Supplemental Brief — Mobile v. Bolden

FOR ARGUMENT

Supreme Court, U.S.

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SL:RUDAK, JR., CLE

IN THE |

Supreme Court of the Anited States

OCTOBER TERM, !979

No. 77-1844

CITY OF MOBILE, ALABAMA, et ai.,

Appellants,

v.

WILEY L. BOLDEN, et ai.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

SUPPLEMENTAL BRIEF FOR THE

APPELLANTS ON REARGUMENT

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

1000 Connecticut Avenue, N.W.

Suite 800

Washington, D.C. 20036

October 1979 Counsel for Appellants

Washington, OC. « CLB PUBLISHERS e LAW PRINTING CO. @ (202) 393.0625

a ee he Gi dae bo ois sy ees ose. 2

I. MOBILE’S COMMISSIONERS DO NOT

MAINTAIN THE CURRENT FORM OF

CITY GOVERNMENT FOR THE PUR-

POSE OF INHIBITING BLACK ELEC-

poe Re, ne 3

Il. AREMEDY NOT MERELY MAINTAIN-

ING, BUT CHANGING MOBILE’S EN-

‘TIRE GOVERNMENT TO GUARANTEE,

PROPORTIONAL REPRESENTATION

BY RACE IS NECESSARY HERE UN-

LESS THE JUDGEMENT IS REVERSED........ 8

en RE roy are eee en as aa isis 14

TABLE OF AUTHORITIES 4

Cases:

Aranda v. Van Sickle,

I Se SI ee ene Re 7

Beer v. United States,

a I a i eer 4

City of Dallas v. United States,

C.A. No. 78-1666 (D.D.C.), pending.............. 12,13

Columbus Board of Education v. Penick,

ES A 8

Mt. Healthy Board v. Doyle,

SF es oo eee PETER awh eRe wei sewacresves’ Y

Nevett v. Sides,

SPS Dee I ok de eae aes ra ks Meee a es daces 2,6,9

Personnel Administrator v. Feeney,

De, Se reso hacidawcdbevvesesanes 7

(ii)

Sandstrom v. Montana,

Pe LO, BO BOE vie cep uvy varus cveenes vac’ 7

United Jewish Organizations v. Carey,

SS eis k vind S4-D 6k GEG tie vals see ios 4

Village of Arlington Heights v. Metropolitan

Housing Devel. Corp.,

ee 7

Washington v. Davis,

COV ri in sary ueehd eb 6% 3,7

White v. Regester,

ay toh oak a bulls inawecciccae eck. 3,13

Williams v. Brown,

Bee Vetere, WN MONEE. THEE oii ccs casccedeces |

Wise v. Lipscomb,

ee Gan chs beh sox Case's hwcw-ce eye oie 12

Zimmer v. McKeithen,

Oh ek Os Naas ais b's bey 00 4,8

Miscellaneous:

Anti-Defamation League of B’nai B’rith, Brief as Amicus

Curiae in Fullilove v. Kreps, No. 78-1007............. 12

Brest, Palmer v. Thompson: An Approach to the Problem of

Unconstitutional Legislative Motive, 1971 Supreme

SETS SoS Sh ee 9

Int'l City Mgmt Ass’n, The Municipal Year Book 1979 .... 13

Sutherland, Statutes and Statutory Construction (4th ed.).... 5

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

No. 77-1844

CITY OF MOBILE, ALABAMA, et ail.,

Appellants,

WILEY L. BOLDEN, et ai.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

SUPPLEMENTAL BRIEF FOR THE

APPELLANTS ON REARGUMENT

SUPPLEMENTAL BRIEF FOR THE

APPELLANTS ON REARGUMENT

Appellants, Appellees and the United States as amicus

variously state the questions presented in this case, which is

tc be reargued in tandem with, but not consolidated with, a

case involving the partisan elections of the Mobile County

School Board.! This brief on reargument is submitted to call

attention to events occuring since the original argument of

'Williams v. Brown, No. 78-357.

