Brief for Appellant — Mobile v. Bolden

i ee

.

’

fF Supreme Court, U. S..

—————

INTHE |! NOV 46 1978

Supreine Court of the United. States.

OCTOBER TERM, 1978

No. 77-1844

CITY OF MOBILE, ALABAMA, e7 ai.,

Appellants,

WILEY L. BOLDEN, et ai.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE APPELLANTS

C.B. ARENDALL, JR.

WILLIAM C. TIDWELL, III

TRAVIS M. BEDSOLE, JR.

Post Office Box 123

Mobile, Alabama 36601

FRED G. COLLINS

City Attorney, City Hall

Mobile, Alabama 36602

CHARLES S. RHYNE

WILLIAM S. RHYNE

DONALD A. CARR

MARTIN W. MATZEN

1000 Connecticut Avenue, N.W.

Suite 800

Washington, D.C. 20036

Counsel for appellants

Washington. OC. © CLS PUBLISHERS ¢ LAW PRINTING CO. « (202) 393-0625

(1)

TABLE OF CONTENTS

Page

I se ee cwenba ee eu wen wes |

a a ei ee 2

STATUTES INVOLVED ........................ 3

QUESTIONS PRESENTED .......... - oe

of, | | 4

I. INTRODUCTION ........ Ot le 4

Il. THE HISTORICAL CONTEXT OF MO

BILE’S CHOICE OF COMMISSION

GPP OUT, wo ce ccvwcccccessbivaces. §

Ill. THE CURRENT SCENE IN MOBILE

ELECTIONS: UNIMPEDED MINORITY

VOTING, ENDORSING AND INFLU-

ENCING THE RESULTS .................... 6

A. The Sixteen Year Tenure Of **A Staunch

Pees GE GR loc ccc cchessccccccccces »

B. The Strength Of The Non-Partisan Voters

SE Gr akbaeseekdndsnsteaetrow sd bbbee sae a 4

IV. THE PREMISES OF THE DECISIONS

i ee lta le ss eee dokee does 11

SUMMARY OF ARGUMENT ....................... 17

ARGUMENT

I. THE CONSTITUTIONAL RULE OF

MANDATORY RACIAL VICTORY AND

PROPORTIONAL REPRESENTATION

BY RACE, FORMULATED BY THE

COURTS BELOW, IS SQUARELY IN

CONFLICT WITH PRIOR DECISIONS ....... 20

Il. THE COURTS’ DIVINATION OF RA-

CIALLY DISCRIMINATORY INTENT

FROM PASSIVE STATE LEGISLATIVE

FAILURE TO CHANGE THE ELEC-

(ti)

TORAL SYSTEM TO GUARANT

BLACK VICTORIES IS ERROR WHICH.

IF UNCORRECTED, WILL INJECT

THE FEDERAL COURTS INTO THE

SUPERVISION OF EVERY FACET OF

MUNICIPAL ADMINISTRATION ......__.

A. The Courts’ “‘Tort’”’ Standard Of Proof

Would Invalidate Even The Continuation

of Facially Neutral Government Practices

Supported By Entirely Legitimate And

Racially Neutral Policies, Simply Because

There Is General Awareness Of Racial

DT <atisesidalsaduadsldiudadcdetess sess

B. The Courts’ Tort Standard Therefore

Imposes An Affirmative Duty Of Con-

stant Racially-Conscious Electoral Re-

structuring Upon Legislatures ...............

Il]. AFFIRMANCE HERE WILL AFFECT

NOT ONLY MOBILE, BUT THE THOU-

SANDS OF LOCAL GOVERNMENTS

NATIONWIDE THAT EMPLOY AT-

REE MEME oe cc sucvcicscccscscccces

ED densvesacnccscceeciccccesevsiscconses

(ut)

TABLE OF AUTHORITIES

Cases:

Austin Independent Schoo! District v. United States,

hc da eke aes os sane Fa aed Seeetne) oe

Avery v. Midland County, 390 U.S. 474............ 32

A ew SP BE ee 34

Beer v. United States. 425 U.S. 130...... 12.20.2430

Board of School Commissioners of Indianapolis 5

Buckley, 429 U.S. 1068............... . o

Breare v. Smith, 321 F. Supp. 1100(S.D. Tex. 1971)... 2?

Brown v. Board of Education, 349 U.S. 294... ... —

City of Richmond v. United States. 422 US.

PDE G ta dakacehd ac dbNah andes desu banes scaos ches: 13

Connor v. Pinch, 431 U.S. 407 .... 0... ccc ccc cece cee 5

Dallas County v. Reese, 421 U.S. 477.................. 20

fe ef OU errr Pee 20

East Carroll Parish School Board v. Marshall, 424

Sy ratincnb dns ba cconedesdde todbbense ks 14,29

Garza v. Smith, 320 F. Supp. 131 (W.D. Tex. 1970) ...22

Gomillion v. Lightfoot, 364 U.S. 339................... 13

Green v. School Board of New Kent County, 391

es Ge ken senha cases dnc ee dtaneeds cwsneeses 29

Griggs v. Duke Power Co., 401 U.S. 424............... 24

Hawkins v. Town of Shaw, 437 F.2d 1286 (Sth Cir.

1971), aff'd on rehearing en banc, 461 F.2d

te F Opepererrrrrser Try rt TT TTT eee 16

James v. Wallace, 533 F.2d 963 (Sth Cir.

SPP rrr rrr rrrTt Trt: Tri ritt TT 16

Kirksey v. Hinds County Board of Supervisors,

554 F.2d 139 (Sth Cir. 1977) (en banc), cert.

Bomfed, GBS UE. GES occ ccccccccccccccvccscccsces 5,15

Mayor v. Educational Equality League, 415 U.S.

Diccsnenssddskassavestesasensskevbaswsneasaness 24

ftv)

Mt. Healthy City School District Board of Educa-

oe a 28

Nevett v. Sides, 571 F.2d 209 (Sth Cir. 1978)..... passim

Oregon v. Mitchell, 400 U.S. 112..................... 32

Robinson v. City of Dallas, 514 F.2d 1271 (Sth

eb Pe uaMinabhididccditeddeccetsweovncecee. 23

United Jewish Organizations of Williamsburgh, Inc.

Ga ee OE So dcbecibccidecedce 18,23,25,30

Village of Arlington Heights v. Metropolitan Hous-

ing Development Corp., 429 U.S. 252.......... passim

Vollin v. Kimbel, 519 F.2d 790 (4th Cir. 1975)........ 20

Washington v. Davis, 426 U.S. 229............... passim

Whitcomb v. Chavis, 403 U.S. 124................ passim

White v. Regester, 412 U.S. 755.................. passim

Wise v. Lipscomb, ___ U.S. ____ , 98 S. Ct.

REST Oi oP REI Pe et em er 12,21,31

Zimmer v. McKeithen, 485 F.2d 1297 (Sth Cir.

1973) (en banc), aff'd sub nom. East Carroll

Parish School Board v. Marshall, 424 U.S.

