Appendix — Nevett v. Sides

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No. 73- 49 2

REV. CHARLES H. NEVETT, et al., etc.,

Petitioners,

versus

LAWRENCE G. SIDES, et al., etc.,

Respondents.

APPENDIX TO THE

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Supreme Court, U. 8

FILED

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| MICHAR RODAK, JR., CLERK

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TABLE OF CONTENTS

Page

Opinion of the United States Court

of Appeals of March 29, 1978

EE Me re ae ee kk neue a 1

Opinion of the United States

District Court of June ll,

L776 (Mevett B)....ccce Pree res 59

Concurring opinion of Judge Wisdom.. 65

Opinion of the United States Court

of Appeals of June 8, 1976

(Nevett Eee SPS V SLUG RSS 0s a be eces0 O8

Opinion of the United States Dis-

trict Court of February 20 and

May 24, 1976 (Nevett MP e600 60000 802

Order of the United States Court

of Appeals of June 30, 1976,

denying rehearing and refusing

to review the findings of the

District Court on remand. ....+.-142

Alabama Code, §11-43-40 ti, |) Po

Reverend Charles H. NEVETT et al., In-

dividually.and on behalf of all others

similarly situated, Plaintiffs-Appellants,

i Vv.

Lawrence G. SIDES, Individually and in

his capacity as Mayor of Fairfield,

Alabama, et al., etc., Defendants-

Appellees.

; No. 76-2951.

United States Court of Appeals, Fifth

Circuit.

March 29, 1978.

Rehearing and Rehearing En Banc Denied

May 25, 1978. .

Appeal from the United States District

Court for the Northern District of Alabama.

Before WISDOM, SIMPSON and TJOFLAT,

Circuit Judges.

TJOFLAT, Circuit Judge:

This is the first of four consolid-

ated cases we decide today. In all of them

1. The other cases are Bolden v. City of

Mobile, 571 F.2d 238 (Sth Cir. 1978); Blacks

United for Lasting Leadership, Inc. v. City of

Shreveport, 571 F.2d 248 (5th Cir. 1978); Thomas-

ville Branch of the v. Thomas County, 571

F.2d 257: (5th Cir. 1978).

black voters challenge municipal election

schemes that provide for the at-large elec-

tion of certain city officials. The grava-

men of their claims is that the black vote

in each of the municipalities is submerged

in an unnecessarily large, city-wide elec-

torate and consequently that they are un-

constitutionally deprived of their right to

effective political participation in each

of these cities.

Black residents of Fairfield, an

industrial suburb of Birmingham, Alabama,

brought this action to strike down their

city's municipal election system, which

provides for the at-large selection of a

city council president and city council-

men. “ These plaintiffs (appellants here)

claim that Fairfield's ‘at-large system, as

applied, acts to dilute their voting power

in violation of the fourteenth and fif-

teenth amendments to the Constitution. >

2. This case is before us for the second

time. The first panel reversed and remanded the

district court's judgment for the black residents.

Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976). On

remand, the district court rendered judgment in

‘favor of the city, and the black residents took

this appeal.

3. These plaintiffs brought suit under the

authority of 42 U.S.C. §§1981 and 1983 (1970).

(Footnote continued on next page)

MBit tein, Soca

A council consisting of twelve alder-

men and a president governs the City of

Fairfield. State law allows cities the

size of Fairfield, which had a population

of 14,369 in 1970 (48 percent of which was

black), to divide themselves into wards

for the purpose of city government.

(Footnote continued from preceding page) _

Record, yol. 1, at 1. They allege no additional

statutory violations. Therefore, this case does

not present the issue, discussed at length in

Judge Wiscom's special concurrence, whether

Congress intended in the Voting Rights Act to go

beyond the protection provided by the Constitution

and invalidate at-large voting schemes, like that

of Fairfield, that are not illicitly motivated.

See part II infra.

4. The applicable statute is Ala.Code tit.

37, §426 (Supp. 1973). It has remained substan-

tially unchanged, except for the specific popula-

tion categories, since its original enactment in

1909. Section 426 provides as follows:

Election of president of council and alder-

men.--In cities having a population of

twelve thousand or more, there shall be

elected at each general municipal election

the followino officers, who shall compose the

city council for such cities, and who shall

hold office for four years and until their

successors are elected and qualified, and who

shall exercise the legislative functions of

city government and any other powers and ©

duties which are or may be vested by law in

the city council or its members: A president

of the city council, and in cities having

seven wards or less, two aldermen from each

ward, to be elected by the qualified voters

(Footnote continued from preceding page)

of the several wards voting separately in every

ward, except in cities of less than twenty thou-

sand population, in which two aldermen from each

ward shall be elected by the electors of the city

at large, in cities having more than seven wards,

one alderman from each ward, and a sufficient number

of aldermen from the city at large to make the

total number of aldermen fourteen exclusive of the

president of the council, and in cities having fifty

thousand population or more the city council may

create not exceeding twenty wards. The president

of the council shall have the right to vote on all

questions the same as any other member of the

council. Provided however, that the city council of

any city having a population of twelve thousand or

more may by ordinance or resolution, if adopted

kr two-thirds vote of the city council more than six

months prior to any general mmicipal election,

provide that the city council of said city shall con-

sist of five aldermen to be elected from the city

at large. And provided further, that the city coun-

cil of any city having a population of more than

thirty thousand, according to the last or any sub-

sequent federal decennial census, or according to

any census of such city made pursuant to article 3

of chapter 10 of this title, or Act No. 845 of the

Acts of 1953 (sections 481(1) and 481(2) of this

title,) and having only five wards, may, by ordin-

ance or resolution adopted by two-thirds vote of the

city council, at least six months prior to a general

municipal election, provide that the city council

shall consist of a president and five aldermen. If

such an ordinance or resolution is adopted one al-

derman shall reside in each of the respective wards

of the city, the president and all the aldermen

shall be elected by the voters of the city at large,

and the president shall vote only in case of a

tie.

Cities may choose the number of wards and

thereby determine whether the aldermen (who

must reside in their respective wards) are

elected at-large or separately from their

wards. Fairfield sectioned itself into six

wards and was thus required to elect at-

large two aldermen from each ward.>

Prior to 1968, no black had been

elected to the city council, but in that

year six of the seven black candidates suc-

ceeded. In 1972, none of the eight black

candidates were elected to the council. Ac-

cording to the district court, these dis-

parate election results can be attributed to

racially polarized voting by an electorate

in close and changing racial balance. ©

5. Neither the record nor the briefs indi-

cate when Fairfield opted to section itself into

Six wards. The state statute granting mmicipal-

ities the option of determining the number of wards

was originally enacted in 1909. 1909 Ala.Acts 100.

Since neither appellants nor appellees emphasized

the issue of when Fairfield exercised its option,

we will assume that at all times relevant to this

appeal Fairfield had six wards and elected its

aldermen at-large.

6. Population figures are not available for

the election years 1968 and 1972. In 1970, the year

of the decennial census, blacks constituted 48 per-

cent of Fairfield population but at least 50 percent

of its registered voters. See Nevett v. Sides, 533

F.2d 1361, 1365 n. 3 (5th Cir. 1976).

The complaint in this action was

filed on May 30, 1973, alleging that "such

absolute control of the city government by

one race" in an at-large setting worked an

unconstitutional dilution of black votes,

The case was tried on February 20, 1975, and,

after the consideration of voluminous evidence,

the district court ruled in favor of the

plaintiffs, dictated into the record its

findings of fact and conclusions of law, and

ordered the parties to file reapportionment

Plans by May 1, 1975. The parties submitted

Plans and a hearing was held to consider

them. The district court entered its final

judgment on June 6, 1975, ordering the city

divided into eight single-member council

districts but allowing the at-large election

of a city council president. / The judgment

was appealed, and on June 8, 1976, a panel

of this court vacated and remanded it, Nevett

Vv. Sides, 533 F.2d 1361 (5th Cir. 1976), for

failing to apply properly the voting dilution

Standards set forth in Zimmer v. McKeithen,

485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd

sub nom. East Carroll Parish School Board v.

7. The district court's original findings

of fact and conclusions of law are reported as

appendices to our prior opinion, Nevett v. Sides,

533 F.2d 1361, 1366-76 (5th Cir. 1976).

iach

Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47

L.Ed.2d 296 (1976) ,° where we enunciated a

set of factors that when established in the

aggregate, are probative of unconstitutional

dilution.

The district court's error was that

having found "the various standards and

indicia prescribed by the appellate court

[not] helpful one way or the other," it

nevertheless held that the plan uninten-

tionally "does act to inhibit and has in-

hibited voting strength" and that "in prac-

tice it has worked that way." We held this

finding insufficient to support a conclusion

of unconstitutional dilution. A finding of

dilution, we noted,

must be based on the criteria that

the Zimmer and Wallace [v. House,

515 F.2d 619 (5th Cir. 1975),

vacated and remanded on other

rounds, 425 U.S. 947, 96 S.Ct.

i73L 48 L.Ed.2d 191 (1976)] courts

distilled from White v. Regester,

8. The Supreme Court affirmed, "but with-

out approval of the constitutional views expressed

by the Court of Appeals." 424 U.S. at 636, 96

S.Ct. at 1085. Notwithstanding, Zimmer continues

to control dilution cases in this circuit. Blacks

United for Lasting Leadership, Inc. v. City of

Shreveport, 571 F.2d 248, 251-252.

€i2 U.S. 755, 765-767, 33 8.Ct.

2332, 2339-2340, 37 L.Ed.2d

314, 324-325 (1973) and in

accordance with all later cases.

Unless those criteria in the

aggregate point to dilution,

i.e., if the criteria 'don't really

help', then plaintiffs have not

met their burden and their cause

must fail.

Nevett v. Sides, 533 F.2d at 1365.

On remand, the district court care-

fully reexamined its findings of fact (no

additional evidence was taken by the court)

and considered the Zimmer criteria with

specificity.”

The court ultimately con-

cluded that those findings did not demon-

strate an unconstitutional dilution of the

black vote in Fairfield. Judgment was en-

tered for the defendants on June il, 1976,

and the plaintiffs took this appeal.

In this appeal, the parties present

the following issues for our determination:

(1) whether a finding of intentional discrinm-

ination is required in a voting dilution

case brought by a racial group, (2) whether

the district court's findings of fact under

the Zimmer criteria are reversible, and (3)

whether the district court as a matter of

9. The district court's opinion on remand is

set forth in full in the appendix to this Opinion.

law correctly interpreted Zimmer and sub-

sequent relevant precedents. Since these

issues are complex and significant, we think

it appropriate to outline briefly how our

analysis will proceed.

In Part I we discuss the nature of

voting dilution cases and the legal prin-

ciples governing their determination.

This discussion provides the necessary back-

ground for Part II, where we examine the

first issue raised here, whether intentional

discrimination need be shown to make out a

case alleging dilution of the voting power

of a cognizable racial element. We hold

that a showing of intent is necessary to

establish such a case.

Our holding is based on consideration

of both the fourteenth and fifteenth amend-

ments. We determine that the recent

Supreme Court decision in Washington v.

Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.

2d 597 (1976), requires a showing of inten-

tional discrimination in racially based

voting dilution claims founded on the four-

teenth amendment. We conclude also that

the case law requires the same showing in

fifteenth amendment dilution claims. More-

over, we demonstrate that the dilution cases

6 enna apa

of this circuit are consistent with our

holding in this case. In particular, we

read Zimmer as impliedly recognizing the

essentiality of intent in dilution cases

by establishing certain categories of

circumstantial evidence of intentional

discrimination.