2

this City of Mobile case in the spring of 1979. These events

bear on two of the questions presented: (1) the quality of

proof of discriminatory intent necessary to invalidate on

Fourteenth Amendment grounds Mobile’s Commission

form of government which has existed without material

change since 1911; and (2) the propriety of a judge-made

remedy gerrymandering the City into wards and writing a 63-

page charter of government for the sole purpose of

guaranteeing and maintaining proportional representation

for the black race.

ARGUMENT

These are the only two questions necessary to the decision

of this case. Appellees? and amici’ are eager to raise claims

based on the Fifteenth Amendment and the Voting Rights

statute. However, the Court of Appeals below held that the

Fifteenth Amendment required a showing of discriminatory

intent indistinguishable from that necessary to satisfy the

Equal Protection Clause of the Fourteenth Amendment;‘

there has been no cross-appeal of that holding. The District

Court below refused to hold in favor of plaintiffs on any of

their several statutory claims. The Court of Appeals below

affirmed that decision,‘ and, again, no cross-appeal has been

taken. This leaves only Appellees’ Fourteenth Amendment

claim for disposition by this Court.

*Brief for Appellees, p. 2 (Questions Presented, no. 3).

*Brief for the United States as Amicus Curiae, p. 2 (Questions

Presented, no. 2).

*Pet., p. 2a, n. 1 (571 F.2d 238, 241 n. 1), incorporating opinion in

Nevett v. Sides, 571 F.2d 209, 221. Nevett is pending certiorari here, as

No. 78-492.

_ See Pet., p. 4a, n. 3 (571 F.2d 238, 242 n. 3).

3

Appellants therefore submit that the newly decided cases

discussed below support their position first raised on the

original argument respecting the intent and remedy issues,

and that these intervening events counsel even more strongly

the reversal of the judgment below.

I.

MOBILE’S COMMISSIONERS DO NOT

MAINTAIN THE CURRENT FORM OF

CITY GOVERNMENT FOR THE PURPOSE

OF INHIBITING BLACK ELECTORAL

PARTICIPATION.

The Court of Appeals below held that intent to

discriminate was an essential element of a Fourteenth

Amendment claim of vote dilution.* Several alternatives

were open to the Court in fixing intent on the record of this

case. The Court made these choices.

The Court held that the intent of the Alabama legislature,

rather than that of the City Commissioners, the only

defendants here, was the relevant intent.’ The Court made no

attempt to reconcile its focus on the legislators in

Montgomery for this purpose, with its focus on Mobile’s

Commissioners for all other purposes. The Court retained as

*The Court of Appeals then “harmonized” the entire corpus of its

voting cases decided prior to Washington v. Davis, 426 U.S. 229

(1976), and interpreted White v. Regester, 412 U.S. 755 (1973) to have

included an implicit finding of discriminatory intent. See Nevett, supra,

571 F.2d 209, 219 n. 13.

"Pet., pp. 14a (571 F.2d 238, 246) and 28b-30b (423 F. Supp. 384,

397).

4

good law its Zimmer* analysis, which, applied here, inquired

into the City Commissioners’ appointments,® employment, '°

paving and drainage"! and citizen complaint” activities.

Second, the Court held that an intent to discriminate was

proved by the failure of the Alabama legislature, sua sponte,

to change Mobile’s Commission form of government to a

mayor-council form elected from districts. This, we refer to

as ‘“‘maintenance intent”. The Court nonetheless affirmed

the finding and conclusion that Mobile’s preference since

1911 for at-large Commission elections was a legitimate

means of insuring city-wide representation, and that the

Appellees had not satisfied their burden of proving that the

governmental policy in favor of at-large elections was

tenuous. '’

Finally, the Court held that Alabama’s maintenance

intent was adequately proved by the tort method: that an

actor intends the predictable consequences of his actions. As

applied here, the tort must have been that a government

which maintains a form of government for 68 years must

intend the predictable consequences of maintaining the

status quo.'*

Zimmer v. McKeithen, 485 F.2d 1297 (Sth Cir. 1973) (en banc),

affirmed (‘without approval of the constitutional views expressed’) sub.

nom, East Carroll Parish School Board vy. Marshall, 424 U.S. 636

(1976).

