Cleveland County Ass'n v. Cleveland County Board of Commissioners

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 3, 1998 Decided May 1, 1998

No. 97-7097

Cleveland County Association for

Government by the People,

An Unincorporated Association, et al.,

Appellants

v.

Cleveland County Board of Commissioners, et al.,

Appellees

United States of America,

Amicus Curiae

Appeal from the United States District Court

for the District of Columbia

(No. 96cv01447)

Robinson O. Everett and Neil C. Williams, III argued the
cause and filed the briefs for appellants.

Kevin J. Lanigan argued the cause for appellee National
Association for the Advancement of Colored People, with
whom Sarah L. Kinnick was on the brief.

Michael Crowell argued the cause for appellee Cleveland
County Board of Commissioners, with whom E. Hardy Lewis
was on the brief.

Bill Lann Lee, Acting Assistant Attorney General, United
States Department of Justice, Mark L. Gross and Michelle
M. Aronowitz, Attorneys, were on the brief for amicus curiae
United States.

Harvey L. Pitt and Douglas W. Baruch were on the brief
for amicus curiae Harvey L. Pitt.

Before: Edwards, Chief Judge, Wald and Ginsburg,
Circuit Judges.

Opinion for the Court filed Per Curiam.

Per Curiam: As part of the settlement of a suit brought by
the National Association for the Advancement of Colored
People ("the NAACP") that challenged the method of voting
for members of the Board of Commissioners of Cleveland
County, North Carolina ("the Board"), the Board agreed to
adopt a plan that increased its size from five to seven
members and provided that voters would be permitted to cast
only four votes for the seven positions. The settlement
further provided that until elections could be held to fill the
two additional slots, these positions would be filled by appoin-
tees who were "representative of the black community" in the
county. Soon after the district court issued a consent decree
incorporating the parties' agreement, the Cleveland County
Association for Government by the People, an unincorporated
association of voters in the county, and six individual plain-
tiffs, all of whom are white (collectively, "the CCAGP"),
brought suit against the Board and the NAACP, challenging
the adoption of the plan as a violation of their constitutional
rights and as contrary to state law. The district court,
finding none of their challenges to be meritorious, granted
summary judgment in favor of the defendants. We conclude,
however, that the Board was without authority under state

law to consent to such a change in the election plan, and thus
we vacate the decree. Because the decree was invalid under
state law, we need not reach the CCAGP's constitutional
claims.

I. Background

From 1966 to 1994, the Board consisted of five members
elected at large every two years for staggered, four-year
terms. During that time, no African Americans had ever
been elected to the Board although they constituted 20.9
percent of the county's total population and 18.8 percent of its
voting age population in 1990. Between 1988 and 1994, there
had been attempts by five African Americans, all Democrats,
to win a seat on the Board, but none survived the primary
elections.

After the local chapter of the NAACP approached the
Board with concerns that the at-large method of election
thwarted the representation of African Americans on the
Board, the Board voted on March 16, 1992, to establish the
Special Commissioners Committee on County Governance
("the Committee"), which consisted of five members appoint-
ed by the Board and four members from the local NAACP
chapter. On November 2, 1992, the Committee recom-
mended the adoption of a new election method in which five
commissioners would be elected from single-member districts
and two commissioners would be elected from the county at
large. The Committee also recommended consideration of
three redistricting plans, each of which contained a majority-
minority district. The Board voted to accept these recom-
mendations and requested that the members of the General
Assembly representing Cleveland County introduce legisla-
tion authorizing a change in the election method and permit-
ting the Board to select a redistricting plan. Chapter 89 of
the North Carolina Session Laws of 1993, which authorized
these changes, was ratified on June 1, 1993, although it
expired by its own terms in January 1994 when the Board
was unable to agree on a redistricting plan.1

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1 On October 5, 1993, a motion to proceed with one of the
recommended redistricting plans failed by a vote of two to three.

The NAACP and several individual plaintiffs thereafter
filed suit against the Board, challenging the county's at-large
electoral system. On July 22, 1994, after mediation, the
Board and the NAACP entered into a consent decree, signed
by the district court below,2 which instituted two primary
changes in the structure and election of the board: the
expansion of the Board from five to seven members, all
elected at large, and the adoption of limited voting. Camp-
bell v. Cleveland County Bd. of Comm'rs, No. 94-0845-S
(D.D.C. July 22, 1994). Beginning in 1998, the entire seven-
member Board would be elected for concurrent four-year
terms in partisan primary and general elections, with each
voter to be allocated only four votes in each election. After
the 1998 election, the district court would be permitted, on
the NAACP's petition, to reduce from four to three the
number of votes that could be cast by each voter if the
election system used in 1998 had not "provided an equal
opportunity, based on the totality of the circumstances, for
black citizens to nominate and elect candidates of their
choice." (The Board could effect a similar reduction on its
own by adoption of a resolution.3)

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2 The suit had originally been filed in North Carolina, but because
it concluded that the Board was raising a constitutional challenge to
the Voting Rights Act as a defense, the district court in North
Carolina, relying on 42 U.S.C. s 1973l (1994), transferred the suit to
the U.S. District Court for the District of Columbia.