Having set out the relevant legal

principles, the focus of our discussion

shifts in Part III to the specifics of

this case. There we address and dismiss

appellants' contention that the district

court's factual determinations are clearly

erroneous. Finally, in Part IV we reject

appellants' argument that the court below

misinterpreted the dilution precedents of

this circuit. Consequently, we affirm the

judgment of the district court.

I. Voting Dilution

In describing voting dilution claims,

it is imperative at the outset, to dis-

tinguish the typical reapportionment case,

which presents the traditional "one person,

one vote" inquiry. See Reynolds v. Sims,

377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2da 506

(1964). In such a case, there are a number

of coordinate districts (e.g., state

DSR Patt DRS et E eet eed 4S

legislative districts), and voters in

larger districts allege that their votes

are devalued in comparison to those of

voters in smaller ones. The issue in a

typical reapportionment case, therefore,

is whether population deviations from the

average district are impermissibly large.

See, e.g., White v. Regester, 412 U.S. 795,

93 S.Ct. 2332, 37 L.Ed.2d 314 (1973);

Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct.

2321, 37 L.Ed.2d 298 (1973); Mahan v. Howell,

410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320

(1973). The comparison is one based purely

on population figures; no showing of

discrimination along racial, ethnic, or

political lines need be shown.

A case alleging violation of the one

person, one vote standard, based solely on

a mathematical analysis, may properly be

called a "quantitative" reapportionment

case. That an apportionment scheme satis-

fies the quantitative standard does not,

however, insure equality in all the aspects

of political representation. The hetero-

geneity of our society manifests itself in an

unequal distribution of interest groups;

racial and ethnic groups tend to be compart-

mentalized. Thus, even a districting plan

drawn without regard to the distribution of

—_

such groups may distort their relative vot-

ing strengths. And, of course, these under-

lying patterns present the opportunity for

subtle discrimination by the manipulation

of district lines. Such discrimination can

occur even if perfect population equality

exists. Cases alleging a distortion of group

voting power of this type have been termed

"qualitative" reapportionment cases be-

cause they focus "not on population-based

apportionment but on the quality of repre-

sentation." Whitcomb v. Chavis, 403 U.S.

124, 142, 91 S.Ct. 1858, 1868, 29 L.Ed.2a

363 (1971).

A familiar type of qualitative re-

apportionment case is one alleging gerry-

mander, the drawing of district lines to

fence out, e.g-., Gomillion v. Lightfoot,

364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2a 110

(1960), or slice up a compact interest

group, e.g., Kirksey v. Board of Supervisors,

5954 F.2d 139 (5th Cir.) (en banc), cert.

U.S. , 98 S.Ct. 512, 54 L.Ed.2a

454 (1977). Another, similar variety of

qualitative reapportionment case is the

denied,

dilution case, such as the one presented |

here. An at-large scheme operating to dilute

the voting efficacy of an interest group

does so by exploiting the tendency of large

districts to diminish what would be the

natural effect of residency patterns if

legitimate single-member districts were

employed instead. If the single-member

districts are small enough, a compact in-

terest group will constitute a majority in

some districts and will thus have the capa-

city to elect candidates sympathetic to its

needs. The large districts characteristic

of at-large plans tend to’submerge compact

groups in constituencies whose predominant

segments may be unsympathetic to the group

and its needs.

The Constitution,’ however, does not

demand that each cognizable element of a

constituency elect representaives in pro-

portion to its voting strength. White v.

Regester; Whitcomb v. Chavis; Kirksey v.

Board of Supervisors; Zimmer v. McKeithen.

Even consistent defeat of a group's candi-

dates, standing alone, does not cross

constitutional bounds. Whitcomb v. Chavis,

403 U.S. at 152-53, 91 S.Ct. 1858.

The issue in dilution cases, therefore,

is not whether a given group elects a min-

imum number of candidates, and the standards

are not different when, as here, the inter-

est binding the group is one of race. "[I]t

is not enough that the racial group alleg-

edly discriminated against has not had le-

gislative seats in proportion to its voting

potential." White v. Regester, 412 U.S. at

765-66, 93 S.Ct. at 2339. Rather, in the

absence of evidence that the at-large pro-

visions themselves were "conceived or op-

erated as purposeful devices to further

racial. . .discrimination," Whitcomb v.

Chavis, 403 U.S. at 149, 91 S.Ct. at 1872,

the inquiry becomes one of determining

whether the influence of a given racial

group has been distorted because its mem-

bers. have been denied equal access to politi-

cal processes such as party nominating pro-

cedures, registration, and, of course, voting.

See id. at 149-50, 91 S.Ct. 1858. As ex-

plained in White v. Regester, the only Su-

preme Court case to date that has struck

down an at-large scheme under a dilution

rationale,

[t]he plaintiffs' burden is to

produce evidence to support

findings that the political

processes leading to nomination

and election were not equally

open to participation by the

group in question--that its

members had less opportunity

than did other : sidents in the

district to participate in the

political processes and to elect

legislators of their choice.

White v. Regester, 412 U.S. at 766, 93

S.Ct. at 2339, (citing Whitcomb v. Chavis,

403 U.S. at 149-50, 91 S.Ct. 1858.)

In Zimmer v. McKeithen this circuit

explicated the tests established in Chavis

and Regester by enumerating certain factors

the district courts should consider to

determine whether a dilution case has been

made out. These criteria were designed to

guide the district court in the reception

of evidence by establishing certain inquiries

subsidiary to the ultimate issue of dilution.

The district court is to make a particular-

ized determination under each criterion and

then weigh its findings to ascertain whether

"in the aggregate" they point to dilution.

Hendrix v. Joseph, 559 F.2d 1265 (5th Cir.

1977); David v. Garrison, 553 F.2d 923, 929

(Sth Cir. 1977); Nevett v. Sides, 533 F.2d

1361, 1365 (5th Cir. 1976); Zimmer, 485 F.2d

at 1305.

The court in Zimmer established two

categories, one containing criteria going

primarily to the issue of denial of access

or dilution, the other containing inquiries

as to the existence of certain structural

voting devices that may enhance the under-

‘

lying dilution. The "primary" factors in-

clude: the group's accessibility to polit-

ical processes (such as the slating of

candidates), the responsiveness of repre-

sentatives to the "particularized interests"

of the group, the weight of the state policy

behind at-large districting, and the effect

of past discrimination upon the group's

participation in the election system. 485

F.2d at 1305. The "enhancing" factors in-

clude: the size of the district; the portion

of the vote necessary for election (major-

ity or plurality); where the positions are

not contested for individually, the number

of candidates for which an elector must

vote?®; and whether candidates must reside

in subdistricts. Id.

10. A provision requiring that each elector

cast votes for as many candidates as there are posi-

tions is known as an anti-single Slot rule. An

anti-single slot rule has application only in the

context of an electoral scheme that selects winners

by ranking all candidates in the order of the number

of votes they receive. If there are x offices, the

top x candidates fill them. This electoral scheme

is denominated the "single-ballot-plurality" voting

system. See R. Dixon, Democratic Representation:

Reapportionment in Law and Politics 05 (1968) ;

Silva, Relation of Representation and the Party System

to the Number of Seats Apportioned to a Legislative

District, 17 W.Pol.Q. 742 (1964). An anti-single

(Footnote continued on next page)

The following discussion demonstrates

that a finding of racially discriminatory

dilution under the Zimmer criteria raises

an inference of intent and, therefore, that

a finding under the criteria satisfies the

intent requirement of Washington v. Davis, 426

U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Be-

fore this discourse is set out, we will examine the

relevance of Davis to the voting dilution principle.

II. The Intent Requirement in

Voting Dilution Cases

In this part we explain and justify

our holding that to succeed in a dilution

case such as the one before us, a plaintiff

must show the at-large plan to be racially

(Footnote continued from preceding page)

shot rule invalidates all ballots that do not show

votes for as many candidates as there are positions.

Minority voters can be disadvantaged by such a

rule because it may force them to vote for non-

minority candidates, thus depreciating the relative

position of minority candidates.

The numbered position provision in force in

Fairfield, also known as a "place" rule, requires

candidates to choose one of a given number of posi-

tions and run for it. Thus, given x positions, it

is as if there were x separate district-wide con-

tests. The place system disadvantages minorities

by causing minority candidates to run in head-to-head

contests against majority candidates. See White v.

ster, 412 U.S. 755, 766, 93 S.Ct. 2332, 37

L.Ed.2d 314 (1973).

motivated. We begin with a discussion

of the applicability of the intent prin-

ciple to fourteenth amendment dilution

claims. Next, the applicability of the

principle to fifteenth amendment claims

is discussed. Finally, we harmonize our

holding with the case law of this circuit

by demonstrating that Zimmer and its pro-

geny establish sufficient conditions for

a finding of intentional discrimination.

A. Intent in Fourteenth Amendment

Dilution Claims

We start with a reiteration of the

principle expounded by the Supreme Court

in Davis. Where official action is rac-

ially neutral on its face, courts must

adhere "to the basic equal protection

principle that the invidious quality of

a law claimed to be racially discrimina-

tory must ultimately be traced to a

racially discriminatory purpose." 426

U.S. at 240, 96 S.Ct. at 2048; accord,

United States v. Texas Education Agency,

5964 F.2d 162, 165-66 (5th Cir. 1977). The.

Court restated this teaching in Village

of Arlington Heights v. Metropolitan Hous-

ing Development Corp., 429 U.S. 252, 265,

97 S.Ct. 555, 563, 50 L.Ed.2da 450 (1977):

"Proof of racially discriminatory intent

Or purpose is required to show a viola-

tion of the Equal Protection Clause."

The language of Davis and Arlington

Heights appears to establish intent as a

prerequisite of universal applicability

to fourteenth amendment claims of racial

discrimination. 2 For appellants to suc-

ceed in their assertion that racially

discriminatory intent need not be shown in

dilution cases, we must find such cases

exempt from the general principle enun-

ciated in Davis and Arlington Heights. We

do not so find.

It is readily apparent that voting

dilution cases are quite typical of trad-

itional fourteenth amendment cases. Here

the appellants challenge legislation

establishing at-large districting, a prac-

tice racially neutral on its face, as dis-

criminatory in its effect: blacks do not

ll. Since the four cases we decide today

allege dilution of black votes, our holdings

are necessarily limited to cases entertaining

claims of racial discrimination.

elect their proportionate share of the

city council. In Davis, the plaintiffs

attacked a written personnel test, itself

devoid of racial overtones, that had the

effect of failing four times as many blacks

as whites. And in Arlington Heights,

blacks challenged a zoning ordinance pro-

hibiting multi-family development, again a

neutral provision, that resulted in the

virtual exclusion or racial minority groups.

The plaintiff* failed in both of these

latter cases because they had not shown the

official action to be racially motivated.

Simply put, "[p]roof of a racially dis-

criminatory intent or purpose is required

to show a violation of the Equal Protection

Clause."

The language of the Court in Davis

and Arlington Heights is unambiguous and

admits of no exception. Analytically, no-

thing about at-large districting legislation

Suggests that it should be treated differ-

ently from any other manifestation of of-

ficial action that may impact groups of

people differentially. This observation

is substantiated by the reliance of the

Court in Davis and Arlington Heights upon

Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct.

603, ll L.Ed.2d 512 (1964), a case that

en aa

eee. ar

rar ee

PDE GEO EF a ee 0

entertained an allegation that New York's

congressional apportionment plan was a ra-

cial gerrymander.

In Davis and Arlington Heights, the

Court buttressed its holdings by referring

to Wright and other fourteenth amendment

cases that held intentional discrimination

necessary. The Davis opinion contains the

following discussion:

The rule is the same in other

contexts. Wright v. Rockefeller,

376 U.8. 52; G4 8.Ct. 603, Li

L.Ed.2d 512 (1964), upheld a New

York congressional apportionment

statute against claims that dis-

trict lines had been racially

gerrymandered. The challenged

districts were made up pre-

dominantly of whites or of

minority races, and their boun-

daries were irregularly drawn.