Constitution and Statutes:

Alabama Act No. 281 (Acts 1911, p. 330), as

amended, Code of Alabama 1975 § §11-44-70

ee STE hndcendcowbecccesvéccceses 3

Alabama Act No. 823 (Acts 1965, p. 1539) ............. 3

U.S. Constitution

our euclds odiveewnséwes 3,5,13,18,35

EE haids adie ceadwedassdnssetes 3,5,13,18

Voting Rights Act of 1965, as amended, 42 U.S.C.

ET SEP idl aelecscslacdusdiudedseseukscese 2,30

(v)

Miscellaneous:

D. Cambell, J. Feagin, Black Politics in the South:

A Descriptive Analysis, 37 Journal of Politics

P< d4 JeledtE dik eehabenbh guantsiecetcce ces 12

International City Management Ass’n, The

Municipal Yearbook (1972). ........00. cece eeeeeee 34

Jewell, Local Systems of Representation: Political

Consequences and Judicial Choices, 36 Geo.

. SS 3 [ aa eee eer ree 32,33

National Roster of Black Elected Officials, Joint

Center For Political Studies (1974).................. 11

Note, Ghetto Voting and At-Large Elections: A

Subtle Infringement Upon Minority Rights, 59

ee | Renee 32

Note, Proportional Representation By Race, 80

a cn cin ducdecteodkbocens 21,23

U.S. Bureau of the Census, Governing Boards of

County Governments: 1973 (1974)...........000005- 34

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 197%

No. 77-1844

CITY OF MOBILE, ALABAMA, er ai.,

Appellants,

v.

WILEY L. BOLDEN, er ai.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE APPELLANTS

OPINIONS BELOW

The Opinion of the Court of Appeals for the Fifth

Circuit is reported at 571 F.2d 238, and that of the

District Court is reported at 423 F. Supp. 384. Those

Opinions are reproduced in Appendices A and Bto the

Jurisdictional Statement, 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

2

Court, and constructing an entire administrative

structure to replace the present admixture of legislative

and administrative functions in Mobile’s 3-member

Commission Government, are both unreported. Those

Orders are reproduced in Appendices C and D to the

Jurisdictional Statement.

On October 3, 1978, the District Court entered a stay of

elections, which is reproduced at App. 37. On October 16,

1978, this Court. App. 38, denied Appellees’ motion to

vacate that stay. The effect of these last orders was to

preserve pendente lite Mobile's Commission form of

government which has existed without substantial change

since 1911.

JURISDICTION

The jurisdiction of this Court to review this decision

by appeal is conferred by 28 U.S.C. §1254(2); the only

issues in this case are constitutional in nature since

there has been no change to Mobile’s at-large election

of Commissioners cognizable under the Voting Rights

Act, 42 U.S.C. §1973 et seq.

The judgment of the District Court was entered

October 22, 1976, and that Court’s “remedial” Order

creating an entirely new legislative, executive and

administrative structure was entered March 9, 1977.

Notice of Appeal to the Fifth Circuit was filed on

March 18, 1977. The judgment of the Court of Appeals

was entered March 29, 1978. (The Fifth Circuit docket

entries are reproduced, App. 10). Notice of Appeal to

this Court was filed on June 19, 1978. The Jurisdic-

tional Statement was filed on June 27, 1978, and

probable jurisdiction was noted October 2, 1978.

3

STATUTES INVOLVED

This case involves -the constitutionality under the

Fourteenth and Fifteenth Amendments. of Alabama

Act No. 281 (1911), as locally implemented by a vote of

the electorate in 1911 providing a Commission Govern-

ment for the City of Mobile.'

QUESTION PRESENTED

1. Whether the Commission form of Government

designed to make the head of each administrative

department responsible directly to each of the City’s

voters (thereby to eliminate corruption and ward-

heeling), and thus necessarily elected at-large, violates

the Federal Constitution because this form of govern-

ment cannot guarantee that one or more of the Com-

missioners will be elected solely by black residents who

comprise one-third of the City’s population.

a. Whether the holdings of the Courts below

conflict with the constitutional principles set forth by

this Court in Whitcomb v. Chavis, 403 U.S. 124,

White v. Regester, 412 U.S. 755 (no constitutional

right to proportional representation by race), Wash-

ington v. Davis, 426 U.S. 229, and Village of

Arlington Heights v. Metropolitan Housing Devel-

opment Corp., 429 U.S. 252 (mere passive knowl-

edge of discriminatory effect of status quo insufficient

proof of discriminatory intent).

'This statute, as amended, is now codified at Code of Alabama 1975

§§11-44-70 through 11-44-105 (1977), set forth in pertinent part in

Appendix F to the Jurisdictional Statement. Also involved is Alabama

Act No. 823 (1965), set forth in Appendix G to the Jurisdictional

Statement.

4

b. Whether even discriminatory effect has been

proved in this case where, as the Courts below

found, no outstanding black citizen has attempt-

ed to mount a serious candidacy for the office of

Commissioner.

c. Whether the Courts below, in disregarding active

and effective black voter and leader participation

in Mobile’s at-large elections as irrelevant, have

erroneously expanded the constitutional protec-

tion of unfettered participation by all races in the

electoral process. to a rule of constitutional law

requiring the result of the electoral process to be

proportional representation by race.

STATEMENT

I.

INTRODUCTION

The City of Mobile operates presently, and has

operated since 1911, under the Commission form of

government designed to combine in the Commission-

ers both legislative and administrative functions, and

to make each functionally specialized Commissioner

accountable equally to each voter, black and white, in the

City. The challenge is solely to the at-large feature

necessary to Commission form. The Order (Juris. St.

1d-63d) entered by the District Court and affirmed by

the Court of Appeals disestablishes this form of

government and substitutes two features: (1) the

remedial Order guarantees that some City legislators

will be accountable only to voters in black-majority

districts while other City legislators will be accountable

only in white majority districts; and (2) the Order

prescribes in the most minute detail? a reorganization

of the administrative structure under which the City

must operate henceforth. The predicate for that Order

and its affirmance was that the existing Commission

government with its integral at-large elections could

not guarantee a black candidate tor Commissioner electoral

victory in a City whose population is some thirty-five

percent black. It is to that predicate. asserted under the

Fourteenth and Fifteenth Amendments. that this appeal

principally is directed. '

THE HISTORICAL CONTEXT OF

MOBILE’S CHOICE OF COMMISSION

GOVERNMENT

The City of Mobile adopted the Commission form of

government in 1911. Mobile was one of some 500 local

governments to do so in the first quarter of this

century.4

?The District Court's Order establishes a “strong mayor-council”

plan, with a 9-member council elected by single-member districts. The

Court-ordered plan constitutes a new City charter, edicting not only the

form of government and electoral system, but such matters as salaries

and budget procedures. (Juris. St. 12d-13d, 25d, 30d-41d).

> Therefore, inapposite are such remedy cases as Connor v. Finch, 431

U.S. 407, and Kirksey v. Board of Supervisors, 554 F.2d 139(Sth Cir.)

