Simkins v. Gressette

Decision Date21 May 1980
Docket NumberCiv. A. No. 80-500-8.
Citation495 F. Supp. 1075
CourtU.S. District Court — District of South Carolina
PartiesModjeska M. SIMKINS, F. B. Drakeford, Billie S. Flemming, Freddie Jolley, Isaac W. Williams, Dorothy Drakeford, Lenny Springs, Frank Gilbert, S. T. Peden, Hyland Davis, and Marva Smalls, Individually and on behalf of all others similarly situated, Plaintiffs, v. L. Marion GRESSETTE, Individually, in his official capacity as President Pro Tempore of the Senate of South Carolina, and as a representative of the class of members of the Senate of South Carolina, Richard W. Riley, Individually and in his capacity as Governor of South Carolina, Ferdinan Stevenson, Individually and in her capacity as President of the South Carolina Senate, Rex L. Carter, Individually and in his official capacity as Speaker of the South Carolina House of Representatives, and as a representative of the class of members of the South Carolina House of Representatives, H. Ray Ham, Margaret Townsend, Zilla Hinton, James O. Brown, and Neal D. Thigpen, Individually and in their capacities as members of the South Carolina State Election Commission, Daniel I. Ross, Jr., Chairman of the South Carolina Republican Party and Donald L. Fowler, Chairman of the South Carolina Democratic Party, individually and as representatives of the class of officers of duly certified political parties of South Carolina, Defendants.

Mordecai C. Johnson, Florence, S. C., Fred Henderson Moore, Charleston, S. C., for plaintiffs.

Daniel R. McLeod, Atty. Gen., for State of South Carolina, Randall T. Bell, Columbia, S. C., for defendants.


BLATT, District Judge.

This is an action seeking reapportionment of the South Carolina Senate prior to the 1980 primary and general elections. The plaintiffs are eleven black citizens and registered electors of the State of South Carolina, residing in different counties across the State. The defendants are various state officials and the chairmen of the State Democratic and Republican parties. In their complaint, plaintiffs allege that the present Senate apportionment plan dilutes their voting strength in violation of the First, Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution, Section 2 of the Voting Rights Act of 1965, and 42 U.S.C., Sections 1971 and 1983. The plaintiffs have requested the convening of a three-judge district court pursuant to 28 U.S.C. Section 2284. In response, the defendants have filed motions to dismiss under Rule 12(b), Federal Rules of Civil Procedure, which motions they contend may be granted by a single judge.

In view of the decision of the Fourth Circuit Court of Appeals in Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F.2d 606 (4th Cir. 1970), this Court is of the opinion that it should not seek to have a court of three judges convened and that the motions to dismiss should be granted.


The present litigation has its genesis in the reapportionment of the South Carolina Senate after the 1970 decennial census. When the census figures were published in 1971, the General Assembly of South Carolina met in special session to reapportion electoral districts for the State Senate, the State House of Representatives, and the United States Congress. At that special session, Act No. 932 of 1971, containing alternate plans for the reapportionment of the Senate-(hereinafter, the 1971 Plans)-was approved.1 The 1971 Plans involved a combination of multimember and single member senatorial districts, with numbered seats, and with a residence requirement in the multimember districts.

Shortly after their enactment, the 1971 Plans were challenged in this Court in a suit styled McCollum v. West.2 That suit was brought by several black plaintiffs on behalf of all black voters who resided in multimember districts.3 The McCollum plaintiffs sought an injunction against the enforcement of the 1971 Plans on the ground, inter alia, that, given past voting discrimination against black citizens, the use of multimember districts in combination with numbered seats and a majority vote requirement in the party primaries4 diluted their voting strength in violation of the First, Fourteenth and Fifteenth Amendments and 42 U.S.C. Section 1983.5 They asked the Court to order legislative reapportionment of the Senate, using singlemember election districts on a statewide basis;6 in the alternative, they asked the Court to adopt and enforce its own reapportionment plan.7

On April 7, 1972, this Court struck down the 1971 Plans, finding that they violated the Fourteenth Amendment one man, one vote principle.8 The Court, however, declined to draw its own reapportionment plan until the General Assembly had been given an opportunity to enact a new plan.9 The Court also refused to mandate statewide single member districts or to abolish numbered seats as requested by the McCollum plaintiffs.10 It expressly rejected plaintiffs' claims of racial voting dilution, noting that

... there is not the slightest evidence that in its reapportionments, South Carolina has ever been motivated by racial considerations. In fact, we understood that counsel for McCollum conceded the want of racial motivation in the reapportionment plans reviewed in this action.11

In response to the Court's Order of April 7, 1972, the General Assembly enacted Act No. 1205 of 1972, which again contained alternate plans-(Plan A and Plan B)-for reapportioning the Senate.12 Upon approval by the Governor, Act 1205 was submitted to the Court for review. On May 23, 1972, the Court issued a second Order, stating:

