Jurisdictional Statement — Mobile v. Bolden
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Supreme Court, U.§, >
| FILED |}
IN THE } JUN 27 1978
Supreme Court of the Unite Co |
OCTOBER TERM. 19°"
77-1844
CITY OF MOBILE. ALABAMA. et a/..
Appellants,
WILEY L. BOLDEN, er a/..
Appellees.
ON APPEAL FROM THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
JURISDICTIONAL STATEMENT
Of Counsel:
Hand. Arendal!. Bedsole. C. B. ARENDALL. JR.
Greaves & Johnston WILLIAM C. TIDWELL. Ill
Post Office Box 123 TRAVIS M. BEDSOLE. JR.
Mobile. Alabama 3660! Post Office Box 123
Mobile. Alabama 36601
Legal Department of the FRED G. COLLINS.
City of Mobile City Attorney. City Hall
Mobile. Alabama 36602 Mobile. Alabama 36602
Rhyne & Rhyne CHARLES S. RHYNE
1000 Connecticut Avenue. NW WILLIAM S. RHYNE
Suite 800 DONALD A. CARR
Washington. D.C. 20036 MARTIN W. MATZEN
1000 Connecticut Avenue. N.W
Suite 800
Washington. D. C. 20036
Counsel for Appellants
Wasrington OC « CLB PUBLISHERS « LAW PRINTING CO. « (20?) 393.0625
JURISDICTIONAL STATEMENT
OPINION BELOW
JURISDICTION
QUESTIONS PRESENTED
STATUTES INVOLVED
STATEMENT
A.
od
D.
(i)
TABLE OF CONTENTS
Mobile's Form Of Government Was Adopted
With Racially-Neutral, Good Government
Mobile's Electoral System Is Entirely Open To
Participation By Black Citizens, Who Do In
Fact Participate Actively And Exercise Sig-
I I ow ceincncascectecececcs
The Courts’ Treatment Of The issue Of Racial!
ne eee vi anes
The Remedy Ordered, And Subsequent Pro-
PARC NG ede dewecucguss + 6usecbe ¥-c0e<
THE QUESTIONS ARE SUBSTANTIAL
A.
THE COURTS BELOW HAVE ER-
RONEOUSLY CREATED A CONSTITU-
TIONAL GUARANTEE NOT OF EF-
FECTIVE POLITICAL PARTICIPATION.
BUT OF CERTAIN POLITICAL VIC-
1. To disregard active and effective black
political participation simply because it
produces white officials is fundamental
ee ne ceaecihceocees
to
The courts below have erroneously given
present inability of blacks, a minority of the
voters. to elect black officials the status of
“eee eee eneneneeeenene
“eee eee eeeeeeneeneeneeeneeneeneeeeneeenee
*oeeereeeeeeeeeeeeeeeeeeeneeneeeeneenee
oer eeeeeneeeeneereeeeeneneeneneeeneneeeeeeeneee
(ii)
constitutional violation, contrary to Whit-
comb v. Chavis, White v. Regester, and
United Jewish Organizations of Wil-
ONSEN, TAG, C COVED onc ccccccccscccsess 21
B. THE COURTS’ CONCLUSION THAT
THE MAINTENANCE OF MOBILE'S
EXISTING FORM OF GOVERNMENT IS
TAINTED WITH INVIDIOUS RACIAL
PURPOSE CANNOT BE SQUARED
WITH WASHINGTON V. DAVIS AND
OTHER RECENT CASES OF THIS
COURT REQUIRING SUCH PURPOSE
ee IN ip wa vads-oeecc cs esuadiee trees coves 23
1. The courts’ tort standard of proof renders
vulnerable even the continuation of facially
neutral government practices supported by
entirely legitimate and racially neutral
policies. wherever there is general aware-
EE ee 24
tw
The court's tort standard effectively im-
poses an affirmative duty of racially-
conscious electoral restructuring upon
legislatures, lest maintenance of the status
quo be deemed invidiously discrimina-
DIL tbe aU keh inunweGhhen (6baeeba 6 oKe0% 26
EE LE A neo PEE a eg! 28
APPENDICES
A. Opinion of the Court of Appeals, entered
EE MG pe Ce cee nae eue abd oss es la
B. Opinion of the District Court, entered October
21, 1976. as amended October 28, 1976........... lb
C. Judgment of the District Court.................... le
D. Order of the District Court, establishing
mayor-council government, entered March 9, 1977. 1d
E. Order of the District Court. setting November
2i. 1978 as conditional date for elections. en-
—— =o hee ee OT ee -
~ | pe SE errrrT terre Tiree rere le
F. Alabama Act No. 281 (Acts 1911, p. 330). as
amended, Code of Alabama 1975 § §11-44-
70 through 11-44-105 (1977) ....... 6... cece eee If
G. Alabama Act No. 823 (Acts 1965. p. 1539)....... lg
PE, Wiatinw OF AOE ow cc iccccccsecsecccscccescccess lh
TABLE OF AUTHORITIES
Page
Cases:
dm err ere 25
Austin Independent School District v. United States.
a PC ean be Sobdinebeaeetees's 14
Beer v. United States. 425 U.S. 130.................. 18,27
Blacks United for Lasting Leadership, Inc. v. City of
Shreveport, 571 F.2d 248 (Sth Cir. 1978), re-
manding 71 F.R.D. 623 (W.D.La. 1976)............. 19
Board of School Commissioners of Indianapolis v.
ME ccc buecGescreséctcssccccscs 14
Brown v. Board of Education, 349 U.S. 394.............. 26
i is inv dae va wvenssee se 3
Dallas County v. Reese, 421 U.S. 477...............0085 18
SEE De HE PTE WOE viccccvcoscesseccsccceces 3,18
East Carroll Parish Schoo! Board v. Marshall, 424
a a a gd eke eened 6
Green v. School Board of New Kent County, 391 U.S.
ee ae I eas he's 26
Hawkins v. Town of Shaw, 437 F.2d 1286 (Sth Cir.
1971). aff'd on rehearing en banc, 461 F.2d 1171
eS Cee Cl ed eee ag CaUh@ EN Mbdauteecees 6
(iv)
Mt. Healthy City School District Board of Education
V. Bawte, G50 ULB, BiG dc cdadch sseedviesedce vescve< 25
Nevett v. Sides, 571 F.2d 209 (Sth Cir. 1978)........ passim
New Orleans v. Dukes, 472 U.S. 297............ 0c cee eee 3
United Jewish Organizations of Williamsburgh. Inc.
ee OS on ere passim
Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 ............... passim
Vollin v. Kimbel, 519 F.2d 790 (4th Cir. 1975)........... 18
Washington v. Davis, 426 U.S. 229 ................. passim
Wolke v. GG, Te Gee GF ncn benvivesedeviensshunase 16
Whitcomb v. Chavis, 403 U.S. 124...............44. passim
White v. Regester, 412 U.S. 755...........0.eeeeeees passim
Wise v. Lipscomb, _._._ U.S. ___.. 98 S.Ct. 15
(Powell, J.. as Circuit Justice) staying 551 F.2d
1043 (Sth Cir. 1977), cert. granted, ____ U.S.
ace 0 OO Gs VOR kos daakehecneetbesemel cicenvens 25
Zimmer v. McKeithen, 485 F.2d 1297 (Sth Cir. 1973)
(en banc), affd sub nom. East Carroll Parish
School Board v. Marshall, 424 U.S. 636.......... 6,14,20
Constitution and Statutes:
Alabama Act No. 281 (Acts 1911, p. 330), as
amended, Code of Alabama 1975 § §11-44-70
Cassuahh 11-46-1065 CIDE ED. ccccavecceccccteaccicses 3.5.8
Alabama Act No. 823 (Acts 1965, p. 1539)............. 5.8
Civil Rights Act of 1871, 42 U.S.C. §1983 ............... 3
U.S. Constitution
Asnpntmas TEP . «os ccc vs0s0dekeriasee 1,3,5,7,12,17
Asami FEF oo. icc cnet veecsbatneaseecee 1,3,5,7
Voting Rights Act of 1965. as amended, 42 U.S.C.
G1GTS OF O06 onc ccescutisvstacesenialitiaa 3,6,9,27
EE 3
Miscellaneous:
C. Adrian & C. Press, Governing Urban America
ee 6 as oe ctu nveeses 22
International City Management Association, Munic-
EELS 22
J. Straayer, American State & Local Government (1974). .22
IN THE
Supreme Court of the Anited States
OCTOBER TERM. 1977
No.
CITY OF MOBILE, ALABAMA, er a/..
Appellants,
WILEY L. BOLDEN, er a/.,
Appellees.
ON APPEAL FROM THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
JURISDICTIONAL STATEMENT
Appellants appeal from the judgment of the United States
Court of Appeals for the Fifth Circuit, entered on March
29, 1978, affirming the judgment and orders of the United
States District Court for the Southern District of Alabama,
decided October 21, 1976. These hold the existing
Commission form of government and at-large electoral
system of the City of Mobile unconstitutional under the
Fourteenth and Fifteenth Amendments to the U.S.
Constitution as denying black citizens access to the City’s
political processes. The anti-corruption purposes of the
Commission form of government and the equal access and
2
control provided to all voters by this form have never been
reviewed as to constitutional compliance by this Court.
Also affirmed were orders of the District Court that the
67 year old City Government be disestablished and
replaced by a strong mayor-council government elected by
a single-member districts pursuant .o a new City Charter
imposed by the District Court. Siice the Commission form
of government vests in the Commissioners both legislative
and specialized, individual administrative powers, the
District Court’s remedial order established an entire new
administrative structure fixing salaries, powers and duties
to operate under the mayor-council form.
By order of May 31, 1978, the District Court has set
November 21, 1978, as the time for election of Mobile’s
new mayor-council government. However, the order
provides that these elections shall be stayed if this Court
grants review before that date.
Appellants submit this Statement to show that the
Supreme Court of the United States has jurisdiction of the
appeal and the substantial new and novel questions are
presented under the Constitution of the United States.
OPINION BELOW
The Opinion of the Court of Appeals for the Fifth Circuit
is reported in 571 F.2d 238, and that of the District Court is
reported in 423 F.Supp. 384. Both Opinions are attached
hereto as Appendices A and B, respectively. The Judgment
of the District Court, entered on October 22, 1976, and the
Order of the District Court, entered March 9, 1977, setting
forth the new City Charter imposed by that Court, are both
unreported. Copies are attached hereto as Appendices C
3
and D, respectively. The Order of the District Court,
entered May 31, 1978, setting November 21, 1978 as the
time for election of Mobile’s new mayor-council govern-
ment unless this Court sooner grants review, is set forth as
Appendix E hereto.
JURIS DICTION
This suit was brought as a class action in behalf of all
black citizens of Mobile under 28 U.S.C. §1343(3)-(4),
alleging that the present at-large system of electing City
Commissioners abridges the rights of black citizens under
the First, Thirteenth, Fourteenth, and Fifteenth Amend-
ments to the U.S. Constitution; under the Civil Rights Act
of 1871, 42 U.S.C. §1983; and under the Voting Rights
Act of 1965, as amended, 42 U.S.C. §1973 et seq.' The
judgment of the District Court was entered on October 21,
1976; and appeal was taken to the Court of Appeals, which
rendered judgment affirming the District Court on March
29, 1978. Notice of appeal was filed in the Court of
Appeals June 19, 1978 (Appendix H).
The City’s existing Commission Government was
adopted in 1911 pursuant to State statute, Ala. Act No.
281 (1911).? Because the subject of this appeal is a judgment
holding this local application of a State statute unconstitu-
tional, the jurisdiction of the Supreme Court to review this
decision by appeal is conferred by 28 U.S.C. §1254(2).
Dusch v. Davis, 387 U.S. 112, 114; Clark v. Peters, 422
U.S. 1031. Cf New Orleans v. Dukes, 472 U.S. 297, 301.
‘Neither Court below relied upon the Voting Rights Act of 1965 for
jurisdiction.
This statute, as amended, is presently codified at Code of Alabama
1975 §8§11-44-70 through 11-44-105 (1977).
4
QUESTIONS PRESENTED
1. Whether the Commission form of Government
designed to fix in the head of each administrative
department responsibility directly to the voters and thereby
eliminate corruption and ward-heeling through direct
election of each Commissioner by each voter of the City,
violates the Federal Constitution because the Commission
form of government cannot guarantee that one or more of
the Commissioners will come from black residents who
comprise one-third of the City’s population?
2. Whether the holdings of the Courts below conflict
with the constitutional principles established by this Court
in Whitcomb v. Chavis, 403 U.S. 124, White v. Regester,
412 U.S. 755, Washington v. Davis, 426 U.S. 229, and
Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252?
3. Whether discriminatory effect has been proved when
no qualified black candidate has run for the office of
Commissioner under the challenged at-large city commis-
sion electoral system?
4. Whether the Courts below, in disregarding active and
effective black voter and leader participation in Mobile’s
elections as irrelevant, have erroneously given the effects of
racially polarized voting independent and controlling
significance as a constitutional violation?
5. Whether the Constitution authorizes a Federal Court
to legislate an entirely new form of government for the City
for no purpose except that of guaranteeing that black
citizens who constitute a minority of the City’s voters will
be elected to City offices?
— see
a ee es eee
Te eT
5
STATUTES INVOLVED
This case involves the constitutionality under the
Fourteenth and Fifteenth Amendments to the U.S.
Constitution of Alabarna Act No. 281 (1911), as locally
implemented by a vote of the electorate, providing the
Commission Government for the City of Mobile in 1911.
This statute, as amended, is now codified at Code of
Alabama 1975 §§ 11-44-70 through 1 1-44-105 (1977), set
forth in pertinent part in Appendix F hereto.
Also involved is Alabama Act No. 823 (1965), set forth
in Appendix G hereto.
STATEMENT
The following central facts were found by the District
Court or undisputed below (see infra, pp. 10-12): (1) no
formal or legal barriers exist to black citizens’ registering to
vote, voting, or running for the office of City Commissioner,
(2) support of black citizens was actively sought by all
candidates in recent City elections, with two of three
present Commissioners having been elected with the
endorsement of the City’s most influential black political
organization; (3) one of the three present Commissioners
was elected on the strength of the black “swing vote;”” and
(4) only 3 blacks have ever run for the City Commission,
the District Court finding that they were “young, inexperi-
enced and mounted extremely limited campaigns” (423
F.Supp. at 388; App. B, p. 8b), and they failed even to
carry predominantly black census wards.
At the outset it should be noted that at-large dilution
8)
cases such as this one are not municipal services cases;’
nor are they cases guaranteeing the election of blacks.*
Finally, they are not cases justiciable under the Voting
Rights Act as involving recent changes. The Courts of
Appeals, particularly the Fifth Circuit, have for the last five
years struggled in vain to develop a test for evaluating the
quality of required constitutional black political participa-
tion short of a constitutional guarantee of election of black
candidates.‘ The starting points have been this Court's
decisions in Whitcomb v. Chavis, 403 U.S. i24 and White
v. Regester, 412 U.S. 755. The latest effort is a quartet of
cases, of which Nevett v. Sides (Nevett II), 571 F.2d 209
(Sth Cir. 1978) is the principal exposition, and which
includes the instant case. Nevett I] focused on the activities,
principally activities in the electoral process, of white
elected incumbents. This quartet of decisions does in fact
guarantee that a black minority has a constitutional right to
elect a black person to city office.
Heretofore at-large dilution decisions of this Court did
not guarantee black voters who are a minority of the voters
the constitutional right that a black win public office. These
cases only guarantee black voters the right to have their
‘The paradigm municipal services case is Hawkins v. Town of Shaw.
437 F.2d 1286 (Sth Cir. 1971), aff'd on rehearing en banc. 461 F.2d
1171 (1972).
“Such a desideratum is not a constitutional imperative. Whitcomb vy.
Chavis, 403 U.S. 124, 153.
‘Both Courts below based their analysis upon the multifactor test
presently controlling “dilution” cases such as this in the Fifth Circuit.
Zimmer v. McKeithen, 485 F.2d 1297 (Sth Cir. 1973) (en banc),
affirmed sub. nom. East Carroll Parish School Board v. Marshall, 424
U.S. 636 (but “without approval of the constitutional views” expressed
in Zimmer. 424 U.S. at 638).
7
vote count in a meaningful fashion. If white officials ignore
black voters, on the campaign stump and at City Hall, and if
white officials resist a change from an at-large to a district
electoral system in order to rely upon the white majority vote
to insulate such insensitivity from electoral accountability, a
constitutional violation is made out. Nevert II, 571 F.2d at
223.
Plaintiffs, to prevail in a Fourteenth® or Fifteenth’
Amendment voting dilution case, must prove each element
of electoral arrogance by white candidates and incumbents:
white polarized voting which negates any electoral signifi-
cance of black polarized voting; white campaigning with
this effect in mind; and white officials’ intentional action to
create, or resist change to, an at-large system in order to
perpetuate this effect.
The activities of white incumbents must evince a
purposeful discrimination. Nevett IJ, 571 F.2d at 219, 221.