The challengers did not prevail

because they failed to prove

that the New York legislature

‘was either motivated by racial

considerations or in fact drew

the districts on racial lines';

the plaintiffs had not shown that

the statute 'was the product of a

state contrivance to segregate

on the basis of race or place of

origin.’ 376 U.S. at 56, 58, 84

S.Ct. at 605, 11 L.Ed.2d at 515.

The dissenters were in agreement

that the issue was whether the

"boundaries. . .were purposefully

drawn on racial lines." 376 U.S.

at 67, 84 S.Ct. at 611, 11 L.Ed.2da

at. 322.

426 U.S. at 240, 96 S.Ct. at 2047; accord, in the electoral process. An unconstitu-

Arlington Heights, 429 U.S. at 265, 97 tional gerrymander violates this right by

S.Ct. 555. compartmentalizing or fencing out a group,

This very recent reaffirmation of | e.g., Gomillion v. Lightfoot, 364 U.S. 339,

the holding in Wright leaves no doubt that 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), or by

a showing of intent is a necessary element slicing up a compact minority, e.g., Kirksey

in a case alleging a racial gerrymander.*? v. Board of Supervisors, 554 F.2d 139 (5th

We see no distinction that would call for Cir. ) (en banc), cert. denied, U.S.

different constitutional requisites ina __- 98 S.Ct. 512, 54 L.Ed.2d 454 (1977);

racial gerrymander case than in a voting Robinson v. Commissioners Court, 505 F.2d

dilution case such as this. The right , 674 (Sth Cir. 1974). An invidious at-large

allegedly infringed is the same in both con- scheme merely achieves the same end, denial

texts: the right to effective participation of effective participation by submerging an

. 12. That a districting scheme is motivated interest group in a constituency large enough

a oe a ee ogoenn icnaama and polarized enough to place that group in

tection clause. A districting body may properly the minority consistently.

consider race if the plan does not "slur or

stigma[tize]" any race and does not "fence out" a

That the constitutional tests should

racial group from participation in political be the same whether the right to an equally

processes or "minimize or unfairly cancel out" effective vote is denied by drawing district

such a group's voting strength. United Jewish ’

anizations v. , 430 U.S. 144, 165, 97 | lines or erasing them is illustrated in a

S.Ct. 996, 1009, = L.Ed.2d 229 (1977). Although number of our cases. We have repeatedly held

a benign plan, which is designed to remedy the 3 ' ;

underrepresentation of a racial minority group, the Zimmer criteria relevant to gerrymander

is permissible under the Constitution, a state as well as dilution cases. In Robinson v.

or locality is under no obligation to provide ;

minorities, racial or otherwise, with repre- | Commissioners Court, 505 F.2d 674 (5th Cir.

sentation proportionate to their voting power. | 1974), a case finding a racially motivated

E.g., White v. ster, 412 U.S. 755, 765-66, 93 i

S.C&. 2332, 37 Tha 2 314 (1973); Whitcomb v. gerrymander that fragmented "what could other- .

Chavis, 403 U.S. 124, 152, 91 S.Ct. 1858, 29 wise be a cohesive voting community," id. at

L.Ed.2d 363 (1971).

679, we stated:

22 . asd

The standards for decision in

dilution cases are developed

primarily in cases dealing with

[at-large] districting [citing,

inter alia, White v. Regester,

Whitcomb v. Chavis, and Zimmer

v. McKeithen]. But "we have no

hesitation in applying [those

tests to] measure. . .the consti-

tutionality of reapportionment

plans involving only single-member

districts. In each instance, we

are required to determine the same

question, whether or not there has

been an unconstitutional manipu-

lation of electoral district

boundaries so as to minimize or

dilute the voting strength of a

minority Class or interest.”

Id. at 678 (quoting Howard v. Adams County

Board of Supervisors, 453 F.2d 455, 458 n.

2 (5th Cir.), cert. denied, 407 U.S. 925

92 S.Ct. 2461, 32 L.Ed.2d 812 (1972))

(emphasis added); accord, Kirksey v. Board

of Supervisors, 554 F.2d at 143. Since we

find no constitutionally significant dis-

tinction between this case and a gerryman-

der case light Wright v. Rockefeller, a

decision expressly reaffirmed by the Su-

preme Court in Davis and Arlington Heights,

we hold that a showing of racially moti-

vated discrimination is a necessary element

in an equal protection voting dilution

claim such as the one presented in this

‘

i as

Vo Dv OD AE 2. .

case. i3

B. Intent in Fifteenth Amendment

Dilution Clzims

The appellants allege that Fair-

field's at-large plan is violative of the

fifteenth amendment.as well as the four-

teenth. Thus, we must determine whether

13. Appellants point out, however, that

neither Davis nor Arlington Heights contains any

reference to voting dilution decisions such as

Regester, Chavis and Zinmer. These dilution cases,

appellants contend, have not required a showing

Go ts ane SOREN, and hence

ailure of Davis or Arli Heights re

to overrule these APlutian pee eey

they are an exception to the general rule.

Appellants' error is that they misconceive

these dilution precedents. ster and Zimmer

do not hold that a showing oF InEGRE is ummeeesary

for a finding of unconstitutional dilution. Racially

th both Teceenee ee «een feokor

both s Zimmer. In Regester, the Court

found a story of official racial discrimina-

tion. . ., which at times touched the right of

Negroes to register and vote and to participate in

the democratic process." 412 U.S. at 766, 93 S.Ct.

at 2339; and in Zimmer, the Court noted that

"minority residents. . - have suffered from a pro-

tracted history of racial discrimination which

touched their ability to participate in the elec-

toral process." 485 F.2d at 1306.

We recognize that neither Regester nor Zimmer

dealt with the issue of racially motivated discrim-

ination in the enactment of the at-large plans con-

tested in those cases. The necessary intent, however,

need not exist at the passage of the plan. All that

(Footnote continued on next page)

illicit motivation is a prerequisite to a

successful claim under the fifteenth amend-

ment. We hold that it is.

The fifteenth amendment is a specific

prohibition against state or federal action

that denies or abridges "[t]he right of

citizens of the United States to vote. . .on

account of race, color, or previous condi-

tion of servitude." U.S. Const. amend. xv,

§1. Historically, this amendment was the

vehicle of first resort for blacks alleging

impairment of their franchise.+4 It protects

(Footnote continued from preceding page)

is nécessary is that the invidiously disproportionate

impact "ultimately be traced to a racially discrimi-

natory purpose." Davis, 426 U.S. at 240, 96 S.Ct.

at 2048. Thus, as we recently held in , a

plan, pristine in its enactment, that carries forward

past discrimination is violative of the fourteenth

amendment. Similarly, a plan legitimate at its

inception may become a vehicle for intentional dis-

crimination and hence become unconstitutional when -

changing circumstances render it invidiously dis- ,

criminatory. Bolden v. City of Mobile, 571 F.2d 238

(Sth Cir. 1978).

14. The fifteenth amendment was ratified in

1870, but was not successfully invoked before the

Supreme Court until 1915, when the Court nullified

an Oklahoma provision exempting those who were qual-

ified to vote prior to 1868 and their descendants

from literacy and requirements. Guinn v.

United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed.

; accord, rs v. Anderson, 238 U.S. 368,

35 S.Ct. 932, 59 L.Ed. 915). Since blacks

(Footnote continued on next page)

i i

the rights of blacks to participate at all

levels of the political process and inter-

dicts all methods demonstrably contrived to

(Footnote continued from preceding page)

were disenfranchized prior to the adoption of the

amendment, this "grandfather clause" required blacks

to pass literacy and property tests while i

whites. When the Oklahoma legislature substituted

a provision preserving the registrations of all those

who had qualified under the invalidated provisions

but requiring others to register within a given

eleven-day period (or lose eligibility forever) ,

the Supreme Court invalidated the substitute. Lane

v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1201

(1939). Subsequent decisions under the fifteenth

amendment invalidated attempts to exclude blacks

from party nominating processes, v. Adams, 345

U.S. 461, 73 S.Ct. 809, 97 L.Ed. 115 53); Smith

v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed.

987 (1944), and invidiously to administer li

tests, Louisiana v. United States, 380 U.S. 145, 85

S.Ct. 817, 13 L.Ed. 0 965); Davis v. Schnell,

81 F.Supp. 872 (S.D.Ala.), aff'd, U.S. P

S.Ct. 749, 93 L.Ed. 1093 (1949).

Gomillion v. Lightfoot, 364 U.S. 339, 81

S.Ct. 125, 5 L.Ed.od 110 (1560) , is the first re-

apportionment case decided under the amendment. It,

of course, held that a complaint alleging a racial

gerrymander states a cause of action under the

fifteenth amendment. See also Wright v. Rockefeller,

376 U.S. 52, 84 S.Ct. 603, To Bt oa 512 (1964);

Smith v. Paris, 257 F.Supp. 901 (M.D.AJa. 1966), aff'd

per curiam, 386 F.2d 979 (5th Cir. 1967); Sims v.

ees, ae F.Supp. 96 (M.D.Ala. 1965). For a more

tai discussion of the history and development

of the fifteenth amendment, see W. Gillette, The Right

to Vote: Politics of the Passage of the Fifteenth

Amendment (1965); J. Matthews, Legislative and

Judicial History of the Fifteenth Amendment (1909) ;

(Footnote continued on next page)

15 As the Su-

diminish this participation.

preme Court stated in the case of Lane v.

Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876,

83 L.Ed. 1281 (1939):

The [Fifteenth] Amendment nulli-

fies sophisticated as well as

simple-minded modes of discrimina-

tion. It hits onerous procedural

requirements which effectively

handicap exercise of the franchise

by the colored race although the

abstract right to vote may remain

unrestricted as to race.

Broad though the reach of the amend-

ment may be, it has been invoked successfully

only in cases founded on acts of intentional

racial discrimination. The necessary motiva-

tion was painfully apparent in the early cases

striking down the exclusion of blacks from

party primaries, e.g., Terry v. Adams, 345

U.S. 461, 463-65, 73 S.Ct. 809, 97 L.Ed.

1152 (1953); the grandfather clause, Guinn

v. United States, 238 U.S. 347, 364-66, 35

(Footnote continued from preceding page) uae

Lucas, in the Thicket: A Perusal of Gomillion

v. Ligh , 1961 Sup.Ct.Rev. 194.

15. See discussion, supra note 14.

S.Ct. 926, 59 L.Ed. 1340 (1915); and the

invidious administration of literacy tests,

e.g., Louisiana v. United States, 380 U.S.

145, 151-53, 85 S.Ct. 817, 13 L.Ed.2d 709

(1965). Moreover, and of particular rele-

vance to the inquiry before us, racially

discriminatory motivations were unmistak-

ably present in Gomillion, where the Court

remarked that if the plaintiffs could

prove their allegations,

the conclusion would be irre-

sistable, tantamount for all

practical purposes to a mathe-

matical demonstration, that the

legislation is solely concerned

with segregating white and

colored voters by fencing Negro

citizens out of town so as to

deprive them of their pre-

existing municipal vote.

364 U.S. at 341, 81 S.Ct. at 127. These

cases illustrate what is apparent on the

face of the amendment: a showing of racially

motivated official action that infringes

the right to vote is sufficient to state a

cause of action.

