# Burton v. Hobbie

> District Court, M.D. Alabama · June 21, 1982 · 543 F. Supp. 235

URL: https://www.frixlaw.com/law-library/cases/9634185

## Case

- **Full name:** William L. BURTON, Percy D. Bell, Abraham Lincoln Woods, Jr., Bobby Jo Johnson, Andrew Hayden, Felix Nixon, Euralee A. Haynes, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs, v. Walker HOBBIE, Jr., in His Official Capacity as Judge of Probate of Montgomery County and as a Representative of the Class of All Judges of Probate in the State of Alabama; Don Siegelman, in His Official Capacity as Secretary of State of Alabama, Defendants, Charles A. Graddick, Attorney General for the State of Alabama, Defendant-Intervenor
- **Court:** District Court, M.D. Alabama
- **Decided:** June 21, 1982
- **Citations:** 543 F. Supp. 235; 1982 U.S. Dist. LEXIS 13214
- **Precedential status:** Published
- **Opinion:** Concurrence by Johnson
- **Judges:** Johnson, Hobbs, Thompson
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*241 JOHNSON, Circuit Judge,
specially concurring.
While concurring fully in the opinion of the Court, I feel compelled to set forth in greater detail the rationale of my decision.
The parties have stipulated that the current reapportionment plan in Alabama contains population variances that exceed the tolerable limits imposed by the one person-one vote requirement of the Equal Protection Clause. The parties further agreed that the Court should fashion an interim plan for the upcoming November elections. Thus the only issue now facing this Court is the nature of the interim reapportionment plan that should be imposed.
Each of the parties submitted proposed plans to the Court. Defendants largely contend that the Court is obligated to utilize the legislature’s plan, Act No. 82-629, on an interim basis. Plaintiffs proposed two plans, A and B, and stressed to the Court that those plans adhere more closely to county boundaries than does Act No. 82-629. At the direction of the Court, the parties also presented a series of modifications of Act No. 82-629 that are designed to assuage the concerns of the Justice Department.
The constraints imposed by the rapidly approaching election mandate that this Court adopt one of the plans suggested by the parties. Unfortunately, all of the plans contain significant defects. Act No. 82-629 totally disregards the integrity of county lines. Boundaries of at least 30 counties would be unnecessarily split by the plan, in apparent contravention of Ala.Const.Art. IX, §§ 198,199 & 200. Without impugning the motive of the Alabama Legislature, the utter disregard of county boundaries obviously makes more credible plaintiffs’ claims that the legislature engaged in racial gerrymandering. 1 Act No. 82-629 also inexplicably divides cohesive black communities in a number of instances, particularly in the Black Belt region. Such divisions raise the specter that boundaries of districts were intentionally drawn in order to avoid creating “safe” black senate seats. 2
Despite the problems with the legislative plan, the plans and modifications submitted by the plaintiffs are no better. The plans are not racially neutral but instead discriminate against white citizens of the State of *242 Alabama. Both plans A and B submitted by plaintiffs pair a substantial number of white house and senate members against each other. 3 With one insignificant exception, none of the black house or senate members would be required to run against other incumbents. 4 In fact, counsel for plaintiffs acknowledged that one district in Plan B was intentionally altered in order to eliminate the possibility that two black incumbents would be placed in the same district.
Plaintiffs’ proposed modifications of Act No. 82-629 suffer from similar difficulties. In order to redraw the seven districts that troubled the Justice Department, plaintiffs’ proposed modifications would require the alteration of approximately 30 house districts. In some of the “modified” districts, plaintiffs “packed” already “safe” black house districts in order to create additional black senate seats. They did so by drastically reducing the percentage of blacks residing in certain surrounding “influence” districts. 5 Thus, the plaintiffs were not satisfied with redrawing districts in order to correct problems in the Black Belt region. Instead, they used the modifications as a guise to create additional black senate seats in other regions of the State. While the plaintiffs’ goals command sympathy, their actions undermine any notion that the proposed modifications are racially neutral. 6
During the more than a quarter of a century that I have been a federal judge, I have endeavored to consistently demonstrate that discrimination by the State on the basis of race, color or creed transgresses the Federal Constitution and cannot be tolerated. Necessarily involved in this philosophy is the concept that the State may not act in a manner that discriminates against black citizens in favor of white citizens. Equally ingrained in this concept, however, is an intolerance to suggestions that a court participate in a plan that is designed to discriminate and, if implemented, would have the effect of discriminating in favor of blacks over whites. Plaintiffs’ proposed plans A and B and their proposed modifications of Act No. 82-629, in my judgment, ask this Court to place its imprimatur upon plans that appear to be designed to discriminate against whites in favor of blacks. Defendants’ proposed plan and modifications *243 ask this Court to approve plans that appear to be designed to discriminate against blacks in favor of whites. Neither is acceptable.
Nonetheless, the election deadlines continue their inexorable approach and an interim plan must be implemented. Unfortunately, in adopting a plan, the Court does not have the luxury of choosing the better of several good plans. Instead, the Court is forced to choose from several plans, each of which contains substantial defects. In such circumstances the Court defers, as it must, to the legislature and adopts with some alteration Act No. 82-629 as an interim reapportionment plan. In so doing, this Court remains aware that for the third consecutive decade the Alabama Legislature has abrogated its duty and failed to adopt a reapportionment plan that is constitutionally acceptable. Furthermore, this Court is cognizant that the legislature continues to employ questionable reapportionment practices that suggest some form of racial gerrymandering. Thus, the legislature should not construe this Court’s actions, as reflected in the majority opinion, as an expression of approval of Act No. 82-629. Following the November elections, when the exigent circumstances no longer exist, this Court intends to accord Act No. 82-629 and the practices of the legislature the plenary review that time does not now permit. 7