The adoption of a “tort” standard—that the officials intend
the natural consequences of their acts—facilitates proof of
discriminatory purpose, required under Washington vy.
Davis, 462 U.S. 229, and Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252.
As applied in this case, the Nevett IJ ‘tort’ is not an act,
but inaction: the failure of the Commissioners sua sponte to
change their form of government to guarantee proportional
representation by race.
In this case, the record reflects vigorous black political
participation: endorsing white candidates, constituting the
“swing” vote in the most recent contested elections, and
success in dealing with white incumbent officials after
election day to secure black needs.
*Nevett IJ, 571 F.2d at 217-18.
"Nevett IT, 571 F.2d at 220-21.
The record reflects no change in the at-large electoral
system of Mobile since 1911; proposed changes to a
mayor-council form were defeated in referenda in 1963 and
1973. The record reflects the substantial justification and
constitutional necessity of the Commission form of
government which includes new factors which have never
been reviewed by this Court as to their constitutional
significance.
Mobile’s 1970 population was 190,026, with approxi-
mately 35.4% of its residents black.
In 1911, the City adopted, pursuant to Ala. Act 281
(1911), its present three-member Commission Govern-
ment. Each Commissioner performs both legislative and
specific City-wide administrative functions as head of one
of three municipal departments: Finance and Administra-
tion, Public Safety, and Public Works and Services (571
F.2d at 241-42,App. A, pp. 3a-4a; 423 F. Supp. 386, App.
B, p. 5b).* Because each Commissioner administers a
separate department with City-wide functions, each of
constitutional necessity is elected at-large by the entire
electorate. °
*Prior to 1965, assignment of administrative responsibilities was by
agreement of the Commissioners among themselves. In 1965, this
longstanding practice was codified under Ala. Act 823 (1965) to add
one of these three functional designations to the already numbered
place on the ballot for which every candidate had to announce and run,
thus informing the voters of the area of municipal services for which the
candidates sought responsibility.
*Under the Court-ordered plan, in contrast, the Mayor becomes an
elected chief executive who oversees an executive branch of non-
elective officials (App. D, Art. IV, Sect. 32, p. 26d), while the City
Council becomes a purely legislative body which may deal with City
ee “solely through the mayor” (App. D, Art. III, Sect. 16,
p. ).
9
This being so, the decision of which review is sought if
upheld by this Court sounds the death knell of the
Commission form of government now in force in hundreds
of municipalities in our nation. Any change in the
administrative structure of the City would be considered
submissible under the Voting Rights Act.'® The Attorney
General of the United States would perforce disapprove the
change, because of longstanding objection to the at-large
election requirement of the Commissioners.
This case, therefore, involves the inability of any
Commission form City to alter its administrative structure''
without Federal approval. And it in fact renders most
commission forms of government unconstitutional as all
commission government cities have small or large numbers
of minorities among their residents.
A. Mobile’s Form of Government Was Adopted
With Racially-Neutral, Good Government
Purposes.
Mobile’s Commission Government was adopted in 191 1
Both the District Court and the Court of Appeals below (see 571
F.2d at 242 n. 3: App. A, p. 4a) took great pains to limit their holdings
to the constitutional challenge to the at-large system in Mobile. The
Attorney General had disapproved a Voting Rights Act submission
(under jurisdictional protest) of the designation of functional duties of
each Commissioner, on the ground solely that the Commission form
“locks the city into the use of the at-large system.” The Court of
Appeals in this case treated the submission only as circumstantial
evidence of intent to maintain the Commission form, extant since 1911.
(571 F.2d at 241 n.2: App. A, p. 3a).
''The Commission form is unique in electing all its administrative
department heads.
It is for this reason that the remedial Order in this case is unique in its
breadth. (App. D)
10
within the context of the progressive reform movement
which prompted many other municipalities through the
Nation to do likewise. (Tr. 24-25). Mobilians, like citizens
of other cities swept by the reform movement, sought a city
government both more efficient and business-like, and less
susceptible to ward parochialism and corruption than the
aldermanic or councilmanic forms. (Tr. 24-25, 36-37).
Both Courts accepted the legitimacy of at-large elections
as a means of assuring City-wide perspective and representa-
tion by elected officials (423 F. Supp. at 403, App. B, p. 43b;
571 F.2d at 244, App. A, p. 9a). In the words of the Court
of Appeals, the City’s existing form of government was
“neutral at its inception” (571 F.2d at 246, App. A, p.
13a).
B. Mobile’s Electoral System Is Entirely Open To
Participation By Black Citizens, Who Do In
Fact Participate Actively And Exercise Sig-
nificant Voting Power.
In Mobile, every phase of the electoral process—regis-
tration, voting, and qualification for candidacy—is as open
to blacks as to whites. (423 F.Supp. at 387; App. B, p. 76).
In Mobile, “any person interested in running for the
position of city commissioner is able to do so.” (423
F.Supp. at 399; App. B, p. 35b).
Beneath this “first blush” neutrality, the District Court
found that “‘[o|ne indication that local electoral processes
are not equally open is the fact that no black has ever been
elected to the at-large City Commission.” (423 F.Supp. at
387-88; App. B, p. 7b). Drawing upon statistical evidence
that voting in the City had been polarized along racial lines
(423 F.Supp. at 388-89; App. B, pp. 7b-11b), the Court
found:
“Black candidates at this time can only have a
reasonable chance of being elected where they have a
majority or a near majority. There is no reasonable
expectation that a black candidate could be elected in a
citywide election race because of race polarization.
The court concludes that an at-large system is an
effective barrier to blacks seeking public life.” 423
F.Supp. at 388 (App. B, p. 10b)."”
But in Mobile, no black candidate for the Commission
has ever suffered defeat as a result of polarized voting. As
the District Court recognized, only three blacks had sought
election to the Commission; and they “were young,
inexperienced, and mounted extremely limited campaigns.”
(423 F.Supp. at 388; App. B, p. 8b). These candidates
were of such limited appeal even to black voters that they
admittedly failed even to carry predominantly black census
wards (Tr. 175).
In the view of the District Court, this failure of qualified
black candidates even to try the political process was
attributable to discouragement at their perceived chances
for victory in at-large City elections (423 F.Supp. at 389;
App. B, p. 11b). The District Court did not address these
undisputed facts of record—often adduced through Plain-
tiffs’ own witnesses— which clearly demonstrate that blacks
do participate actively and effectively in City politics:
1. Commission candidates actively seek black votes,
and the endorsement of the Non-Partisan Voters
League (““NPVL’’), the City’s principal black political
organization (Tr. 264, 320-22, 412-414, 539-40, 752,
824, 927, 1141).
"The Court relied upon the testimony of “active candidates for
public office,” and upon Plaintiffs’ statistical evidence of racially
polarized voting (423 F. Supp. at 388; App. B, p. 9b-i0b).
12
2. In the City’s most recent elections, held in 1973,"
two of the three present Commissioners ran and won
with the endorsement of the NPVL. The third
Commissioner ran unopposed.
3. One of the present Commissioners was elected on
the strength of the black “swing” vote (Tr. 413-14).
The District Court did note that one past Commissioner, a
white “‘identiflied] with attempting to meet the needs of the
black people of the city’, had been elected and re-elected
with black support during the over 25-year period from
1953 to 1969 (423 F.Supp. at 388; App. B, p. 9b)."*
C. The Courts’ Treatment Of The Issue Of Racial
Purpose Or Intent
Although the District Court relied entirely upon the
Equal Protection Clause of the Fourteenth Amendment in
invalidating Mobile’s at-large commission form of govern-
ment (423 F.Supp. at 402-03; App. B, pp. 40b-42b), the
Court held that the principle of Washington v. Davis, 426
U.S. 229, 242—that facially neutral government actions
must be shown to be not simply racially disproportionate in
impact, but the result of invidious racial purpose—had no
application in a voting “dilution” case such as this (423
F.Supp. at 394-398; App. B, pp. 22b-32b). However, the
Court went on to make ancillary findings involving
application of a “tort standard” of proof of intent.
This was the election in which the three “young, inexperienced”
black candidates ran (423 F.Supp. at 388; App. B, p. 8b).
'*Though the Court’s opinion attributes his ultimate defeat in 1969 to
white “backlash” and polarized voting (423 F.Supp. at 388-89; App.
B, p. 9b), the testimony of the former Commissioner himself attributes
7 defeat to the failure of black voters to turn out at the polls (Tr. 299-
04).
13
The District Court acknowledged that the City’s
government was racially neutral at its inception in 1911,
but offered this remarkable “‘tort’’ analysis:
A legislature in 1911, less than 50 years after a bitter
and bloody civil war which resulted in the emancipa-
tion of the black slaves, should have resonably
expected that the blacks would not stay disenfran-
chised. It is reasonable to hold that the present dilution
of black Mobilians is a natural and foreseeable conse-
quence of the at-large election system imposed in
1911.” 423 F.Supp. at 397 (App. B, p. 29b).
The District Court’s second ancillary finding on intent
involved a permutation of its tort theory applied to State
legislative “‘inaction.”’ Finding that the Alabama Legisla-
ture, when faced with redistricting bills, had in the past
showed concern over their impact on election of black
candidates, and had avoided redistricting itself until
Federal court order in 1972, the Court concluded that in
Mobile
“There is a ‘current’ condition of dilution of the black
vote resulting from intentional state legislative inaction
which is as effective as intentional State action...”
423 F.Supp. at 398 (App. B, p. 31b) (emphasis
original).
The Court did not suggest that, but for racial animus, the
City would now have a different form of government. '*
The Court of Appeals held, as the District Court had not,
that proof of invidious racial purpose is here a necessary
element under Washington v. Davis, supra, and subse-
'*The Court did not rely upon the fact that in 1963 and again in 1973,
the people of Mobile rejected proposals to change from the commission
form to a mayor-counci! government. (R. 435)
14
quent cases of this Court following its principle.'® None-
theless, the Court held that the element of intent had been
properly established.
First, the Court of Appeals held that the findings of the
District Court under its Zimmer analysis “compel the
inference that the [at-large commission] system has been
maintained with the purpose of diluting the black vote. . .”
(571 F.2d at 245; App. A, p. 12a). Second, the Court
concluded that the finding that the Alabama legislature had
failed to change the City’s at-large Commission Govern-
ment, coupled with a general legislative awareness that
districting has “racial consequences,” constituted “direct
evidence of the intent behind the maintenance of the at-
large plan.” (571 F.2d at 246; App. A, p. 14a). Finally, the
Court relied upon the 1965 Act designating specific
functions (which the District Court had found desirable and
conducive only to the voters’ “intelligent choice”, 423
F.Supp. at 394 n. 9; App. B, p. 21b) as further probative of
an invidious “‘intent to maintain the plan...” (571 F.2d at
246; App. A, p. 14a).
The Court of Appeals also gave no indication that the
City would now be operating under some other mode of
government were it not for the racial animus imputed to the
Legislature.
‘*The reasoning of the Court of Appeals is developed at length in the
companion case of Nevett v. Sides (Nevett 11), 571 F.2d 209, 217-221.
and incorporated by reference in its Mobile decision. $71 F.2d at 241
(App. A, p. 2a).
The District Court had rendered its decision prior to such cases as
Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252; United Jewish Organizations of Williamsburgh
v. Carey, 430 U.S. 144; Board of School Commissioners of
Indianapolis v. Buckley, 429 U.S. 1068; and Austin Independent
School District v. United States, 429 U.S. 990.
Bs)
D. The Remedy Ordered, and Subsequent Pro-
ceedings
Because at-large elections are an integral and legally
indispensable feature of the City’s Commission Govern-
ment, the District Court felt obligated to disestablish the
City’s present government, and substitute another form to
“provide blacks a realistic opportunity to elect blacks to the
city governing body” (423 F.Supp. at 403; App. B, p.
42b)."”
The District Court ultimately ordered implementation of
a “strong mayor-council” plan in which the 9-member
council is to be elected by single-member district, with the
mayor to be elected at-large (App. D, pp. 7d-8d). The Court-
ordered plan is so comprehensive as to constitute a new
City Charter, setting not only the form of government and
electoral system, but such details as salaries and budget
procedures (App. D, pp. 12d-13d, 25d, 30d-41d).
Recognizing the substantial disruption to the City and its
citizens should its order be reversed on appeal, the District
Court stayed its order pending appeal; and at oral
argument, the Court of Appeals stayed the holding of all
elections pending appeal (571 F.2d at 242; App. A, pp. 5a-
6a).
Upon its affirmance of the holding and the propriety of
the relief ordered below, the Court of Appeals reinstated the
remedial order of the District Court and dissolved its own
‘The Court rejected as “undesirable” the “weak mayor-council”
plan available under State law, even where elected by single-member
district (423 F. Supp. at 404; App. B, p. 45b).
16
stay of elections (571 F.2d at 247; App. A, p. 17a)."
By order of May 31, 1978, the District Court has set
November 21, 1978, as the time for election of Mobile’s
new mayor-council government. However, the order
provides that these elections shall be stayed if this Court
grants review before that date. (App. E, p. 3e).
THE QUESTIONS ARE SUBSTANTIAL
This case is the first to come before this Court in which
an entire form of government, not merely the manner of its
election, has been struck down by the Federal courts under
the constitutional rubric of “dilution” of black votes. '®
Earlier cases have involved the validity of at-large or
multimember districting in circumstances where the form of
government was equally able to exist and function under
other electoral plans such as pure single-member dis-
'*Appellants sought from the Court of Appeals a Stay of Mandate
pending their seeking review in this Court. The motion was denied on
April 24, 1978. Whereupon, Appellants sought by application to Mr.
Justice Powell, as Circuit Justice, a Stay and Recall of Mandate
pending review. This application was denied on May 15, 1978, after
referral to the Court, of which only Mr. Justice Stewart and Mr. Justice
Rehnquist would have granted application.
‘Particularly in a case such as this, involving not only the form and
structure of local government but the constitutional guarantees of citizen
participation in selecting officials, it is especially important
“to distinguish between issues of fact that are here foreclosed and
issues which, though cast in the form of determinations of fact. are
the very issues to review [for] which this Court sits.” Watts v.
Indiana, 338 U.S. 49, 51.
17
tricting. *°
The instant case illustrates how far the “denial of access”
test in White v. Regester has been carried: undisputed
evidence of active and effective black political participa-
tion in an electoral system concededly neutral on its face
and free of formal impediments to blacks’ registering,
voting, and becoming candidates is to be deemed constitu-
tionally deficient “‘access to the political process’’ where the
courts conclude that black voters are presently unable to
elect black officials in an at-large electorate found to be
racially polarized and the blacks are not numerous enough
to elect a black.
In effect, the Courts below have given controlling
constitutional significance to the effects of racially pola-
rized voting,*' contrary to United Jewish Organizations v.
Carey, 430 U.S. 144, 166-67; and in so doing, have
effectively required that electoral systems be so structured
as to guarantee the election of minority candidates, contrary
to White v. Regester, supra, 412 U.S. at 765-66, and
Whitcomb v. Chavis, supra, 403 U.S. at 153. If
continuation of a neutral and reasonable governmental
policy or action even with awareness of its racial effects
actually required the conclusion of invidious racial intent,
In White v. Regester, 412 U.S. 755, for example, this Court for the
first time upheld the disestablishment of multimember legislative
districts under Fourteenth Amendment equal protection principles,
affirming holdings below that Texas’ electoral system “effectively
excluded” Dallas County blacks and “effectively removed” Bexar
County Mexican-Americans from the political process. 412 U.S. at
767, 769.
‘In contrast to its application to the facts of this case, the Fifth
Circuit's test, articulated in Nevert I], takes polarized voting merely as
the starting point for further constitutional analysis. 571 F.2d 209, 223
n. 16.
18
this Court’s decisions in Washington v. Davis and Village
of Arlington Heights would necessary have reached
different outcomes.
This case, being the first one to present to this Court the
constitutionality of the commission form of local govern-
ment, has national importance far beyond the City’s
boundaries. Hundreds of other local governments also
employ commission forms of government; over 67% of all
city governments and over 40% of all county governments
employ at-large elections. *? The holdings below, if affirmed,
portend the substantial erosion of local governments’
necessary flexibility in structuring their electoral systems to
satisfy their legitimate and racially neutral need for officials
with the area-wide perspective afforded by elections at-
large.
A. The Courts Below Have Erroneously Created
A Constitutional Guarantee Not Of Effective
Political Participation, But Of Certain Political
Victory.
This Court has rejected the proposition that ‘a white
official represents his race and not the electorate as a whole
and cannot represent black citizens.’ Vollin v. Kimbel,
51% F.2d 790, 791 (4th Cir. 1975) (emphasis original),
citing Dallas County v. Reese, 421 U.S. 477 and Dusch v.
Davis, 387 U.S. 112. A fortiori, no racial group has a
constitutional right to elect minority officials “in proportion
to its voting potential.”’ Regester, supra, 412 U.S. at 765:
Whitcomb v. Chavis, supra, 403 U.S. at 153; Beer v.
United States, 425 U.S. 130, 136 n. 8. The protected right
is that of effective access to, and participation in, the
“Appellants are aware of 80 reported dilution cases.