Our holding is the converse of this

proposition. A showing of improper moti-

vation or purpose is necessary to establish

a valid cause of action under the fifteenth

amendment. Our conclusion is compelled by

Wright, the Supreme Court decision we have

DIES SESS EE LE TD | TT eT ar

held controlling on the issue of intent in

the fourteenth amendment claims in this

case. Wright was brought under the fif-

teenth amendment as well. 376 U.S. at 56,

84 S.Ct. 603. That the Court held a show-

ing of intentional discrimination was

essential to a valid claim in that case

implies as a matter of logic that such a

demonstration is necessary under both four-

teenth and fifteenth amendments. |

Cases in this circuit exemplify the;

teaching of Wright. In Bradas v. Rapides

Parish Police Jury, 508 F.2d 1109 (5th Cir.

1975), we vacated and remanded a judgment

finding an at-large plan violative of the

fifteenth amendment. Writing for the court,

Judge Simpson stated:

it does not suffice to show that

the use of [at-large] districts

has diminished to some extent the

proportion of blacks in the voting

unit unless some evidence also

demonstrates that such [at-large]

districts were "conceived or operated

as purposeful devices to further

racial or economic discrimination."

Id. at 1113 (quoting Whitcomb v. Chavis,

403 U.S. at 149, 91 S.Ct. 1858); see

Paige v. Gray, 538 F.2d 1108 (5th Cir.

1976).

We have held that the appellants cannot

succeed on either their fourteenth or fif-

teenth amendment claims unless they estab-

lish that Fairfield's at-large method of

electing its city council exists because

of invidious racial motivations. In the

following section we demonstrate that the

controlling dilution precedents of this

circuit are consistent with this holding.

C. Fifth Circuit Dilution Precedents

The Alabama statute enabling Fairfield

to establish its at-large electoral scheme

was enacted in 1909. In 1901, however,

Alabama had adopted a constitution which

had effectively disenfranchised blacks.

The appellees contend, therefore, that the

1909 statute could not have been adopted

with a racial animus because no blacks who

could have been discriminated against could

vote. See McGill v. Gadsden County Commis-

sion, 535 F.2d 277, 279-80 (5th Cir. 1976);

Taylor v. McKeithen, 499 F.2d 893 (5th Cir.

1974). Although we accept the district

court's finding that the 1909 plan was adopt-

ed without discriminatory intent, cases of

this circuit emphasize that the search for

improper motivation does not end at the

enacting stage. Thomasville Branch of the

NAACP v. Thomas County, 571 F.2d 257

(Sth OCiz. ..49768). A plan

racially neutral at its adoption, may

further preexisting intentional discrimi-

nation, e.g., Kirksey, or it may be main-

tained for invidious purposes, e.q., Bolden

v. City of Mobile, 571 F.2d 238 (5th Cir.

1978).

Whether invidious discrimination mo-

tivates the adoption or maintenance of a

districting scheme or whether the plan fur-

thers preexisting purposeful discrimination,

the intent requirement may be satisfied

by direct or circumstantial evidence. Where

direct evidence of discriminatory motive

is proffered, a case is easily made, see,

e.g., Terry v. Adams, 345 U.S. 461, 73 S.Ct.

809, 97 L.Ed. 1152 (1953), as it is where

the circumstantial evidence of racially

discriminatory motivation is so strikingly

obvious that no alternative explanation is

plausible, e.g., Gomillion; Yick Wo v.

Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30

L.Ed. 220 (1886). "But such cases are

rare. Absent a pattern as stark as that

in Gomillion or Yick Wo, impact alone is not

determinative, and the Court must look to

other evidence." Arlington Heights, 429

U.S. at 266, 97 S.Ct. at 564 (footnotes

omitted). An examination of the Zimmer

factors shows that they constitute "other

evidence" which a court must consider in

determining whether the districting scheme

exists because of invidious racial con-

siderations.

The Zimmer criteria go to the issue

of intentional discrimination, first of all,

because they would be irrelevant if motiva-

tion were not an issue. If, as the appel-

lants suggest, it is sufficient that "the

combination of a legal system (at-large

election) with the minority status of blacks

and a societal system (racially polarized

voting) has the effect of diluting black

voting strength" then of what relevance is

the accessibility of political processes

to blacks, the responsiveness of the city

council to the needs of blacks, the weight

of the state policy behond the at-large

plan, or the existence of past discrimina-

tion in the electoral process? Moreover, the

Supreme Court has squarely rejected the

contention that at-large elections are un-

constitutional merely because fewer minority

candidates are elected, due to polarized

voting, than would correspond to the minor-

ity's portion of the district population.

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

1858, 29 L.Ed.2d 363 (1971). It is clear,

therefore, that mere disproportionate ef-

fects are not enough to invalidate an at-

large plan and hence that the Zimmer cri-

teria purport to establish something more.

Perhaps the most useful approach to

analyzing the Zimmer criteria as they relate

to the existence of intentional discrimina-

tion is to assume that an at-large scheme is being

used as a vehicle for achieving the constitutionally

prohibited end. The objective of such a scheme

would be to prevent a group from effectively

participating in elections so that the go-

verning 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 minor-

ity representatives or from holding non-

minority representatives accountable.

Circumstantial evidence that the plan

was enacted with discriminatory intent may

exist in the form of starkly differential

racial impact; the historical background

of the plan, "particularly if it reveals

a series of official actions taken for in-

vidious purposes"; or the "specific se-

quence of events leading up to the chal-

lenged decision." Arlington Heights, 429

U.S. at 267, 97 S.Ct. at 564; see Smith v.

J34

Paris, 257 F.Supp. 901 (M.D.Ala. 1966), aff'd

per curiam, 386 F.2d 979 (5th Cir. 1967);

Sims v. Baggett, 247 F.Supp. 96 (M.D.Ala.

1965). Such was the approach of the in-

quiries in Davis and Arlington Heights,

cases we noted recently in Kirksey v. Board

of Supervisors to be "of particular signif-

icance. . .if the only issue were whether

the racially neutral plan created such ex-

clusion [from the electoral process]." 554

P.2d at 147 (emphasis in original). But,

as we held in Kirksey, the inquiry dues not

stop at the enacting stage.

Where evidence of discriminatory in-

tent is lacking in the enacting processes,

the Zimmer criteria become acutely rele-

vant. They may demonstrate, as in Kirksey,

that the neutral plan is an "instrumental-

ity for carrying forward patterns of pur-

poseful and intentional discrimination."

5954 F.2d at 147. In Kirksey, the plan was

recently formulated, and it perpetuated

past intentional discrimination. A remote-

ly enacted plan, such as the 1909 plan in

this case, that was adopted without racial

motivations may become a vehicle for the

exclusion of meaningful minority input be-

cause intervening circumstances cause the

plan to work that way. When the more blatant

I —

obstacles to black access are struck down,

such an at-large plan may operate to devalue

black participation so as to allow repre-

sentatives to ignore black needs. Where

the plan is maintained with the purpose

of excluding minority input, the necessary

intent is established, and the plan is un-

constitutional. We so hold today in Bolden

v. City of Mobile.

Whether the plan is recent or remote,

the Zimmer criteria provide a factual basis

from which the necessary intent may be

inferred. Consider a plan neutral in its

enactment that is used as a vehicle for in-

tentionally ignoring black interests. The

existence of such discrimination presupposes

racially polarized voting in the elector-

ate.® Polarized or bloc voting, although

16. If racially polarized voting did not

exist, white candidates could not expect to retain

or achieve office solely because they are white.

Their black constituents would constitute merely

another m'»..rity group that might become an element

necessary .o the formation of a majority coalition.

Under these conditions, white officeholders would

ignore black needs at their peril.

Additionally, in the absence of polarized

voting, black candidates could not be denied office

because they were black, and a case of unconstitu-

tional dilution could not be made. "[I]f voting

does not follow racial lines, the [voter of the

minority race] has little reason to complain. ...

(Footnote continued on next page)

in itself constitutionally unobjection-

able,’

minority interests without fear of reprisal

allows representatives to ignore

at the polls. When bloc voting has been

demonstrated, a showing under Zimmer that

(Footnote continued fram preceding page)

United Jewish Organizations v. Carey, 430 U.S. 144,

166 n. 24, 97 S.Ct. 996, 1010, 51 L.Ed.2da 229 (1977).

17. As the Supreme Court has recently noted,

"there is no authority for the proposition that the

candidates who are found racially unacceptable by

the majority, and the minority voters supporting

those candidates, have had their Fourteenth or Fif-

teenth Amendment rights infringed by this process."

United Jewish Sea Vv. es 430 U.S. 144,

3.Ce. L. 229 (1977);

accord, Nevett v. Sides, 533 F.2d 1361, 1365 (5th

Cir. 1976).

18. Bloc voting may be indicated by a show-

ing under Zimmer of the "existence of past discrim-

ination in general. . ., large districts, majority

vote requirements, anti-single shot voting provisions

and the lack of provision for at-large candidates

from particular geographical subdistricts."

485 F.2d at 1305. Of course, bloc voting may be

demonstrated by more direct means as well, such as

statistical analyses, e.g., Bolden v. City of Mobile,

423 F.Supp. 384, 388-89 (S.D.Ala. P ‘d,

571 F.2d 238 (5th Cir. 1978), or the

Te lack of success of qualified black candi-

Ss.

| ERLE eee Le A TN ON ee eT eT Ne

the governing body is unresponsive to mi-

nority needs is strongly corroborative of

an intentional exploitation of the elec-

torate's bias. The likelihood of intentional

exploitation is "enhanced" by the existence

of systematic devices such as a majority

vote requirement, an anti-single shot pro-

vision, and the lack of a requirement that

representatives reside in subdistricts.

Zimmer, 485 F.2d at 1305. As the Supreme

Court observed, "[t]hese characteristics of

[an] electoral system, neither in themselves

improper nor invidious, [enhance] the oppor-

tunity for racial discrimination... ."

White v. Regester, 412 U.S. at 766, 93 S.Ct.

2340.

The establishment under Zimmer that

blacks have been denied access to slating,

registration, or other aspects of political

participation may indicate that if white

representatives have not properly entertained

black interests, it is because blacks cannot

achieve the input to which they are entitled.

See Wallace v. House, 515 F.2d 619, 622-23

(5th Cir. 1975), vacated and remanded on

other grounds, 425 U.S. 947, 96 S.Ct. 1721,

48 L.Ed.2d 191 (1976). Under the proper

circumstances, such a showing would satisfy

the intent requirement. 9

~»

A tenuous state policy in favor of

at-large districting may constitute evidence

that other, improper motivations lay behind

the enactment or maintenance of the plan.

The absence of a significent and legitimate

state policy behind districting provisions

19. Showings of unresponsiveness and lack of

access make a strong dilution case. The capacity ‘

of a governing body to respond to the needs of its

constituency is, in large measure, what makes that

body representative. See H. Pitkin, The Concept of

Representation 233 (1972). Ideally, electoral

processes are designed to provide an institutional

and periodic method of guaranteeing governmental

er i "Our concern with elections and

electoral machinery, and particularly with whether

eave Ge ee results from our

conviction t such machinery is neces i

; : sary to in-

sure systematic responsiveness." Id. at 234.

Thus, if representatives are unresponsi

to the needs of a racial group apparently Seite

stages of the electoral process diminish

oon mS input, the inference that the pro-

SSé maintained with the purpose to dis-

criminate can fairly be drawn. "the-tecgal éio-

tricts, it would seem, violate the Equal Protection

Clause, not because they overrepresent or under-

represent pure and simple, but because they do that

in a context where all stages of the electoral

processes have been effectively closed to identi-

fiable classes of citizens, making the political

establishment ‘insufficiently responsive’ to [those

Classes'] interests." Casper, Apportionment and the

——-

Right to Vote: Standards of Judicial iny, 1973

Sup.Ct.Rev. 1, 28. See also Hendrix v. Ji

559 F.2d 1265, 1269 (5th Cir. 1977). ?

339

has been an important factor in several

cases finding intentional discrimination.