3 On February 4, 1998, the district court ordered, on the joint
motion of the NAACP and the Board, a modification to the consent
decree that staggers the terms of the seven-member Board while
maintaining limited voting (i.e., two votes for either three or four
seats). The modification also provides that following the 2000
election and prior to July 1, 2001, any registered voter may petition
the court to reduce from four to three the number of votes that may
be cast over a four-year election cycle; in determining whether to
grant the petition, the court will consider "whether the election
method used in 1998 and 2000 has provided an equal opportunity,
based on the totality of the circumstances, for all citizens to
nominate and elect candidates of their choice without regard to
race." Campbell v. Cleveland County Bd. of Comm'rs, No.
94-0845-S (Feb. 4, 1998).

The decree also established an interim policy for the period
between the adoption of the consent decree and the 1998
elections. Of the original five members, the two elected in
1994 would serve four-year terms, as previously scheduled,
and the three elected in 1996 would serve only two-year
terms. The two new positions, however, were to be filled
after the 1994 election by the appointment of two persons
who were "representative of the black community in Cleve-
land County"; these officials were to be selected from a list,
created by the Board, of those citizens who it felt met that
criterion. The NAACP was permitted to review this list and
voice its objections to any person included. If the Board
ultimately selected someone to whom the NAACP had object-
ed, the Board's decision was subject to judicial review; other-
wise, the Board's selections were final. The plan was pre-
cleared under section 5 of the Voting Rights Act, 42 U.S.C.
s 1973c (1994), by the U.S. Attorney General on September
26, 1994.

Pursuant to the consent decree, the Board developed a list
of twenty-two potential candidates, all of whom were African
American, for the two newly created positions and, after
submitting it to the NAACP, selected two members from the
list. The NAACP had objected to both, and the district
court, exercising its review authority under the consent de-
cree, approved the appointment of Bobby C. Malloy but
rejected the other candidate. The Board then appointed
Mary Accor to the remaining position; both Malloy and Accor
are now serving as members of the Board.

On January 6, 1995, the CCAGP filed suit against the
Board to challenge the election plan, alleging that because the
two new members of the Board were to be appointed on the
basis of their race and because subsequent elections of Board
members were to be conducted in a race-based manner, the
plan violated the CCAGP's rights under the Fourteenth and
Fifteenth Amendments and the North Carolina Constitution.4

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4 The CCAGP filed an amended complaint on September 21, 1995,
to eliminate the Cleveland County Board of Elections, its members,
its supervisor, and Julian B. Wray, Cleveland County Attorney, as

On February 18, 1997, the district court denied the CCAGP's
motion for judgment on the pleadings and ordered that the
NAACP, as a party to the consent decree, be added as a
defendant.5 After filing an amended complaint,6 the CCAGP
renewed its motion for judgment on the pleadings or, in the
alternative, for summary judgment; both the Board and the
NAACP filed motions to dismiss. On May 19, 1997, the
district court denied the CCAGP's motion and granted sum-
mary judgment in favor of the Board and the NAACP.
Cleveland County Ass'n for Gov't by the People v. Cleveland
County Bd. of Comm'rs [hereinafter CCAGP], 965 F. Supp.
72 (D.D.C. 1997). The court first concluded that the CCAGP
had standing to bring the action, noting that "[t]hey are
registered voters and citizens of Cleveland County bringing
an action concerning an alleged violation of the Equal Protec-
tion Clause with respect to the election procedures used in
their county." Id. at 76. It also rejected the NAACP's
argument that the plaintiffs were estopped from bringing the
action because their interests were adequately represented in
Campbell, concluding that the CCAGP's interests and those
of Cleveland County "arguably are materially different." Id.
at 77.

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defendants and to update the chronology of the case. As the
district court noted, CCAGP's late involvement in these proceedings
was due to the fact that "there were no public hearings on the
Consent Decree prior to its acceptance by the Board of Commis-
sioners and little publicity was given to the case within Cleveland
County." Cleveland County Ass'n for Gov't by the People v.
Cleveland County Bd. of Comm'rs, 965 F. Supp. 72, 77 (D.D.C.
1997).