19
political process. Chavis, supra, 403 U.S. at 149-155;
Regester, supra, 412 U.S. at 766.
Nor is this right impermissibly infringed where a minority
finds itself consistently outvoted at the polls, even where the
elections happen to be characterized by racially polarized
voting. United Jewish Organizations of Williamsburgh,
Inc. v. Carey, supra, 430 U.S. at 166; cf Chavis, supra,
403 U.S. at 153. Contrary to the decision here appealed, in
this Court’s decisions the focus of the proper constitutional
test remains minority political access and participation,
Chavis, supra, at 149-156.
1. To disregard active and effective black political
participation simply because it produces white
officials is fundamental constitutional error.
The District Court, upon concluding that a minority of
black citizens were presently unable to elect black City
Commissioners, deemed it unnecessary to address, much
less consider, the undisputed evidence of effective black
political participation and electoral clout (see supra, pp.
10-12). Such a lapse is explicable only if the Court labored
under the erroneous assumption that only black participa-
tion which led to the election of black Commissioners could
indicate constitutionally sufficient access to Mobile’s
political process. ”?
?’The implicit view of the District Court here was openly expressed by
the Court in Blacks United for Lasting Leadership, Inc. v. City of
Shreveport, 71 F.R.D. 623 (W.D. La. 1976). which considered similar
facts — (1) open slating. (2) black vote sought by all candidates, and
(3) black votes clearly influential and sometime the decisive “swing”
vote — but did not
“view this as the sort of meaningful access to political processes
intended by the fourteenth Amendment as interpreted by White /v.
Regester] .. .° 71 F.R.D. at 635.
(continucd)
20
This is patently not a case in which the power of the
City’s black electorate has been effectively “submerged.”
No black candidate for the Commission has ever received
the full support of the black community only to be defeated
by racially polarized voting (see supra, p. 11). Indeed,
unless one makes an official’s race the litmus test of his
representativeness,* it is clear that black Mobilians have
long enjoyed representation roughly proportionate to their
numbers, i.e., one Commissioner indisputably responsive to
black interests served continuously from 1953 to 1969; and
in 1973, black voters chose the winners in the only two
contested Commission seats in preference to less experi-
enced candidates of their own race (see supra, pp. 11-12).
(footnote continued from preceding page)
The Fifth Circuit has remanded the Shreveport case for further
explication of the Court's Zimmer findings under F.R.Civ.P. 52(a). 571
F.2d 248, 255.
If a constitutional violation can exist apart from the failure of qualified
black candidates to be elected, then the evil must be as described by the
Fifth Circuit in Nevert IT:
‘Perhaps the most useful approach to analyzing the Zimmer
criteria as they relate to the existence of intentional discrimination
is to assume that an at-large scheme is being used as a vehicle for
achieving the constitutionally prohibited end. The objective of such
a scheme would be to prevent a group from effectively participating
in elections so that the governing body need not respond to their
needs. This objective would be achieved by insuring that a cohesive
group remains a minority in the voting population, thus preventing
that group from electing minority representatives or from holding
nonmincrity representatives accountable.“ 571 F.2d at 222.
**In the uniform experience of Plaintiffs’ own witnesses, one or more
Commissioners was personally available to hear black needs or
grievances, and, more often than not, this access produced positive
tangible results — sireet lighting, paving. sewers and sidewalks
(Tr. 433-34, §72-73, 583, 621-25).
et
2. The courts below have erroneously given
present inability of blacks, a mirority of the
voters, to elect black officials the status of
constitutional violation, contrary to Whitcomb
v. Chavis, White v. Regester, and United Jewish
Organizations of Williamsburgh, Inc. v. Carey.
Though the absence of serious black candidacies was not
attributable to any formal barrier and the Commission races
are open to “any person interested” (supra, p. 10), the
District Court accepted the bootstrap argument of Plaintiffs
below—the failure of prospective black candidates even to
try the City’s political processes was deemed to have
constitutional significance. Thus, the District Court found,
there exists in Mobile “‘a pattern of racially polarized
voting” which “discourage[s] black citizens from seeking
office or being elected.”’ (423 F.Supp. at 389; App. B, p.
11b).
The “black discouragement” theory, of course, served in
lieu of proof that any black Commission candidate had ever
been defeated by polarized voting, and allowed proof of the
very existence of polarized voting in Commission races to
depend on statistical analyses of the votes cast for white
candidates. The Court of Appeals uncritically accepted this
substitution of “discouragement” for the more concrete
barriers** to black candidacy and participation required by
this Court. In the electoral system upheld in Whitcomb v.
Chavis, for example, blacks had ample reason to be
discouraged at their prospects for political victory: and
there is no reason to suppose that discouragement would
**In White v. Regester, supra, 412 U.S. at 766-67. for example. black
candadacies had been effectively blocked by a white slating organization.
descendant of the white primaries.
have served in lieu of white control of the slating process”
as a factor supporting invalidation of the electoral scheme
struck down in White v. Regester.
Even if racially polarized voting were a political fact of
life in Mobile, it would not render an otherwise neutral
electoral system constitutionally infirm. ”’
*6In contrast to the partisan primaries requiring invalidation in
Regester, elections are non-partisan in Mobile. This is considered an
essential reform feature of the Commission form. C. Adrian & C. Press.
Governing Urban America 221 (4th ed. 1972). The strong-mayor form.
ordered by the District Court below, is characterized by partisan
elections and intense mayoral political activity while in office. J.
Straayer, American State & Local Government 238 (1974).
Nonpartisan elections, as well as at-large elections, are essential
features of the council-manager form. Council-manager was the
successor reform movement to the commission form. International City
Management Ass'n, Municipal Year Book 68-69 (1976).
Therefore, this case will affect not only the Commission reform, but
also the Council-Manager reform.
27
“Where it occurs, voting or for against a candidate because of his
race is an unfortunate practice. But it is not rare: and in any district
where it regularly happens, it is unlikely that any candidate will be
elected who is a member of the race that is in the minority in that
district. However, disagreeable this result may be. there is no
authority for the proposition that the candidates who are found
racially unacceptable by the majority and the minority voters
supporting those candidates, have had their Fourteenth or
Fifteenth Amendment rights infringed by this process. Their
position is similar to that of the Democratic or Republican minority
that is submerged year after year by the adherents to the majority
party who tend to vote a straight party line.” United Jewish
Organizations, supra, 430 U.S. at 167-77 (emphasis added).
23
B. The Courts’ Conclusion That The Maintenance
Of Mobile’s Existing Form Of Government Is
Tainted With Invidious Racial Purpose Cannot
Be Squared With Washington v. Davis And
Other Recent Cases Of This Court Requiring
Such Purpose Be Shown.
A principal error in the majority opinion’s legal analysis
is clearly expressed in the concurring opinion of Wisdom,
J., in the companion case of Nevett II,supra, 571 F.2d at
232-33:
“| agree that it is reasonable to argue, for example, that
proof of the invidious effects of multi-member districts
or at-large voting raises an inference, perhaps, in some
cases, a strong presumption, of discriminatory pur-
pose. That formulation is run-of-the mine, acceptable,
legal semantics—in some cases. It will not cover those
cases in which the voting scheme was neutral when
initiated or even benign but had unintended or inade-
quately considered invidious effects on the voting
rights of minorities. In those cases, as the majority was
driven to say, the discriminatory purpose is found in
maintaining the voting plan, that is, taking no
affirmative curative action. This view of inaction is
inconsistent with Washington v. Davis.”’ (emphasis
original).
The role of the constitutional requirement that invidious
purpose be shown is to protect the ability of government to
function by facially neutral actions which serve rational and
legitimate ends, but which incidentally operate with racially
disproportionate impact. Davis, supra, 426 U.S. at 248.
An inadequate standard of proof can subvert this vital rule
as absolutely as its disregard.
24
1. The courts’ tort standard of proof renders
vulnerable even the continuation of facially
neutral government practices supported by
entirely legitimate and racially neutral policies,
—" there is general awareness of racial
effect.
Both Courts below found that the City’s existing form of
government, together with its at-large electoral system
necessarily attendant thereto, are facially neutral and were
adopted for racially neutral, good-government purposes at a
time when invidious racial motivations could have played
no part (see supra, pp. 9-10). Yet the holding below deems
the failure to alter Mobile’s existing governmental structure
(its “maintenance”), coupled with imputed legislative
awareness that blacks might fare better politically under
elections by single-member district, compelling proof of
racial purpose.
This Court’s recent decisions condemn this approach.
For example, if awareness of racially disproportionate
impact were equivalent to an invidious intent to accomplish
such impact, the outcome of Washington v. Davis, where
the police department continued to administer its employ-
ment test despite its awareness that a disproportionate
number of black applicants failed, 426 U.S. at 252, would
necessarily have been different. Similarly in Village of
Arlington Heights, zoning officials were well aware that
existing policies had the effect of maintaining the “nearly all
white” status of the village, and the Court of Appeals had
held thzi they “could not simply ignore this problem,” 429
U.S. at 260. Yet this Court upheld the maintenance of these
policies for reasons racially neutral, despite their exclu-
sionary effect.
2s
This Court has correctly observed that “viable local
governments may need considerable flexibility in local
arrangements” in order to meet local needs. Abate v.
Mundt, 403 U.S. 182, 186-87 (1971). At-large electoral
systems, integral and constitutionally necessary to the
commission form of government used by approximately 3%
of this Nation’s 18,500 municipalities, further valid
governmental objectives and are entitled to at least “‘limited
deference.”” Wise v. Lipscomb, ____. U.S. ___ , 98 S.Ct.
15, 17 n. 2. (Powell, J., as Circuit Justice), staying 551
F.2d 1043 (Sth Cir. 1977}, cert. granted, U.S.___,
98 S.Ct. 716.
This is the function of the purpose or intent as applied in
Washington v. Davis and Village of Arlington Heights—to
assure that government actions which are designed to
further valid objectives are accorded such deference, and
that those designed to further impermissible racial purposes
are not. Davis, supra, 426 U.S. at 242-248; Arlington
Heights, supra, 429 U.S. at 265-66.
However, where the challenged action is indeed neces-
sary to serve valid ends, i.e., here to prevent corruption, it is
insufficient to show that it has been “motivated in part by a
racially discriminatory purpose.” Jd. at 270 n. 21. Where
such an action “would have resulted”’ even absent a racial
purpose, it can not be fairly attr’ uted to racial motivations
and “there would be no justification for judicial inter-
ference...” Id. See Davis, supra, 426 U.S. at 253
(Stevens, J., concurring); see also Mt. Healthy City School
District Board of Education v. Doyle, 429 U.S. 274, 285-
87.
The test of invidious intent applied below stands
26
“deference” on its head. The City’s long history of
incorrupt Commission Government is anomalously used to
rationalize its abolition. See 571 F.2d at 244 (App. A, p.
10a).
2. The courts’ tort standard effectively imposes an
affirmative duty of racially-conscious electoral
restructuring upon legislatures, lest mainte-
nance of the status quo be deemed invidiously
discriminatory.
The essence of the Court of Appeals’ holding is that
where application of its Zimmer criteria indicates a current
condition of voting dilution, the maintenance of such a
system without affirmative corrective action compels the
inference of purposeful dilution (571 F.2d at 245; App. A,
p. 12a).
The creation of such an “affirmative duty” might be
compared to that imposed upon school boards following
this Court’s second decision in Brown v. Board of
Education, 349 U.S. 294, 299 ( Brown II). School boards
which had operated State-compelled dual school systems
were
“clearly charged with the affirmative duty to take
whatever steps might be necessary to convert to a
unitary system in which racial discrimination would be
eliminated root and branch.” Green v. School Board
of New Kent County, 391 U.S. 430, 437-38.
Yet such school systems had been adjudged unconstitu-
tional per se. Brown II, supra, 349 U.S. at 298.
In contrast, at-large and multi-member electoral systems
are clearly not unconstitutional per se. Whitcomb yv.
27
Chavis, supra, 403 U.S. at 159-60; White v. Regester, 412
U.S. at 765."
**E ven in the context of mandatory redistricting to conform to the one
man-one vote principle, neither the Voting Rights Act of 1965, 42
U.S.C. §1973 ef seg., nor the Constitution requires legislative
elimination of at-large electoral components. Beer v. United States, 425
U.S. 130, 138-39, 142 n.14. And, by implication, this failure to
eliminate at-large seats required no inference that the reapportionment
was tainted with racial purpose. /d.
It is equally clear that even where minority voters are in fact
substantially disadvantaged in their ability to elect minority candidates
by an existing electoral plan in the presence of racially polarized voting.
no per se constitutional violation exists and there arises no constitutional
or statutory duty of “affirmative action” by the legislature to correct the
situation. United Jewish Organizations, supra, 430 U.S. at 166-67. Yet
the Court's decision in effect retroactively imposes just such a duty here.
cr
28
CONCLUSION
On the substantia! issues of new and novel constitutional
and Federal law presented herein by the commission form
of government and its record in Mobile, the Court should i
note probable jurisdiction.
Because the District Court has ordered elections under
the newly imposed mayor-council plan to take place on
November 21, 1978, but has indicated that these elections
will be stayed if this Court shall earlier grant review,
Appellants urge that this Court note jurisdiction of this
appeal as promptly in the October 1978 Term as possible.
Respectfully submitted,
Of Counsel:
Hand, Arendall, Bedsole, C.B. Arendall, Jr.
Greaves & Johnston William C. Tidwell, III
Post Office Box 123 Travis M. Bedsole, Jr.
Mobile, Alabama 36601 Post Office Box 123
Mobile, Alabama
36601
Legal Department of the Fred G. Collins
City of Mobile City Attorney
Mobile, Alabama 36602 City Hall
Mobile, Alabama
36602
Rhyne & Rhyne Charles S. Rhyne
1000 Connecticut William S. Rhyne
Avenue, N.W. Donald A. Carr
Suite 800 Martin W. Matzen
Washington, D.C. 20036 1000 Connecticut
Avenue, N.W.
Suite 800
Washington, D.C.
20036
Counsel for Appellants
: a |
la
APPENDIX A
Wiley L. BOLDEN et al.,
Plaintiffs- Appellees,
Vv.
CITY OF MOBILE, ALABAMA, et al.,
| Defendants- Appellants.
Nos. 76-4210, 77-2042.
United States Court of Appeals,
Fifth Circuit.
March 29, 1978.
. } Appeals from the United States District Court for the
Southern District of Alabama.
Before WISDOM, SIMPSON and TJOFLAT, Circuit
Judges.
TJOFLAT, Circuit Judge: 7
This is the second of four consolidated voting dilution
cases we decide today. See Nevett v. Sides (Nevett II), 571
F.2d 209, 213 n.1 (Sth Cir. 1978). Black citizens of Mobile,
Alabama, brought this class action to challenge the con-
stitutionality of their city’s at-large method of electing its
commissioners. The district court sustained the challenge,
declared the city’s commission government unconstitu-
2a
tional, and ordered the establishment of a mayor-council
plan requiring that councilmen be elected from single-
member districts. Bolden v. City of Mobile, 423 F.Supp.
- 384 (S.D.Ala.1976). The city and its commissioners take
this appeal, asserting that the district court erred in its
conclusion that the at-large commission elections imper-
missibly diluted the votes of black Mobilians and in its
ordering of the single-member plan. We find the appellants’
arguments unpersuasive and therefore affirm the judgment
below.
The district court’s opinion sets forth the factual back-
ground of this case in detail and at length. 423 F.Supp. at
386-94. Therefore, we will discuss only the salient findings
below. We also incorporate the portions of our opinion of
today in Nevett IJ that explicate the legal principles ap-
plicable to voting dilution cases. '
I.
A city commission consisting of three members, all of
whom are eiected at-large, governs the City of Mobile.
Government by commission of this type was established in
1911 by state law, 1911 Ala.Acts no. 281, which requires
'The Nevett opinion to which we refer is that of the second appeal in
the case. We therefore denominate it Nevert IJ. The first appeal, Nevett
v. Sides (Nevett I), $?3 F.2d 1361 (Sth Cir. 1976), reversed a judgment
for the plaintiffs and remanded the case to the district court. On remand,
the court rendered judgment holding the at-large scheme constitutional.
On the second appeal, we examined at length the principles that govern
dilution cases and concluded that the district court’s judgment for the
defendants should be affirmed. To avoid needless repetition, we adopt
in this case our prior discussion of the dilution principles. In particular,
we incorporate Parts I and II of the opinion.
3a
commission candidates to run for numbered positions and
win by majority vote. Commission elections are non-
partisan, and therefore there are no primaries. There is no
requirement that commissioners reside in specified sub-
districts.
In 1965, a specific city-wide function was assigned to each
position by statute.* 1965 Ala. Acts no. 823. These functions
7On May 14, 1975, approximately three weeks before the
commencement of this action, the City of Mobile submitted several
statutes of the 1971 Regular Session of the Alabama Legislature to the
Attorney General of the United States for approval under §5 of the
1965 Voting Rights Act, 42 U.S.C. §1973c (1970). Among these
statutes was Act 429, which amended the 1965 Act that assigned the
specific functions to the commission positions, 1965 Ala.Acts no. 823.