In Gomillion, the defendant city officials

had "never suggested, either in their brief

or in oral argument, any countervailing

municipal function which [the districting

act] is designed to serve." 364 U.S. at 342,

81 S.Ct. at 127. And in Guinn v. United

States, 238 U.S. 347, 35 S.Ct. 926, 59

L.Ed. 1340 (1915), which struck down Okla-

homa's grandfather clause, the Court stated:

"we are unable to discover how, unless the

prohibitions of the 15th Amendment were

considered, the slightest reason was af-

forded for basing the classification upon a

period of time prior to the 15th Amendment."

Id. at 366, 35 S.Ct. at 931. Although state

statutes generally need satisfy only mini-

mum rationality requirements, see, e.g.,

Hennessey v. National Collegiate Athletic

Association, 564 F.2f 1136, 1144 (5th Cir. '

1977), the weight of the state policy be-

hind the districting plan is an-evidentiary |

Consideration that must be considered along |

with all other relevant evidence to deter-

mine whether the plan is improperly moti-

vated. °°

Oe 6 -

20. Professor Brest summarizes the relevance

of the weight of the state policy as follows:

(Footnote continued on next page)

That the finder of fact determines

the plaintiff has prevailed under one or

even several of the Zimmer criteria may not

establish the existence of intentional dis-

crimination. See, e.g., McGill v. Gadsden

County Commission, 535 F.2d 277 (5th Cir.

1976). The evidence under the other cri-

teria may weigh so heavily in favor of the

defendant that the evidence as a whole will

not bear an inference of invidious discrim-

ination. Of course, the plaintiff need not

prevail under all of the criteria, Zimmer,

485 F.2d at 1305, nor is he limited to

them. 74 The task before the fact finder is

(Footnote continued from preceding page)

The courts possess no general authority

to invalidate a decision because it is

"undesirable," and an allegation of il-

licit motivation does not enlarge their

authority. A conscientious decisionmaker,

however, considers the costs of a proposal,

its conduciveness to the ends sought to be

attained, and the availability of alterna-

tives less costly to the commmity as a

whole or to a particular segment of the

community. That a decision obviously fails

to reflect these considerations with

respect to any legitimate objective sup-

ports the inference that it was improperly

motivated.

Brest, Palmer v. Thomoson: An Approach to the Problem

a Unconstitutional Legislative Motive, 1971 Sup.Ct.

. 55, 121-22.

21. As we said recently in Kirksey v. Bd. of

(Footnote continued on next page)

to determine, under all the relevant facts,

in whose favor the “aggregate” of the evid-

ence preponderates.77 This determination is

peculiarly dependant upon the facts of each

case. It comprehends "a blend of history

and an intensely local appraisal of the de-

sign and impact of the [at-large] district

in the light of past and present reality,

political and otherwise." White v. Regester,

412 U.S. at 769-70, 93 S.Ct. at 2341. It is

the obligation, therefore, of the finder of

fact carefully to examine and weigh the com-

peting factors to determine whether the co-

incidence of those probative of intentional

discrimination is sufficient. "Determining

whether invidious discriminatory purpose was

a motivating factor demands a sensitive

(Footnote continued from preceding page)

554 F.2d 139 (5th Cir.) (en banc), cert.

qe i's, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977),

“Tbly proof of an an aggregation of at least some of [the]

Zimmer] factors, or similar ones, a plaintiff can

Gemonstrate that the members of the particular group

in question are being denied access." Id. at 143

(emphasis added) .

22. This procedure is not different from that

employed by a fact finder in resolving any issue by

circumstantial evidence. As in other circumstantial

evidence cases, it may be that the findings, in the

plaintiffs favor, taken individually, cannot establish

the ultimate issue. This does not necessarily fore-

close relief. The aggregate of the evidence controls.

(Footnote continued on next page)

DE a ee ce et ts eh

inquiry into such circumstantial and direct

evidence of intent as may be available."

Arlington Heights, 429 U.S. at 266, 97 S.Ct.

at 564.

We take this opportunity to address

language in several opinions of this cir-

cuit that has caused some apparent confusion

in this changing and complex area of the law.

It appears that a number of our cases have

espoused alternative approaches available to

plaintiffs in dilution cases. The earliest

case setting forth these alternatives is Howard v. Board

of Supervisors, 453 F.2d 455 (5th Cir.), cert. denied,

407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972).

As we view the constitutional

requirements in this area, to

establish the existence of a con-

etitutionally impermissible re-

districting plan, in the absence

of malapportionment, plaintiffs

must maintain the burden of prov-

ing (1) a racially motivated

gerrymander, or a plan drawn a-

long racial lines, Wright v.

Rockefeller, 1964, 376 U.S. 52,

84 S.Ct. 603, 11 L.Ed.2d 512;

Gomillion v. Lightfoot,

1960, "364 U.S. 339, 81 S.Ct.

(Footnote continued from preceding page)

"(T]he convergence of a number of decisions, each of

which could be explained in terms of licit objec-

tives. . .may may support the conclusion that each of the

decisions is illicitly motivated." Brest, supra note

at 123 n. 139.

125, 5 L.Ed.2d 110; Sims v.

Baggett, M.D.Ala. 1965, 247

F.Supp. 96, or (2) that ". ..

designedly or otherwise, a[n]. ..

apportionment scheme, under the

circumstances of a particular

case, would operate to minimize

or cancel out the voting strength

of racial or political elements

of the voting population."

Burns v. Richardson, 1966, 384

U.S. 73, 88, 86 S.Ct. 1286, 1294,

16 L.Ed.2d 376. See Whitcomb v.

Chavis, 1971, 403 U.S. 124, 143-

144, 149, 91 S.ct. 1858, 29

L.Ed.2d 363.

Id. at 457-58 (emphasis in original) (foot-

note omitted). Subsequent decisions have

reiterated these standards. Panior v.

Iberville Parish School Board, 536 F.2d 101,

104-05 (5th Cir. 1976); Ferguson v. Winn

Parish Police Jury, 528 F.2d 592, 596-97

(Sth Cir. 1976); Wallace v. House, 515 F.2d

619, 622-23 (5th Cir. 1975), vacated and

remanded on other grounds, 425 U.S. 947, 96

S.Ct. 1721, 48 L.Ed.2d 191 (1976); Bradas

v. Rapides Parish Police Jury, 508 F.2d 1109,

1113 (5th Cir. 1975); Robinson v. Commission-

ers Court, 505 F.2d 674, 678 n. 3 (5th Cir.

1974); Moore v. Leflore County Board of

Election Commissioners, 502 F.2d 621, 623-24

(Sth Cir. 1974); Zimmer, 485 F.2d at 1304.

eine. oe

- — =

: |

The first approach open to plaintiffs

is one we have already discussed. Blacks

challenging a districting system may suc-

ceed under a Gomillion-type rationale by

establishing that the plan was enacted

with discriminatory purpose. The second

avenue, however, seems to allow plaintiffs

to succeed under a dilution rationale

without establishing intentional discrimina-

tion. To the extent that these cases sug-

gest that intent is not required, they can-

not be reconciled with the intervening

Supreme Court decisions in Davis and Ar-

lington Heights.

In each of these Fifth Circuit cases,

however, such language was not operative.

In Robinson v. Commissioners Court, the plan

was struck down under the first alterna-

tive: intentioral discrimination was found.

"The district court determined . .. that

the County Commissioners' apportionment

was designed precisely to dilute the black

vote and. . .we find no reason on this

record to reject that conclusion as clearly

erroneous.” 505 F.2d at 679 (emphasis

added). Those cases finding dilution under

the second alternative did so on the basis

of Zimmer. Wallace v. House, 515 F.2d at

623-24; Moore v. Leflore County Board of

Election Commissioners, 502 F.2d at 624-25;

cf. Ferguson v. Winn Parish Police Jury,

528 F.2d at 598-99. We hold today that a

finding of dilution under Zimmer raises

an inference of intentional discrimination,

and, therefore, the essential element of

intent was present in each of these cases.

Finally, cases finding no dilution, like

Howard v. Board of Supervisors, Panior v.

Iberville Parish School Board, and Bradas

v. Rapides Parish Police Jury, cannot est-

ablish the proposition that intent is un-

necessary to make out a dilution case.

Having determined that plaintiffs

must make a showing of intentional discrim-

ination to prevail in a dilution case, and

having set forth the meansg,of establishing

the requisite showing, we now turn to the

specifics of this case to measure it against

the standards we have enunciated.

III. The District Court's Findings

of Fact a

We now address the second issue raised

on appeal: whether the district court's

findings of fact with respect to the Zimmer

criteria are erroneous. We must preface

our inquiry with the principle that the

wi ower

ia a

district court's determinations under the

Zimmer criteria will stand, if supported

by sufficient evidence, unless clearly

erroneous. Fed.R.Civ.P. 52(a); Hendrix

v. Joseph, 559 F.2d 1265, 1268 (5th Cir.

1977); Gilbert v. Sterrett, 509 F.2d 1389,

1393 (5th Cir. 1975); see McGill v. Gadsden

County Commission, 535 F.2d 277, 280 (5th

Cir. 1976). Additionally, the panel hear-

ing this case on the first appeal had

occasion to examine the district court's

findings of fact, which have not been aug-

mented by any new evidence on remand, and

it determined that "[nJone of the findings

of fact, considered separately from the

intermingled conclusions of law, can be

set aside as clearly errneous." 533 F.2d

at 1364. We accept this court's prior

appraisal as law of the case with respect

to the factual matters determined by the

district court in its original, February

20, 1975, opinion. See Carpa, Inc. v. Ward

Foods, Inc., 567 F.2d 1316, at 1319-1321

(5th Cir. 1978); Lincoln National Life In-

surance Co. v. Roosth, 306 F.2d 110 (5th

Cir. 1962), cert. denied, 372 U.S. 912, 83

S.Ct. 726, 9 L.Ed.2d 720 (1963).

The only question remaining, then, is

whether the latest, June 1l, 1975, findings

of the district court are consistent with

its prior findings. We proceed by examining

the district court's determinations under

each of the Zimmer criteria that appellants

challenge on this appeal. First, however,

we think it profitable to take this oppor-

tunity briefly to discuss what Zimmer re-

quires of a trial court in a dilution case.

The ultimate issue in a case alleging un-

constitutional dilution of the votes of a

racial group is whether the districting

plan under attack exists because it was

intended to diminish or dilute the political

efficacy of that group. Zimmer establishes

certain subissues, the criteria, that a

trial court must address before it can reach

the ultimate issue of dilution. In es-

sence, the criteria are directions that tell

the trial court what’ type of circumstantial

evidence can make out a dilution case. The

court must address each subissue, if rele-

vant to the particular case at hand, 72 and

23. As we note in Blacks United for Lasting

Leadership, Inc. v. City of Shreveport, 571

F.2d 248, 255 n. 6 (5th Cir. 1978), dependent

upon the nature of the scheme under attack, not all

of the criteria may be relevant, and additional

factors may have probative force. Notwithstanding,

the multifactor test established in Zimmer is the

touchstone in dilution cases, and the trial judge

must look to it for guidance in determining what

subissues may be appropriate.

+4 5a Lan anne cena,

ER ay 8 Be a eE Be

eee

determine whether the evidence under that

criterion weighs in favor of or against a

finding of dilution. The court is next to

view the findings under the criteria as a

whole, i.e., "in the aggregate," Zimmer,

485 F.2d at 1305, giving due regard to the

significance and strength of the finding

under each subissue, to determine if the

ultimate inference of dilution is permis-

sible, and, if so, whether the evidence

preponderates in its favor. See Blacks

United for Lasting Leadership, Inc. v. City

of Shreveport, 571 F.2d at 251.