(en banc), cert. denied, 434 U.S. 968 (1977).

* Historians attribute the rise of the Commission form to an interest in

businesslike government and an aversion to the ward politics and the

corruption that often attended aldermanic or councilmanic systems in

those times. Commission government is founded upon two funda-

(continued)

6

The Court of Appeals held that the City’s choice of

at-large government was ‘neutral at its inception.” 571

F.2d at 246 (Juris. St. 13a).‘

Mobile has made no substantial change* in its gov-

ernmental system since that time.

THE CURRENT SCENE IN MOBILE

ELECTIONS: UNIMPEDED MINORITY

VOTING, ENDORSING AND INFLU-

ENCING THE RESULTS

The deplorable past of disenfranchisement has given

way to a present in which there are no obstacles to

(footnote continued from preceding page)

mental principles. First, its structure is designed to foster corporate-

management-type accountability through the creation of clear lines of

known public responsibility for specific aspects of governmental affairs.

Second, each voter is to be a constituent of each Commissioner, thereby

eliminating any institutional incentives to logrolling.

* Blacks were not a political force in Alabama in 191 1—they as well

as most poor whites, had been effectively disenfranchised by a State

constitutional provision of 1901. The adoption of Commission govern-

ment was not directed toward the reduction of any black voting power.

There was then no black voting power to be reduced.

*In 1965, the Alabama Legislature passed a law assigning specific duties

to each of the three Commission posts (Public Works Commissioner.

Public Safety Commissioner and Finance Commissioner). The previous

practice, codified by a 1940 statute, had been that the allocation of duties

was determined by a majority of the Commission. Each Commissioner

continued to stand election at-large, before all the voters of the City. The

Court of Appeals deemed the 1965 legislation originated by Commissioner

Langan (Tr. 330-32) designating Commissioners’ functions supportive of a

conclusion of impermiss.ble racial purpose in the maintenance since 191 |

of the at-large feature challenged in this case. The District Court had

considered the 1965 act to be salutary in identifying for the voters the

functional specialization to which each Commissioner aspired. 423 F.

Supp. at 394 n. 9 (Juris. St. 21b).

equal electoral voter participation and in which black voters

and groups are a pivotal. frequently decisive. force in

Mobile elections.

It was undisputed below that every phase of the politica!

process of registration, voting. qualification and candidacy

for the Mobile City Commission is as open to blacks as to

whites. 423 F. Supp. at 387. 399 (Juris. St. 7b. 35b).’

"Beneath this “first blush” neutrality, the District Court found that

“{oJne 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 (Juris. St. 7b). Drawing upon

statistical evidence that voting in the City has been polarized along

racial lines (423 F. Supp. at 388-89; Juris. St. 7b-1 1b), 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 city-wide 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 (Juris. St. 10b).

But in Mobile, no black candidate for the Commission has ever

suffered defeat as a result of at-large voting. As the District Court

recognized, the only three b'acks to have sought election to the

Commission “were young, inexperienced, and mounted extremely

limited campaigns.” 423 F. Supp. at 388 (Juris. St. 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; App. 68).

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 (Juris. St. 1 1b). The District Court did not address these

undisputed facts of record—often adduced through Plaintiffs’ own

witnesses—which clearly demonstrate that blacks do participate

actively and effectively in City politics, not as Commissioners but as

Commission “makers”:

1. Commission candidates actively seek black votes, and the

endorsement of the Non-Partisan Voters League (“NPVL”), the

(continued)

This is not a case like White v. Regester, 412 U.S.

755, 766-67, where, despite the lack of formal prohibi-

tions on registration or voting, minorities were effec-

tively excluded by white-dominated political party

structures or slating organizations which discourage or

ignore minority input. Mobile's elections are conducted

upon a wholly non-partisan basis.* There is but one

important slating organization—a black organization.

A. The Sixteen Year Tenure Of “A Staunch

Friend of the Blacks”

The tenure of former Commissioner Joseph Langan is

unassailable evidence of the electoral power of Mobile

blacks. Langan, a white former State Senator whose

ardent opposition to literacy tests, segregated buses

and unequal pay for black and white school teachers

had resulted in his defeat in a State Senate contest in

1951, was first elected to the City Commission in 1953.

Throughout the ensuing sixteen years he campaigned

for black voter support on the strength of his advocacy

for the equalization of services through the paving of

Streets, installation of water and sewer facilities and

dedication of parks in black neighborhoods. He

(footnote continued from preceding page)

City’s principal black political organization (Tr. 264, 320-22, 412-

414, 539-40, 752, 824, 927, 1141; App. 121-23, 140-42, 185-86,

262, 307, 397, 509).

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; App. 141-42).

‘In this respect Mobile is like many reform local governments

(Commission and Council-Manager) and unlike all State legislative

systems.

appointed black citizens to important posts, including

a controversial activist (John LeFlore) to the City

Housing Board.

Langan was openly and widely acknowledged to be,

in the District Court's words, “a staunch friend of the

blacks.” (Tr. 286). He was elected and re-elected four

times.’

B. The Strength Of The Non-Partisan Voters

League

The Langan victories were largely the product of the

efforts of the only slating organization in Mobile, the

Non-Partisan Voters League (NPVL), a local branch

of the National Association for the Advancement of

Colored People. A black State legislator testified that

“because of the credibility and strength that [the

NPVL] had,” it was capable of producing a 90% level of

support in the black community for the candidate of its

choice. Langan testified that “whoever’s name was on

[the NPVL endorsement flyer] within the black

community obtained an outstanding vote.” (Tr. 322;

App. 123).

An organization with so much electoral influence

amongst so sizeable a group of voters could not be

ignored by candidates or by incumbents. Each candi-

date'® for the City Commission in 1973 sought the NPVL’s

*Langan’s analysis of his unsuccessful 1969 bid fora fifth consecutive

term attributed his defeat to a reduced black turnout occasioned by

intimidation from a militant black group advocating a total boycott of

the political system. (Tr. 299, 304; App. 111, 115).

“The Rev. Robert L. Hope, the President of the NPVL, testified on cross

examination (Tr. 413-14; App. 141-42) to the “notable success” the

NPVL enjoyed in electing candidates it supported:

(continued)

10

endorsement. The two'' who received it were the winners"?

of the elections.

(footnote continued from preceding page)

Q Isn't ita fact, Reverend Hope, in the course of your connection

with the league, its endorsement has been actively sought by

candidates over the years that you have been connected with it?

A Yes, sir. Definitely so. I explained that to start with.

Q And wasn’t that true in the last City Commission race in 1973?

A Yes, sir.

Q Every candidate in the race sought your endorsement, didn't

they?

A Yes, sir.

Q Let me ask you this. Didn't the black vote in effect put Gary

Greenough [one of three current Mobile City Commissioners

elected in 1973] in office?

A I wouldn't say the black vote alone, sir.

THE COURT: Was it the difference?

A I believe so.

THE COURT: All right.