The Attorney General noted that Act 823 had not been tendered to him
for approval under §5, and he therefore requested that the Act be
submitted.
On December 30, 1975, some seven months after the commence-
ment of this action, the City of Mobile submitted Act 823 for the
consideration of the Attorney General, although reserving the objection
that the act was not subject to §5 approval. The Attorney General
interposed an objection to the Act’s assignment of specific functions to
the commission positions because it
locks the city into use of the at-large system of electing [its]
commissioners since it would not be appropriate to permit a
particular area of the City (as under a ward system of election) to
have the exclusive right to elect a commissioner who would be
responsible for administering functions for the whole city, for
example, public safety.
In view of this interpretation that [the provision] rigidifies use of
the at-large system, incorporating as it does the numbered post
and majority vote features, and in view of history of racial
discrimination and evidence of racial bloc voting in Mobile, we
are unable to conclude, as we must under the Voting Rights Act,
that [the provision] will not have the effect of denying or abridging
the right to vote on account of race or color.
Letter from Assistant Attorney Genera! J. Stanley Pottinger to C.B.
Arendall, Jr., Special Counsel to the City of Mobile, at 2-3 (March 2,
1976), Record, vol. 2, at 479-80.
contmued
4a
include the administration of the following departments: the
Department of Finance and Administration, the Department
of Public Safety, and the Department of Public Works and
Services. Commissioners are elected for four year terms, and
the mayoralty is shared equally among the commissioners
during their terms.
On June 9, 1975, the appellees commenced this action
to invalidate Mobile’s city commission. They claimed
that the at-large feature of commission races combined with
the various electoral devices set out above operated to dilute
their votes in violation of the first, thirteenth, fourteenth, and
fifteenth amendments to the Constitution, of the Civil Rights
Act, and of the Voting Rights Act.’ The case went to trial in
(fovtnote continued from preceding page)
The city has not brought suit in the District Court for the District of
Columbia, as provided by §5, and therefore the function-assigning
provision of Act 823 is in abeyance. As our subsequent discussion will
show, the relevance of the Attorney General's objection is that it
indicates the tendency of the function-assigning provision to perpetuate
the at-large electoral system. The ultimate issue in this case is whether
Mobile’s at-large plan is being maintained with the design of
diminishing black political input. The observation of the Attorney
General constitutes circumstantial evidence that the legislature has
recently and actively sought so to maintain the plan.
*Specifically, the appellees alleged violations of 42 U.S.C. §§ 1973,
1983, and 1985(3) (1970). The district court dismissed the § 1983
claim against the city and § 1985(3) claims against both the city and the
commissioners. The court did not rest its final decision on the merits on
any of the remaining statutory claims, but found the plan unconstitu-
tional under the dilution precedents of the Supreme Court and this
circuit, to wit, White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37
L.Ed.2d 314 (1973), and Zimmer v. McKeithen, 485 F.2d 1297 (Sth
Cir. 1973) (en banc), aff'd on other grounds sub nom. East Carroll
Parish Schooi Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47
L.Ed.2d 294 (1976).
Although we acknowledge the general principle that federal courts
should avoid decision on constitutional grounds if an adequate statutory
ground is available, e.g, Wood v. Strickland, 420 U.S. 308, 314, 95
(continued)
Sa
July of 1976, and the district court entered judgment for the
appellees on October 22, 1976, ordering that the next city
elections, scheduled for August, 1977, conform with a yet-
to-be-determined mayor-council plan incorporating single-
member council seats.‘ The court entered a remedia! order
on March 9, 1977, abolishing the commission government
and expounding a mayor-council plan. On April 7, 1977,
however, the district court stayed its injunction that had
footnote continued from preoeding page)
S.Ct. 992, 43 L.Ed.2d 214 (1975); Ashwander v. TVA, 297 U.S. 288,
347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring);
Siler v. Louisville & Nashville R.R.,213 U.S. 175, 191,29 S.Ct. 451,
53 L.Ed. 753 (1909), we will not upset the district court’s judgment on
this basis. “The doctrine is not ironclad,” Hagans v. Lavine, 415 U.S.
528, 546, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), and to remand this
fully litigated case would be a purposeless waste of judicial resources.
The issue of constitutionality was fully developed at trial and, as the
district court’s thorough opinion evidences, was decis:vely determined
in the appellees’ favor under well established precedents. The statutory
claim was at best problematic; this court knows of no successful dilution
claim expressly founded on 42 U.S.C. §1973. Under similar
circumstances, the Supreme Court has avoided an abusive application
of the constitutional-decision-avoidance rule. Mayor of Philadelphia v.
Educational Equality League, 415 U.S. 605, 629, 94 S.Ct. 1323, 39
L.Ed.2d 630 (1974). See also Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 584-85, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).
Moreover, a remand would not achieve the salutary objective of
avoiding constitutional adjudication because we have already enter-
tained the constitutional issues that govern this case in Nevett II. See
note | supra. In Nevett II the complaint alleged no Voting Rights Act
claim, and therefore we necessarily reached the constitutional issues.
See id., 571 F.2d at 213 n.3.
‘The court solicited single-member plans from the parties. The
plaintiffs submitted plans pursuant to pretrial order, but the defendants
declined to submit a plan. The court requested that the parties submit
recommendations for a three-member committee, whose duty would be
to devise a detailed plan. The committee was formed and submitted a
lengthy mayor-council proposal. Supp. Record, vol. 1, at 628-675.
6a
ordered that the August elections conform to the mayor-
council plan. We declined to dissolve this stay, and we
stayed the holding of any city elections pending this appeal.
In concluding that Mobile’s system of electing its city
commissioners worked an unconstitutional dilution of the
votes of black Mobilians, the district court relied upon the
test set forth in Zimmer v. McKeithen, 485 F.2d 1297 (Sth
Cir. 1973) (en banc), aff'd on other grounds sub nom. East
Carroll Parish School Board v. Marshall, 424 U.S. 636, 96
S.Ct. 1083, 47 L.Ed.2d 294 (1976).° The court determined
that the appellees established all the primary indicia of
dilution except for the existence of a tenuous state policy
‘We have discussed at length in Nevett IJ the import of Zimmer's
multifactor circumstantial evidence test for dilution. We incorporate
that discussion here, and for the convenience of the reader we restate
the criteria that Zimmer requires the district courts to consider in
dilution cases. The criteria going primarily to the issue of dilution of a
group’s votes, the “primary” factors, include: the group’s accessibility
to political processes, the responsiveness of representatives to the needs
of the group, the weight of the state policy behind at-large districting,
and the effect of past discrimination upon the electoral participation of
the group. Zimmer, 485 F.2d at 1305. Those criteria that may enhance
the underlving dilution, the “enhancing” factors, include: the size of the
district, the portion of the vote necessary for election; if the positions
are not contested for individually, how many candidates an elector must
vote for (i.e., whether there is an anti-single shot rule); and whether
candidates must reside in sub-districts. Jd. ““By proof of an aggregation
of at least some of [the Zimmer] factors, or similar ones, a plaintiff can
demonstrate that the members of the particular group in question are
being denied access."’ Kirksey v. Bd. of Supervisors, 554 F.2d 139,
143 (Sth Cir.) (en banc), cert. denied, _._ U.S. __, 98 S.Ct. $12, 54
L.Ed.2d 454 (1977).
7a
behind the at-large plan. The evidence under the state policy
criterion was found to be “neutral.” 423 F.Supp. at 393.
Under the enhancing criteria, the appellees demonstrated,
and the court found, that Mobile is a large district (its 1970
population was 190,026, 35.4% of which was black), that
the city has a majority vote requirement, that the commission
candidates run for numbered positions, and that there are no
subdistrict residency requirements. Jd. at 393-94. We find
the district court’s determinations under the Zimmer criteria
not clearly erroneous and the court’s ultimate conclusion of
dilution amply supported by its findings.
The district court gave careful consideration to each of
the primary Zimmer criteria. It found a lack of black
access to the political processes in Mobile. The court noted
“massive official and private discrimination” prior to federal
intervention in the form of the Voting Rights Act of 1965,
423 F.Supp. at 387, and found that although **[t]here are no
formal prohibitions against blacks seeking office in Mo-
bile . . ., the local political processes are not equally open to
blacks.” Id. No black had achieved election to the city
commission due, in part, to racially polarized voting of an
acute nature. Few blacks sought office because of the
prospect of certain defeat in the at-large elections. Jd. at 389.
Although the failure of black candidates because of polarized
voting is not sufficient to invalidate a plan, United Jewish
Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51
L.Ed.2d 229 (1977); McGill v. Gadsden County Com-
mission, 535 F.2d 277 (Sth Cir. 1976); Bradas v. Rapides
Parish Police Jury, 508 F.2d 1109 (Sth Cir. 1975);
Robinson v. Commissioners Court, 505 F.2d 674 (5th Cir.
1974), it is an indication of lack of access to the political
processes. It is one piece of the circumstantial evidence
8a
puzzle, whose successful completion supports the illation of
dilution. See Nevett II, 571 F.2d at 224.
The district court determined that the city commis-
sioners have been unresponsive to the needs of blacks
in Mobile. The city has employed relatively few blacks
in the higher levels of city service, and the city has
been enjoined by federal court order to desegregate its fire
and police departments and to open city facilities to allow
equal accessibility to blacks. Various city committees
whose members are appointed by the commission have
evidenced a severe underrepresentation of blacks. As the
court concluded, “[n]o effort has been made to bring blacks
into the mainstream of the social and cultural life by
appointing them in anything more than token numbers.”
423 F.Supp. at 390.
The court found not only that the city had been
insensitive to the need for black participation in city
government but also that the commission had been less
responsive to black areas than white ones with respect to
providing municipal services. These services included
temporary relief from drainage problems, construction and
resurfacing of roads, and construction of sidewalks. The
court was careful to consider and weigh all the evidence.
Although the city has not been totally neglectful, and
the expense and problems are monumental, there is a
singular sluggishness and low priority in meeting these
particularized black neighborhood needs when com-
pared with a higher priority of temporary allocation of
resources when the white community is involved.
423 F.Supp. at 392. The court also made note of incidents
of police brutality against blacks, mock lynchings, and cross
burnings. The city commission reaction was found to be
9a
sluggish, evincing “a failure by elected officials to take
positive, vigorous, affirmative action in matters which are of
such vital concern to the black people.”’ Jd.
We think the evidence fairly supports a finding of
unresponsiveness. The district court’s task in considering
evidence under the responsiveness criterion is a singularly
factual one. Given the court’s attentive consideration of the
voluminous evidence on this issue, we cannot find its
conclusion of unresponsiveness clearly erroneous. See
Nevett II, 571 F.2d at 225.
As to the weight of the state policy behind at-large
districting of city governments, the court found that the
State of Alabama had no particular preference for such
schemes. Given the longstanding at-large feature of
Mobile’s commission government, however, the court
concluded that the “manifest policy of the City of Mobile
has been to have at-large or multi-member districting.” 423
F.Supp. at 393. We appreciate the traditional deference the
federal courts have accorded local governments, and we
recognize “that viable local governments may need
considerable flexibility in municipal arrangements if they
are to meet changing societal needs.”’ Abate v. Mundt, 403
U.S. 182, 185, 91 S.Ct. 1904, 1907, 29 L.Ed.2d 399
(1971). City-wide representation is a legitimate interest,
and at-large districting is ordinarily an acceptable means of
preserving that interest. See Wise v. Lipscomb, ____ US.
___, 98 S.Ct. 15, 18, 54 L.Ed.2d 41 (1977), recalling
mandate and staying judgment of 551 F.2d 1043 (Sth Cir.
°The court cited the elective nature of Ala. Code tit. 37, §426 (Supp.
1973), which was the subject of our opinion in Nevert II, see id.; 571
F.2d at 213-14 n.4, as evidence of the neutrality of Alabama's at-large
policy. 423 F.Supp. at 401.
10a
1977). But the longevity of Mobiie’s at-large commission
government cannot insulate it from review.
When a State exercises power wholly within the
domain of state interest, it is insulated from federal
judicial review. But such insulation is not carried over
when state power is used as an instrument for
circumventing a federally protected right.
Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125,
130, 5 L.Ed.2d 110 (1960); accord, Robinson vy.
Commissioners Court, 505 F.2d 674, 680 (Sth Cir. 1974).
We think the district court was warranted in finding that the
city’s interests in its at-large plan did not outweigh the
strong showings by the appellees under the other Zimmer
criteria. The aggregate of the evidence controls. Zimmer,
485 F.2d at 1305. Indeed, that the at-large plan has existed
for over sixty-five years is wholly consistent with the court's
ultimate conclusion that the plan has been maintained with
the purpose of debasing black political input.
The district court found that the evidence under the last
of the primary factors enunciated in Zimmer, whether “the
existence of past discrimination in general precludes the
effective participation [by blacks] in the election system,”
id., proponderated in favor of the appellees. Blacks were
effectively disenfranchised prior to the enforcement of the
Voting Rights Act of 1965. A catena of federal litigation
was necessary to overcome official recalcitrance in
maintaining various impediments to black political partici-
pation. Although blacks are able freely to register and vote
in Mobile today, the district court found that the vestiges of
past discrimination “preclude the effective participation of
blacks in the election system today in the at-large system of
electing city commissioners.” 423 F.Supp. at 393.
lla
The district court was justified in resolving the issue of
the effects of past discrimination against the appellants. It is
not enough that the less subtle means of diminishing black
participation have been removed. As we admonished in
United States v. Texas Education Agency, 532 F.2d 380
(Sth Cir. 1976), vacated and remanded on other grounds
sub nom. Austin Independent School District v. United
States, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603
(1977), discriminatory official action is often clandestine
and politic.
Rather than announce his intention of violating antidis-
crimination laws, it is far more likely that the state
official “‘wili pursue his discriminatory practices in
ways that are devious, by methods subtle and
illusive—for we deal with an area in which ‘subtleties
of conduct’... play no small part.”
Id. at 388 (quoting Holland v. Edwards, 307 N.Y. 38, 45,
119 N.E.2d 581, 584 (1954)). Where, as here, past racial
discrimination has been found to be pervasive and recent, it
must be demonstrated “that enough of the incidents of the
past [have] been removed, and the effects of past denial of
access dissipated, that there [is] presently equality of
access.” Kirksey v. Board of Supervisors, 554 F.2d 139,
144-45 (5th Cir.) (en banc) (footnote omitted), cert. denied,
___ —~ US. ___, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977).
We need discuss only briefly the findings under the
enhancing factors, since we have already outlined them.
The electoral district, i.e., the City of Mobile, was found to
be large; it is 142 square miles in area and had a population
of 190,026 in 1970, 35.4% of which was black. The
commissioners must be elected by majority vote, they run
for numbered positions,’ and they are not required to reside
See Nevett II, $71 F.2d at 217 n.10.
12a
in subdistricts. Thus, the findings under all the enhancing
criteria enumerated in Zimmer (or similar ones, see note 5
supra) have been in favor of the appellees. The only
mitigating fact is the absence of primaries for the
commission races. In the aggregate, the existence of these
factors compounds what was already a strong showing of
dilution under the primary criteria.
The bottom line of the Zimmer analysis in this case is
that the black voters in Mobile have prevailed under each
and every criterion, with the exception of a demonstration
that Mobile’s policy favoring at-large commission districts
is a weak one. Moreover, the finding under the policy
criterion, although perhaps not providing additional impetus
to the appellee’s case, is consistent with the court’s
conclusion that the plan was maintained for discriminatory
purposes.
We conclude that the district court’s findings are not
clearly erroneous and that these findings amply support the
inference that Mobile’s at-large system unconstitutionally
depreciates the value of the black vote. Under our holding
of today in Nevett II, these findings also compel the
inference that the system has been maintained with the
purpose of diluting the black vote, thus supplying the
element of intent necessary to establish a violation of the
fourteenth amendment, Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252,
97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v.
Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597
(1976), and the fifteenth amendment, Wright v. Rocke-
Seller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964).
Although we have treated the subject of intent at length in
Nevett II, a few additional remarks are appropriate.
l3a
Ill
The city ardently asserts that since the 1911 plan
was enacted under “race-proof” circumstances, it is
immune from constitutional attack. Blacks had been
effectively disenfranchised by the Alabama constituion in
1901, and therefore the at-large plan is said to have been
adopted in a context where racial considerations could not
have been relevant. See Nevett II; McGill v. Gadsden
County Commission, 535 F.2d 277 (Sth Cir. 1976). The
city would have us interpret Washington v. Davis and
Arlington Heights to require a showing of intentional
discrimination in the enactment of the plan. We squarely
reject this contention in Nevett IJ, as it was rejected by the
en banc court in Kirksey v. Board of Supervisors, 554 F.2d
139 (Sth Cir.), cert. denied, __._ U.S. ___, 98 S.Ct. 512,
54 L.Ed.2d 454 (1977). Kirksey held that an innocently
formulated plan that perpetuates past intentional discrimi-
nation is unconstitutional. In Nevett IJ, we noted that a plan
neutral at its inception may nevertheless become unconsti-
tutional when it is maintained for the purpose of devaluing
the votes of blacks. We also demonstrated that if the
aggregate of the evidence under the Zimmer criteria
indicates dilution, then the inference arises that the plan is
being maintained with the requisite intent.