5 The CCAGP had originally filed in the Western District of
North Carolina, but the court there transferred the case on June 5,
1996, to the district court below, concluding that "the interest in
judicial economy" dictated that the same court that had entered the
consent decree hear the CCAGP's challenge to it.

6 The amended complaint alleged violations of the CCAGP's Four-
teenth and Fifteenth Amendment rights, its due process rights,
violations of North Carolina law, and its rights under Article I,
sections 19 and 32, of the North Carolina Constitution.

Having found standing on the part of the CCAGP to
challenge the consent decree, the court next considered its
attack on that decree. The court first concluded that, con-
trary to the CCAGP's assertion, it was unnecessary to find a
violation of section 2 of the Voting Rights Act before it
entered the decree, noting that if courts were required to find
violations before entering decrees, parties would have little
incentive to settle claims. Id. at 78. Next, the court conclud-
ed that the Board was not barred by state law from entering
the agreement, concluding that "counties may settle lawsuits
through consent decrees or by any other means" and that
limited voting had been approved several times by the North
Carolina General Assembly. Id. at 79.

Finally, the district court addressed the CCAGP's constitu-
tional arguments. It rejected the claim that the election plan
triggered strict scrutiny, noting that "[t]he Consent Decree
does not contemplate any racial classification among vot-
ers.... 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." Id. at 80. With
respect to the interim appointment of two additional Board
members who are "representative of the black community,"
the court noted that although the provision "ha[d] certain
racial overtones," it was not sufficient to subject the consent
decree as a whole to strict scrutiny. "The provision is strictly
an interim measure to facilitate the agreement to adopt a
permanent racially neutral election process," it concluded.
"It does not require on its face that any black commissioners
be appointed." Id. The court thus declined to vacate the
decree and granted the motions of the Board and the
NAACP.7 The CCAGP's appeal followed.

__________
7 Although the Board's and the NAACP's motion were styled as
motions to dismiss, the district court's consideration of materials
outside the CCAGP's pleadings transformed those motions, as well
as the CCAGP's motion, into motions for summary judgment. See
Fed. R. Civ. P. 12(b) ("If, on a motion asserting the defense [of
failure to state a claim upon which relief can be granted], matters
outside the pleading are presented to and not excluded by the court,
the motion shall be treated as one for summary judgment....");

II. Analysis

A.The CCAGP's Standing to Challenge the Consent Decree

Before we proceed to the merits of the CCAGP's complaint,
we must, as did the district court, determine whether the
CCAGP has standing to challenge the consent decree. De-
spite the exhortation of the NAACP to the contrary, we find
that the hurdle of standing in this case has been surmounted.

In order to establish standing under Article III, a com-
plainant must allege (1) a personal "injury in fact" that is
"concrete and particularized" and "actual or imminent, not
conjectural or hypothetical," (2) a causal connection between
the injury and the conduct complained of, and (3) that it is
"likely," rather than merely "speculative," that the injury will
be redressed by the relief requested. See, e.g., Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Branton
v. FCC, 993 F.2d 906, 908 (D.C. Cir. 1993). The NAACP's
challenge focuses on the first of these requirements: namely,
it contends that the CCAGP has failed to show that it has
suffered any injury as a result of the implementation of the
election plan in the consent decree. According to the
NAACP, the CCAGP's opposition to the consent decree is
nothing more than a generalized grievance, an "abstract
injury in nonobservance of the Constitution" rather than the
"particularized" injury necessary to confer standing. See,
e.g., Allen v. Wright, 468 U.S. 737, 754 (1984) (asserted right
to have the government "act in accordance with law" not
sufficient to confer standing).

We are not persuaded by the NAACP's arguments. The
CCAGP has put forward a claim that as a result of the
consent decree, its members have been denied the opportuni-
ty to vote for a full slate of the elected officials of their
choice--officials who would thereafter be deemed to repre-
sent them.8 Like plaintiffs who reside in a district that is the

__________
Fed. R. Civ. P. 12(c) (same as to motion for judgment on the
pleadings).

8 This harm is arguably made more palpable by the fact that the
two appointees to the Board were required to be "representative of

subject of a racial gerrymander challenge, see, e.g., United
States v. Hays, 515 U.S. 737, 744-45 (1995), the CCAGP
asserts that the election procedure adopted by its local legis-
lature has violated its members' protected voting rights.
This alleged injury is certainly sufficient to grant standing--
indeed, it is akin to the injury to voting rights claimed by the
plaintiffs in Campbell that engendered the current controver-
sy. It would be anomalous for us to assume that the Camp-
bell plaintiffs had standing to challenge the county's method
of voting but to hold that the CCAGP does not.9

It is important to recognize that standing is a threshold
inquiry; it " 'in no way depends on the merits of the [petition-
er's] contention that particular conduct is illegal.' " Whit-
more v. Arkansas, 495 U.S. 149, 155 (1990) (quoting Warth v.
Seldin, 422 U.S. 490, 500 (1975)). Thus, whether the CCAGP
ultimately succeeds on its constitutional and state law claims
is of no import to the standing analysis. What is important is
whether the CCAGP10 has succeeded in establishing the

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the black community." On its face this prerequisite does not
narrow the scope of these members' representation; however, when
a representative office "obviously is created solely to effectuate the
perceived common interests of one racial group, elected officials are
more likely to believe that their primary obligation is to represent
only the members of that group, rather than their constituency as a
whole." Shaw v. Reno, 509 U.S. 630, 648 (1993).