*Pet., p. 6b (423 F. Supp. 384, 387).

Pet., p. 11b (423 F. Supp. 384, 389).

"'Pet., p. 15b (423 F. Supp. 384, 391).

"Pet, p. 17b (423 F. Supp. 384, 392).

'SAs the District Court below found, a Commission government could

not be elected by districts. Pet, 5b (423 F. Supp. 384, 387).

“Compare United Jewish Organizations v, Carey, 430 U.S. 144, 162

(1977) (plurality opinion) (government may change status quo to

guarantee proportional representation by race) with Beer v. United

(continued)

5

Some comments concerning the first two choices of the

Court of Appeals in divining a discriminatory intent are in

order.

First, the choice of the Alabama legislators, rather than

the City Commissioners, was jurisdictional and substantive

error. This is not a suit to invalidate the Commission form of

government throughout Alabama, or to remove the Alabama

legislative authorization for cities, on a local option basis, to

organize themselves according to the Commission form.'*

Indeed, under the “‘redemption”’ of the Zimmer factors in the

companion Nevett opinion, it is unlikely that any court in the

Fifth Circuit could entertain a suit challenging the organiza-

tion of local governments on a state-wide basis; each city

must be considered on its facts. No State legislator or official

was sued here.'® The only defendants were the three Mobile

City Commissioners. Theirs is the relevant intent, and it is

most appropriately demonstrated by the Commissioners’

(footnote continued from preceding page)

States, 425 U.S. 130, 136 n. 8 (1975) (Constitution does not require

government to change status quo so as to guarantee proportional

representation by race).

'SAppellees devote pages 25 to 33 of their Brief to a demonstration,

from the federal jurisprudence involving Alabama, that plaintiffs alleging

invidiously motivated state action know how to obtain proper jurisdiction

over state officials.

‘The evidence of legislators’ intent consisted of the testimony of a

sponsor of a pending bill concerning the traditions and habits of the

legislature, as well as his recollection of the comments of other legislators

outside the chamber. See I Appendix, pp. 248, 254. {na more traditional

legislative intent case, where the intent of the legislature is clearly

relevant, this record would not do to prove intent. See 2A Sutherland,

Statutes and Statutory Construction § §48.16 and 48.17 (4th ed. C.

Sands 1973).

Here, the proffered explanation was not of the meaning of a statute, but

the meaning attending the absence of a statute changing the status quo.

6

activity in electoral campaigns. '’

Having held it proper to ignore the intent of campaigning

Commissioners, neither Court below made the findings

which the unrebutted record of testimony compel:'* that the

plaintiffs and other black community leaders in the City, who

have never run for Commissioner, participate in the electoral

system by endorsing candidates and collecting the cor-

responding political debts after election day by influencing

municipal policy. No less self-serving than the testimony of

these black leaders was the unrebutted testimony of the

Commissioners that they campaigned actively for the black

vote and fully recognized the effective marshalling of that

vote by the plaintiffs. No one can say on the record of this

case that a black candidate who would have been elected

from a black-majority district was defeated in or by the at-

large electoral system. '?

"See Nevett, 571 F.2d 209, 222:

‘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 par-icipating

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 accountable.”

'8See Brief for the Appellants, pp. 6-10.

''The only 3 black candidates for Commissioner failed to carry the

areas populated by blacks according to the census tracts. Pet., p. 8b(423

F. Supp. 384, 388).

Prediction of a white backlash,see Pet.,p. 8b(423 F. Supp. 384, 388),

if a qualified black were to run for a Commission seat is just that, a

prediction. Moreover, it is the product of a school of voter psycho-

analysis which also save us the headline ‘“*‘ Dewey Defeats Truman.” The

historical facts are that a qualified black can be elected at-large in a black

minority city. See Briet for the Appellants, p. 11 n. 14 (examples from

Detroit, Newark, East Orange, Berkeley, Richmond (California), Los

Angeles, Atianta, Raleigh, Richmond (Virginia), New Orleans and

Birmingham.