Onredirect, Rev. Hope attested (Tr. 417-18; App. 143-44) to the

practical post-election results of such clout:

Q Reverend Hope, in answering [counsel for Mobile's] questions,

did you mean to say that every candidate that the Non-Partisan

Voters League has endorsed has turned out to represent the

interests of the black community fairly?

In recent years they have.

How recent do you mean when you say recent years?

In this last election and maybe the election prior. I think, in my

opinion, they have done a very good job in carrying out their

obligations toward trying to be fair to all people.

Q Is that your opinion or the opinion of the entire League?

A Yes, that is the opinion—that is what I am trying to speak for.

They feel that the candidates they have elected in recent years have

done a very good job along that line.

>O >

"Commissioners Greenough and Mims received NPVL support.

Commissioner Doyle was unopposed. The NP VL endorsed Greenough

and Mims over black candidates. See note 7, supra.

"Mims had also sought and received NPVL endorsement in his

successful 1969 re-election campaign.

1]

IV.

THE PREMISES OF THE DECISIONS

BELOW

The opinions of the Courts below attempted to address

the traditional Fifth Circuit analysis of voting dilution

cases, in light of the foregoing realities of Mobile electoral

pulitics: there is no obstacle to full electoral participation.

The Court of Appeals took as an indication of lack of

access to the political process the fact that “[n]Jo black

had achieved election to the City Commission due, in

part, to racially polarized voting of an acute nature.”

571 F.2d at 243 (Juris. St. 7a).'* No outstanding black

citizen has ever attempted to mount a serious candidacy for

the City Commission. Therefore, the District Court

erroneously applied the traditional statistical analyses of

polarized voting'* not to City elections, but to elections in

"The District Court described the phenomenon of polarized voting,

423 F. Supp. at 387-88 (Juris. St. 7b-8b), and also described the

quantification of the phenomenon, 423 F. Supp. at 389 (Juris. St. 9b).

“The theory is that an at-large system “submerges”, Nevert v. Sides,

571 F.2d 209, 216 (Sth Cir. 1978), black voting preferences by causing

the defeat at-large of a candidate who could carry a (black majority)

district. Proof of the theory requires evidence of a candidate expressing

black desires who could (quantified as the racially polarized vote) carry

a district. Ab/e black candidates can carry not only a district but a City

as well. They are being elected in at-large elections across the country,

regardlessof the percentage of black voting population. Black mayors

have recently been elected in cities where blacks are in the minority, as,

for example, in Detroit, Michigan (39.4%), Newark, New Jersey

(48.6%), East Orange, New Jersey (47.0%), Berkeley, California

(20.2%), Richmond, California (31.5%), Los Angeles, California

(18.0%), Atlanta, Georgia (47.3%), and Raleigh, North Carolina

(21.3%). National Roster of Black Elected Offieials, Joint Center for

Political Studies (1974).

The Hon. Henry Marsh, the current Mayor of Richmond, Virginia

(42% black population), was first elected at-large to that City’s Council

(continued)

12

other jurisdictions: County Commission, County School

Board and State legislative districts. 423 F. Supp. at

388-389 (Juris. St. 8b-9b).

Neither Court below in their clearly erroneous findings

based upon the facts irrelevant to Mobile City elections,

addressed the fact that these elections upon which the

Courts founded their decisions were from geographically

and demographically different constituencies; @ fortiori,

neither Court addressed the governmental distinctions

between State legislative districts and local governments,

adumbrated in Wise v. Lipscomb, ____ U.S. , 98 S.

Ct. 2493, 2502 (separate opinion of Rehnquist, J.).

In order to discuss City elections at all, the District

Court was constrained to compare the votes received,

not by a white and a black candidate, but by two white

candidates. Thus, the Court was required by its own

analysis and by the logic of statistics to find one of the

white candidates (i.e. Langan) a surrogate black. The

Court's characterization of campaign tactics and issues was

(footnote continued from preceding page)

in 1966, also a time when only a minority of the population was black.

The Hon. Emest Moral was elected Mayor of New Orleans, Louisiana.

in 1978. New Orleans’ population is 45% black, while only 35% of its

registered voters are black. Beer v. United States, 425 U.S. 130. 134.

, Plaintiffs’ witness Roberts, an Alabama State Senator, testified that

in Birmingham, which is “most comparable with Mobile,” (Tr. 738:

App. —), black candidates had won two at-large seats on the City

Council. A recent study of southern politics found that 37 of the South's

46 largest cities employed solely at-large elections, and black officials

had been elected in 18. D. Campbell & J. Feagin, Black Politics in the

a A Descriptive Analysis, 37 Journal of Politics 129, 143-45

( ).

The only 3 black candidates who ever have run for Mobile City

Commissioner could not carry even a black majority district. The

candidate who could (Langan), whose vote was racially polarized, also

won elections at-large.

13

accompanied by a similarly unsubstantiated psycho-

analysis of the voters themselves as involved in a white

“backlash.” 423 F. Supp. at 388-89 (Juris. St. 7b-10b).

Finally in its treatment of electoral access and partici-

pation, the Court of Appeals concluded that a prerequisite

to a violation of either the Fourteenth or the Fifteenth

Amendments is proof of racially discriminatory intent. 571

F.2d at 245 (Juris. St. 12a).

Finding no discriminatory intent in the adoption in 1911

of the at-large Commission form, the Court held that the

form was discriminatorily maintained. '*

To evidence the requirement that maintenance of the

at-large system be intended with discriminatory ani-

mus,'* the Court of Appeals cited maintaining inaction, not

by the City Commissioners, but by the Alabama Legis-

lature."

‘The Court of Appeals clearly relied on a theory of discriminatory

maintenance. 571 F.2d at 245-46 (Juris. St. 13a-1Sa). Nothing in that

opinion conforss to Appellees’ characterization (Motion to Affirm 8)

of the case as governed by Gomillion v. Lightfoot, 364 U.S. 339, a case

involving a stark electoral change. The change declared unconstitu-

tional in Gomillion would today be submissible under §5 of the Voting

Rights Act, 42 U.S.C. §1973d, and the City put properly to its proof in

justification. See also, City of Richmond v. United States, 422 U.S. 358.

The only actions cited by the Court of Appeals to show the

Commissioners maintaining their form of government (as opposed to

performing their administrative duties under it) were these two: (1) the

formalization in 1965 of the prior practice of giving functional

specialization (finance, public works, public safety) to the Com-

missioners and (2) the submission of this formalization to the Attorney

General. 57! F.2d at 246 (Juris. St. 14a). This formalization did not

alter the at-large feature of the Commission form, extant since 1911.

‘*Nevett v. Sides, 571 F.2d 209, 217 (Sth Cir. 1978).

"$71 F.2d at 247 (Juris. St. 14a). The Alabama Legislature itself is

single-member districted. 423 F. Supp. at 389 (Juris. St. 10b). The

District Court attached substantial importance to the Court-ordered

reapportionraent of the Legislature in altering the at-large structure of

locai jurisdictions neighboring Mobile. 423 F. Supp. at 397 (Juris. St.

