Moore v. Swinson

294 S.E.2d 381 (1982)

Shelton MOORE, and wife, Marilyn Moore, Charles R. Craddock and wife, Althea W. Craddock, Charles C. Asby, III, Belmont Moore, Edward W. Lucas, and wife, Alene M. Lucas, Kemp Leggett and wife, Alice J. Leggett, Joseph F. Rhem, and wife, Dessie H. Rhem, Danny Lee Edwards, Luther D. Bailey, and wife, Loretta H. Bailey, Roy Buck, Sallie Beacham, Nora McGowan, Terria H. Williamson, Harvey L. Crisp, James Taylor, Melvin D. Weatherington, Jr., Elizabeth L. Watson, J. W. Jenkins, Cleon Latham, and wife, Sarah B. Latham, H. Earl Gaskins, and wife, Evelyn H. Gaskins, and Marvin L. Mason v. G. T. SWINSON, Lillie L. Pittman, and James R. Vosburgh, Members of the Beaufort County Board of Elections; and Hubert R. Johnson, Tax Collector of Beaufort County.

No. 812SC1055.

Court of Appeals of North Carolina.

September 7, 1982.

*382 Herman E. Gaskins, Jr., Washington, for plaintiffs-appellants.

*383 McMullan & Knott, by James B. McMullan, Jr., Washington, for defendants-appellees.

MORRIS, Chief Judge.

Plaintiffs argue, by the two assignments of error brought forward, that the laws and Constitution of this State and the United States Constitution mandate their entitlement to vote in the sewer bond referendum of 11 August 1981, and that their exclusion from participation therein was an abridgement of a fundamental right resulting in their immediate and irreparable injury.

It was stipulated that plaintiffs lived in the annexed area and that they were qualified registered voters at the time the lawsuit was commenced. Plaintiffs concede that Section 5 of the Voting Rights Act of 1965, specifically 42 U.S.C. § 1973c, requires that the annexation expanding the number of voters be approved by the Attorney General within 60 days after submission of the proposed change to him, and that because the 60-day period beginning on the day of annexation had not expired by 11 August, under the federal law alone they may have been properly excluded. See City of Rome, Ga. v. United States, 472 F. Supp. 221 (D.L. D.C.1979), aff'd 446 U.S. 156,100 S. Ct. 1548, 64 L. Ed. 2d 119, reh. den. 447 U.S. 916, 100 S. Ct. 3003, 64 L. Ed. 2d 865 (1980). Plaintiffs contend, however, that because they became citizens of the City of Washington on 30 June 1981, G.S. 160A-49(f) enfranchised them in time to vote on 11 August. That section reads in part:

From and after the effective date of the annexation ordinance, the territory and its citizens and property shall be subject to all debts, laws, ordinances and regulations in force in such municipality and shall be entitled to the same privileges and benefits as other parts of such municipality.

Plaintiffs also invoke the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and Article 1, Sections 8 and 19 of the North Carolina Constitution. They maintain that 42 U.S.C. § 1973c does not override these protections of state and federal law, and that compliance with all of the laws required that no election be held during the first 60 days after annexation. Although we agree that plaintiffs became citizens of Washington upon annexation, we hold that 42 U.S.C. 1973c, which was designed, in part, to enforce the Fifteenth Amendment, preempts all other provisions regarding the right of those annexed to vote in the 11 August bond referendum. Plaintiffs, therefore, were properly denied access to the polls on that day.

The case of Dotson v. City of Indianola, 514 F. Supp. 397 (N.D.Miss.1981), is instructive. In that case a series of annexations added new eligible voters to the electoral base of Indianola, Mississippi, and it was acknowledged by the parties, as it was in the case at bar, that the increase in the number of voters in the municipality are changes of a voting qualification, prerequisite, standard, practice, or procedure requiring preclearance as contemplated by Section 5 of the Voting Rights Act. Judge Clark, writing for the three-judge Indianola court, wrote that until the city obtained clearance of its post-Act annexations in accordance with Section 5,

all future elections must be conducted on the basis of the city boundaries as they existed before the unprecleared annexations were made, and citizens residing in such annexed areas may not participate in future municipal elections, either as electors or as candidates.... This relief applies only to the right to vote and be a candidate. It does not, of course, constitute de-annexation, and it does not affect the rights of citizens residing in the annexed areas in any other way.

(Emphasis added.) Id. at 403. We are in accord with the reasoning of the Indianola opinion and we deem it dispositive of the issue whether plaintiffs were entitled to vote in the 11 August sewer bond referendum, held after annexation but before the period for preclearance of the resultant voting change by the Attorney General had expired.

*384 Nor did plaintiffs suffer abridgement of a fundamental right or injury by their exclusion as voters from the 11 August election. Said the Rome Court:

"We need not decide whether the right to vote in a municipal election when that election is regularly scheduled can ever be deemed a fundamental right protected by the Constitution. For even if fundamental interests were at stake, we believe section 5 of the Act is justifiable as advancing the compelling national interest of enforcing the Fifteenth Amendment...."

(Citation omitted.) City of Rome, Ga. v. United States, supra, at 242. We conclude that the trial court acted properly in finding that plaintiffs suffered no immediate or irreparable injury, loss or damage by their exclusion from the election.

The judgment of the trial court is

Affirmed.

ROBERT M. MARTIN and BECTON, JJ., concur.