The at-large scheme that has governed Mobile since
1911 is archetypal of the intentionally maintained plan
we contemplated in Nevett II. The findings of the district
court under Zimmer's circumstantial evidence test
led the court to conclude that “[t]here is a ‘current’
condition of dilution of the black vote resulting from
intentional state legislative inaction which is as effective as
... intentional state action.” 423 F.Supp. at 398 (emphasis
14a
in original). This, the district court held, was sufficient to
support a finding of unconstitutionality. We agree.
Several additional facts buttress the court’s inference that
the at-large plan has been maintained with discriminatory
intent. We mentioned above the 1965 act that assigned
specific functions to the commission positions, 1965
Ala.Acts no. 823. See note 2 supra and accompanying text.
The Attorney General, pursuant to the authority vested in
him by section 5 of the 1965 Voting Rights Act, 42 U.S.C.
§ 1973c (1970), suspended the provisions of Act 823 that
provided for specific functions. He found that the provisions
tended to lock in the at-large feature of the scheme because
it would be inappropriate for officials with city-wide
responsibilities to be elected from single-member districts.
See note 2 supra. This recent action by the Alabama
Legislature is probative of an intent to maintain the plan by
injecting additional policy grounds that would justify, and
perhaps insulate, the at-large feature of all of the
commission seats.
The enactment of Act 823 gains additional significance
when combined with the court’s finding that the legislature
was acutely conscious of the racial consequences of its
districting policies. As the court found, “‘[t]he evidence is
clear that whenever a redistricting bill of any type is
proposed by a county delegation member, a major concern
has centered around how many, if any, blacks would be
elected.”” 423 F.Supp. at 397. This finding constitutes
direct evidence of the intent behind the maintenance of the
at-large plan. See Arlington Heights, 429 U.S. at 268, 97
S.Ct. 555. It coincides with the conclusion of intentional
discrimination evidence adduced under the Zimmer criteria
in this case. We think that the district court has properly
conducted the “‘sensitive inquiry into such circumstantial
_—
lSa
and direct evidence of intent as may be available”’ that a
court must undertake in “[d]etermining whether invidious
discriminatory purpose was a motivating factor” in the
maintenance or enactment of a districting plan. Arlington
Heights, 429 U.S. at 266, 97 S.Ct. at 564.
IV
The remaining issue is the appropriateness of the
district court's remedy. The court ordered the imple-
mentation of a mayor-council plan that established
nine single-member council districts. The appellants
contend that the court’s order is violative of the tenth
amendment, which provides as follows: ‘““The powers not
delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.”’ U.S.Const. Amend. X. We
find this contention meritless.
The essence of the appellants’ argument is that the
district court, having found the city’s at-large government
unconstitutional, is powerless to remedy the violation. The
city refused to come forward with a plan, forcing the district
court to fashion a remedy. The district courts have been
repeatedly admonished by the Supreme Court to avoid the
employment of at-large seats in their remedial plans, unless
some special circumstance requires that such seats be used.
E.g., East Carroll Parish School Board v. Marshall, 424
U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976);
Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d
766 (1975); Connor v. Johnson, 402 U.S. 690, 91 S.Ct.
1760, 29 L.Ed.2d 268 (1971). The absence of any special
circumstances in this case left the district court with the
remedy of implementing a single-member plan.
16a
The exercise of the equitable power of the district court in
remedying the unconstitutional infirmity in Mobile’s com-
mission plan does not contravene the tenth amendment. We
have recognized the importance of flexibility in the form of
local government, but flexibility is not absolute license. The
abuse of local governmental power, when of the constitu-
tional magnitude in this case, is a power “denied the
States” by the Constitution within the meaning of the tenth
amendment. The power to remedy the unconstitutional
wrong is one “delegated to the United States by the
Constitution.”” The Constitution expressly provides for
federal court jurisdiction in claims “arising under this
Constituion [or] Laws of the United States.” U.S.Const.
art. 3, §2. Congress has given the federal courts original
jurisdiction over such claims. 28 U.S. C.A. §1331 (West
Supp. 1977). Cases alleging unconstitutional infringement
by a state of the right to vote are justiciable under the
fourteenth amendment, Baker v. Carr, 369 U.S. 186, 82
S.Ct. 691, 7 L.Ed.2d 663 (1962), as are cases asserting a
violation by iocal governments, Avery v. Midland County,
390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). “*The
Equal Protection Clause reaches the exercise of state power
however manifested, whether exercised directly or through
subdivisions of the State.” Jd. at 479, 88 S.Ct. at 1118.
Claims asserting abridgment of the right to vote on account
of race were justiciable even before the advent of the reap-
portionment era ushered in by Baker. It was the racial
gerrymander of the City of Tuskegee, Alabama, that was
the subject of the fifteenth amendment claim in Gomillion
v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110
(1960). A concomitant to the ability of a court to hear a
case is that it be able to decide the case and remedy a
wrong, if found.
17a
Once a right and a violation have been shown, the
scope of a district court’s equitable powers to remedy
past wrongs is broad, for breadth and flexibility are
inherent in equitable remedies.
.... As with any equity case, the nature of the
violation determines the scope of the remedy.
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 15-16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554
(1971).
The appellants refused to submit a plan; they cannot by
their recalcitrance straight-jacket the district court. We
think the remedial plan adopted by the court was within its
equitable powers. The plan is a temporary measure. It will
exist only until the state or the city adopts a constitutional
replacement.
Having found the district court’s resolution of the
constitutional issues in this case to be correct, and having
approved its remedial measures, we find the disposition
below proper in all respects. Therefore, the judgment of the
district court is AFFIRMED. The injunction of the district
court ordering that elections be held in conformance with its
order is hereby REINSTATED, and our stay of the
conducting of municipal elections is hereby DISSOLVED.
AFFIRMED.
WISDOM, Circuit Judge, specially concurring:
I concur specially for the reasons stated in my
concurring opinion in Nevett v. Sides (Nevett II), 571 F.2d
209, with which this case is consolidated.
lb
APPENDIX B
Wiley L. BOLDEN et al., Plaintiffs,
Vv.
CITY OF MOBILE, ALABAMA, et al.,
Defendants.
Civ. A. No. 75-297-P.
United States District Court,
S.D. Alabama, S.D.
Oct. 21, 1976.
As Amended Oct. 28, 1976.
OPINION AND ORDER
PITTMAN, Chief Judge.
This action is brought by Wiley L. Bolden and other
black plaintiffs representing all Mobile, Alabama, blacks as
a class, claiming the present at-large system of electing city
commissioners abridges the rights of the city’s black
citizens under the First, Thirteenth, Fourteenth, and
Fifteenth Amendments to the Constitution of the United
States; under the Civil Rights Act of 1871, 42 U.S.C.
§1983; and under the Voting Rights Act of 1965, as
amended, 42 U.S.C. §1973, et seq.
Plaintiffs alleged that the existing commission form of
government elected at-large “*...discriminates against
black residents of Mobile in that their concentrated voting
2b
strength is diluted and canceled out by the white majority in
the City as a whole” with a consequent violation of their
rights under the above Amendments to the Constitution. It
is also claimed that their statutory rights under 42 U.S.C.
§§ 1973, et seq. [Voting Rights Act of 1965] and 1983
[Civil Rights Act of 1871] were violated. Jurisdiction is
premised upon 28 U.S.C. §1343(3) and (4).
This court has jurisdiction over the claims based on 42
U.S.C. §1983 against the City Commissioners and over
the claims grounded on 42 U.S.C. §1973 against all
defendants under 28 U.S.C. §1343(3)-(4) and §2201.
This cause was certified as a class action under Rule
23(b\(2), F.R.C.P., the plaintiff class being all black
persons who are now citizens of the City of Mobile,
Alabama.
A claim originally asserted under 42 U.S.C. §1985(3)
was dismissed for failure to state a claim upon which relief
can be granted.
Defendants are the three Mobile City Commissioners,
sued in both their individual and official capacities.
The prayed-for relief consists of, (1) a declaration that
the present at-large election system is unconstitutional, (2)
an injunction preventing the present commissioners from
holding, supervising, or certifying any future city commis-
sion elections, (3) the formation of a government whose
legislative members are elected from single member
districts, and (4) costs and attorney fees.
Plaintiffs claim that to prevail they must prove to this
court’s satisfaction the existence of the elements probative
of voter dilution as set forth by White v. Regester, 412 U.S.
755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and Zimmer
v. McKeithen, 485 F.2d 1297 (Sth Cir. 1973) (en banc),
aff'd. sub nom. East Carroll Parish School Board vy.
oN tt he on
_—
ae
eer em met
3b
Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296
(1976), contending Zimmer is only the adoption of
specified criteria by the Fifth Circuit of the White dilution
requirements.
The defendants stoutly contest the claim of unconstitu-
tionality of the city government as measured by White and
Zimmer. They contend Washington v. Davis, 426 U.S.
229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), erects a
barrier since the 1911 legislative act forming the multi-
member, at-large election of the commissioners was without
racial intent or purpose. They assert Washington, supra,
96 S.Ct. at 2047-49, which was an action alleging due
process and equal protection violations, held that in these
constitutional actions, in order to obtain relief, proof of
intent or purpose to discriminate by the defendants must be
shown. Defendants state, therefore, that since the statute
under which the Mobile Commission government operates
was passed in 1911, with essentially all blacks disen-
franchised from the electorate by the Alabama 1901
constitution, there could be no intent or purpose to
discriminate at the time the statute was passed. Alterna-
tively, however, defendants contend that if Washington
does not preclude consideration of the dilution factors of
White and Zimmer, they should still prevail because .
plaintiffs have not sustained their burden of proof under
these and subsequent cases.
Plaintiffs’ reply is to the effect that Washington did not
establish any new constitutional purpose principle and that
White and Zimmer still are applicable. If, however, this
court finds Washington to require a showing of racial
motivation at the time of passage, or merely in the retention
of the statute, plaintiffs contend they should still prevail,
claiming the at-large election system was designed and is
4b
utilized with the motive or purpose of diluting the black
vote. Plaintiffs claim that the discriminatory intent can be
shown under the traditional tort standard.
FINDINGS OF FACT
Mobile, Alabama, is the second largest city in Alabama
located at the confluence of the Mobile River and Mobile
Bay in the southwestern par-of the state. Mobile’s 1970
population was 190,026 with approximately 35.4% of the
residents black.! 1973 MeSife County voters statistics
estimate that 89.6% of the voting age white population is
registered to vote, 63.4% of the blacks are registered.
(Plaintiffs’ Exhibit No. 7).
Mobile geographically encompasses 142 square miles.
Most of the white residents live in the southern and western
parts of the city, while most blacks live in the central and
northern sectors (Plaintiffs’ Exhibit No. 58). Housing
patterns have been, and remain, highly segregated. Certain
areas of the city are almost totally devoid of black residents
while other areas are virtually all black. In a recent study by
the Council on Municipal Performance, using 1970 block
census data, Mobile was found to be the 95th most
residentially segregated of the 109 municipalities surveyed
(Plaintiffs’ Exhibit No. 59). According to a study
performed by the University of South Alabama Computer
Center for the defendants, the housing patterns in the city
are so segregated it is impossible to divide the city into three
‘Defendants’ Exhibit No. 12. According to the 1970 Federal
Census, the City of Mobile had a total population of 190,026 of whom
35.4% or 67,356, were non-white. The evidence is clear that there are
few non-whites other than blacks.
~bao
Sb
contiguous zones of equal population without having at
least one predominantly black district (Plaintiffs’ Exhibit
No. 60). Segregated housing patterns have resulted in
concentration of black voting power.
Mobile presently operates under a three person com-
mission-type municipal government adopted in 1911. (Ala.
Act No. 281 (1911) at 330). The commissioners are
elected to direct one of the following three municipal
departments: Public Works and Services, Public Safety,
and Department of Finance.’
The commissioners run on a place-type ballot and are
elected at-large by the voters of Mobile. While the
commission candidates must be residents of Mobile, there
is not now, or has there ever been, a requirement that each
commissioner reside in a particular part of the city. The
evidence clearly indicates that district residence require-
ments with district elections would be improvident and
unsound for the commission form of government.
In addition to the specific position for which a
commissioner runs, each is also responsible for numerous
appointments to the 46 committees operating under the
auspices of the city. Some appointments are completely
discretionary with the commissioner whereas committees,
such as the plumbing and air conditioning boards which
require members with a certain amount of expertise, are
filled with a nominee suggested by the local trade
*When adopted in 1911, Mobile’s commission government did not
specify that a candidate must choose the particular commission position
for which he was running. Alabama Act No. 823 (1965) at 1539,
however, inter alia, required candidates to run for a particular
numbered position with specific duties. Each commissioner holds that
position during the four years tenure with the mayorality rotating
between commissioners every sixteen months.
6b
association. Often, the appointing commissioner makes his
appointment from the slate of nominees presented by the
particular association. This means that if the nominating
association does not propose a black as a committee
member, the commissioner will not appoint one. It is,
however, within the commission’s power to modify or
change the ground rules under which appointments are
made.
In Zimmer, supra, aff'd. sub nom. East Carroll Parish
School Board, supra (“... but without approval of the
constitutional views expressed by the Court of Appeals.”’),
the Fifth Circuit synthesized the White opinion with the
Supreme Court’s earlier Whitcomb v. Chavis, 403 U.S.
124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), decision,
together with its own opinion in Lipscombe v. Jonsson, 459
F.2d 335 (5th Cir. 1972) and set out certain factors to be
considered.
Based on these factors as set out in Zimmer, supra, at
1305, the court makes the following findings with reference
to each of the primary and enhancing factors:
LACK OF OPENNESS IN THE SLATING
PROCESS OR CANDIDATE SELECTION
PROCESS TO BLACKS
Mobile blacks were subjected to massive official and
private racial discrimination until the Voting Rights Act of
1965. It has only been since that time that significant
diminution of these discriminatory practices has been
made. The overt forms of many of the rights now exercised
by all Mobile citizens were secured through federal court
orders together with a moral commitment of many of its
dedicated white and black citizens plus the power generated
A TT et a he
ee ee
7b
by the restoration of the right to vote which substantially in-
creased the voting power of the blacks. Public facilities are
open to all persons. Job opportunities are being opened, but
the highly visible job placements in the private sector
appear to lead job placements in the city government sector.
The pervasive effects of past discrimination still sub-
stantially affects political black participation.
There are no formal prohibitions against blacks seeking
office in Mobile.’ Since the Voting Rights Act of 1965,
blacks register and vote without hindrance. The election of
the city commissioners is non-pariisan, i.e., there is no
preceding party primary and the candidates do not
ordinarily run under party labels. However, the court has a
duty to look deeper rather than rely on surface appearance
to determine if there is true openness in the process and
determine whether the processes “leading to nomination
and election [are] .. . equally open to participation by the
group in question....’’ White, 412 U.S. at 766, 93 S.Ct.
at 2339. One indication that local political processes are
not equally open is the fact that no black person has ever
been elected to the at-large city commission office. This is
true although the black population level is in excess of one-
third.
In the 1960’s and 1970’s there has been general
polarization in the white and black voting. The polarization
has occurred with white voting for white and black for black
if a white is opposed to a black, or if the race is between two
The qualifying fee for candidates for the city commission was found
unconstitutional in Thomas v, Mims, 317 F.Supp. 179 (S.D.Ala.
1970). See also U.S. v. State of Ala., 252 F.Supp. 95 (M.D.Ala.
1966) (three judge District Court panel) (poll tax declared unconstitu-
tional).
8b
white candidates and one candidate is identified with a
favorable vote in the black wards, or identified with
sponsoring particularized black needs. When this occurs, a
white backlash occurs which usually results in the defeat of
the black candidate or the white candidate identified with
the blacks.
Since 1962, four black candidates have sought election in
the at-large county school board election. Dr. Goode in
1962, Dr. Russell in 1966, Ms. Jacobs in 1970, and Ms.
Gill in 1974. All of these black candidates were well
educated and highly respected members of the black
community. They all received good support from the black
voters and virtually no support from whites. They all lost to
white opponents in run-off elections.
Three black candidates entered the race of the Mobile
City Commission in 1973. Ollie Lee Taylor, Alfonso
Smith, and Lula Albert. They received modest support
from the black community and virtually no support from the
white community. They were young, inexperienced, and
mounted extremely limited campaigns.
Two black candidates sought election to the Alabama
State Legislature in an at-large election in 1969. They were
Clarence Montgomery and T.C. Bell. Both were well
supported from the black community and both lost to white
opponents.