"The process does not differ from

that of inferring ultimate facts from basic

facts in other areas of the law. It is

grounded in an experimental, intuitive as-

sessment of the likelihood that the decis-

ion was designed to further one or another

objective." Brest, Palmer v. Thompson: An

Approach to the Problem of Unconstitutional

Legislative Motive, 1971 Sup.Ct.Rev. 95, 121.

We think that the district court in this

case properly followed the mandate of Zimmer

and correctly applied its test, and we

turn to the findings of the district court

that appellants question here.

The district court held on remand that

there had been no showing of lack of black

access to the electoral processes in Fair-

field. The court's earlier opinion noted

that in 1968 six blacks won election to the

counci1?4 but that in 1972 blacks failed to win

any of the eight seats they contested. The court at-

tributed the marked disparity in these results not to

any invidious racial discrimination but

rather to the failure of blacks to turn out

a higher percentage in 1972.7 The testimony

of one of the witnesses was cited as "quite

candid. . .in saying that there was no dif-

filculty in qualifying to run for the city

council." The witness went on to character-

ize the task facing a candidate as "essenti-

ally. . .a matter of getting out the vote,

of getting more votes than the opponent or

opponents did."

Given these findings, which our prior

panel found to be valid, we cannot rule the

district court's conclusion of accessibility

24. Seven black candidates qualified to run

for city council in 1968. All but the’ candidate for

council president prevailed.

25. As the district court stated in its

Opinion on remand, "[t]he failure to elect any blacks

to the thirteen member council in 1972 was not the

result of past discrimination, but rather the conse-

quence of (a) a failure to turn out a higher per-

centage of black voters than of white voters, (b)

bloc voting, and (c) at-large voting for numbered

places."

clearly erroneous. The success or failure

of black candidates appears to depend not

upon any barriers to access to the slating

or registration stages of Fairfield's

political processes but upon racially po-

larized voting in an at-large setting and

the shifting racial makeup of the voting

population.

The district court's opinion on re-

mand states that ihe appellants have not

demonstrated unresponsiveness by city

officials to the needs of black residents.

The original opinion contains findings that

"blacks have gotten far more responsiveness

from city council when there were blacks on

the city council." The court also. noted,

however, “that blacks have not had the

door completely closed in their faces inso-

far as expressing their opinions at city

council meetings, in seeking assistance, pre-

senting petitions, being heard, and on some

occasions being given what amounts to private

audiences for the presentation of these

matters." And finally, "the court has

sensed that some of these requests have

gotten answers, not to the same degree that

the witnesses or that the black communities

as a whole wanted, but there has not been

a total lack of responsiveness merely be-

cause there were no blacks on the city coun- -

cil." The panel on first appeal found the

district court's determination not to be

clearly erroneous, and the finding on remand

of sufficient responsiveness on the part of

the city council is consistent with that

determination. Therefore, the finding must

stand.

The final factual determination chal-

lenged by appellants is the district court's

conclusion that "plaintiffs have not proved

that past discrimination precludes the ef-

fective participation by blacks in the elec-

tion. system." The parties did not introduce

evidence concerning the existence of racial

motivation in the passage of the original, 1909

version of the districting legislation. Furthermore,

as noted, the appellants failed to supply

the court with any substantial evidence of

past discrimination relating to Fairfield's

electoral system. Since the appellants

clearly had the burden of coming forward with

evidence of past racial discrimination that

precludes the effective participation of

blacks in the electoral process today, 7°

26. We are fully aware of the reownt holding

in aces v. Bd. of Supervisors, 554 F.2d 139 (5th

Cir en U.S. , 98

S.Ct. 512, 54 L.Ba.2d 454 (1977}~ that regained the

(Footnote continued on next page)

McGill v. Gadsden County Commission, 535

F.2d 277, 280 (5th Cir. 1976), the district

court's conclusion in its more recent opin-

ion that such preclusion has not been shown

to exist must stand as well.

We note that not all the district

court's findings under Zimmer have been

challenged in this appeal. The appellees

do not challenge the finding that the state

policy behind at-large districting is ten-

uous, nor do they dispute the district

court's findings under the enhancing factors:

that the district is large; that a majority

vote. requirement exists, but that since only

two candidates run for virtually all posi-

tions, the requirement is "for all practical

purposes no different from a plurality vote

requirement"; and that the Fairfield plan

requires candidates to run for numbered

positions. Nor do the appellants challenge

the finding that there is a residency require-

ment in Fairfield's plan. Since these

(Footnote continued fram preceding page)

defendants in that case to bear the burden of coming

"forward with evidence that enough of the incidents

of the past had been removed, and the effects of

past denial of access dissipated, that there was

presently equality of access." Id. at 144-45. The

reasoning leading to the placement of this burden on

defendants is not apposite in this case. The en

banc court emphasized that the plaintiffs had

(Footnote continued on next page)

findings have not been disputed, they are

not open to question on appeal.

We find the district court's factual

determinations under Zimmer not clearly

erroneous; therefore, the only primary fac-

tor that we take to be established in the

appellants' favor is the existence of a

tenuous state policy behind at-large dis-

tricting. The district court found this

showing, "[e]ven when ‘enhanced' by two

or possibly three of the 'extra' factors,"

to be "insufficient 'in the aggregate' to

establish a case of 'dilution.'" Consequent-

ly, our only remaining task is to determine

whether this conclusion is correct as a

matter of law.

IV. The District Court's Interpretation

of Zimmer and Subsequent Dilution

~ Precedents

The final issue we must address is

whether the district court's conclusion that

dilution had not been demonstrated represents

a proper interpretation of Zimmer and other

applicable case law. We note initially that

the district court properly followed the

ne eee, ce aa ee ee

instructions in our prior opinion in this

case to base its conclusions "on the criter-

ia that. . .Zimmer. . .distilled from White

v. Regester. . .and in accordance with all

later cases." 533 F.2d at 1365. The district

court has made specific findings with regard

to each of the dilution criteria.

We find also that the court properly

approached the task of weighing the Zimmer

factors. As we have stated, the task before

the district court is to determine whether

the criteria in the aggregate indicate a

racially motivated dilution. The district

court correctly performed its task when it

proceeded from the understanding that "'dilu-

tion' is to be defined as the ‘aggregate'

of the factors outlined in Zimmer, bearing

in mind that ‘all of these factors need not

be proved in order to obtain relief.'"

Furthermore, after concluding that of the

primary factors, the appellants had estab-

lished only the existence of a tenuous state

policy, the court held this showing to be

“insufficient ‘in the aggregate’ under [the

Zimmer] critéria to establish a case of

dilution.'"

We find the district court's conclu-

sion wholly correct. We cannot say that a

finding of a tenuous state policy behind at-

large districting, standing alone, makes

out a case under Zimmer or any other con-

trolling precedent. In the absence of other

evidence indicating the existence of in-

tentional discrimination, state enactments

providing for at-large districting are

entitled to the deference afforded any other

statute: their means need only be reasonably

related to ends properly within state cog-

nizance. E.g., Ohio Bureau of Employment

Services v. Hodory, 431 U.S. 471, 97 S.Ct.

1898, 1910, 52 L.Ed.2d 513 (1977); F.S.

Royster Guano Co. v. Virginia, 253 U.S. 412,

415, 40 S.Ct. 560, 64 L.Ed. 989 (1920);

Lindsley v. Natural Carbonic Gas Co., 220

U.S. 61, 78-79, 31 S.Ct. 337, 55 L.Ed. 369

(1911). That these minimal constraints are

satisfied by state statutes providing for

government by representatives elected at-

large is beyond dispute. The Supreme Court

and this circuit have repeatedly rejected

contentions that at-large districting is

per se unconstitutional. E.g., White v.

Regester, 412 U.S. at 765, 93 S.Ct. 2332;

Whitcomb v. Chavis, 403 U.S. at 142, 91

S.Ct. 1858; Lipscomb v. Wise, 551 F.2d 1043,

1046 (Sth Cir. 1977), cert. granted,

U.S. _—, - 98 S.Ct. 716, 54 L.Ed.2d 750

(1978); Turner v. McKeithen, 490 F.2d 191,

196 n. 23 (5th Cir. 1973); Zimmer, 485

F.2d at 1304.

The question whether the enhancing

factors found co exist are sufficient in

this case, when aggregated with the exis-

tence of a tenuous state policy, is a fac-

tual issue that must be resolved by the

district court. Given the inability of

the appellants to establish any additional

criteria that would lend support to an

inference of racially motivated dilution,

the trial court's determination must stand.

The appellants did not demonstrate a

lack of access to the political processes

in Fairfield. They did not establish that

the commission was unresponsive to the

needs of the black community, and although

this failure does not preclude a finding of

dilution, McGill v. Gadsden County Commis-

sion, 535 F.2d 277, 280 n. 7 (Sth car.

1976); Zimmer, 485 F.2d at 1306-07 n. 6,

it weighs heavily against an inference of

intentional discrimination because the

incumbents are not visibly exploiting their

majority status to the detriment of the

minority constituents. No residual effects

of past discrimination were found to preclude

the effective political participation of

blacks in Fairfield. Indeed, six blacks

were elected to the city council in 1968,

ang the district court found the failure

of black candidates in 1972 to be due not

to invidious racial discrimination but to

a failure to turn out more of the black

vote.

Under these particular circumstances,

the district court's conclusion that "there

has been no evidence that the claimed 'di-

lution' was the result of any invidious

discriminatory purpose" (citing Davis) is

wholly warranted. The failure to estab-

lish the existence of intentional discrimi-

nation follows naturally from the factual

determinations under Zimmer in this case.

This case, then, falls squarely with-

in the principle established in Wright and

reaffirmed in Davis and Arlington Heights.

In the aggregate, the Zimmer criteria do not

point to a racially motivated dilution.

Absent a showing that intentional discrimi-

nation was a motivating factor in either

the enactment or maintenance of the plan,

these appellants cannot succeed.

The district court's judgment is

therefore

AFFIRMED.

APPENDIX

The Opinion of the District Court

MEMORANDUM OF OPINION*

This court, under the mandate receiv-

ed June 10, 1976, is to reconsider its ear-

lier decision in the light of the principles

stated in the opinion of the Court of Appeals.

Due to imminent deadlines for compliance

with election law procedures, oral argument

was, with consent of the parties, immediate-

ly scheduled. This memorandum supplements

(and, to the extent inconsistent, supersedes)

the earlier findings and conclusions of the

court, which will not be repeated.

The first task is to make specific

findings with respect to the four principal

factors outlined in Zimmer v. McKeithen,

485 F.2d 1297, 1305 (CA5 1973), as the

criteria for determining "dilution."