7

Second, proof of discriminatory intent by maintenance of

the status quo has been rejected recently. Aranda v. Van

Sickle, 600 F.2d 1267 (9th Cir. 1979). Having rejected the

argument that the failure of the city council to submit a

districting plan to the electorate was intentional discrimina-

tion, the Court in Aranda found the only evidence of vote

dilution remaining to be the dismal failure of minority

candidates in elections over 25 years. That showing was

insufficient, and compelled summary judgement for the city.

600 F.2d at 1275 (Kennedy, J., concurring.)

We have argued that the third choice of the Court of

Appeals, the tort theory of intent, is inconsistent with

Washington v. Davis and its progeny, such as Arlington ©

Heights.*! The Feeney case last Term lends additional

support to the rejection of the tort theory.

In Personnel Administrator v. Feeney, No. 78-233,” Ms.

Feeney challenged a preference in public hiring given to

veterans, citing the disproportionate representation of

women among veterans. Focusing on the positive re-

enactments of the preference (not merely a failure to rescind

earlier legislation), the Court in terms rejected the tort

method of proof.’’ Here, as there, ““‘discriminatory purpose’...

implies more than intent... as awareness of consequences. It

implies that the decisionmaker . . . selected or reaffirmed a

particular course of action at least in part ‘because of,’ not

merely ‘in-spite : its adverse effects upon an identifiable

group. Sis °

20426 U.S. 229 (1976).

Village of Arlington Heights vy. Metropolitan Housing Devel.

Corp., 429 U.S. 252 (1977). :

299 S. Ct. 2282.

?3See slip op., p. 13, No. 78-233 (Jun. 5, 1979).

**Feeney, supra, slip op., pp. 21-22.

See also Sandstrom v. Montana, No. 78-5384 (99 S. Ct. 2450), slip

op., pp. 11-13 (June 18, 1979) (criminal instruction based on tort proof

of intent, unconstitutional).

&

The finding and conclusion of the governmental interest of

Mobile in retaining the functional specialization and city-

wide representation attending at-large Commission elections

forecloses, under Feeney, a holding of discriminatory

electoral! intent. For, unlike the case in Columbus Board of

Education v. Penick,** “‘adherence to a particular policy. . .

‘with full knowledge of the predictable effects... upon racial

imbalance’ ’”’ was not “ * one factor among others. . . in

determining whether an inference of segregative intent

should be drawn.’ ’’* Here, the tort inference was the only

factor supporting the finding of purposeful maintenance of an

at-large Commission government.

II.

A REMEDY NOT MERELY MaAIN-

TAINING, BUT CHANGING MOBILE’S

ENTIRE GOVERNMENT TO GUARAN-

TEE, PROPORTIONAL REPRESENTA-

TION BY RACE IS NECESSARY HERE

UNLESS THE JUDGEMENT IS_ RE-

VERSED.

The desideratum of both courts below was to create for

Mobile an electoral plan in which votes would be counted not

for candidates, but for racial interests. At-large elections

conform perfectly to one-person — one-vote. Where a

change to at-large?’ is proved to have been racially

motivated, an appropriate remedy is to undo the change.*®

*SNo. 78-610 (99 S.Ct. 2941) (Jul. 2, 1979).

Penick, supra, slip op., p. 13, No. 78-610.

"See, e.g., Zimmer v. McKeithen, 485 F.2d 1297, 1301 (5th Cir.

1973) (en banc).

®This is the office of the Voting Rights Act, which is not applicable

here, and whose applicability is not presented by any cross-appeal. See

footnote 5 supra.

9

Here, there is no change to undo. We have addressed the

inappropriateness of holding that maintenance of an at-large

system without any change or any other electoral act(such as

campaigning against black support or black interests and

maintaining the at-large system to preserve effective power

to do so with electoral impunity) requires that the system be

changed. “°

But, beyond the liability phase of this litigation, the

creation of a remedy for the sole purpose of counting votes so

as to guarantee representation of special interests, racial or

otherwise, is frought with dangers, both practical and

constitutional.