Following a three-judge federal court order in 1972¢ in
which single-member districts were established and the
state house and senate seats reapportioned, one senatorial
district in Mobile County had an almost equal division
between the black and white population. A black and white
were in the run-off. The white won by 300 votes. There was
‘Sims v. Amos, 336 F.Supp. 924 (M.D.Ala. 1972).
ot
9b
no overt acts of racism. Both candidates testified or asserted
each appealed to both races. It is interesting to note that the
white winner published a simulated newspaper with both
candidates’ photographs appearing on the front page, one
under the other, one white, one black.
One city commissioner, Joseph N. Langan, who served
from 1953 to 1969, had been elected and reelected with
black support until the 1965 Voting Rights Act enfran-
chised large numbers of blacks. His reelection campaign in
1969 foundered mainly because of the fact of the backlash
from the black support and his identification with
attempting to meet the particularized needs of the black
people of the city. He was again defeated in an at-large
county commission race in 1972. Again the backlash
because of the black support substantially contributed to his
defeat.
In 1969, a black got in a run-off against a white in an at-
large legislature race. There was an agreement between
various white prospective candidates not to run or place an
opponent against the white in the run-off so as not to
splinter the white vote. The white won and the black lost.
Practically all active candidates for public office testified
it is highly unlikely that anytime in the foreseeable future,
under the at-large system, that a black can be elected
against a white. Most of them agreed that racial
polarization was the basic reason. The plaintiffs introduced
Statistical analyses known as “regression analysis’’ which
supported this view. Regression analysis is a professionally
accepted method of analyzing data to determine the extent
of correlation between dependent and independent vari-
ables. In plaintiffs’ analyses, the dependent variable was the
vote received by the candidates studied. Race and income
were the independent variables whose influence on the vote
10b
received was measured by the regression. There is little
doubt that race has a strong correlation with the vote
received by a candidate. These analyses covered every city
commission race in 1965, 1969, and 1973, both primary
and general election of county commission in 1968 and
1972, and selected school board races in 1962, 1966,
1970, 1972, and 1974. They also covered referendums
held to change the form of city government in 1963 and
1973 and a countywide legislative race in 1969. The votes
for and against white candidates such as Joe Langan in an
at-large city commission race, and Gerre Koffler, at-large
county school board commission, who were openly
associated with black community interests, showed some of
the highest racial polarization of any elections.
Since the 1972 creation of single-member district, three
blacks of the present fourteen member Mobile County
delegation have been elected. Their districts are more
heavily populated with blacks than whites.
“richard, an adjoining municipality to Mobile, which in
recent. years has obtained a black majority population,
eiected the first black mayor and first black councilman in
.972.
Black candidates at this time can only have a reasonable
chance of being elected where they have a majority or a
near majorit’ There is no reasonable expectation that a
black candidate could be elected in a citywide election race
because of race polarization. The court concludes that an
at-large system is an effective barrier to blacks seeking
public life. This fact is shown by the removal of such a
barrier, i.e., the disestablishment of the multi-member at-
large elections for the state legislature. New single member
districts were created with racial compositions that offer
blacks a chance of being elected, and they are being elected.
ee ee weer meer on, Ok ey
DO ce ne
11b
The court finds that the structure of the at-large elec-
tion of city commissioners combined with strong racial
polarization of Mobile’s electorate continues to effectively
discourage qualified black citizens from seeking office or
being elected thereby denying blacks equal access to the
slating or candidate selection process.
UNRESPONSIVENESS OF THE ELECTED
CITY OFFICIALS TO THE BLACK MINORITY
The at-large elected city commissioners have not been
responsive to the minorities’ needs. The 1970 population of
the city is 64.5% white and 35.4% black.‘
The City of Mobile is one of the larger employers in
southwestern Alabama. It provided a living for 1,858
persons in 1975. 26.3% were black. It is significant to note,
that if the lowest job classification, service/maintenance,
were removed from our consideration, only 10.4% of the
employees would be black. Likewise, removing the lowest
salary classification, less than $5,900 per year, only 13.8%
of all city employees are black. (Plaintiff's Exhibit No. 73).
The Mobile Fire Department has only fifteen black
employees out of a total of four hundred and thirty-five
employees. It took an order of this court in Allen v. City of
Mobile, 331 F.Supp. 1134 (S.D.Ala.1971), aff'd. 466
F.2d 122 (Sth Cir. 1972), cert. denied 412 U.S. 909, 93
S.Ct. 2292, 36 L.Ed.2d 975 (1973) to desegregrate the
Mobile Police Department. That order set out guidelines
designed to remove racial discrimination in hiring, pro-
moting, assigning duties, and the rendering of services. The
city is also operating under another court order enjoining
‘See Footnote 1, supra.
12b
racial discrimination, Anderson v. Mobile City Commis-
sion, Civil Action No. 7388-72-H (S.D.Ala.1973). The
municipal golf course was desegregated only after litigation
in federal court, Sawyer v. City of Mobile, 208 F.Supp.
548 (S.D.Ala.1963). This court in Evans v. Mobile City
Lines, Inc., Civil Action No. 2193-63 (S.D.Ala.1963),
dealt with segregation in public transportation, and in
Cooke v. City of Mobile, Civil Action No. 2634-63
(S.D.Ala.1963), deait with segregation at the city airport.
There are 46 city committees with a total membership of
approximately 482. Forty-seven are black and 435 are
white. The total prior membership is 179 of which only 7
were black. (Plaintiffs’ Exhibit No. 64).
The Industrial Development Board has fifteen members
and no blacks and concerns itself with implementing a state
law known as the “Cater Act” and the authorization of the
issuance of muscipal bonds for various business enter-
prises.
Seven committees were organized by private investment
groups for the purpose of securing municipal bonding and
the black-white makeup of these groups cannot be charged
to the city commission. That total membership is 21.
Although the membership of these seven committees
cannot be charged to the city commissioners, the absence of
blacks indicates the permeating results of past racial
discrimination in the economic life of Mobile business. This
is indicated both from the absence of blacks in the invest-
ment groups making use of municipal bonds and in that no
black or black financial institutions have been able to take
advantage of municipal bonds.
The Board of Adjustment, which consists of seven
members, has one black. This is a critical board. It can
grant variances from zoning laws and building codes
13b
involving less than two acres. The Codes Advisory
Committee consists of 17 members and no blacks. This
committee codifies all building regulations for all structures
in the city.
The Mobile Housing Board supervises public housing.
Public housing is occupied predominantly by blacks. Fifty
thousand persons, approximately 25% of Mobile’s popula-
tion, most of whom are black, cannot buy or rent without
subsidies in the private sector, or live in substandard
housing.® There is one black on that board out of a
membership of five.
The Educational Board provides plans and means to aid
its employees in a continuing education program. It has
nine members, none of whom are black. The county school
system has approximately 55% white and 45% black
population.’ The black drop-out rate from school is higher
than whites, therefore, the continuing education is most
important to them.
There are several boards, to wit, Air-Conditioning,
Architectural Board, Board of Examining Engineers, and
Board of Electrical Examiuers, which require special skills.
There are 17 members of these boards, all white. National
*All of these are not in public housing. There are approximately
3,376 public housing units in the city with approximately 12,153
occupants.
"The school system is countywide under the supervision of the Board
of School Commissioners. The school system was desegregated in the
case of Birdie Mae Davis v. Board of School Commissioners, Civil
Action No. 3003-63-H, pending, and is under the continuing
supervision of this court. The city commission cannot be charged with
any lack of responsiveness in the Birdie Mae Davis case. That case
illustrates the permeation of racial discrimination in the city which
constitutes two-thirds of the country’s population.
14b
census figures indicate that there are far less blacks in
skilled groups than whites. The court recognizes that
qualified persons should be appointed, but black member-
ship becomes critical on such committees because it is
through these committees that licenses are granted to skilled
occupations. The absence of blacks shows an insensitivity
to this particularized need.
The city has not taken affirmative action to place blacks
on these critical boards.
Most of the other committees are of various social and
cultural nature in the city. No effort has been made to bring
blacks into the mainstream of the social and cultural life by
appointing them in anything more than token numbers.
There are only three blacks out of 46 members on the
Bicentennial Committee and only three out of 14 on the
Independence Day Celebration Committee.
Primarily because of federal funding and prodding, the
city’s advisory group for the mass transit technical group
has three blacks and five whites.
Mobile was originally founded on the west bank of the
Mobile River. The land elevation for most of the business
and residential area until World War II was from zero to
ten feet. There has been a substantial western expansion
from the Mobile River and Bay which lies to the east.
Elevation in most of these areas ranges from 40 to 50 feet,
but in some of the areas it reaches as much as 160 feet.
There are three principal watersheds in the Mobile area.
Three Mile Creek, traverses the northern one-third of the
city draining west to east. The southern one-third of the city
is drained by Dog River running from west to east. The
remaining one-third, which consists of old downtown and
residential Mobile, drains east to the Mobile River. Mobile
has an annual rainfall of 60 or more inches per year. It is
1Sb
subject to torrential downpours. All areas of Mobile, white
and black, are traversed by open drainage ditches. All
areas, white and black, are subject to standing water after
torrential downpours with water in parts of all areas
reaching the depth of one to two feet.
Mobile has a master drainage plan to be implemented
over a long period of time. Unfortunately, most of the black
residential areas are drained by the Three Mile Creek. The
drainage system for Three Mile Creek involves issuing
bonds and financing by the city which involves millions of
dollars projected over several years. There has not been
overt gross discrimination against the blacks in connection
with the drainage project. However, almost all temporary
relief in critical areas has been in the white areas. Somehow
the white areas get relief with little temporary relief given
the black areas.
The resurfacing and maintenance of streets in black
neighborhoods significantly suffers in comparison with the
resurfacing of streets in white neighborhoods. The testi-
mony and an in-person visit of these areas by the court
sustains this conclusion.
The U.S. Treasury Department, after a complaint filed
by the NAACP, found racial discrimination in the city’s
resurfacing program. The city was advised by letter this
would have to be corrected in order for the city to comply
with the anti-discrimination provision of the Revenue
Sharing Act. (Plaintiffs’ Exhibit No. 111).
The construction of first class roads, curbs, gutters, and
underground storm sewers are closely related to the
drainage system. If this type of construction is done in areas
subject to repeated flooding, it is a waste of money. The
court observed that on the southside of Three Mile Creek
near the Crichton area, which was formerly white—now
16b
mixed or predominantly black, in the areas near the creek
and subject to flooding, the streets were paved with curb
and gutters while on the northside, near the black Trinity
Gardens area, only two streets have low-cost paving with
curbs, gutters, and underground drainage. Most of the
streets are unpaved. To put in first class paving in that black
area would be unwise financially, but there is a significant
difference and sluggishness in the response of the city to
critical needs of the blacks compared to that in the white
area.
There is the same difference and sluggishness between
whites and blacks in making provisional or temporary
mitigating improvements pending development of the
master drainage plan throughout the city.
The Williamson School, in a predominantly black area,
is in a densely populated residential and neighborhood
business area. The houses are on lots large enough and far
enough from the streets that the placing of sidewalks could
be done without great difficulty. Children from low income
families frequently walk or ride bicycles to and from school.
Sidewalks are critical in such areas. There was a noticeable
lack of sidewalks in and near the Williamson School.
The lack of sidewalks in the Plateau area presents a
different problem. The streets are narrow and the lots are
small. The houses are built very close to the streets. The
personal inspection by the court revealed the obvious
difficulty in placing sidewalks in that area.
Blacks in Mobile, and their neighborhoods, endure a
greater share of infant deaths, major crimes, T.B. deaths,
welfare cases, and juvenile delinquency than do whites in
their neighborhoods. In The Neighborhoods of Mobile:
Their Physical Characteristics and Needed Improvements
(1969), the Mobile City Planning Commission in Table Q
17b
of the Appendix, rates the 78 neighborhoods according to
social blight. Nine of the 14 most blighted neighborhoods
were predominantly black. The causes of this blight are
multiple and it would be inaccurate to suggest that a single
member district plan or the election of all black officials
would correct them. Some of the causes, as the study in
Table A indicates, include inadequate drainage, water,
streets, sidewalks, and zoning. The city has a large
responsibility in these areas. Although the city has not been
totally neglectful, and the expense and problems are
monumental, there is a singular sluggishness and low
priority in meeting these particularized black neighborhood
needs when compared with a higher priority of temporary
allocation of resources when the white community is
involved.
The Park and Recreation Program has generally been
administered in an even-handed fashion, but a city
projected park development program in the western part of
the city over a period of years involving large sums of
money indicates an expansion in predominantly white areas
without a simultaneous consideration of the black area
needs.
The black community has long complained of police
brutality. A number of investigations have been made by
the FBI but no indictments or evidence has been uncovered
to substantiate serious charges of this nature. On March 28,
1976, a black was arrested near the scene of an alleged
burglary. On April 8, an attorney for the law firm of the
plaintiffs’ attorney in this case reported to the Police
Commissioner that there had been an alleged attempted or
“mock”’ lynching of the black person arrested. On April 9, a
meeting was held between the commission, the black non-
partisan voters league, the district attorney’s office, the
18b
chief of police, and others concerning this instance.
The blacks claimed the charges were so serious that the
arresting officer should be suspended immediately. It is
claimed by the plaintiffs that this officer at that time had
pending against him a case of alleged police brutality. The
City Attorney immediately obtained some statements of the
alleged ‘“‘mock’’ lynching indicating there was substance in
the charges. On April 13, that officer was discharged and
seven others were suspended. Five indictments were
returned in connection with the alleged “‘mock”’ lynching.
The court does not deem it appropriate to make further
comments concerning the details. Suffice it to say, there
was a timid and slow reaction by the city commission to the
alleged “‘mock”’ lynching.
The Police Department then instituted an investigation
on the older pending charges. As a result of the
investigation, two officers were discharged and six were
suspended, all in connection with charges of police brutality
but concerning unrelated incidents occurring prior to the
alleged “‘mock”’ lynching.
Shortly thereafter there were twenty to thirty alleged
cross burnings in Mobile and adjoining Baldwin County.
Two of these were reported to have been in the City of
Mobile. The lack of reassurance by the city commission to
the black citizens and to the concerned white citizens about
the alleged “‘mock”’ lynching and cross burnings indicates
the pervasiveness of the fear of white backlash at the polls
and evidences a failure by elected officials to take positive,
vigorous, affirmative action in matters which are of such
vital concern to the black people. The sad history of lynch
mobs, racial discrimination and violence attributed to
cross-burners or fellow-travelers, justifiably raises specters
and fears of legal and social injustice in the minds and
19b
hearts of black people. White people who are committed to
the American ideal of equal justice under the law are also
apprehensive. This sluggish and timid response is another
manifestation of the low priority given to the needs of the
black citizens and of the political fear of a white backlash
vote when black citizens’ needs are at stake.
THERE IS NO TENUOUS STATE POLICY
SHOWING A PREFERENCE FOR
AT-LARGE DISTRICTS
There is no clear cut State policy either for or against
multi-member districting or at-large elections in the State of
Alabama, considered as a whole. The lack of State policy
therefore must be considered as a neutral factor.
In considering the State policy with specific reference to
Mobile, the court finds that the city commission form of
government was passed in 1911. That law provided for the
election of the city commissioners at-large. This feature has
not been changed although there have been some amend-
ments to designate duties for the commissioners as well as
to designate numbered places. Beginning in 1819, the year
Alabama became a state in the Union, until 1911, the great
majority of the time the city operated under a mayor-
alderman form of government. The election for the mayor
and aldermen was either at-large or from multi-member
districts or wards. The manifest policy of the City of Mobile
has been to have at-large or multi-member districting.
PAST RACIAL DISCRIMINATION
Prior to the Voting Rights Act of 1965, there was
effective discrimination which precluded effective partici-
20b
pation of blacks in the i
etic elective system in the State,
One of the primary purposes of the 1901 Constitutional
Convention of the State of Alabama was to disenfranchise
the blacks. The Convention was singularly successful in this
objective. The history of discrimination against blacks’
poste such as the cumulative poll tax, the
restrictions impedim isteri i
a Ca pediments to blacks registering to vote, is
Local discrimination in the city and the county has
already been noted in connection with the lawsuits
concerning racial discrimination arising in this court, to wit,
the Allen, Anderson, Sawyer, Evans, and Cooke, supra,
cases. Preston v. Mandeville, 479 F.2d 127 (Sth Cir
1973) was a countywide case involving racial discrimina-
tion of Mobile’s jury selection practices. Smith y
Allwright, 321 U.S. 649, 64 S.Ct. 757. 88 L.Ed.2d 987
(1944) (white primaries) was applicable to Alabama and
some Alabama cases of discrimination are Davis y
Schnell, 81 F.Supp. 872 (S.D.Ala.1949), aff'd. 336 U.S.
933, 69 S.Ct. 749, 93 L.Ed. 1093 (1949) (““interpretation”
tests for voter registration), Gomillion v. Lightfoot, 364
U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) (racial
gerrymandering of local government), Reynolds v. Sims
377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)
(racial gerrymandering of state government), and U.S. vy.
Alabama, 252 F.Supp. 95 (M.D.Ala.1966) (Alabama poll
tax).
The racial polarization existing in the city elections
has been discussed herein. The court finds that the
existence of past discrimination has helped preclude the
effecti ve participation of blacks in the election system today
in the at-large system of electing city commissioners.