30b). (continued }

14

A factor considered by the Fifth Circuit and its

District Courts in assessing the efficacy of black voter

participation is the responsiveness of white incumbents

to black needs, not on the electoral stump, but at City

Hall after election day.

The most recent analysis of the relevance of responsive-

ness evidence viewed evidence of a lack of administrative

responsiveness as helpful to a voting challenge in explaining

the existence of electoral obstacles to black electoral

access:

“The 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]

criteria go to the issue of intentional discrimination,

first of all, because they would be irrelevant if motiva-

tion were not an issue. If, as the appellants suggest, it is

sufficient that ‘the combination of a legal system (at-

large election) with the minority status of blacks and a

societal system (racially polarized voting) has the

effect of diluting black voting strength’ then of

what relevance is the accessibility of political

processes to blacks, the responsiveness of the city

council to the needs of blacks, the weight of the

state policy behind the at-large plan, or the

existence of past discrimination in the electoral

process? Moreover, the Supreme Court has

squarely rejected the contention that at-large

elections are unconstitutional merely because

fewer minority candidates are elected, due to

polarized voting, than would correspond to the

minority’s portion of the district population.

Whitcomb v. Chavis, 403 U.S. 124,91 S.Ct. 1858,

(footnote continued from preceding page)

Appellants already have suggested the consistency—both consti-

tutionally and under the tenets of political science—of a districted State

Legislature and a variety of forms, including at-large Commission or

Council-Manager forms, of local government. Oppos. to Mot. to

Affirm 2-6.

15

29 L.Ed. 2d 363 (1971). It is clear, therefore, that

mere disproportionate effects are not enough to

invalidate an at-large plan and hence that the

Zimmer criteria purport to establish something

more.

“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 the

group’s 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 nonminority representatives ac-

countable.”

Nevett v. Sides ( Nevett I), 571 F.2d 209, 222 (Sth Cir.

1978)."*

“The Never: I/ panel continued, applying its analysis to this, a

companion, case:

“Where evidence of discriminatory intent is lacking in the

enacting processes, the Zimmer criteria become acutely relevant.

They may demonstrate as in Kirksey, that the neutral plan is an

‘instrumentality for carrying forward patterns of purposeful and

intentional discrimination.” 554 F.2d at 147. In Kirksey, the plan

was recently formulated, and it perpetuated past intentional dis-

crimination. A remotely enacted plan, such as the 1909 plan in this

case, that was adopted without racial motivations may become a

vehicle for the exclusion of meaningful minority input because

intervening circumstances cause the plan to work that way. When

the more blatant obstacles to black access are struck down, such

an at-large plan may operate to devalue black participation so as

to allow representatives to ignore black needs. Where the plan is

maintained with the purpose of excluding minority input, the

necessary intent is established, and the plan is unconstitutional.

We so hold today in Bolden v. City of Mobile.”

571 F.2d at 222.

16

By this analysis, incumbent responsiveness evidence

bears on the issue in a voting case only after some

electoral obstacle to black electoral participation has

been shown to exist presently. Here no electoral obstacle to

black voters was proven.

The record in this case shows that the performance in

office of white incumbents is not perfect. But the record is

clear that the trend in incumbent responsiveness is improv-

ing: blacks are sharing more of municipal jobs, appoint-

ments and services than they did a few years ago, and many

more than they did many years ago.'®

Structurally, the Commission form of government is

most likely to encourage incumbent responsiveness. *°

Under this form, the administrators are elected and

must defend their administrative performance in

electoral campaigns. Moreover, Commissioners are, of

constitutional necessity,’' elected at-large; each commis-

sioner (Finance, Public Works and Public Safety)?? must

therefore defend his balancing of needs and resources

among all Mobilians, before the entire electorate.

‘'The Courts gave weight to evidence concerning municipal employ-

ment, appointments and services. The Courts did not credit the

existence of independent remedies for any alleged inadequacies in these

areas. Cf. Washington v. Davis, 426 U.S. 229, 244 n. 12; James v.

Wallace, 533 F.2d 963 (Sth Cir. 1976); Hawkins v. Town of Shaw, 437

F.2d 1286 (Sth Cir. 1971), aff'd on rehearing en banc, 461 F.2d 1171

(1972).

The record reflects that it does in fact. 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—street lighting, paving,

sewers and sidewalks. (Tr. 433-34, 572-73, 583, 621-25; App. 148-49.

200-01, 204, 215-19).

"The District Court below so concluded. 423 F. Supp. at 387, 402 n. 19

(Juris. St. 5b, 40b).

°423 F. Supp. at 387 (Juris. St. Sb).

7

=

17

At present the Commissioners must take a City-wide

view on service requests. They can use taxes paid by the

affluent to improve services for those less fortunate

economically. But under the District Court’s Order of 3

or perhaps 4 out of 9 Councilmen representing blacks it

must be assumed (based on the same polarized vote

used here to find unconstitutionality) that black

Councilmen will not be able to command this City-

wide support on expenditures for poor blacks so essential

under the present Commission system of government. It is

reasonable to conclude the white members of the Council

(from racially homogeneous districts) will be less re-

sponsive to black requests. It is therefore reasonable to

assume blacks will get what their taxes can pay for and thus

lose more than they will gain from this governmental

change.

SUMMARY OF ARGUMENT

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 circum-

stances where the administrative form of government was

equally able to continue under other electoral plans such as

pure single-member districting. This distinguishes State

legislatures from any municipal governments of the reform

model (Commission and Council-Manager), to which at-

large elections are integral. In White v. Regester, 412 U.S.

755, for example, this Court for the first time upheld the

disestablishment of multimember State legislative districts,

in order to minimize beth geographically and qualitatively

the dilutive impact of such prohibited obstacles to black

electoral participation as white slating organizations.

The instant case illustrates how far the “denial of

[electoral] access” test in White v. Regester has been

carried under the “dilution” banner: undisputed evi-

dence of active and effective black participation in an

electoral system concededly neutral on its face and free

of formal impediments to blacks’ registering, voting,

and becoming candidates was here deemed constitu-

tionally deficient “access to the political process”

because black voters are not numerous enough to elect

black officials in an at-large electorate found to be racially

polarized. It is worth repeating that no able black has run

for election as a Mobile Commissioner, so no one can justly

conclude an election defect for such a candidate when able

black candidates all over the Nation have won at-large

elections even though blacks were a minority of the voters.

In effect, the Courts below have found a constitu-

tional violation solely in the effect of racially polarized

voting, contrary to United Jewish Organizations v.

Carey, 430 U.S. 144, 166-67: and in so doing, they have

effectively required that electoral systems (and here,

the entire City administration) be so structured as to

use racially polarized voting to gua®antee 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.