Both courts below had this remedial goal: to “‘provide

blacks a realistic opportunity to elect blacks to the city

governing body.’’*° But, the proof had shown no meritorious

black candidate to have offered himself for election. The

remedial goal is one of guaranteeing the representation of a

?9An article by Paul Brest has been cited by the Court below on the

intent question. Nevett, 571 F.2d 209, 224 nn. 20, 22; and 571 F.2d at

233 n.1 (Wisdom, J., concurring specially).

Brest also addresses the remedy problem in a way which distinguishes

maintenance intent from action intent. He points out that the evil of an

illicitly motivated decision is to rob the governed of a proper official

assessment of the factors governing a decision to act. The proper remedy

is to invalidate the illicit decision, forcing the official to decide properly.

Brest, Palmer v. Thompson: An Approach to the Problem of

Unconstitutional Legislative Motive, 1971 Sup. Ct. Rev. 95, 116-18.

Here, the assertedly illicit conduct of the government officials was to

fail to guarantee proportional representation by race, a desideratum no

decision of this Court requires. By finding and concluding a strong

governmental interest in the at-large system, the courts below have

already conceded that maintenance of the at-large system was a proper

course of conduct. See Mt. Healthy Board v. Doyle, 429 U.S. 274, 285-

87 (1977).

*Pet., p. 42b (423 F. Supp 384, 403).

10

black interest — however that is to be determined — by any

candidate who is black. But, beyond the offensive notion that

a candidate should be favored in spite of, rather than because

of, his qualifications, administration of the remedy will

provoke troubles which should not lightly be unleashed.

We have pointed out before that the presumption that any

black is better able to represent black interests than is any

white, is not a presumption shared by all political scientists

who have studied the jurisdictions. *'

Moreover, the remedial order dilutes black political

power in Mobile. Blacks in Mobile, including Appellees,

filled this record with their many visits to the Commissioners

and how effective those visits had been in securing fulfillment

of black needs. Now blacks meet with Commissioners who

can “‘do it all” in that they are clothed with all the executive

and legislative power the City of Mobile has under state law.

Blacks under the orders of the Courts below get 3

guaranteed black, part-time, poorly paid representatives in a

9-person legislative council. These new black representa-

tives are required to meet one time per week for a few hours.

They are provided no staff. Why should the 6-person white

council majority do very much for the blacks who cannot vote

them in or out of office?

To be blunt about it, blacks lose the “clout” they now

testify they have due to their votes and the electoral

participation of Appelles other than by standing election, and

through which they now get their needs met. Under the

District Court’s plan and order they get an almost powerless

and almost worthless 3 out of 9 votes. What can the 3 court-

ordered black district councilmen do for their segregated

district in a city legislative body where 6 other councilmen

are there to represent whites only?

*'Brief for the Appellants, pp. 32-33.

1]

Instead of guaranteeing blacks “‘effective participation”’ in

Mobile’s political processes, the court orders below herein

effectively strip them of that “guarantee.” Those orders

effectively dilute that participation. In sum, the lower courts

destroy a system of government that serves blacks much

better than the 3 guaranteed blacks out of 9 on the court-

ordered council can possibly serve them. If dilution of

political access and participation and power is the true

constitutional test, then one must conclude the court orders

are flagrantly misrepresented if claimed to be an enhance-

ment of black rights. Reasonable analysis proves the

opposite is true.

We have pointed out that a single-member district plan

maximizes guaranteed black representation — even if it were

to be effective representation — only where blacks constitute

a residentially segregated minority.** If Mobile becomes a

black majority city, guaranteed representation by race for

blacks would be maximized by returning to at-large elections

in which the majority could vote as a racial block for each

candidate in the City. Perhaps, in that event, the courts

would entertain a suit by whites or some non-black minority

claiming that their rights to proportional representation by

race require a district plan.

At the same time, if blacks achieve the goal of the melting

pot and of the several federal community development

programs, the goal of residential integration, then the single-

member district remedy will no longer serve them as well. If

blacks become truly integrated, it will not serve them at all.