. The Court had significant difficulty with the legislature’s complete disregard for the integrity of county boundaries. The legislature may have been motivated in part by the Court’s failure to adhere to county boundaries in imposing the existing reapportionment plan. See Sims v. Amos, 336 F.Supp. 924 (M.D.Ala.), affirmed, 409 U.S. 942 , 93 S.Ct. 290 , 34 L.Ed.2d 215 (1972). Significantly, however, the Sims Court implemented a reapportionment plan that contained de minimis population variances of plus/minus one percent. To devise districts with only de minimis variances as required by the Supreme Court, see Wise v. Lipscomb, 437 U.S. 535, 541 , 98 S.Ct. 2493, 2497 , 57 L.Ed.2d 411 (1978); Connor v. Finch, 431 U.S. 407, 415 , 97 S.Ct. 1828, 1834 , 52 L.Ed.2d 465 (1977), it was impossible to create districts that did not split numerous counties. The Alabama Legislature’s plan contains population variances of up to plus/minus five percent. Thus the legislature does not operate under the same population constraints and therefore has substantially less justification for dispensing with county boundaries than the Sims Court.
Henceforth, the legislature should be on notice that total disregard for county boundaries that cannot be justified by the one person-one vote requirement of the Equal Protection Clause will be accorded close scrutiny by the Court.
. The defects in Act No. 82-629 are even more glaring in light of the actions taken by the Justice Department. In refusing to preclear the original reapportionment plan enacted by the Alabama Legislature, the Justice Department highlighted problems in Jefferson County and in the Black Belt region. The legislature attempted to revise the plan in a special session. On May 25, 1982, the date that Act No. 82-629 was apparently reported out of committee, the Justice Department informed the legislature that six districts in the Black Belt and one district in Jefferson County raised “troublesome” questions that would “require more particular examination” if the Act was to be adopted unchanged. The letter specifically noted problems with the fragmentation of black communities and the disregard for county boundaries. The legislature, however, chose to ignore the Justice Department’s warnings and adopted the “troublesome” districts intact. Not surprisingly, the Justice Department refused to preclear Act No. 82-629 on an expedited basis. In refusing to preclear the plan, the Justice Department essentially repeated the rationale articulated in the May 25 letter.
. Plan A would require 16 out of 32 white incumbents to run against each other. One white senator was also paired against a black incumbent in a district that contains a black population in excess of 64 percent. Additionally, Plan A would pair 38 out of 92 white house members against each other. A single black house member would be paired against a white incumbent in a district with a black population of over 70 percent. Similarly, Plan B would require 18 out of 32 white senators and 33 out of 92 white house members to run against each other. One black house member and one black senator would be paired against white incumbents in districts containing large majorities of black voters. Thus, plaintiffs’ plans do not just pair a few incumbents in the same districts. Instead, the plans pair from 37 percent to 41 percent of the white house members and 53 percent to 60 percent of the white senators.
. Plans A and B would require only one black senator and one black house member to run against another incumbent. In each instance, however, the black legislator would be paired against a white legislator in a district with a substantial black majority. The plans therefore would insure the continuity of all black incumbents but would place a significant number of white legislators in jeopardy.
. A district containing a minority population of 25 percent or more is considered an “influence” district.
In Act No. 82-629, house districts 77 and 80 each contain a black population of about 65 percent. Adjacent district 81, an influence district, contains a black population of about 29 percent. Plaintiffs’ modifications would have increased the population of blacks in district 77 and 80 to over 80 percent. The black population in district 81 would be reduced to 3.1 percent. The “packing” of house districts 77 and 80 was designed to create a “safe” black senate district.
. Plaintiffs’ proposed modifications clearly cause retrogression in a number of districts. Moreover, it is not altogether clear that the plaintiffs’ proposed modifications compensate for the retrogression in other districts. Because of the exacting standards accorded court-ordered plans by the Supreme Court, see Wise v. Lipscomb, supra, 437 U.S. 535 , 98 S.Ct. 2493 , 57 L.Ed.2d 411 , I am extremely hesitant to adopt modifications by the plaintiffs that would result in such retrogression.
. Contrary to the views espoused in the dissent, this opinion does not eternally freeze the number of black representatives in the Alabama Legislature. The fault in the plans submitted by the plaintiffs is not that they created additional “safe” black seats or increased the percentage of black voters in certain districts. For example, this Court agrees with plaintiffs and the Justice Department that the contorted shape of district 36 in Jefferson County improperly dilutes black voting strength. Accordingly, this Court will not permit the district to remain intact. The net result is that black citizens in the Birmingham area have one additional majority district that did not exist in the 1972 apportionment plan.
A reapportionment plan that is racially neutral may well increase the number of black seats in the Alabama Legislature. Certainly, there would be no objection to the adoption of a plan that would be racially neutral and at the same time would increase the number of black seats in the legislature. Unfortunately, this Court did not have such a racially neutral plan before it. See notes 3 & 4, supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9634185. Public record. Not legal advice.