The Court of Appeals below recognized that a

racially discriminatory intent must be shown to prove a

violation of either the Fourteenth or Fifteenth Amend-

ments; that intent motivates incumbents to maintain an

19

at-large electoral system to avoid the necessity of

campaigning for black votes. Nevert v. Sides, 571 F.2d

209, 222 (Sth Cir. 1978). In the face of evidence of

plenary and effective black voter participation in the

at-large system, the Courts below found compelling

proof of racially discriminatory purpose in: (1) the

failure to alter Mobile’s existing governmental struc-

ture so as to guarantee proportional minority represen-

tation, coupled with (2) imputed legislative awareness

that blacks might fare better electorally under elections

by single-member district. Yet, if continuation of a

neutral and reasonable governmental policy or action

even with awareness of its racially disparate effect

requires (without more, or, as here, in the face of

contrary evidence of intent) the conclusion of invidious

racial intent, this Court's decisions in Washington v.

Davis, 426 U.S. 229, and Village of Arlington Heights

v. Metropolitan Housing Development Corp., 429

U.S. 252, would necessarily have reached different

outcomes.

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 citywide perspective afforded by

elections at-large.

20

ARGUMENT

I.

THE CONSTITUTIONAL RULE OF

MANDATORY RACIAL VICTORY AND

PROPORTIONAL REPRESENTATION

BY RACE, FORMULATED BY THE

COURTS BELOW, IS SQUARELY IN

CONFLICT WITH PRIOR DECISIONS

OF THIS COURT

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, 519 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.” White

v. Regester, supra, 412 U.S. at 765; Whitcomb vy.

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 electoral

process. Chavis, supra, 403 U.S. at 149-155; Regester,

supra, 412 U.S. at 766.

In both Chavisand Regester, this Court accepted the

proposition that the use of multimember districts in a

State legislative apportionment plan may be invalid if

“used invidiously to cancel out or minimize the voting

strength of racial groups,” Regester, 412 U.S. at 765,

but reached different results on the merits. Because this

case represents the first occasion on which this Court is

to consider the application of this “highly amorphous

ee ee ee ee

ee pl te TD ois SS

ee

21

theory” to a municipal form of government and at-

large electoral system, Wise v. Lipscomb, — U.S. _ .

98 S.Ct. 2493, 2502, it is crucial to recognize that the

focus in both cases was upon the relatively concrete

facts of minority electoral access and participation, and

not upon the hazy and problematic concept of

“representation.”

The instant case raises the identical claim rejected in

Chavis—that at-large electoral structures are consti-

tutionaily infirm where minority-sponsored candidates

would -prevail at the polls more often, or at least

sometimes, under a single member districting scheme.**

Plaintiffs there asserted that:

“With single-member districting . . . the ghetto

area would elect three members of the house and

one senator, whereas under the present [multi-

member] districting [black voters] ‘have almost no

political force or control over legislators because

***Dilution occurs when an individual is deprived of his constitu-

tional right of access to the political process, while representation refers

to the claim (which has never been recognized as a constitutional right)

that an individual is entitled to a voice in the legislature to further his

particular interests. The lower courts, however, have not always

recognized the important distinction between these two concepts.

***Because the Constitution provides a right to access, and not to

representation, the inability of a racial minority to obtain legislative

seats in proportion to its population cannot, in itself, constitute a

constitutional violation.” Proportional Representation by Race, 80

Mich. L. Rev. 820, 826 (1976).

**What was discredited in Chavis was not just the concept of racially

proportional representation but rather the broader concept that an)

direct racial representation is a constitutional mandate. Even the

District Court in Chavis had purported to so limit its ruling. 403 U.S. at 138.

tr

tJ

the effect of their vote is cancelled out by other

contrary interest groups’.. .”

403 U.S. at 129.

The Chavis Court explicitly rejected the notion that

the Constitution is a guarantor of the outcome of

elections.

The Court did, however, suggest a case in which,

unlike Chavis, at-large elections might work a consti-

tutionally impermissible exclusion:

“We have discovered nothing in the record or

the Court's findings indicating that Negroes were

not allowed to register or vote, or choose the

political party they desired to support, to partici-

pate in its affairs or to be equally represented on

those occasions when legislative candidates were

chosen. Nor did the evidence purport to show or

the court find that the inhabitants of the ghetto

were regularly excluded from the slates of both

major parties... It appears reasonably clear that

... ghetto votes were critical to Democratic Party

success [and therefore] it seems unlikely that the

Democratic Party could afford to overlook the

ghetto in slating its candidates."’ 403 U.S. at 149-50

(emphasis added).

Regester was exactly that egregious case, and only

that case. The critical facts there were that a white-

dominated organization (the Dallas Committee for

Responsible Government) effectively in control of

Democratic Party slating in Dallas County** had virtually

*The conclusion, 412 U.S. at 768, that multimember district elections

impermissibly excluded Bexar County Mexican-Americans from the

political process was based on the fact that Mexican- Americans had been

barred from participation by the institutional obstacle of extremely restrictive

registration rules (annual re-registration requirements which had replaced

unconsututional poll tax, and discriminatory prohibitions on assistance to

illiterate voters) which were still in effect in the year the Regester litigation

Was brought. See Breare v. Smith, 321 F. Supp. 1100 (S.D. Tex. 1971):

Garza v. Smith, 320 F. Supp. 131 (W.D. Tex. 1970).

Cath ae

23

never slated black candidates or candidates favored by the

black community, and that incumbent legislators did not

need black voters’ support to win elections and therefore

disdained it. It was this finding of an institutional barrier to

black electoral participation which justified the holding

that there was an “‘exclusion”’ of constitutional dimension.

Because the constitutionally protected right is not one of

minority political victory,” it is not impermissibly inisinged

even where a minority finds itself consistently defeated at

the polls by racially polarized voting. United Jewish

Organizations of Williamsburgh v. Carey, 430 U.S. 144,

166-67.

The District Court below in this case accepted the

bootstrap argument of Plaintiffs, that the failure of

prospective black candidates even to try the City’s political

processes was an “exclusion” or electoral obstacle of

constitutional significance. The Court of Appeals uncriti-

cally 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 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 have

served in lieu of white control of the slating process asa

factor supporting invalidation of the electoral scheme

struck down in Regester. In their disregard of the

"By acknowledging the right of access, however, the Court does not

force the judiciary to influence the outcome of political elections.

Rather, where a claim of dilution is made, the courts need only assess

the ability of minority voters to participate on an equal basis with other

citizens in the community's political processes.” Proportional Repre-

sentation By Race, supra, 80 Mich. L. Rev. at 827. (emphasis original).

“In this voting case, the Fifth Circuit accepted uncritically the

absence of proof of a qualified applicant (candidate) pool in a way

which it refused to do in Robinson vy. City of Dallas, 514 F.2d 1271,

(continued)

24

undisputed evidence of effective black participation

and political clout, and their eagerness to invoke a

remedy to “provide blacks a realistic opportunity to

elect blacks” (423 F. Supp. at 403; Juris. St. 42b), the

Courts beiow have disestablished Mobile’s existing

form of government on a claim no more substantial

than Chavis’“mere euphemism for defeat at the polls.”