9 The remaining two prongs of the standing inquiry warrant little
discussion; indeed, the NAACP has not presented a challenge
pursuant to either of them. The "causation" analysis ensures that
the alleged injury is "fairly traceable" to the actions of the defen-
dant rather than to the actions of an absent third party. See, e.g.,
Lujan, 504 U.S. at 560. The "redressability" inquiry determines
whether the relief sought, if granted, would remedy the alleged
injury. Id. at 561. Because the consent decree is the source of the
county's new election plan, which, in turn, is the source of the
CCAGP's grievance, the vacating of the decree will provide ade-
quate relief for the CCAGP's injury. We are thus satisfied that the
CCAGP has standing to bring this case.

10 We recognize that although the term "CCAGP," as we have
used it thus far, comprises both the Cleveland County Association

presence of a case or controversy, and it has surely met this
burden here.

B.The CCAGP's Representation Below

In its second procedural challenge, the NAACP renews its
argument, rejected by the district court, that the CCAGP and
its members are precluded from challenging the consent
decree because, as citizens and voters in the county, they
were adequately represented in the Campbell litigation by the
Board, which is composed of their own elected officials.
Here, again, we agree with the district court.

In general, "[a] judgment or decree among parties to a
lawsuit resolves issues as among them, but it does not con-
clude the rights of strangers to those proceedings." Martin
v. Wilks, 490 U.S. 755, 762 (1989). This rule is merely, as the
Supreme Court has noted, a necessary corollary to the oft-
stated principle that " 'everyone should have his own day in
court.' " Id. (quoting 18 Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Proce-
dure s 4449 (1981)). Thus, unless one is joined as a party to
an action, one is generally not bound by the result, no matter

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for Government by the People and the individual plaintiffs, the
standing of the former, as an association, is subject to a separate
analysis. In order for the CCAGP to have standing, it must satisfy
a three-part test: (1) its members would have standing to sue on
their own; (2) the interests it seeks to protect are germane to its
purpose; and (3) its claim and requested relief do not require
participation by individual members. Hunt v. Washington State
Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). All three require-
ments are satisfied in this case. First, as the CCAGP is an
association of county voters, its members could and, indeed, have
brought suit individually. Second, the interest CCAGP seeks to
protect--a lawful method of electing the Board in Cleveland Coun-
ty--is germane to its purpose, which is "that the electoral process
in Cleveland County is not manipulated to achieve unconstitutional
objectives and that this electoral process is not distorted in an
unconstitutional, race-based manner." And, finally, the partic-
ipation of individual members is not required to assert this claim or
to obtain the relief requested.

whether that result is reached voluntarily by the parties or
imposed upon them by the court. Id. at 765, 768.

This does not mean, however, that a noninterested plaintiff
may seek relitigation of a dispute between two parties simply
because he disagrees with the outcome. As we have previ-
ously noted, Martin v. Wilks stands for the proposition that
"[o]ne may challenge a judgment rendered in one's absence if
(and only if) it affects one's legal right." Frederick County
Fruit Growers Ass'n v. Martin, 968 F.2d 1265, 1270 (D.C.
Cir. 1992). And one may not bring such a challenge "when,
in certain limited circumstances, [he,] although not a party,
has his interests adequately represented by someone with the
same interests who is a party." Wilks, 490 U.S. at 762 n.2
(citing Hansberry v. Lee, 311 U.S. 32 (1940) (class action
suits); Montana v. United States, 440 U.S. 147 (1979) (control
of litigation on behalf of one of the parties)). Our resolution
of the standing dispute obviates a rehearsal of the first point:
the CCAGP and the individual plaintiffs clearly have asserted
that the consent decree has inflicted an injury to their legal
rights. As to the second point, we agree with the district
court and conclude that the Board was not a sufficient
representative of the CCAGP in Campbell.

