# Jurisdictional Statement — Mobile v. Bolden > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0012%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1980 - **Citation:** 446 U.S. 55 ## Text a ——— Supreme Court, U.S, >) FILED | JUN 27 1978 aha 4, JR., CLERK IN THE Supreme Court of the Gunit OCTOBER TERM. 1977 No. 77-1844 CITY OF MOBILE, ALABAMA. et al. Appellants, WILEY L. BOLDEN, ef al. Appellees. ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT JURISDICTIONAL STATEMENT 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 !23 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. N.W 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 i cceteenenellinaieenmnmendiian inated Wasrington OC @ CLB PUBLISHERS « LAW PRINTING CO. e (20?) 393.0675 JURISDICTIONAL STATEMENT OPINION BELOW JURISDICTION QUESTIONS PRESENTED STATUTES INVOLVED STATEMENT (i) TABLE OF CONTENTS A. Mobile’s Form Of Government Was Adopted Cc. D. 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- BORE Te ee The Courts’ Treatment Of The Issue Of Racial PO a cath peices 5 LN fete cvs es The Remedy Ordered. And Subsequent Pro- Se ai cae adr ee be cine p's e's 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 OO oe a has aes 2. The courts below have erroneously given present inability of blacks, a minority of the voters. to elect black officials the status of a ae Ce Se ees 6A 4646 FOO 6 CRB Oe wr eaeee “seeeeeeeeeeneenrenereeereeereeeeeeeeeeeeee (ii) constitutional violation, contrary to Whit- comb v. Chavis, White v. Regester, and United Jewish Organizations of Wil- liamsburgh; INC. V. COPY. oc ccvccciscccccsecs 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 Pe PEP IRU Lawn heas RPE Me oa ey eek an meade wt 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. Pn or him nea 24 2. 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- WSS Nis hccothie hi orotate Me ceaca ae a aie sha a one 26 SAORI OME, 20 eo Chi eve dauh orcakwcae ve conbiiena 28 APPENDICES ’ A. Opinion of the Court of Appeals, entered WRU TTA TU fadick a arcasutede ederweneeagees la B. Opinion of the District Court. entered October 21, 1976, as amended October 28, 1976........... lb C. Judgment of the District Court.................... Ic D. Order of the District Court. establishing mayor-council government, entered March 9, 1977. 1d E. Order of the District Court. setting November 21. 1978 as conditional date for elections. en- PY gS BRO | SS en ree le F. Alabama Act No. 281 (Acts 1911, p. 330). as amended, Code of Alabama 1975 § §11-44- 70 through 11-44-105 (1977) ....... 0. cece eee eee If G. Alabama Act No. 823 (Acts 1965. p. 1539) ....... lg Oe ARO PE CY Oe et aes PRUE Tee eT lh TABLE OF AUTHORITIES Page Cases: Abate v, Mundt, 403 U.S. 182.......0..0.c0ceccesee eens 25 Austin Independent School District v. United States, ee Se MLN eka ck ¢ Geena Rh ae SEE Rw bing Nea w tare’ 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. / pg 8 eer ae 14 Brown v. Board of Education, 349 U.S. 394.............. 26 Coes We AZe The BOSE: hia b lew ac eee cashacwed 3 Dallas County v. Reese, 421 U.S. 477... 0.0... .. cc ences 18 SRG. , LU, See erst POU bin ak sk vAayie Sen sibaged cer 3,18 East Carroll Parish School Board v. Marshall, 424 Se eR LON LT Wig Cink wht bd pa RNR ek oO eos see beeline 6 Green v. School Board of New Kent County, 391 U.S. WE rE Ba CG Oca Care Ee ee 26 Hawkins v. Town of Shaw, 437 F.2d 1286 (Sth Cir. 1971). aff'd on rehearing en banc, 461) F.2d 1171 FOUNEANG cust Wada y Puce wake aDOsdde ae Ns witivevanr ltl 6 (iv) Mt. Healthy City School District Board of Education V. Torin, GaP GE, te ib ib divine s bei neh disiensis cen aus 25 Nevett v. Sides, 571 F.2d 209 (Sth Cir. 1978)........ passim New Orleans v. Dukes. 472 U.S. 297.............000000 3 United Jewish Organizations of Williamsburgh, Inc. Mi, Qe ee tay BOY oon 0s cance one sneak 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 Was Vv. Sadia, 330 Us GO cai cee cde nee ooh 16 Whitcomb v. Chavis, 403 U.S. 124.................. passim White v. Regester, 412 U.S. 755 .............22000- 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, ___._ US. Lisa's, SA MOR FWY 2 O's She Ni a vibe eek Cow ae 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 eo 3 2-06-105 GIST ET ened d. paxnans 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 RUIONE TEES 8 oon 8 i 8'y 2 ¢ ued Cinbioek We ee Paps TOF. sa os io axWied ethene 1,3,5,7 Voting Rights Act of 1965. as amended, 42 U.S.C. CORES AF IR oi cans chan cdess exe ee aekn te 3,6,9,27 on ee (v) 28 UEC. $td4HSHO): oo, FL TANS a 3 Miscellaneous: C. Adrian & C. Press, Governing Urban America EINE Cte oo. FEN PEt s edu SA KAM ev ean s Kors 22 International City Management Association, Munic- Ne WT I IIS 6 fae oh FA end bac ebins cowuyies 22 J. Straayer, American State & Local Government (1974). .22 ——~s IN THE Supreme Court of the Anited States OCTOBER TERM, 1977 CITY OF MOBILE, ALABAMA, et ai., Appellants, \ WILEY L. BOLDEN, et ai., 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 to a new City Charter imposed by the District Court. Since 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. A 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 J udgment 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 heret6 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. JURISDICTION 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 §§11-44-70 through 11-44-105 (1977). 4 QUESTIONS PRESENTED 1. Whether the Commission form of Government designed to fix in the head o: 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? 5 STATUTES INVOLVED This case involves the constitutionality under the Fourteenth and Fifteenth Amendments to the U.S. Constitution of Alabama Act No. 281 (1911), as locally implemented by a vote of *:e 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 uctively 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 \ 6 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. Nevett IJ, 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 7,571 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 v. 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 I] “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 ‘efeated 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% oi 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 functiorial 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 administration “solely through the mayor” (App. D, Art. III, Sect. 16, p. 14d). 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 1911 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. r ; 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: a ————— 1] “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-10b). 