(1) The plaintiffs, blacks residing in

the City of Fairfield, have not demonstrated

any lack of access to the process of slating

candidates for city elections; for in Fair-

field there has been no such slating. Perhaps

more to the point, the evidence has not shown

that blacks in recent years have been denied access to

participation in any parts or phases of the election

*Nevett v. Sides, N.D.Ala., No. 73-P-529.

processes in Fairfield, e.g., qualifying the city into wards and to decide upon the

as candidates, campaigning, voting. | number of such wards. If more than seven

(2) It has not been demonstrated that there ! wards are created, then each ward, by vote

has been "unresponsiveness" by city officials to | of the ward, will elect a single member to

the "particularized needs" of blacks. This is not, the city council (with the president of the

of course, merely a question of whether the city of- council, and perhaps other members being

ficials have listened to, and given same answer to, elected from the city at-large). If less

the special requests of black citizens of the city. than eight wards are created, then all

Nor is it a question of whether those officials have members of the council will be elected by

always complied with those requests. Rather, the at-large vote, with two members being re-

standard involves an inquiry into whether those of- | sident of each ward. In view of this

ficials -have reacted to those needs with sympathy and optional dichotomy, it cannot be said that

concern-—such as would be expected of persons hold- there is a state policy favoring at-large

ing a public trust for all the citizenry or multi-member districts for city council

of a community, who are ultimately account- in preference to single-member ward-elected

able to all the voters at the next election. districts. (Proof that there is no such

While the evidence has shown that blacks state policy should suffice to establish

have fared less well during an all-white that any such state policy is "tenuous". )

city administration than during a racially- (4) The plaintiffs have not proved

mixed administration or than under the laws that past discrimination precludes the

of chance, it has not established "unrespon- effective participation by blacks in the

siveness" under this standard. In this election system. The discrimination made

. . . 7

respect, it should be noted that the inquiry known to the court pre-dated the elections

is directed to "unresponsiveness", referring in 1968, in which six of the 13 persons

to a state, condition or quality of being elected to the council were black. The

unresponsive, and is not. established by failure to elect any blacks to the thirteen

isolated acts of being unresponsive.

| member council in 1972 was not the result

(3) Under state law, cities of the of past discrimination, but rather the

60 61

ee ee ee re

higher percentage of black voters than

of white voters, (b) bloc voting, and

Next, the court is to make specific

findings on the "enhancing factors" outlined

in Zimmer v. Keithen, supra, 485 F.2d at

1305.

(1) Since the past elections have

been from the city at large, the election

district must be considered "large", at

least in a relative sense. The district is

as large as it can be.

(2) There is a majority vote require-

ment. Where, however, as in the 1972

election, there are but two people running

for virtually all positions, a majority

vote requirement is for practical purposes

no different from a plurality vote require-

ment.

(3) There is no anti-single slot

voting provision since candidates run for

numbered positions. The numbered position

approach does have some of the same conse-

quences however as an anti-single shot,

multi-member race; because a cohesive min-

ority is unable to concentrate its votes

on a single candidate. The numbered position

approach does, however, eliminate the prob-

lem caused when a minority group is unable

to field enough candidates in anti-single

shot, multi-member races.

(4) There is a provision, a require-

ment, that the at-large candidates for

the city council (excepting the position

of President) be residents of particular

geographical subdistricts.

When this court entered its earlier

decision, it did so in the belief that

"dilution" was established upon proof that

(a) in a city where blacks constituted a

majority of the voters in some of the dis-

tricts but slightly less than 50% of the

voters for the city as a whole, (b) where

voting rather strictly followed racial

lines, (c) a "winner-take-all" election

system by at-large voting for numbered

places resulted in practice (d) in an

all-white governing body, (e) whose decisions,

though without indication of fraud or bad

faith, quite understandably tended to re-

flect their own perspectives and the atti-

tudes of those who elected them, to the

relative detriment of the black minority,

(f) including such matters as appointments

to other boards and agencies of the city.

The court was of the view that such evidence

demonstrated that the black plaintiffs "had

less opportunity than did other residents

—— ee

in the district to participate in the po-

litical processes and to elect legislators

of their choice." White v. Regester, 412

U.8. 755, 766,:93 6.Ct. 2332; 2338,: 37

L.Ed.2d 314 (1973). The court thought

that the factors outlined in Zimmer were

to be taken as indicia of--but not neces-

sarily the determinants of--"“dilution."

The court now understands that its

approach was in error and that "dilution"

is to be defined as the "aggregate" of the

factors outlined in Zimmer, bearing in

mind that "all of these factors need not be

proved in order to obtain relief." 485

F.2d at 1305. It appears that only one of

the four primary factors--number (3)--has

been established by plaintiffs. Factors (1)

and (4) have clearly not been proved. The

evidence respecting factor (2) is mixed, but,

using what the court believes to be the

appropriate meaning of "unresponsiveness",

this factor has likewise not been proved to

the court's reasonable satisfaction.

Even when "enhanced" by two or pos-

sibly three of the "extra" factors, proof

of factor (3) is insufficient "in the aggre-

gate" under these criteria to establish a

case of "dilution." Accordingly, the court

finds and concludes that there has not been

proved an impermissible dilution of black

votes under the existing Fairfield system.

It may be noted that there has been no

evidence that the claimed "dilution" was

the result of any invidious discriminatory

purpose. Cf. Washington v. Davis, 426 U.S.

229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

Judgment in favor of the defendants

will be entered by separate order.

This the llth day of June, 1976.

/s/Sam C. Pointer, Jr.

United States District Judge

WISDOM, Circuit Judge, specially

concurring.

I concur in the results the majority

reached in three of the voting dilution

cases decided today: Nevett v. Sides,

571 F.2d 209; Thomasville Branch of the

NAACP v. Thomas County, 571 F.2d 257;

Bolden v. City of Mobile, 571 F.2d 238.

I cannot find as much between the lines of

the Zimmer opinion as the majority finds,

but in view of Washington v. Davis and Ar-

lington Heights I understand why the major-

ity should seek and find discriminatory

intent. The majority holds that these two

important cases require proof of a racially

Ce AON ADM TEN Te! METS MRE Re ee TES NS AR EEL a EUR TTS OT PETE TT”

discriminatory intent in voting dilution

cases. The intent is established by a show-

ing that there exists an "aggregate" of

the factors outlined in Zimmer. The fact-

finder determines "under all the relevant

facts, in whose favor the ‘agqgregate' of

the evidence preponderates." (The majority's

focus, notwithstanding its emphasis on in-

tent as an essential element in/a holding

of dilution, is on the effects of at-large

voting or multi-member districting on the

accessibility of a minority group to the

political process.) Then, if invidious

effects preponderate, the court by infer-

ence declares that the legislative body which

initiated the plan had a racially discrimina-

tory intent. If for historical or other

reasons the voting scheme could not initially

have motivated by a racially discriminatory

intent, as in Shreveport, then failure of

the legislative body to take affirmative

curative action demonstrates, under Kirksey,

an illegal intent to maintain diluted voting

rights.

I find it more straightforward, and

not inconsistent with Washington v. Davis

and Arlington Heights, to hold that the

fourteenth amendment, through the equal

protection clause, and the fifteenth amend-

ment, in itself and through congressional

statutes enacted to make the amendment ef-

fective, prohibit dilution of voting rights--

without proof of racial discriminatory

purpose. I agree, therefore, with the posi-

tion of the United States, as expressed in

the amicus brief of the Attorney General.

And in the field of civil rights I recognize

and would give weight to the expertise of

the Department of Justice.

In Fortson v. Dorsey, 1965, 379 U.S.

433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401,

the Supreme Court said:

It might well be that, designedly

or otherwise, a multi-member con-

stituency apportionment scheme,

under the circumstances of a parti-

cular case, would operate to mini-

mize or cancel out the voting

strength of racial or political

elements of the voting popula-

tion. . .This question, however,

is not presented by the record

before us." (Emphasis added).

The Supreme Court reaffirmed this language in

Burns v. Richardson, 1966, 384 U.S. 73, 86

S.Ct. 1286, 16 L.Ed.2d 376: “Where the re-

quirements of Reynolds v. Sims are met, ap-

portionment schemes including multi-member

districts will constitute an invidious dis-

crimination only if it can be shown that

'designedly or otherwise, a multi-member

constituency apportionment scheme, under

the circumstances of a particular case,

would operate to minimize or cancel out the

voting strength of racial or political

elements of the voting pomulation.'. ..."

(Emphasis added). 384 U.S. at page 88, 86

S.Ct. at page 1294. The Court twice re-

peated the substance of this statement. At

page 88, 86 S.Ct. at page 1295, the Court

said: "Speculations do not supply evidence

that the multi-member districting was de-

signed to have or had the invidious effect

necessary to a judgment of the unconstitu-

tionality of the districting. . . ." (Em-

phasis added). And on page 89, 86 S.Ct. on

page 1295, the Court said: "(Legislative

judgments on apportionment are] subject to

constitutional challenge only upon a demon-

stration that the interim apportionment,

although made on a proper population basis,

was designed to or would operate to minimize

or cancel out the voting strength of racial

or political elements of the voting popula-

tion." (Emphasis added).

This Court has construed the Supreme

Court's use of the term "or otherwise" to

mean that intent to discriminate need not

be proved when a voting plan minimizes or

cancels out minority voting strength. Panior

v. Iberville Parish School Bd., 5 Cir. 1976,

536 F.2d 101, 104-105; Ferguson v. Winn

Parish Police Jury, 5 Cir. 1976, 528 FP.2d

592, 597; Wallace v. House, 5 Cir. 1976, 515

F.2d 622-623; Bradas v. Rapides Parish Police

Jury, 5 Cir. 1975, 508 F.2d 1109, 1113;

Robinson v. Commissioners Court, Anderson

County, 5 Cir. 1974, 505 F.2d 674, 678 n. 3;

Moore v. Leflore County Board of Election

Commissioners, 5 Cir. 1974, 502 F.2d 623-

624; Zimmer v. McKeithen, 5 Cir. 1973, 485

F.2d at 1304; Howard v. Adams County Board

of Supervisors, 5 Cir. 1972, 453 P.2d 455,

457-458, cert. denied, 405 U.S. 925, 92

S.Ct. 2461, 32 L.Ed.2d 812 (1972).

In White v. Regester, and Whitcomb

v. Chavis, the leading cases involving multi-

member districts, the Supreme Court did not

require proof of a legislative intent to dis-

criminate. White \. Regester did not sug-

gest that the reapportionment was enacted with

improper racial motive and intent; instead

the Court discussed the effect of the reappor-

tionment plan upon minorities in Bexar and

Dallas Counties. The plaintiffs' burden was

to show that they “had less opportunity

than did other residents in the district to

participate in the political processes and to

elect legislators of their choice". White

= '

v. Regester, 412 U.S. at 766, 93 S.Ct. at

2339.

Washington v. Davis and Arlington

Heights were not voting dilution cases.

Washington v. Davis sustained the use of a

pre-employment test which had a dispro-

portionate impact on black applicants; this

seems to have been the sole effect on which

the plaintiffs relied. In Arlington Heights

the Court held that the plaintiffs had

failed to prove discrimination when a village

refused to re-zone property for the con-

struction of racially integrated low income

housing; as I see it, the Court could reason-

ably have gone either way in that case. The

reach of these cases extends beyond their

contexts, but I find it significant that

the opinions do not mention White v. Regester;

Whitcomb v. Chavis, or any other case in-

volving dilution of the black vote by at-large

voting or multi-member districts. The Court

did cite Wright v. Rockefeller, but in that

case the plaintiffs failed to prove vote

dilution; even if the district lines followed

racially identifiable neighborhood lines

(which the court doubted), they were drawn

with either a neutral or benign purpose.

As this Court stated in Kirksey, 554 F.2d

at 149: "White v. Regester is alive and well";

Washington v. Davis and Arlington Heights

do not “suggest that White v. Regester

and its progeny are no longer law".