As the district court noted, CCAGP, 965 F. Supp. at 77, the
facts of this case are similar to those of Meek v. Metropolitan
Dade County, Fla., 985 F.2d 1471 (11th Cir. 1993). In Meek,
the district court had denied intervention to a group of
registered voters for purposes of appeal of a Voting Rights
Act case because it deemed the interests of the movants to be
identical to those of the defendant county commissioners.
The Eleventh Circuit reversed the denial, concluding that the
interests of the two parties were indeed different:

The intervenors sought to advance their own interests in
achieving the greatest possible participation in the politi-
cal process. Dade County, on the other hand, was
required to balance a range of interests likely to diverge
from those of the intervenors. For example, the County
Commissioners had to consider the overall fairness of the
election system to be employed in the future, the expense

of litigation to defend the existing system, and the social
and political divisiveness of the election issue. In addi-
tion, the County Commissioners were likely to be influ-
enced by their own desires to remain politically popular
and effective leaders.

Id. at 1478. The interests of the Board in this case and the
CCAGP are similarly divergent. The Board, in negotiating
the consent decree, was seeking to resolve a dispute over
what had been challenged as an unlawful method of electing
its members. It can therefore be presumed that the peaceful
resolution of the dispute--and the preservation of the com-
missioners' positions, to the extent possible--were not insig-
nificant considerations. The CCAGP, by contrast, is not
motivated by the need to save the Board from protracted
litigation; indeed, it seeks an election plan devised free from
that constraint. The interests of the Board and the CCAGP
cannot therefore be deemed to have been aligned such that
the CCAGP is precluded from challenging the consent decree.
The fact that the members of the previous Board were the
CCAGP's elected representatives is of no moment, for those
commissioners were equally the representatives of all county
citizens--including their opponents in Campbell. It cannot
be said, therefore, that the Board functioned as an adequate
representative of the CCAGP's interests. Cf. Rafferty v.
City of Youngstown, 54 F.3d 278, 282 (6th Cir. 1995) (plain-
tiffs precluded from challenging consent decree because their
collective bargaining representative was defendant-intervenor
in underlying case). As the CCAGP notes, if elected officials
were deemed always to be representative of their constituents
in the sense contemplated by footnote two of Wilks, consent
decrees to which the government was a party would be
immune from challenge regardless of their effect on individu-
al rights. We decline to reach such a conclusion.11

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11 The Supreme Court has not yet decided "whether public offi-
cials are always constitutionally adequate representatives of all
persons over whom they have jurisdiction when ... the underlying
right is personal in nature." Richards v. Jefferson County, Ala.,

C.Mootness

As a last jurisdictional parry, the Board, the NAACP, and
the United States as amicus curiae argue that the CCAGP's
challenge to the interim appointment provisions is moot be-
cause the 1998 campaigns for these two seats have already
begun. In other words, the parties contend, the only remedy
we could order would be to open these positions to election,
and this process is already under way. We find no merit to
these claims. A question is moot only if "intervening events
make it impossible to grant the prevailing party effective
relief." Burlington N. R.R. Co. v. Surface Transp. Bd., 75
F.3d 685, 688 (D.C. Cir. 1996). This is not the case here. To
begin with, the November 1998 elections for the seats now
held by appointees have not yet taken place, so there is
nothing constituting an "intervening event" that would render
the CCAGP's challenge to the appointment provisions moot.
Cf. Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam) (passage
of 1968 election made injunctive relief from state residency
requirement "impossible to grant"). More important, howev-
er, is that because the CCAGP challenges the Board's author-
ity to enter the consent decree at all, a finding in the
CCAGP's favor would invalidate the decree and eliminate the
authorization for these two positions altogether, returning the
structure and manner of election of the Board to the status
quo ante. The availability of such a remedy means that the
CCAGP's challenge to the interim appointments remains a
live controversy, and so we reject any arguments to the
contrary.

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116 S. Ct. 1761, 1767 n.6 (1996). But see Town of Lockport v.
Citizens for Community Action at the Local Level, Inc., 430 U.S.
259, 263 n.7 (1977) (voting rights challenge by county residents not
barred by county's earlier suit); 18 Charles Alan Wright, Arthur
R. Miller & Edward H. Cooper, Federal Practice and Procedure
s 4458 (1981) ("Voting rights may deserve special protection be-
cause they lie so close to the core of democratic government that
litigation by public servants should not bind their voting masters.").

