2001 plan, the Plaintiff-Intervenors in this action - Ashley Stephenson, an individual voter; several Republican members of the General Assembly; and the Chairman of the North Carolina Republican Party ("the Stephenson Intervenors") -filed suit in the Superior Court of Johnston County, North Carolina, alleging that the General Assembly's 2001 plan violated 1968 amendments to the North Carolina Constitution. Those amendments proscribed redistricting plans which divided counties. *fn1
On February 20, 2002, the Honorable Knox V. Jenkins Jr., of the Johnston County Superior Court, ruled that the General Assembly's 2001 plan was invalid in light of the 1968 amendments. Judge Jenkins also enjoined the implementation of the General Assembly's 2001 plan but stayed his order pending appeal. On March 7, 2002, the Supreme Court of North Carolina enjoined the primary elections for the state Senate and House scheduled for May 7, 2002. On March 12, 2002, the North Carolina State Board of Elections ("the Board") voluntarily postponed primaries for all other offices also scheduled for that date. Acting on a submission by the Board, the Department of Justice precleared the state supreme court's injunction and the Board's voluntary postponement on March 15, 2002. *fn2
On April 30, 2002, the North Carolina Supreme Court affirmed Judge Jenkins's ruling, holding that the 1968 amendments were enforceable and must be adhered to in redistricting. See Stephenson v. Bartlett, 562 S.E.2d 377 (N.C. 2002). The court remanded to Judge Jenkins, authorizing him to adopt a new redistricting plan consistent with Stephenson and "to seek preclearance thereof, for use in the 2002 election cycle." Id. at 398. The Board subsequently applied to the Supreme Court of the United States for a stay of the Stephenson decision pending appeal. On May 17, 2002, Chief Justice William Rehnquist, as circuit justice, denied the application. See Bartlett v. Stephenson, 122 S. Ct. 1751 (2002).
On May 31, 2002, Judge Jenkins created a new plan ("the state court's 2002 plan"). On June 12, 2002, he asked the Department of Justice to preclear his plan. The Department of Justice represents that it will not complete its review of the state court's 2002 plan before the week of July 8, 2002. Meanwhile, it has in its files its own November 30, 1981 letter refusing to preclear the 1968 amendments. See Letter from Wm. Bradford Reynolds, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, to Alex Brock, Executive Secretary and Directors, North Carolina State Board of Elections, dated November 30, 1981. *fn3 The North Carolina Supreme Court concluded in Stephenson that the 1968 amendments could be harmonized with the Department of Justice's 1981 objection.
On June 13, 2002, the Board filed its complaint in this Court also requesting preclearance of the state court's 2002 plan. The Board additionally seeks preclearance of the Stephenson ruling and the constitutional amendments that it applied.
Meanwhile, two other actions have been filed in the United States District Court for the Eastern District of North Carolina and are pending before three-judge courts there. In Sample v. Jenkins, No. 02-CV-383 (E.D.N.C. filed June 13, 2002), the plaintiff challenges the state court's 2002 plan. In Foreman v. Bartlett, No. 01-CV-166 (E.D.N.C. filed Nov. 13, 2001), the plaintiffs challenge Congressional redistricting plans which are not presently before this Court.
On June 20, 2002, the Sample plaintiff filed a motion requesting that the North Carolina three-judge court enjoin the Board from implementing the as yet unprecleared state court's 2002 plan and require it to implement the precleared General Assembly's 2001 plan. A hearing on that motion has been scheduled for July 2, 2002. The Sample plaintiff subsequently filed a motion to intervene as a defendant in the Board's lawsuit here, which this Court granted on June 26, 2002.
On June 14, 2002, Marc Basnight, President Pro Tempore of the North Carolina Senate, and James B. Black, Speaker of the North Carolina House of Representatives ("the Counterclaimants"), along with the Stephenson Intervenors identified above, moved to intervene as defendants and plaintiffs, respectively, in the Board's case in this Court. The Counterclaimants filed an answer and a counterclaim. The motions to intervene were granted on June 25, 2002.
On June 21, 2002, the Counterclaimants filed this emergency motion for injunctive relief, which is the only matter presently before this Court for decision. The Counterclaimants' motion seeks an injunction 1) preventing the Board from implementing the unprecleared state court's 2002 plan, and 2) requiring the Board to proceed forthwith to prepare for and to conduct 2002 elections for the North Carolina House and Senate pursuant to the precleared General Assembly's 2001 plan. The Counterclaimants, who are also defendants in Sample, concurred in the Sample plaintiff's motion seeking similar relief in the Eastern District of North Carolina.
The Counterclaimants argue that the injunctive relief they seek is the only way to avoid the elimination of primary runoff elections in North Carolina's 2002 election cycle, a consequence that the Counterclaimants allege will have a retrogressive effect. The Board has represented, both at oral argument and by affidavit, that unless it has a precleared plan in hand by June 28, 2002, it will not be able to conduct runoff primary elections. See Affidavit of Gary O. Bartlett, Executive Director of the North Carolina State Board of Elections ¶ 4. The Board proffers another affidavit stating that the 2002 election will involve "a sufficiently large number of candidates," including many ...