403 U.S. at !53.

While no interest group, racial or otherwise, is

constitutionally entitled to proportional representa-

tion, e.g., Beer v. United States, supra, 425 U.S. at 136

n. 8, certainly any group which in fact achieves roughly

proportional representation by “legislators of [its]

choice” has not been denied access to the political

process. Chavis, supra, 403 U.S. at 149. The contrary

holdings below, therefore, have directly injected the

concept of proportional representation by race into an

electoral system heretofore racially neutral, and can be

perceived only as a sanction for the view that no white

official can adequately represent blacks. and rice versa.

Only if this Court is now prepared to accept proportional

representation by race as not only a desideratum but a

constitutional requirement, can the holdings below be

affirmed.

(footnote continued from preceding page)

1273-74 (Sth Cir. 1975). Even more expansive statistical treatments

require proof that the test would exclude applicants otherwise shown to

be eligible. E.g.. Griggs v. Duke Power Co., 401 U.S, 424. 430 n. 6. This

Court in Mayor v. Educational Equality League, 415 U.S. 605, 620-21,

distinguished the jury selection and other cases of starkly disparate

impact “in which it can be asumed that all citizens are tungible.”

holding that in determining unlawful exclusion in municipal appoint-

ment, “the relevant universe for comparison purposes consists of the

highest-ranking officers of the categories of organizations and

institutions specified in the city charter, not the population at large.”

eS

aia ie ss a I IEE 6a RS Le

25

II.

THE COURTS’ DIVINATION OF RA-

CIALLY DISCRIMINATORY INTENT

FROM PASSIVE STATE LEGISLATIVE

FAILURE TO CHANGE THE ELEC-

TORAL SYSTEM TO GUARANTEE

BLACK VICTORIES IS ERROR WHICH,

IF UNCORRECTED, WILL INJECT THE

FEDERAL COURTS INTO THE SUPER-

VISION OF EVERY FACET OF MUNICI-

PAL ADMINISTRATION

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 subsequent cases of this Court following its

principle.** Nonetheless, the Court held that the

element of intent had been properly established.

The Court of Appeals held that the findings of the

District Court “compel the inference that the [at-large

*The reasoning of the Court of Appeals is developed at length in the

companion case of Nevert v. Sides (Nevett If), 571 F.2d 209, 217-221,

and incorporated by reference in its Mobile decision. 571 F.2d at 241

(Juris. St. 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.

26

commission] system has been maintained with the

purpose of diluting the black vote. . . .°571 F.2d at 245

(Juris. St. 12a) (emphasis added). The Court concluded

that the finding that the Alabama Legislature had failed

to change the City’s at-large Commission Government,

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 (Juris. St. 14a).”*

The error in the Court of Appeals majority opinion’s

legal analysis is clearly expressed in the concurring

opinion of Wisdom, J., in the companion case of

Nevett Il, supra, 571 F.2d at 232-233:

“I agree that is 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 purpose. 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

inadequately 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,

**Finally, the Court relied upon the 1965 Act designating specific

administrative functions, but not altering the at-large election of each

Commissioner, as further probative of invidious “intent to maintain the

plan... . 571 F.2d at 246 (Juris. St. 14a).

27

that is, taking no affirmative curative action. This

view of inaction is inconsistent with Washington v.

Davis.” (emphasis original).

A. The Courts’ “Tort” Standard Of Proof Would

Invalidate Even The Continuation Of Facially

Neutral Government Practices Supported By

Entirely Legitimate and Racially Neutral

Policies, Simply Because 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. 5-6). 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 ap-

proach. For example, if awareness of racially dispro-

portionate 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 employment 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 Ar‘ington

Heights, zoning officials were well aware that existing

policies had the effect of maintaining the “nearly all

28

white” status of the village, and the Court of Appeals

had held that 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 exclusionary effect.

The function of the purpose or intent requirement as

applied in Washington v. Davis and Village of Arlington

Heights is to assure that government actions which are de-

signed to further valid objectives are accorded deference.

and that those designed to further impermissible racia!

purposes are not. Davis, supra,426 U.S. at 242-248: Arling-

ton Heights, supra, 429 U.S. at 265-66.

The test of invidious intent applied below stands

“deference” on its head. The City’s long history of

incorrupt Commission government and the uninterrupted

maintenance of its integral at-large feature is anomalously

used to rationalize the government's abolition. 571 F.2d at

244 (Juris. St. 10a).

Where the challenged action is indeed necessary to serve

valid ends, /.e., here to provide citywide perspective and

responsibility for actions equally to each voter, it is insuffi-

cient to show that it has been “motivated in part by a

racially discriminatory purpose.” Arlington Heights,

supra, 429 U.S. at 270 n. 21. Where such an action “would

have resulted” even absent a racial purpose, it cannot be

fairly attributed to racial motivations and “there would be

no justification for judicial interference... .” 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.

29

B. The Courts’ Tort Standard Therefore Imposes

An Affirmative Duty Of Constant Racially-

Conscious Electoral Restructuring Upon

Legislatures.

The essence of the Court of Appeals’ holding is that

where application of its Zimmer’® criteria indicates a

current condition of polarized voting and black

candidates’ defeat, the maintenance of such a system

without affirmative corrective action compels the

inference of purposeful dilution. 571 F.2d at 245 (Juris.

St. 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 unconsti-

tutional 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 v. Chavis, supra, 403 U.S. at 159-60; White

v. Regester, 412 U.S. at 765.

“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).

30

Even 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 et 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 Courts’ decision imposes just such a duty here.

Finally, the existence of racially polarized voting is

turned on its head in the remedy. This unfortunate

"In Beer, this Court upheld New Orleans’ redistricting plan which

retained two at-large seats and which contained single-member districts

drawn in a pattern which the Attorney General urged would slice up

predominantly black districts and “almost inevitably” dilute the

effectiveness of the black vote. 425 U.S. at 136. Although New Orleans’

plan clearly afforded blacks less than maximum voting power, it passed

the statutory standard of §5, 42 U.S.C. §1973c. 425 U.S. at 141. And it

did not even “remotely approach a violation of the constitutional

standards” set forth in Regester. Id. at 142 n. 14. While Beer

demonstrates that legislative plans need not under the Constitution be

so drawn as to assure proportional representation, 425 U.S. at 136n. 8,

United Jewish Organizations holds that a State legislature may

constitutionally gerrymander along racial lines to assure proportional

representation, at least in the course of redistricting subject to scrutiny

under the Voting Rights Act. 430 U.S. at 162-65 (plurality opinion per

White, J., joined by Stevens, Brennan, and Blackmun, J.J.).

3]

feature of voter behavior is cited to declare at-large

elections invalid. But without polarized voting (and

residential housing segregation), a districting remedy

would be a nugatory gain for blacks. The remedial

Orders of the Courts must hope for, and indeed

perpetuate, racially polarized voting and racially segregated

residential housing for the future.