D.The CCAGP's State Law Claims

Having disposed of the preliminary challenges to the
CCAGP's presence before this court, we move to the merits.
We begin by addressing the CCAGP's assertion that the
adoption of the election plan violated state law, for if the
resolution of this claim proves dispositive, we need not--and,
indeed, should not--reach the CCAGP's constitutional con-
cerns. See, e.g., National Black Police Ass'n v. District of
Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997) (noting that "it
is a well-established principle that courts should avoid unnec-
essarily deciding constitutional questions"). We review the
district court's grant of summary judgment to the Board and
the NAACP de novo. Federal Deposit Ins. Corp. v. Bender,
127 F.3d 58, 63 (D.C. Cir. 1997). Because no party on appeal
contends that there existed any genuine issue of material fact
with respect to the state law issue, we need decide only
whether the Board and the NAACP were indeed entitled to
judgment as a matter of North Carolina law. We conclude
that it was, in fact, the CCAGP that was entitled to summary
judgment.12

North Carolina law reserves to the state, or to the voters of
the county, authority over the structure and method of elec-
tion of county boards. See N.C. Const. art. 7, s 1 ("The
General Assembly shall provide for the organization and
government ... of counties, cities and towns, and other
governmental subdivisions, and, except as otherwise prohibit-
ed by this Constitution, may give such powers and duties to
counties, cities and towns, and other governmental subdivi-

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12 The NAACP argues that the CCAGP's failure to include with
its motion a separate statement of material facts as to which it
contended there was no genuine issue, as required by Local Rule
108(h), mandated judgment against the CCAGP. While it is true
that the CCAGP failed to comply with Rule 108(h) in this regard, it
was within the district court's discretion to consider its motion
despite this lapse. See, e.g., Gardels v. Central Intelligence Agency,
637 F.2d 770, 773 (D.C. Cir. 1980) ("The District Court, in its
discretion, may consider a motion for summary judgment even in
the absence of a proper [Rule 108(h)] Statement."). That discretion
was not abused here.

sions as it may deem advisable."); N.C. Gen. Stat. s 163-22.2
(1991) (if form of election of any county Board of Commission-
ers is held invalid by a state or federal court, state Board of
Elections has authority to make interim rules and regula-
tions). The benchmark in this regard is established by North
Carolina General Statute section 153A-34, which provides
that the structure and manner of election of the Board of
Commissioners in each county "shall remain as it is on
February 1, 1974, until changed in accordance with law."
N.C. Gen. Stat. s 153A-34 (1991). Subsequent changes in
the structure and election of any board must take place in
accordance with a specifically prescribed procedure. First,
the Board of Commissioners in a county must initiate any
such change by adopting a resolution that describes the
proposed alterations and the manner of transition, defines
electoral districts, and calls a special referendum on the
question of the adoption of the alterations. N.C. Gen. Stat.
s 153A-60 (1991).13 If a majority of the votes cast in the
referendum vote are in the negative, the plan may not be put
into effect. N.C. Gen. Stat. s 153A-61 (1991). If the plan is
approved, it becomes the basis for the nomination and elec-
tion of the board at the next election and is formally put into
place on the first Monday in December after the general
election. N.C. Gen. Stat. s 153A-62 (1991). These procedur-
al requirements are accompanied by one substantive criterion
relevant here: If commissioners are elected at large rather
than by district, the entire board must be nominated and
elected by county voters. N.C. Gen. Stat. s 153A-58(3)(a)
(1991).14

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13 We should note that while section 153A-34 refers to the
"structure and manner of election" of a board, section 153A-60, on
its face, requires a referendum only for changes in a board's
"structure." However, we read "structure" in the latter section to
encompass the manner of election as well, given that section
153A-58 provides that "[a] county may alter the structure of its
board of commissioners by adopting one or any combination of the
options prescribed by this section," options that include changes to
the manner of election. See N.C. Gen. Stat. s 153A-58 (1991).

14 This method of election is one of several options permitted by
section 153A-58, but it is the only method permitted when board
members are elected at large rather than by district.

It is undisputed that this statutorily mandated scheme was
not followed in this case: No referendum on the election plan
provided for in the consent decree was ever held, and the
interim appointment provisions run afoul of section
158A-58(3)(a) by prohibiting the county voters from nominat-
ing and electing two of the seven commissioners. Although
the district court's call for "a thorough research of the facts
and law based on valuable input from counsel for all parties,"
CCAGP, 965 F. Supp. at 79, seems to acknowledge some
perplexity on the issue, these provisions of state law appear
to us quite clear; indeed, it is we who are perplexed as to the
basis on which the district court concluded that "there was no
facial violation of North Carolina election law in the settling
of [Campbell]." Id. Read on its face, state law denies the
Board the authority unilaterally to alter its structure and
manner of election simply by agreeing to do so. Cf. Keith v.
Volpe, 118 F.3d 1386, 1393 (9th Cir. 1997) (parties to consent
decree "could not agree to terms which would exceed their
authority and supplant state law"); Perkins v. City of Chica-
go Heights, 47 F.3d 212, 216 (7th Cir. 1995) (same). As the
Seventh Circuit aptly stated in Perkins,

some rules of law are designed to limit the authority of
public officeholders, to make them return to other
branches of government or to the voters for permission
to engage in certain acts. They may chafe at these
restraints and seek to evade them, but they may not do
so by agreeing to do something state law forbids.