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 elécted 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 his defeat to the failure of black voters to turn out at the polls (Tr. 299- 304). 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- 'SThe 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. 455) 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 Nevert v. Sides (Nevett I]), 571 F.2d 209, 217-221. and incorporated by reference in its Mobile decision. 571 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. 15 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. *° Zz 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, 20In 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. 2\In contrast to its application to the facts of this case, the Fifth Circuit’s test, articulated in Nevert IJ, 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 Arlingtor. Heights would necessary have reached different outcomes. This case, being the first one to presént,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 lccal 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, 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.” 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. ”? ?3The 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. (continued) 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 biack candidates to be elected, then the evil must be as described by the Fifth Circuit in Nevert II: ‘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 usedas 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, mere often than not, this access produced positive tangible results — sireet lighting, paving. sewers and sidewalks. (Tr. 433-34, 572-73, 583, 621-25). 21 2. The courts below have erroneously given present inability of blacks, a minority 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 vy. 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 *SIn 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. Nm tv 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 (4thed. 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 ‘eqndidates, have had their Fourteenth or Fifteenth Amendmentrights infringed by this process. Their position is similar to that 6#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). ty w 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: “*T 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, wherever 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 tiine 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 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 exclu- sionary effect. 25 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 attributed 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 IT). 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 ITI, supra, 349 U.S. at 298. In contrast, at-large and multi-member electoral systems are clearly not unconstitutional per se. Whitcomb vy. 27 Chavis, supra, 403 U.S. at 159-60; White v. Regester, 412 U.S. at 765.78 *8Even 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 seqg., 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, 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 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 ' | 4 ’ la APPENDIX A Wiley L. BOLDEN et al., Plaintiffs- Appellees, V. 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: 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 elected 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 II. The first appeal, Nevett v. Sides (Nevett I), 533 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 was reside in specified - districts. In 1965, a specific city-wide function was assigned to each position by statute.”? 1965 Ala. Acts no. 823. These functions 2On 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.R. Arendall, Jr., Special Counsel to the City of Mobile, at 2-3 (March 2, 1976), Record, vol. 2, at 479-80. (continued) 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 (footnote 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 resi its final decision on the merits on any of the remaifiing statutory claims, but found the plan unconstitu- tional under 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 (973), and Zimmer v. McKeithen, 485 F.2d 1297 (Sth Cir. 1973) (efi 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) 5a 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 preceding page) S.Ct. $92, 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 decisively 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 Suprerne 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 IJ. See note 1 supra. In Nevett IT 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 vy. 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 underlying 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. 512,54 L.Ed.2d 454 (1977). 7a hehind 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 tempoiary 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, ____ U.S. __, 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 IJ, 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 (5th 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 “will 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, ___ —ULS. ___, 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 I, 571 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. : 7 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- feller, 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 IT, 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 Nevert 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 maior 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 ewidence adduced under the Zimmer criteria in this case. We think that the district court has properly conducted the “‘sensitive inquiry into such circumstantial 15a and direct evidence of intent as may be available”’ that a court must undertake in “[d]jetermining 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 vy. 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. l6a 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 local 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 fifteentii 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). 3 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 IT), 571 F.2d 209, with which this case is consolidated. sition numbered 1 (or position numbered 2, or position numbered 3, as the case might be) of the«city (or town) of...... 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If more than one office is to be filled, the tickets shall be extended so as to likewise present the names of the candidates for the other offices. Each qualified elector may ‘ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0012%3A01. Public record. Not legal advice.