If either of two events occur, the Courts must then,

under the rule of this case, redo their electoral

handiwork. (1) If a decrease in residential segregation

produces a black demographic shift (without a net

change in the number of voters in a district), the

District Court must redraw its district lines, even

though this is not compelled by one-person-one-vote.

At the other extreme, if blacks constitute over 50% of

the voters,*’ then their benefit is maximized by a Court

Order returning to elections at large. (2) Any other

ethnic group, residentially segregated, can compete

with blacks for the benefit of the Courts’ electoral

tinkering.*

“As they did in the companion case, Nevert v. Sides, $71 F.2d 209,

214 n. 6 (Sth Cir. 1978).

Fortuitously, in Wise v. Lipscomb, ___ U.S. ____ , 98 S. Ct. 2493, it

was the City and not the Court which struck a balance between the electoral

desires of blacks and of Mexican- Americans.

32

Ill.

AFFIRMANCE HERE WILL AFFECT

NOT ONLY MOBILE, BUT THE THOU-

SANDS OF LOCAL GOVERNMENTS

NATIONWIDE THAT EMPLOY AT-

LARGE ELECTIONS.

The Equa! Protection Clause “was never intended to

destroy the States’ power to govern themselves” in this

area. Oregon v. Mitchell, 400 U.S. 112, 126. Nor does it

place State and local governments within a “uniform

straitjacket” which precludes their choice of the form of

government and electoral system thought to best suit

local needs and preferences. Avery v. Midland County,

390 U.S. 474, 485. This Court has not held that local

governments must district, but only that if they do,

such districts must not contain “substantially unequal

population.” /d. at 485-86.

Such a course would be good constitutional juris-

prudence even if the precise effects of form of

government and electoral system upon “representa-

tion” were clear. But they are not. The question of how

minorities are best assured of meaningful political

participation is highly problematic. To guarantee election

of blacks by creation of “safe” single-member districts

is not necessarily to maximize black political effective-

ness. ** Jewell, Local Systems of Representation: Political

‘Indeed opponents of at-large elections have suggested that elections

by single-member geographical districts may not adequately guarantee

minority representation. Note, Ghetto Voting and At-Large Elections:

A Subtle Infringement Upon Minority Rights, 59 Geo. L. Rev. 989,

1009-11 (1970). Institutionalized systems of proportional representa-

tion of interest groups (such as those formerly used in New York City

and Cincinnati, Ohio) and enlargement of city councils “to the size of

state legislatures” have been proposed as the ultimate solution. /d.

33

Consequences and Judicial Choices, 36 Geo. Wash. L.

Rev. 790, 803 (1968). A black minority may

“have greater influence on a legislative delegation

of a city council elected at-large than on one

elected by districts. All the legislators or council-

men elected at-large would have Negro constitu-

ents; only a minority of those elected by districts

would represent Negroes. Whether Negro voters

could affect decisions more through greater

influence on a few representatives or a smaller

degree of influence on all representatives might be

a difficult question for Negro leaders to answer. It

would be an even more difficult decision for a

court attempting to determine the constitution-

ality of at-large elections.” /d.

Mobile does not assert that its Commission form of

government and at-large electoral system are necessar-

ily the “best” for all times and all communities. Mobile

does assert that its system serves important policy

considerations relating to a city-wide perspective in

government, and that the City’s electoral system in no

way precludes full unfettered black participation in all

phases of the political process. |

Whitcomb vy. Chavis, supra, 403 U.S. at 156-160,

makes it quite clear that the Federal judiciary does not

sit as a body of political scientists weighing the efficacy

of varying theories of government or political repre-

sentation. At the municipal level, “the question of

districting has been at the heart of the controversies

over the form of government to be adopted, and the

advocates of at-large aod single-member districting

have articulated conflicting theories about the repre-

sentative process.” Jewell, supra, 36 Geo. Wash. L.

Rev. at 804. In their earnest desire to assure black

Mobilians “a reasonable opportunity to elect blacks”

34

(423 F. Supp. at 403; Juris. St. 425), the Courts below

have fallen into a trap of choosing “among competing

bases of representation—ultimately, really, among

competing theories of political philosophy—in order to

establish an appropriate form of government...”

Baker v. Carr, 369 U.S. 186, 300 (1962) (Frankfurter,

J., dissenting).

This was the inevitable result of the focus of the Courts

below on what they concluded black poiitical participation

cannot presently accomplish (i.e., electing a black

Commissioner), to the exclusion of what it Aas

accomplished (i.e., substantially influencing or even

“swinging” election outcomes, making black electoral

clout a force to be reckoned with). The patent error of

this approach is to transmute the constitutional right of

equal access and participation into one of guaranteed

“representation” by officials of one’s race. And the

patent danger is that few existing forms of local govern-

ment assure such a result. Cf Chavis, supra, 403 U.S.

at 156-57.°*°

“As in Chavis, supra, 403 U.S. at 157:

“At the very least, affirmance [here] would spawn endless

litigation concerning the [at-large electoral] systems now widely

employed in this country.”

Over 67% of this Nation's 18,500 municipal governments employ at-

large elections. (Derived from Table 3/15, The Municipal Year Book,

International City Management Association (1972)). Some 41% of this

Country's over 3,000 counties also elect officials at-large. (Derived from

Table 2, Governing Boards of County Governments: 1973, U.S. Bureau

of the Census 1974)).

35

CONCLUSION

Since 67% of cities have at-large elections, it Is

important to put into perspective the impact of the rule

of this case unless reversed. The rule is that an at-large

jurisdiction with residential segregation and ethnically

polarized voting must be districted to guarantee

proportional representation to each minority group

This rule is as applicable to Poles. Jews and all othe:

ethnic groups as to blacks. This rule ironically places a

political premium on maintaining the residential

segregation which gives electoral efficacy to a district-

ing remedy. And, the “passive maintenance™ rule ot

intent puts municipal officials under a constant duty to

evaluate—not only as to voting but inany area where a

Fourteenth Amendment challenge might lie — whether

inaction has an ethnically disparate effect.

Moreover, the remedy under such a rule is to order

ethnically proportional government action. And this

remedial standard would be applicable as broadly as

the Fourteenth Amendment: it would impel Federal

Courts to order ethnically proportional streetlights,

jobs (cf., Washington v. Davis), rezonings (cf., Village

of Arlington Heights v. Metropolitan Housing Devel-

opment Corp.) and all other municipal services. This

rule forces the Federal Courts to intrude into the daily

actions and inactions of each municipality to a degree

neither warranted by the Constitution nor within the

technical competence of said Federal Courts.

Respectfully submitted,

C.B. Arendall, Jr.

William C. Tidwell, III

Travis M. Bedsole, Jr.

Post Office Box 123

Mobile, Alabama 36601

36

Fred G. Collins

City Attorney

City Hall

Mobile, Alabama 36602

Charles S. Rhyne

William S. Rhyne

Donald A. Carr

Martin W. Matzen

1000 Connecticut

Avenue, N.W.

Suite 800

Washington, D.C. 20036

Counsel for Appellants