Perkins, 47 F.3d at 216 (citation and internal quotation
omitted).15

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15 The NAACP and amici cite Lawyer v. Department of Justice,
117 S. Ct. 2186 (1997), for the proposition that a government
entity's ability to settle litigation supersedes any state law that
purports to limit that authority. This is a misreading of Lawyer,
which held only that the authority generally held by a state to make
its own redistricting decisions is fully realized when the state agrees
to a consent decree that includes a redistricting plan. Id. at 2197.
Cleveland County, as a legislative unit subordinate to the state of

The applicability in the abstract of the North Carolina
provisions discussed above, however, does not end our inqui-
ry. Rather, these provisions may be superseded in either of
two ways: (1) if such supersession is necessary to remedy a
violation of federal law or (2) by a local act of the General
Assembly (i.e., by special amendment of state law). Because
neither of these circumstances is present here, however, the
consent decree must comply with state law; as it does not, it
must be vacated.

Pursuant to the Supremacy Clause of Article VI of the U.S.
Constitution, state law is preempted when it " 'stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.' " Washington Serv.
Contractors Coalition v. District of Columbia, 54 F.3d 811,
815 (D.C. Cir. 1995) (quoting Hines v. Davidowitz, 312 U.S.
52, 67 (1941)). In other words, if a violation of federal law
necessitates a remedy barred by state law, the state law must
give way; if no such violation exists, principles of federalism
dictate that state law governs. See, e.g., Perkins, 47 F.3d at
216; United States v. Yonkers Bd. of Educ., 902 F.2d 213, 219
(2d Cir. 1990); Hoots v. Pennsylvania, 672 F.2d 1124, 1132
(3d Cir. 1982). In this case, then, if the election plan set forth
in the consent decree were intended to remedy an admitted
or adjudged violation of the Voting Rights Act, the fact that
the Board's actions collided with the state statutory scheme
just discussed would not stand in the way of the plan's
implementation. Notably, however, the consent decree in
this case specifically provides that no violation of the Voting
Rights Act is to be inferred,16 and the Supreme Court has
specifically held that consent decrees should be construed

__________
North Carolina, has only the authority that the General Assembly
grants it. See N.C. Const. art 7, s 1.

16 See CCAGP, 965 F. Supp. at 77 n.6 (quoting Stipulation 9 of the
consent decree) ("Nothing in this Consent Decree is intended as an
adjudication of the lawsuit, nor is the entry of this decree intended
in any manner to imply that the county's election system has
violated Section 2 of the Voting Rights Act or the Fourteenth
Amendment.").

simply as contracts, without reference to the legislation that
motivated the plaintiffs to bring suit. See United States v.
ITT Continental Baking Co., 420 U.S. 223, 236-37 (1975); see
also Paralyzed Veterans of Am. v. Washington Metro. Area
Transit Auth., 894 F.2d 458, 461 (D.C. Cir. 1990) (same).
Nor is there any other basis for concluding that the consent
decree was anything more than a settlement of the NAACP's
claims against the county: The fact that the plan received
section 5 preclearance from the Attorney General is irrele-
vant,17 as is the fact that the district court in Campbell might
ultimately have concluded that the county's previous election
method was in violation of the Voting Rights Act 18--neither
circumstance establishes that a Voting Rights Act violation
did indeed exist, and none is to be presumed from the fact of
the consent decree's existence. See, e.g., Citizens for a Better
Env't v. Gorsuch, 718 F.2d 1117, 1125 (D.C. Cir. 1983) ("[T]he
long-standing rule is that a district court has power to enter a
consent decree without first determining that a statutory
violation has occurred.").

Alternatively, of course, the General Assembly of North
Carolina could have come to the rescue by enacting a special

__________
17 Section 5 provides that a covered jurisdiction may not imple-
ment any change in a voting "qualification, prerequisite, standard,
practice, or procedure" without first obtaining preclearance of that
change from the Attorney General or from the District Court for
the District of Columbia. 42 U.S.C. s 1973c (1994). A jurisdiction
bears the burden of showing that the change "does not have the
purpose and will not have the effect of denying or abridging the
right to vote on account of race or color." Id. As the Supreme
Court has construed it, this section focuses only on whether a
proposed change would lead or was intended to lead to a retrogres-
sion in the position of minority voters. See Reno v. Bossier Parish
Sch. Bd., 117 S. Ct. 1491, 1497, 1502 (1997). Thus, while consider-
ation of the events leading up to the plan's adoption may be
relevant to a section 5 inquiry, see id. at 1503, preclearance neither
turns on nor is evidence of a plan's remedial nature.