The Court finds Plan A of Act 1205 complies with the requirements of the Constitution of the United States, and it is therefore approved.
Accordingly, it is ordered that the impending elections to the South Carolina Senate and all subsequent elections be held in conformity with Plan A of the Act unless it is revised by the General Assembly or until after the census of 1980 or the further order of this Court.13

Thereafter, the McCollum plaintiffs filed a motion to vacate or modify the Court's May 23, 1972, Order, arguing that Plan A diluted black voting strength, just as the 1971 Plans had allegedly done, by the use of multimember districts in conjunction with numbered seats and the majority vote requirement.14 On June 9, 1972, the Court entered a third Order, denying the motion to vacate or amend, and that Order concluded by stating:

Although the Court decided that Plan A complies with the guidelines of the Court's earlier order, the order of May 23 adopting Plan A expressly noted that elections should be held in conformity with Plan A until "further order of this Court". Any party seeking to challenge Plan A may, of course, bring an action seeking further relief. If such a party can prove Plan A constitutionally infirm based on facts not previously presented to this Court, relief would not be barred by the doctrine of res judicata.15

On July 11, 1972, the McCollum plaintiffs filed notice of appeal to the United States Supreme Court from the Court's decision approving Plan A. The appeal was never perfected.16

In accordance with this Court's Orders in McCollum, the 1972 and 1976 elections for the South Carolina Senate were conducted under Plan A.17 Plan A divides the State into sixteen senatorial districts, of which three are single member districts, and the remainder are multimember districts containing from two to five senators in each district. Each Senate seat is separately numbered and candidates may qualify for only one such seat in any one election. The election ballots in each multimember senatorial district are required to indicate the number assigned to each Senate seat and the names of the candidates therefor. Because the 1980 decenniel census will not be published until 1981, there has been no reapportionment of the Senate since 1972, and the 1980 senatorial elections are scheduled to be conducted under Plan A.


Against this background, the present action was commenced by the filing of the Complaint and a Motion for Temporary Restraining Order on Friday, March 14, 1980, two days before the statutory period for primary election entries opened for senatorial offices.18

Because filing and campaigning for the June 10, 1980, primary elections were imminent and the relief requested by plaintiff was statewide in nature, this Court immediately set a hearing for March 19, 1980, on the Temporary Restraining Order motion. Notice of this hearing was given to all parties on the same day the Complaint was filed.

On March 19, 1980, after appropriate notice, counsel for the plaintiffs and all defendants appeared and were heard on the question of whether a temporary restraining order should be granted. In considering that motion, this court applied the same standard applicable to a motion for a preliminary injunction. See Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); 11 Wright & Miller, Federal Practice and Procedure, § 2951; 7-Pt. 2 Moore's Federal Practice ¶ 65.05. After reviewing the pleadings and orders in the McCollum case, the Complaint in this action, affidavits submitted by the parties on the issue of irreparable harm, and the case law in this circuit, this court concluded, for the reasons then orally stated, that the balance of hardship favored the defendants, that the harm to the public interest would be unusually great if a restraining order were issued, and that the plaintiffs' likelihood of success on the merits was greatly diminished by the decision in Maryland Citizens, supra, and the prior finding of the McCollum court that Plan A was constitutional under the Fourteenth and Fifteenth Amendments. Moreover, this court was unable to make a "specific finding", as required by 28 U.S.C. Section 2284(b)(3), that irreparable harm would result to the plaintiffs' constitutional and statutory rights if the restraining order was not...

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  • SCHIAVONE CONST. v. New York City Transit Auth.
    • United States
    • U.S. District Court — Southern District of New York
    • September 25, 1984
    ...of preliminary injunctive relief. See Ragold, Inc. v. Ferrero, U.S.A., Inc., 506 F.Supp. 117, 123 (N.D.Ill.1980); Simkins v. Gressette, 495 F.Supp. 1075, 1079 (D.S.C.1980); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2951, at 499-500 (1973). Indeed, the standards for determin......
  • Simkins v. Gressette
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • September 22, 1980
    ...FRCP 12(b) to dismiss for failure to state a claim upon which relief could be granted. After an expedited hearing, the district court, 495 F.Supp. 1075, denied plaintiffs' request for the convening of a three-judge court and dismissed their complaint. They appeal from that order. The senate......
  • Mac Govern v. Connolly
    • United States
    • U.S. District Court — District of Massachusetts
    • June 11, 1986
    ...the context of a challenge to a state districting plan, the query is whether the suit raises a substantial claim. Simkins v. Gressette, 495 F.Supp. 1075, 1080 (D.S.C.1980).7 The test has been aptly framed by the Court of Appeals for the Fourth Circuit: Insubstantiality in the claim may appe......
  • White v. Daniel
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • August 14, 1990
    ...because the use of old census figures would "yield results that are at best uncertain and, at worse, perverse"); Simkins v. Gressette, 495 F.Supp. 1075, 1082 (D.S.C.1980) (where court noted that the use of ten year old census figures would not "provide fair representation for the people of ......
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