Therefore, a court conscientiously attempting to

guarantee and preserve a remedy of proportional repre-

sentation by race will have to keep abreast of these trends.

Id., p. 31.

12

The court will have to identify citizens by race,*’ and

determine where they live. The court will have to satisfy itself

that the goal of continued black electoral success is indeed

working to inhibit residential racial integration. Then, the

court can retain electoral districts. But, as people move, the

court must redraw the districts if it is to perpetuate the

guarantee of the holding of the courts below.

These considerations are not fanciful, as proceedings in

a currently pending case in this city illustrate. At the Term

before last, this Court held Dallas’ mixed single-member

district and at-large plan for electing city councilmen to be

constitutional as a legislative plan.** Thereupon, Dallas filed

suit in the District of Columbia under § 5 of the Voting Rights

Act to have the plan approved.** Blacks and Mexican-

American groups intervened. Blacks wanted either 11 single-

member districts or a redrawing of lines for the 8 districts

extant, a remedy neither unexpected (given the degree of

black residential segregation) nor catastrophic to the

governance of Dallas. The Mexican-Americans, on the

other hand could not so easily profit from the drawing of

>3See Brief of Anti- Defamation League of B’nai B’rith, Amicus Curiae,

pp. 6-12, in Fullilove v. Kreps, No. 78-1007 (statutory preference for

“citizens... who are... Negroes. . .”” unconstitutionally arbitrary, vague

and overbroad) (citing cases of disputed racial identity).

That the remedy in this case is a judicial one assertedly compelled by

the Constitution while the statute in Fullilove is a congressional remedy

assertedly compelled by the Constitution, makes no less applicable these

words (Anti-Defamation League Brief, pp. 9-10):

“Moreover, stamping the imprimatur of the Federal government

upon a particular racial or ethnic definition. . . calls to mind

notorious attempts by other governments to define racial or ethnic

groups [and] establishes the government as a sort of racial

Inquisition, even if for a benign purpose.”

Wise v. Lipscomb, 437 U.S. 535 (1978).

City of Dallas v. United States, C.A. No. 78-1666 (D.D.C., filed

Sep. 5, 1978).

13

district lines; constituting only 10% of the city’s population,

they are well dispersed within Dallas.** Claiming the same

abuse of dilution, and the same right to a remedy as

Appellees here, the Mexican- Americans in Dallas urged the

court to create 20 districts so that they might have a majority

in one of them.*’

A 20-member council is beyond the point at which a

reviewing court can approve a remedy as reasonable.**

Indeed, the ward-heeling of large single-member councils is

precisely the reason for the establishment of Mobile’s

Commission form in 1911.%9

**The Dallas City demography was part of the Dallas County

re sag presented to this Court in 1973 as White v. Regester, 412

S. 755.

Pies ani of Facts, Nos. 32-34, City of Dallas, supra (filed Jul. 18,

1979).

**Twelve percent of mayor-council cities, and 0.2% of council-

manager cities have councils of 16 or more members. Int’] City Mgmt.

Ass’n, The Municipal Year Book 1979, p. 100 (Table 4/3).

**See Jurisdictional Statement, p. 10.

14

CONCLUSION

We have reached the point in America where the qualifi-

cations of candidates rather than the color of their skin

determine elections. We urge that this Court so hold and in

doing so uphold Mobile’s Commission form of government

with its at-large elections. Thus will the people in Mobile

continue to choose to vote on a candidate’s qualifications as

will the voters who reside in 67% of our cities which now

have elections at-large. This is real equality: one person, one

vote. That is what the Constitution requires. All voters are

entitled to that equal vote and now get it in Mobile. The

court-ordered 6-white 3-black district plan dilutes the black

vote rather than enhancing it. So, on the record and remedy

of this case, ifthe black Appellees win in thig Court, they lose

political and electoral power in Mobile.

Respectfully submitted,

C.B. ARENDALL, JR.

WILLIAM C. TIPWELL, 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

MARTIN W. MATZEN

1000 Connecticut Avenue, N.W.

Suite 800

Washington, D.C. 20036

October 1979 Counsel for Appellants’