18 To the extent that Armstrong v. Adams, 869 F.2d 410, 414 (8th
Cir. 1989) (state law limit on authority of county election board
vitiated "by the authority of the district court to remedy constitu-
tional violations that may have occurred during the election") may
suggest otherwise, we find it unpersuasive.

legislative act authorizing an election plan that would other-
wise contravene state law. This would not be an unusual
occurrence--indeed, the General Assembly had already done
so for the first plan proposed by the Board in 1993, which
suggests that this has been a course of action available to the
Board throughout this litigation.19 No such approval, howev-
er, was sought or obtained for the plan outlined in the consent
decree; without this approval, the Board was without authori-
ty under state law to reform its structure and method of
election.

In an attempt to diffuse the provisions of the statutory
scheme, the Board and the NAACP point to Moore v. Beau-
fort County, N.C., 936 F.2d 159 (4th Cir. 1991), in which, they
claim, the Fourth Circuit rejected a state law challenge to a
limited voting plan similar to the one presented here. Unfor-
tunately, their reading of Moore stretches its holding too far.

Like this case, Moore involved the settlement of a case
brought pursuant to section 2 of the Voting Rights Act in
which the parties agreed that a limited voting plan for Board
of County Commissioners elections would be implemented (in
that case, in Beaufort County, North Carolina). When the
Beaufort County board subsequently rejected the agreement
that the attorneys for each side had drafted, the plaintiffs
moved to enforce the agreement as written, and the district
court granted their motion. After rejecting the county's
arguments that no final, binding agreement existed, the
Fourth Circuit addressed the county's contention that limited
voting was contrary to the "public policy" of North Carolina
and held that it was not. Id. at 164.

To the extent that Moore is relevant at all, it is entirely
consonant with our discussion here. We do not hold today
that the limited voting scheme provided for in the consent
decree is itself contrary to the "public policy" or even the law

__________
19 At oral argument, counsel for the Board was unable to offer a
reason why legislative approval of the plan had not been sought. It
could be that the Board's hesitancy had something to do with the
"representative" nature of the interim appointment provisions of the
plan, about which we have serious constitutional doubts.

of North Carolina--indeed, as the Moore court noted, it has
been successfully implemented in several other jurisdictions
in the state.20 See id. Rather, the consent decree fails
because state law prevents the Board from unilaterally agree-
ing to any change in its structure or method of election.21 No
such impediment was present in Moore because the county's
lawyer validated its admission that its previous election meth-
od violated section 2 of the Voting Rights Act. See id. at 162.
In other words, the fact that the plan delineated in the Moore
consent decree was necessary to remedy a violation of federal
law made it unnecessary for the Fourth Circuit to consider
the ramifications of state law. By disclaiming any such
violation, the Board in this case confined its settling authority
to the boundaries of North Carolina law.

III. Conclusion

The Cleveland County Board of Commissioners is, like any
other party, free to choose settlement of a suit over the threat
of prolonged litigation. But like any other party, it may not
do so in a manner that disregards applicable state law. The
county's failure to abide by this principle in settling the
Campbell case renders the consent decree invalid as a matter
of law. The district court was thus in error in granting
summary judgment in favor of the Board and the NAACP.
We therefore reverse the district court and remand this case

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20 It should be noted, however, that of the four jurisdictions cited
by the Fourth Circuit in support of its conclusion, three were
noncounty entities to which the statutory scheme described above
does not apply (the Clinton City Board of Education, the Sampson
County Board of Education, and the Town of Benson); the fourth
jurisdiction, Bladen County, had obtained approval of its limited
voting scheme by the General Assembly, an action not accomplished
in this case. See Moore, 936 F.2d at 164.

21 As the Board notes, the record reflects the existence of other
consent decrees in which North Carolina counties agreed to a
change in the structure and election of their Boards of Commission-
ers in apparent contravention of state law. See, e.g., Joint Appen-
dix at 198 (Vance County). We have no evidence, however, that
challenges to these agreements were ever brought.

with directions to enter summary judgment in favor of the
CCAGP and the individual plaintiffs and to vacate the consent
decree in its entirety.22

Our mandate in this case shall issue in the normal course.
We advise the Board and the NAACP, however, that if, prior
to that time, they reach an alternative settlement in Campbell
that adequately addresses the constitutional and state law
concerns we raise today, which may involve securing legisla-
tive approval, they may petition this court for an early release
of the mandate to permit them to return swiftly to the district
court with a permissible agreement in hand to seek the
court's validation.

It is so ordered.

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22 Because we order that the entire consent decree be vacated, we
need not address the government's argument that the provisions of
the consent decree are severable.