21b
In the 1950’s and early sixties, prior to the Voting Rights
Act of 1965, only a relatively small percentage of the
blacks were registered to vote in the county and city.* Since
the 1965 Voting Rights Act, the blacks have been able to
register to vote and become candidates.
ENHANCING FACTORS
With reference to the enhancing factors, the court finds
as follows:
(1) The citywide election encompasses a large district.
Mobile has an area of 142 square miles with a population of
190,026 in 1970.
(2) The city has a majority vote requirement. Alabam
Acts 281 (1911) at 343, requires election of commissioners
by a majority vote.
(3) There is no anti-single shot voting provision but the
candidates run for positions by place or number.’
(4) There is a lack of provision for the at-large
candidates to run from a particular geographical sub-
district, as well as a lack of residence requirement.
"In the 1950's or 1960’s the impediments placed in the registration of
blacks to vote was hot as aggravated in Mobile County as in some
counties. It was not necessary for federal voter registrars to be sent to
Mobile to enable blacks to register.
The influence of this enhancing factor is minimal. Voters could
scarcely make an intelligent choice for the best person to serve as a
commissioner to perform specific duties, such as Department of
Finance, without a numbered or place system. It is this writer’s opinion,
born out of 15 years experience in a State judicial office subject to the
electoral process, that the public’s best interest is served, and it can
make more intelligent choices, when candidates run for numbered
positions. The choices between candidates are narrowed for the voter
and they can be compared head to head.
22b
The court concludes that in the aggregate, the at-large
election ‘Structure as it operates in the City of Mobile
substantially dilutes the black vote in the City of Mobile.
CONCLUSIONS OF LAW
I
There is a threshold question faced by this court in
whether or not Washington v. Davis, 426 U.S. 229, 96
S.Ct. 2040, 48 L.Ed.2d 597 (1976), is dispositive of this
case sO as to preclude an application of the factors
pares ert of voter dilution as set forth in White, supra,
immer, supra, aff'd. sub nom.
ro head = m. East Carroll Parish
It is the defendants’ contention that Washington makes it
clear that to prevail the plaintiffs must prove that the city
commission form of government was adopted for Mobile in
1911 with a discriminatory purpose. They further contend
that since the 1901 Constitution of Alabama effectively
disenfranchised the blacks, the at-large system adopted for
the city commission in 1911 had no relation to minimizing
or diluting the black vote because there was none. The city
further contends that the commission form of government
was adopted for purposes of executive efficiency and for an
abandonment of the then corrupt aldermanic district
elections. The plaintiffs contend that Washington did not
establish a new Supreme Court Purpose test.
The thrust of the defendants’ argument is that if the 1911
Statute creating the at-large city commission form of
government election was neutral on its face Washington
does not permit this court to consider other evidence or
23b
factors and must decide the case in the city’s favor. It is
argued that Washington is a benchmark decision requiring
this finding in the multi-member at-large city elections.
Washington upheld the validity of a written personnel
test administered to prospective recruits by the District of
Columbia Police Department. It had been alleged the test
“excluded a disproportionately high number of Negro
applicants.” Id., 426 U.S. at 233, 96 S.Ct. at 2044. The
petitioners claimed the effect of this disproportionate
exclusion violated their Fifth Amendment due process
rights and 42 U.S.C. §1981. Id, 96 S.Ct. at 2044.
Evidence indicated that four times as many blacks failed to
pass the test as whites. Plaintiffs contended the impact in
and of itself was sufficient to justify relief. They made no
claim of an intent to discriminate. The District Court found
no intentional conduct and refused relief. The Circuit Court
reversed, relying upon Griggs v. Duke Power Co., 401 U.S.
424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Griggs was a
Title VII action (42 U.S.C. §2000e, et seg.) in which the
racially discriminatory impact of employment tests resulted
in their invalidation by the court.
The Supreme Court in Washington reconciled its
decision with several previous holdings, distinguished
some, and expressly overruled some cases in which there
were possible conclusions different from Washington.
They made no reference to the recent pre-Washington
cases of its or appellate courts’ voting dilution decisions
dealing with at-large or multi-member versus single member
districts, and, in particular, no mention was made of the
cardinal case in this area, White v. Regester, 412 U.S. 755,
93 S.Ct. 2342, 37 L.Ed.2d 314 (1973), nor to Dallas v.
Reese, 421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312
(1975), and Chapman v. Meier, 420 U.S. 1,95 S.Ct. 751,
24b
42 L.Ed.2d 766 (1975), nor to Zimmer, which the Court
had affirmed only a few months before, nor to Turner v.
McKeithen, 490 F.2d 191 (Sth Cir. 1975). No reference
was made to Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct.
498, 13 L.Ed.2d 401 (1965), to Reynolds, nor to
Whitcomb. Whitcomb, 403 U.S. at 143, 91 S.Ct. 1858, 29
L.Ed.2d 363, recognized that in an at-large election
scheme, a showing that if in a particular case the system
operates to minimize or cancel out the voting strength of
racial or political elements, the courts can alter the
structure. Had the Supreme Court intended the Washing-
ton case to have the far reaching consequences contended
by defendants, it seems to this court reasonable to conclude
that they would have made such an expression.
There are several reasons which may be plausibly
advanced as to why the Washington Court did not
expressly overrule nor discuss these cases. Courts are not
prone to attempt to decide every eventuality of a case being
decided or its effect on all previous cases, The Court may
have desired that there be further development of the case
law in the district and circuit courts before commenting on
the application of Washington to this line of cases. The
cases may be distinguishable and reconcilable with the
expressions in Washington. Or, it may not have been the
intention of the Washington Court to include these cases
within the ambit of its ruling.
Washington spoke with approval of Wright v. Rocke-
Seller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964),
setting out the “intent to gerrymander” requirement
established in Wright. Washington, 426 U.S. at 240, 65
S.Ct. at 2047-48.
Wright was the direct descendant of Gomillion v.
Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110
25b
(1960). These two cases involved racial gerrymandering of
political lines. Gomillion dealt with an attempt by the
Alabama legislature to exclude most black voters from the
municipal limits of Tuskegee so whites could control the
elections. The Court found that the State of Alabama
impaired the voting rights of black citizens while cloaking it
in the garb of the realignment of political subdivisions and
held there was a violation of the Fifteenth Amendment.
Gomillion, supra, 364 U.S. at 345, 81 S.Ct. 125. There
was no direct proof of racial discriminatory intent. Justice
Stevens in his concurring opinion noted with approval,
**. . when the disproportion|ate impact] is as dramatic as in
Gomillion, ..., it really does not matter whether the
standard is phrased in terms of purpose or effect.”
Washington, supra, 426 U.S. at 254, 96 S.Ct. at 2054.'°
(emphasis added).
Wright dealt with the issue of congressional redistricting
of Manhattan. The plaintiffs alleged racially motivated
districting. The congressional lines drawn created four
districts. One had a large majority of blacks and Puerto
Ricans. The other three had large white majorities. The
court held the districts were not unconstitutionally gerry-
mandered upon the finding that “...the New York
legisiature was [not] motivated by racial considerations or
‘In Paige v. Gray, 538 F.2d 1108 (Sth Cir. 1976), black citizens of
Albany, Georgia, brought an action to invalidate the at-large system of
electing city commissioners. At 1110 n.3, the court noted the above
quote by Justice Stevens, but in the body of the opinion expressed
concern with unlawful motive for discriminatory purpose as required by
Washington. However, at 1110, the court stated “the validity of
Albany’s change from a ward to an at-large system can best be handled
by applying the multifactor test enunciated in... White v. Regester...
and Zimmer v. McKeithen.”’ Paige, at 1111, stated Zimmer still “sets
the basic standard in this circuit.”
26b
in fact drew the districts on racial lines.”” Wright, 376 U.S.
at 56, 84 S.Ct. at 605. This set forth the principle that in
gerrymandering cases in order for the plaintiffs to obtain
relief they must show racial motivation in the drawing of the
district lines.
Washington then quoted with approval from Keyes v.
School District No. I, 413 U.S. 189, 93 S.Ct. 2686, 37
L.Ed.2d 548 (1973), indicating a distinction or reconcili-
ation of that case with Washington. There had not been
racial purpose or motivation ab initio in Keyes. Keyes was
a Denver, Colorado, school desegregation case. Denver
schools had never been segregated by force of state statute
or city ordinance. Nevertheless, the majority found that the
actions of the School Board during the 1960’s were
sufficiently indicative of “...[a] purpose or intent to
segregate” and a finding of de jure segregation was
sustained. Keyes, 413 U.S. at 205, 208, 93 S.Ct. 2686,
2697. The Court held that to find overt racial considera-
tions in the actions of government officials is indeed a
difficult task."
Washington further commented:
“*,.. an invidious discriminatory purpose may often be
inferred from the totality of the relevant facts, including
the fact, if it is true, that the law bears more heavily on
one race than another.”” Washington, supra, 426 U.S.
at 242, 96 S.Ct. at 2049.
—_———
"In another Fifth Circuit case it was held that if an official is
motivated by such wrongful intent, he or she
will pursue his discriminatory practices in ways that are
devious, by methods subtle and elusive—for we deal with an area
in which ‘subtleties of conduct ... play no small part’.” U.S. v.
Texas Ed. Agency, 532 F.2d 380, 388 (Sth Cir. 1976) (Austin II)
(school desegregation).
27b
The plaintiffs contend that Washington’s discussion with
approval of the Keyes case permits the application of the
“tort” standard in proving intent. In his concurring opinion,
Justice Stevens discussed this point:
‘Frequently the most probative evidence of intent will
be objective evidence of what actually happened rather
than evidence describing the subjective state of mind of
the actor. For normally the actor is presumed to have
intended the natural consequences of his deeds. This
is particularly true in the case of governmental action
which is frequently the product of compromise, of
collective decision-making, and of mixed motivation.”
Washington, supra, 426 U.S. at 253, 96 S.Ct. at
2054 (emphasis added).
The plaintiffs contend this circuit’s use of the tort
standard of proving intent squares with the above
statements. This circuit for several years has accepted and
approved the tort standard as proof of segregatory intent as
a part of state action in school desegregation findings.
Morales v. Shannon, 516 F.2d 411, 412-13 (Sth Cir.
1975), cert. den. 423 U.S. 1034, 96 S.Ct. 566, 46 L.Ed.2d
408 (1975).
Recently, citing Morales, supra, Cisneros v. Corpus
Christi Independent School District, 467 F.2d 142 (Sth
Cir. 1972) (en banc), cert. den. 413 U.S. 920, 93 S.Ct.
3053, 37 L.Ed.2d 1041 (1973), reh. den. 414 U.S. 881,94
S.Ct. 3015, 38 L.Ed.2d 1249 (1973), and United States v.
Texas Educational Agency, 467 F.2d 848 (Sth Cir. 1972)
(en banc) (Austin I), the Fifth Circuit in U.S. v. Texas
Education Agency (Austin Independent School District)
532 F.2d 380 (Sth Cir. 1976) (Austin II) squarely
addressed the meaning of discriminatory intent in the
following language:
28b
“Whatever may have been the originally intended
meaning of the tests we applied in Cisneros and Austin
I [U.S. v. Texas Education Agency, supra], we agree
with the intervenors that, after Keyes, our two opinions
must be viewed as incorporating in school segregation
law the ordinary rule of tort law that a person intends
the natural and foreseeable consequences of his
actions.
**s ¢
Apart from the need to conform Cisneros and Austin J
to the Supervening Keyes case, there are other reasons
for attributing responsibility to a state official who
should reasonably foresee the segregative effects of his
actions. First, it is difficult—and often futile—to obtain
direct evidence of the official’s intentions ... Hence,
courts usually rely on circumstantial evidence to
— the decision-makers’ motivations.” Jd. at
This court in its findings of fact has held that when the
1911 statute was enacted, at a time the blacks were
disenfranchised, the statute on its face was neutral. This is
in line with Fifth Circuit opinions, McGill v. Gadsden Co.
Commission, 535 F.2d 277 (Sth Cir. 1976), Wallace v.
House, 515 F.2d at 633 (Sth Cir. 1975), vacated 425 U.S.
947, 96 S.Ct. 1721, 48 L.Ed.2d 191 (Sth Cir. 1976),
affirmed the District Court and Taylor v. McKeithen, 499
F.2d 893, 896 (Sth Cir. 1974). However, in the larger
context, the evidence is clear that one of the primary
purposes of the 1901 constitutional convention was to
disenfranchise the blacks."
"The history of Alabama indicates that there was a populist
movement at that time which sought to align the blacks and poor whites.
The Bourbon interests of the State sought to disenfranchise the poor
whites along with the blacks but were unsuccessful, excepting the
cumulative feature of the poll tax. They were singularly successful in
disenfranchising the blacks.
29b
Therefore, the legislature in 1911 was acting in a
race-proof situation. There can be little doubt as to what the
legislature would have done to prevent the blacks from
effectively participating in the political process had not the
effects of the 1901 constitution prevailed. The 1901
constitution and the subsequent statutory schemes and
practices throughout Alabama, until the Voting Rights Act
of 1965, effectively disenfranchised most blacks.
A legislature in 1911, less than 50 years after a bitter and
bloody civil war which resulted in the emancipation of the
black slaves, should have reasonably expected that the
blacks would not stay disenfranchised. It is reasonable to
hold that the present dilution of black Mobilians is a natural
and foreseeable consequence of the at-large system
imposed in 1911.
Under Alabama law, the legislature is responsible for
passing acts modifying the form of city and county govern-
ments. Mobile County elects or has an effective electoral
voice in the election of eleven members of the House and
three senators. The state legislature observes a courtesy
rule, that is, if the county delegation unanimously endorses
local legislation the legislature perfunctorily approves all
local county legislation. The Mobile County Senate
delegation of three members operates under a courtesy rule
that any one member can veto any local legislation. If the
Senate delegation unanimously approves the legislation, it
will be perfunctorily passed in the State Senate. The county
House delegation does not operate on a unanimous rule as
in the Senate, but on a majority vote principle, that is, if the
majority of the House delegation favors local legislation, it
will be placed on the House calendar but will be subject to
debate. However, the proposed county legislation will be
30b
perfunctorily approved if the Mobile Cownty House
delegation unanimously approves it. The evidence is clear
that whenever a redistricting bill of any type is proposed by
a county delegation member, a major concern has centered
around how many, if any, blacks would be elected. These
factors prevented any effective redistricting which would
result in any benefit to the black voters passing until the
State was redistricted by a federal court order.'? There are
now three blacks on the eleven member House legislative
delegation. This resulted in passage in the 1975 legislature
of a bill doing away with the at-large election of the County
Board of School Commissioners and creating five single
member districts. This was promptly attacked by the all-
white at-large elected County School Board Commission in
the State court. The act was declared unconstitutional for
failure to have met constitutional requirements concerning
advertisement.
This natural and foreseeable consequence of the 1911
Act, black voter dilution, was brought to fruition in 50 odd
years, the middle 1960’s, and continues to the present. This
court sees no reason to distinguish a school desegregation
case from a voter discrimination case. It appears to this
court that the evidence supports the tort standard as
advocated by the plaintiffs. However, this court prefers not
to base its decision on this theory. This court deems it
desirable to determine if the far-reaching consequence of
Washington as advanced by the defendants is correct
without regard to Keyes. This court is unable to accept such
a broad holding with such far-reaching consequences.
The case sub judice can be reconciled with Washington.
The Washington Court, in Justice White’s majority
"Sims v. Amos, 336 F.Supp. 924 (M.D.Ala. 1972).
31b
opinion, included the following:
“This is not to say that the necessary discriminatory
racial purpose must be express or appear on the face of
the statute, or that a law’s disproportionate impact is
irrelevant in cases involving Constitution-based claims
of racial discrimination. A statute, otherwise neutral
on its face, must not be applied so as invidiously to
discriminate on the basis of race. Yick Wo v. Hopkins,
118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed.220 (1886).”
Washington, supra, 426 U.S. at 241, 96 S.Ct. at
2048.
To hold that the 1911 facially neutral statute would defeat
rectifying the invidious discrimination on the basis of race
which the evidence has shown in this case would fly in the
face of this principle.
It is not a long step from the systematic exclusion of
blacks from juries which is itself such an “unequal
application of the law ... as to show intentional
discrimination,” Akins v. Texas, 325 U.S. 398, 404, 65
S.Ct. 1276, 1279, 89 L.Ed. 1692 (1945), and the
deliberate systematic denials to people from juries because
of their race, Carter v. Jury Commission, 396 U.S. 320, 90
S.Ct. 518, 24 L.Ed.2d 549 (1970), Cassell v. Texas, 339
U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950), Patton v.
Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76
(1947), cited in Washington, supra, 426 U.S. at 239-40,
96 S.Ct. at 2047, to a present purpose to dilute the black
vote as evidenced in this case. There is a “current”
condition of dilution of the black vote resulting from
intentional state legislative inaction which is as effective as
the intentional state action referred to in Keyes. Washing-
ton, supra, 426 U.S. at 240, 96 S.Ct. at 2048.
32b
More basic and fundamental than any of the above
approaches is the factual context of Washington and this
case. Initial discriminatory purpose in employment and in
redistricting is entirely different from resulting voter
dilution because of racial discrimination. Washington’s
failure to expressly overrule or comment on White, Dallas,
Chapman, Zimmer, Turner, Fortson, Reynolds, or Whit-
comb, leads this court to the conclusion that Washington
did not overrule those cases nor did it establish a new
Supreme Court purpose test and require initial discrimina-
tory purpose where voter dilution occurs because of racial
discrimination.
In order for this court to grant relief as prayed for by
plaintiffs, it must be shown that the political process was
not open equally to the plaintiffs as a result of dilution of
voting strength and consequently the members of the class
had less opportunity to participate in the political process
and elect representatives of their choice. Chapman, 420
U.S. at 18, 95 S.Ct. 751, and Whitcomb. “Access to the
political process and not [the size of the minority]
population” is the key determinant in ascertaining whether
there has been invidious discrimination so as to afford
relief. White, 412 U.S. at 766, 93 S.Ct. 2332; Zimmer,
485 F.2d at 1303.
The idea of a democratic society has since the
establishment of this country been only a supposition to
many citizens. The Supreme Court vocalized this realiza-
tion in Reynolds where it formulated the ‘‘one person-one
vote” goal for political elections. The precepts set forth in
Reynolds are the substructure for the present voter dilution
33b
cases, stating that “every citizen has an inalienable right to
full and effective participation in the political pro-
cesses...’ Reynolds, 377 U.S. at 565, 84 S.Ct. at 1383.
The Judiciary in subsequent cases has recognized that this
principle is violated when a particular identifiable racial
group is not able to fully and effectively participate in the
political process because of the system’s structure.
Denial of full voting rights range from outright refusal to
allow registration, Smith v. Allwright, supra, to racial
gerrymandering so as to exclude persons from voting in a
particular jurisdiction, Gomillion v. Lightfoot, supra, to
establishing or maintaining a political system that grants
citizens all procedural rights while neutralizing their
political strength, White v. Regester, supra. The last
arrangement is maintained by the City of Mobile.
Essentially, dilution cases revolve around the “quality”
of representation. Whitcomb, 403 U.S. at 142, 91 S.Ct.
1858. The touchstone for a showing of unconstitutional
racial voter dilution is the test enunciated by the Supreme
Court in White, 412 U.S. at 765, 93 S.Ct. at 2339;
Whether “‘multi-member districts are being used invidi-
ously to cancel out or minimize the voting strength of racial
groups.” In White, for slightly different reasons in each
county, the Supreme Court found that the multi-member
districts in Dallas and Bexar Counties, Texas, were
minimizing black and Mexican-American voting strength.
Attentive consideration of the evidence presented at
the trial leads this court to conclude that the present
commission form of government in the City of Mobile
impermissibly violates the constitutional rights of the
plaintiffs by improperly restricting their access to the
political process. White, 412 U.S. at 766, 93 S.Ct. 2332;
Whitcomb, 403 U.S. at 143, 91 S.Ct. 1858. The plaintiffs
34b
have discharged the burden of proof as required by
Whitcomb.
This court reaches its conclusion by collating the
evidence produced and the law propounded by the federal
appellate courts. The controlling law of this Circuit was
enunciated by Judge Gewin in Zimmer, which closely
parallels Whitcomb and White.'* The Zimmer court, in an
en banc hearing, set forth four primary and several
“enhancing” factors to be considered when resolving
whether there has been impermissible voter dilution. The
primary factors are:
Teh -a lack of access to the process of slating
candidates, the unresponsiveness of legislators to their
particularized interests, a tenuous state policy underly-
ing the preference for multi-member or at-large
districting, or that the existence of past discrimination
in general precludes the effective participation in the
election system, a strong case [for relief] is made.”
Zimmer at 1305. (footnotes omitted).
The enhancing factors include:
“a showing of the existence of large districts, majority
vote requirements, anti-single shot voting provisions
and the lack of provision for at-large candidates
running from particular geographical subdistricts.”
Ibid. (footnotes omitted).
1. LACK OF OPENNESS IN THE SLATING
PROCESS OR CANDIDATE SELECTION
PROCESS TO BLACKS
First, the political parties in the City of Mobile do not
“See also Paige v. Gray, 538 F.2d 1108 (Sth Cir. 1976).
35b
slate candidates per se; rather, any person interested in
running for the position of city commissioner is able to do
so. There has been little evidence to a “party”’ supporting
one candidate or another in the city races.
The system at first blush appears to be neutral, but
consideration of facts beneath the surface demonstrate the
effects which lead the court to conclude otherwise. No black
has ever been elected city commissioner in Mobile. The
evidence indicates that black politicians who have previ-
ously been candidates in at-large elections and would run
again in the smaller single member districts, shy away from
city at-large elections. One of the principal reasons is the
polarization of the white and black vote. The court is
concerned with the effect of lack of openness in the electora’
system in determining whether the multi-member at-large
election system of the city commissioners is invidiously
discriminatory.
In White, the Supreme Court expressed concern with any
type of barrier to effective participation in the political
process. Zimmer, 485 F.2d at 1305 n.20, expressed its
view in this language: “the standards we enunciate today
are applicable whether it is a specific law or a custom or
practice which causes diminution of a minority voting
strength.”
There is a lack of openness to blacks in the political
process in city elections.
2. UNRESPONSIVENESS OF THE ELECTED
CITY OFFICIALS TO THE BLACK MI-
NORITY
It is the conclusion of the court that the city-wide elected
municipal commission form of government as practiced in
36b
the City of Mobile has not and is not responsive to blacks
on an equal basis with whites; hence there exists racial
discrimination. Past administrations not only acquiesced to
segregated folkways, but actively enforced it by the passage
of numerous city ordinances. There have been orders from
this court to desegregate the police department, the golf
course, public transportation, the airport, and which attack
racial discrimination in employment. '*
There has been a lack of responsiveness in employment
and the use of public facilities. It is this court’s opinion that
leadership should be furnished in non-discriminatory hiring
and promotion by our government, be it local, state, or
federal. '*
In addition to the refusal of officials to voluntarily
desegregate facilities, the city commissioners have failed to
"The County School Board, which operates both in the city and
county, has been in federal court continuously since 1963 to effect
meaningful desegregation. Davis v. Mobile County School Board,
Civil Action No. 3003-63 (S.D.Ala.1963). Incidentally, during the
course of the court’s continuing jurisdiction in Davis, there have been
fifteen or more appeals to the Fifth Circuit.
“Norman R. McLaughlin, etc. v. Howard H. Callaway, et al., 382
F.Supp. 885, 895 (S.D.Ala.1974) stated:
“It is only fitting that the government take the lead in the battle
against discrimination by ferreting out and bringing an end to
racial discrimination in its own ranks.”
Mobile has no ordinances proclaiming equal employment opportunity,
either public or private, to be its policy. There are no non-
discriminatory rental ordinances. On the one hand, the federal courts
are often subjected to arguments by recalcitrant state and local officials
of the encroachment of the federal bureaucracy and assert Tenth
Amendment violations— while making no mention that were it not for
such “encroachment” citizeus would not have made the progress they
have to fulfillment of equal rights. Recent history bears witness to this
37b
appoint blacks to municipal committees in numbers even
approaching fair representation. Appointments to city
committees are important not only to obtain diverse
opinions from all parts of the community and share fairly
what power the committees have, but for the black
community it would open parts of the governmental
processes to those to whom they have for so long been
denied. The city commission’s custom or policy of
appointing disproportionately few blacks to committees is a
clear reflection of the at-large election system’s dilution of
blacks’ influence and participation. The commissioners
appoint citizens from their neighborhoods and constitu-
encies, which are virtually all white. The commissioners
have relatively less contact with the black community and
hence are not as likely to know of black citizens who are
qualified and interested in serving on committees. Recog-
nizing the admonitions of the courts when judicially dealing
with discretionary appointments, Mayor of the City of
Philadelphia v. Educational Equality League, 415 U.S.
605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974), and James v.
Wallace, 533 F.2d 963 (Sth Cir. 1976), that it is not within
the authority of this court to order particular appointments,
it is this court’s view that the failure to appoint a significant
number of blacks is indicative of a lack of responsiveness.
3. NO TENUOUS STATE POLICY SHOWING
A PREFERENCE FOR AT-LARGE DIS-
TRICTS
The Alabama legislature has offered little evidence of a
preference one way or the other for multi-member or at-
large districts in cities the size of Mobile. For example,
Title 37, §426, Code of Alabama (Supp. 1973), provides
38b
for a number of various forms of either multi-member or
single-member municipal governments, with a munici-
pality’s option often dictated by its size. Mobile, with a
population exceeding 50,000 persons, is allowed by Title
37, §426, to have a mixture of single-member and at-large
aldermen. Consequently, this court finds state policy
regarding multi-member at-large districting as neutral.
Mobile itself has had a mixed history concerning its local
preference for representative districting, particularly prior
to the adoption of the commission government in 1911.
Elections were usually at-large but at times there were some
ward residency requirements and multi-member ward
elections. Since 1911, however, the city commission has
been elected in citywide at-large elections.
4. PAST RACIAL DISCRIMINATION
It is this court’s opinion that fair and effective
participation under the present electoral system is, because
of its structure, difficult for the black citizens of Mobile.
Past discriminatory customs and laws that were enacted for
the sole and intentional purpose of extinguishing or
minimizing black political power is responsible. The
purposeful excesses of the past are still in evidence today.
Indeed, Judge Rives, writing for a three-judge finding the
Alabama poll tax to be unconstitutional, stated forcefully:
“*The long history of the Negroes’ struggle to obtain
the right to vote in Alabama has been trumpeted before
the Federal Courts of this State in great detail. * * If
this Court ignores the long history of racial discrimina-
tion in Alabama, it will prove that justice is both blind
and deaf.’ We would be blind with indifference, not
impartiality, and deaf with intentional disregard of the
cries for equality of men before the law.” U.S. v. State
39b
of Alabama, 252 F.Supp. at 104 (M.D.Ala.1966)
[citing Sims v. Baggett, 247 F.Supp. 96, 108-09
(M.D.Ala.1965)].
Without question, past discrimination, some of which
continues to today as evidenced by the orders in several
lawsuits in this court against the city and county, and
demonstrated in the lack of access to the selection process
and the city’s unresponsiveness, contributes to black voter
dilution.
5. ENHANCING FACTORS
Zimmer, in addition to enumerating four substantial
criteria in proving voter dilution, listed four “enhancing
factors” that should be considered as proof of aggravated
dilution.
a. Large Districts. The present at-large election system
is as large as possible, i.e., the city. The city with an area of
142 square miles, and more than 190,000 persons, can
reasonably be divided into election districts or wards. It is
common knowledge that numerous towns and cities of
much less size in Alabama are so divided and function
reasonably well. It is large enough to be considered large
within the meaning of this factor.
b. Majority Vote Requirements. Alabamz Acts No. 281
(1911) at 343, which established the Mobile commission
form of government, required the election of the representa-
tives by a majority vote.
c. Anti-single Shot Voting. There is in Act No. 281 “no
anti-single shot” voting provisions nor is there one in the
current codification, [ Ala.Code, Title 37, §89, et seq.] or in
40b
Alabama Acts No. 823 (1965) at 1539."
The numbered place provision of Act 823 (or, if Act 823
is invalid, Ala.Code, Title 37, §94) has to some extent the
same result. At least in part, the practical result of an anti-
single shot provision obtains in Mobile. '*
d. Lack of Residency Requirement. Act 281 does not
contain any provision requiring that any commissioners
reside in any portion of town.'®
The court has made a finding for each of the Zimmer
factors, and most of them have been found in favor of the
plaintiffs. The court has analyzed each factor separately,
but has not counted the number present or absent in a
“score-keeping” fashion.
The court has made a thoughtful, exhaustive analysis of
the evidence in the record “. . . [paying] close attention to
the facts of the particular situations at hand,” Wallace, 515
F.2d at 631, to determine whether the minority has suffered
"An “anti-single shot” provision obtained in all city elections from
1951 to 1961, see Ala. Code, Title 37, §33(1), but was repealed
9/15/61.
"See footnote 9, supra.
'STo impose residency requirements under Act 823, the designation
of duty provision (or if Act 823 is invalid, Ala.Code, Title 37, §94, the
numbered position provision), as well as the 1911 establishment of at-
large electior. of city commissioners would at a minimum be anomalous
and probably unconstitutional. City commissioners in command of
particular functions, such as public safety, residing and being elected
from one particular side of town, would be accountable to only one-
third of the population notwithstanding jurisdiction over the entire city.
B.U.L.L. v. City of Shreveport, 71 F.R.D. 623 (W.D. —_ also
expresses this view.
4lb
an unconstitutional dilution of the vote. This court’s task is
not to tally the presence or absence of the particular factors,
but rather, its opinion represents “. . . a blend of history and
an intensely local appraisal of the design and impact of the
... multi-member district [under scrutiny] in light of past
and present reality, political and otherwise.” White, 412
U.S. at 769-70, 93 S.Ct. at 2341.
The court reaches its conclusion by following the
teachings of White, Dallas v. Reese, 421 U.S. 477, 480, 95
S.Ct. 1706, 44 L.Ed.2d 312 (1975), Zimmer, Fortson, and
Whitcomb, et al.
The evidence when considered under these teachings
convinces this court that the at-large districts “operate to
minimize or cancel out the voting strength of racial or
political elements of the voting population.” Whitcomb,
403 U.S. at 143, 91 S.Ct. at 1869, and Fortson, 379 U.S.
at 439, 85 S.Ct. 498, and “operates impermissibly to dilute
the voting strength of an identifiable element of the voting
population,”. Dallas, at 480, 95 S.Ct. at 1708. The
plaintiffs have met the burden cast in White and Whitcomb
by showing an aggregate of the factors cataloged in
Zimmer.
In summary, this court finds that the electoral structure,
the multi-member at-large election of Mobile City Com-
missioners, results in an unconstitutional dilution of black
voting strength. It is “fundamentally unfair”, Wallace, 515
F.2d at 630, and invidiously discriminatory.
The Supreme Court has laid down the general principle
that “when district courts are forced to fashion apportion-
ment plans, single-member districts are preferable to large
multi-member districts as a general matter.” Connor v.
Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 1762, 29
L.Ed.2d 268 (1971). The Court reaffirmed this twice in the
42b
last term. East Carroll Parish School Board, and Wallace,
supra. Once the racial discriminatory evil has been estab-
lished, as it was in White, the dilution occasioned by the
multi-member at-large election requires the disestablish-
ment of the multi-member at-large election and the obvious
remedy is to establish single member districts.
This court does not endorse the idea of quota voting or
elections, nor of a weighted vote in favor of one race to
offset racial prejudice or any other adversity. However,
when the electoral structure of the government is such, as in
this case, that racial discrimination precludes a black voter
from an effective participation in the election system, a
dilution of his and other black votes has occurred.
The moving spirit present at the conception of this nation,
“ali men are created equal,” will not rest and the great
purpose of the Constitution to “establish Justice, insure
domestic Tranquility, ... and secure the Blessings of
Liberty to ourselves and our Posterity . . . .” will be only a
dream until every person has an opportunity to be equal. To
have this opportunity, every person must be treated equally.
This includes being treated equally in the electoral process.
A city government plan which includes small single-
member districts will provide blacks a realistic opportunity
to elect blacks to the city governing body. No such realistic
Opportunity exists as the city government is presently
structured. A mayor-council plan with single-member
council districts, would afford such an opportunity. Blacks
effective participation in the elective system will have the
salutary effect of giving them a realistic opportunity to get
into the mainstream of Mobile’s life, not only in the political
life, but will give them an opportunity to have an input and
impact on the economic, social, and cultural life of the city.
It will afford an opportunity for a more meaningful dialogue
between the whites and blacks to develop.
rw
43b
IV
There is a traditional constitutional tolerance of various
forms of local government. See, e.g., Abate v. Mundt, 403
U.S. 182, 185, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971).
The court recognizes the “delicate issues of federal-state
relations underlying this case.”” Mayor of the City of
Philadelphia, supra, 415 U.S. at 615, 94 S.Ct. at 1331.
The futility of piecemeal efforts to correct racially
discriminatory problems here has been demonstrated in
Davis v. Board of School Commissioners, as well as the
suits previously filed against the city. The city commission
form of government is newer and less widely used than the
mayor-councilman (or alderman) form. Mobile operated
under a mayor-councilman (in Mobile history sometimes
called commissioner, mayor-alderman, etc.) plan from the
time Alabama entered the Union in 1819 until 1911. Most
of the other municipalities in the county and state operate
under such a plan. The change is not from the known to the
unknown or from the old to the new. The court is unable to
see how the impermissibly unconstitutional dilution can be
effectively corrected by any other approach.
The defendants have argued the governing body needs a
citywide perspective, and quoted 87 Harv.L.Rev. 1851,
1857 (1974). “The
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