My disagreement with the majority

is not in our different verbalizing of simi-

lar views. I agree that it is reasonable

to argue, for example, that proof of the

invidious effects of multi-member dis-

tricts or at-large voting raises an infer-

ence, perhaps, in some cases, a strong pre-

sumption, of discriminatory purpose. That

formulation is run-of-the mine, acceptable,

legal semantics--in some cases. It will

not cover those cases in which the voting

scheme was neutral when initiated or even

benign but had unintended or inadequately

considered invidious effects on the voting

rights of minorities. In those cases, as the

majority was driven to say, the discrimina-

tory 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. a

In some cases legislative intent may

be unprovable; resort must be had to infer-

ence. When, however, a court must consider

a laundry list, an "aggregate" of factors,

some pointing one way and others pointing

another way, the case turns on the attitude

of the trial judge and the appellate judges

toward the American brand of federalism; I

question whether "Our Federalism" is James

Madison's federalism. Is federal interfer-

ence with the voting scheme of a State or

local government an unwarranted intrusion

or is it valid protection of federal rights

under the thirteenth, fourteenth, and fif-

teenth amendments? The answer may depend

more on the iegal philosophy of the parti-

cular judge or judges in the case than on

the logical relationship between effects,

as evidentiary facts, and the inference

that the state or local governing body ne-

cessarily intended to deny or to dilute the

votes of black citizens. The judicial

branch defers to the coordinate legislative

branch. And federal judges have been edu-

cated to respect the States. It comes hard

for a federal judge, searching for some-

thing as tenuous as legislative motive, to

say that a State or local governing body in

bad faith devised a scheme to deny or to

dilute voting rights guaranteed by the

Constitution.

The inference of a racially discrimi-

natory purpose is not as simple to draw as

one would think from a reading of the major-

ity opinion. Palmer v. Thompson, 1971, 403

U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438

illustrates this point. In that case a city

ordinance, neutral on its face, closed all

publicly-operated swimming pools in Jackson,

Mississippi, a few days after a court ordered

the pools desegregated. "Almost everyone

in Jackson, Mississippi,knew the city closed

its swimming pools solely to avoid inte-

gration. 2" The Mayor of Jackson flatly

stated that the city would not operate

integrated pools. The record strongly sup-

ported an inference of segregative intent

from the circumstances incident to the closing

of the public swimming pools. The Supreme

Court, however, noted that the Court has

never "held that a legislative act may viol-

late equal protection solely because of the

motivation of the men who voted for it”.

1. Brest, Palmer v. Thompson, 1971 S.Ct.

Rev. 95, An Approach to the Problem of Unconstitu-

tional Legislative Motive.

2. The Court distinguished Griffin v. Prince

Edward County School Board, 377 U.S. 218, 84 S.Ct.

1226, 12 L-Ed.2d 256 (1964) and Gomillion v. Light-

foot, 364 U.S, 339, 81 S.Ct. 125, 5 LBd-3d 110 (1960)

on the ground that "the focus in those cases was on

actual effects of the enactments" rather than on

motivation. Four members of the Court found either

discriminatory purpose or effects or both.

403 U.S. at 224, 91 S.Ct. at 1944. The Court

accepted the City's explanation that it had

closed the pools to avoid violence (cf.

Cooper v. Aaron, 358 U.S. 1, 785 S.Ct. 1401,

3 L.Ed.2a 5 (1958)) and because the pools

could not be operated economically.

I would distinguish cases involving

voting rights from all other types of equal

protection cases. > "(T]he political franchise

of voting" is "a fundamental political right,

because [it is]. preservative of all rights."

Yick Wo v. Hopkins, 1886, 118 U.S. 356, 370,

6 S.Ct. 1064, 1071, 30 L.Ed.2d 220. "The

right to vote freely for the candidate of

one's choice is of the essence of a demo-

cratic society, and any restrictions on that

right strike at the heart of representative

government. And the right of suffrage can

be denied by a debasement or dilution of the

weight of a citizen's vote just as effect-

ively as by wholly prohibiting the free

exercise of the franchise." Reynolds v. Sims,

1964, 377 U.S. 533, 555, 84 §.Ct. 1362, 1378,

12 L.Ed.2d 506.

3. In particular, it is clear that Congress

has the power to omit any requirement of "purposeful

discrimination" from the civil rights act. Griggs

v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849,

28 L.Ed.2d 158 (1971); Arlington Heights v. Metro-

politan Housing Development Corp.

The safe and sure test for the consti-

tutionality of a voting plan is proof of

invidious effects, such as the failure to

give due weight to votes of members of a

minority group. When there is clear proof

of this effect, I disapprove of resorting

to a dowser to divine whether under an "aggre-

gate" of surface factors there is an uncon-

stitutional legislative motive.

Ade

There is no doubt that a provable

racially discriminatory legislative purpose

fortifies the plaintiffs in a case based

on the eoual protection clause of the four-

teenth amendment. But under the fifteenth

amendment, proof of such a purpose is irrel-

evant. Washington v. Davis and Arlington

Heights did not involve the fifteenth amend-

ment. Indeed, no Supreme Court opinion

holds that voting dilution is insufficient to

4. My position is this case is unrelated to

the traditional use of legislative history to deter-

mine legislative purpose as an aid to statutory

interpretation. Also, stated in other terms, one

might say that in the area of voting discrimination,

as in same other areas, for example, cases involving

segregated facilities, even before congressional

action the possibility of a nonracially motivated

purpose is so minimal that it should not be allowed

to cloud the picture.

stablish a violation of the fifteenth amend-

ment without proof of a discriminatory le-

gislative purpose. Furthermore, even if

the majority imports an intent requirement

into the fifteenth amendment itself, in

Bolden and Thomasville the plaintiffs al-

leged violations of the Voting Rights Act

of 1965 (42 U.S.C. §1973) and the Civil

Rights Act of 1870 (42 U.S.C. §1971).

The fifteenth amendment provides

that the "rights of citizens of the United

States to vote shall not be denied or ab-

ridged. . .on account of race." There is

nothing in the amendment itself requiring

proof of legislative purpose. The need

for a discriminatory intent in most cases

arising under the equal protection clause

was not conclusively established until

Washington v. Davis. Many courts and com-

mentators have taken a different position.”

5. See, €.g., Metropolitan Housing Devel.

Corp. v. Village of Arlington Heights, 7 Cir. 1975,

S17 F.2d 409, rev'd, 1977, 429 U.S. 252, 97 S.Ct.

555, 54 L.Ed.2d 772; Davis v. Washington, 1975, 168

U.S.App.D.C. 42, 45-47, 512 F.2d 956, 959-61, rev'd,

1976, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597;

Be a 1975, 168 U.S.App.D.C. 62, 67,

F. 976, 981; Brid rt Guardians v. Bridgeport

Civil Service Comm'n, 2 ai 1973, 482 F.2d 333

1337; Cisneros v. Corpus Christi Indep. School Dist.,

5 Cir. 1972, 467 F.2d 142, 148, cert. denied, 413

U.S. 920, 93 S.Ct. 3053, 37 L.Ed.2d 1041; Castro v.

(Footnote continued on next page)

The majority here gives no reasons for read~

ing the fourteenth amendment requirement, as

construed in Washington v. Davis, into the

fifteenth amendment. The fundamental impor-

tance of the right to vote argues for expan-

Sive protection of that right.

(Footnote continued from preceding page)

Beecher, 1 Cir., 1972, 459. F.2d 725, 732-33; Chance

Vv. Board of Examiners, 2 Cir..1972, 458 F.2d 1167,

II75-76; Hawkins v. Town of Shaw, 5 Cir. 1971, 437

F.2d 1286, 1291-92, aff"d en banc, 461 F.2d 1171

(see especially my concurring opinion at 1174);

Southern Alameda Spanish Speaking Organization v.

Union City, 9 Cir. 1970, 424 F.2d 291, 295-96.

(dictum). ' Several Supreme Court opinions could

have led observers to believe that intent was irrele-

vant to equal protection challenges. See Palmer

v. Thompson, 1971, 403 U.S. 217, 91 S.Ct. 1940, 29

L.Ed.2d 438; Wright v. Council of City of Emporia,

1972, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51.

See also Keyes v. School Dist. No. 1, 1973, 413 U.S.

189, 217, 224-32, 93 S.Ct. 2686, 37 L.Ed.2d 548

(Powell, J., concurring and dissenting). A sampling

of the commentators who have advocated tests in-

volving less intent than Washington v. Davis includes

Goodman, De Facto School Segregation: A Constitu-

tional and Empirical Analysis, 60 Calif.L.Rev. 275

(1972); Perry, The Disproportional Impact Theory of

Racial Discrimination, 125 U.Pa.L.Rev. 540 (1977)

(although he excludes voting cases from his theory) ;

Karst, Foreword: Equal Citizenship Under the Four-

teenth Amendment, 91 Harv.L.Rev. 1 (1977); L. Tribe,

American Constitutional Law 1028-32 (1978); Fiss,

Groups and the Equal Protection Clause, 5 J.Phil. &

Pub.Aff. 107 (1976); Eisenberg, Disproportionate

Impact and Illicit Motive: Theories of Constitutional

Adjudication, 52 N.Y.U.L.Rev. 36 (1977).

When the focus of our inquiry shifts

from the right to vote under the equal pro-

tection clause to the right to vote under

the fifteenth amendment, even stronger reasons

appear for rejecting legislative intent,

motive, purpose, whatever name is given to

the leap from evidentiary facts to proof of

the legislative objective. Most states do

not tie the legislature's hands with records

of committee reports and debates. After Brown,

in controversial racial decisionmaking

sophisticated, facially neutral discrimination

soon replaced overt discrimination. Con-

sider, for example, the progression from

the grandfather clause to the understanding

clause to the lily white primary to the

literacy test and eventually, by phases, to

an absolute facially neutral citizenship

test administered not arbitrarily but fairly.

United States v. Louisiana. ° With almost all

eligible whites registered in a voting dis-

trict, the citizenship test--which applied

to blacks and whites equally-~resulted in

effectively discriminating against unregistered

blacks. As to the citizenship test, no ev-

idence, except the historical pattern and

6. United States v. Louisiana, E.D.La. 1963,

225 F.Supp. 353, 380; aff'd Louisiana v. United

States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709

‘78

Seer

TPIS. 6.

the effect, bore on the question of uncon-

stitutional legislative objective.

The fourteenth amendment's equal

protection clause is a broad statement,

without self-evident limits. Its requirement

of "equal protection of the laws" is sub-

ject to many interpretations. The doc-

trinal apparatus applicable to equal pro-

tection claims is far removed from the exact

words of the amendment. The Supreme Court

has long read equal protection to forbid

either completely irrational state actions,

or activities which "invidiously discrimi-

nate" against various groups. Although I

believe that an intent requirement has no

place in voting dilution cases under either

amendment, I concede that the concept of

discrimination, the judicial gloss central

to our understanding of equal protection,

may include a notion of intent. To dis-

criminate is to make distinctions. This

involves an element of choice missing in

non-conscious differences of treatment. Many

commentators have seen as the core of

harmful discrimination the stigma that

attaches to people who are told they are

second-class citizens. ’ This stigma might be

7. See, e.g., Cahn, Jurisprudence, 30 N.Y.U.

(Footnote contin on next page)

seen to arise only from intentional insults,

those involving purposeful discrimination.

An intent requirement serves two

functions in equal protection litigation.

(Footnote continued from preceding page)

L.Rev. 150 (1955); Black, The Lawfulness of the

Segregation Decisions, 69 Yale L.J. 421 (1960); Brest,

Foreword: In Defense of the Antidiscrimination Prin-

ciple, 90 Harv.L.Rev. 1, 8-12 (1975); Karst,

Foreword: Equal Citizenship Under the Fourteenth

Amendment, 91 Harv.L.Rev. 1, 5-11 (1977); Fiss,

Groups and the Equal Protection Clause, 5 J.Phil. &

Pub.Aff. 107 (1976). Of course, it must be admitted

that intent and stigma are not neatly overlapping

concepts. A person may feel oneself stigmatized

by an action actually taken for nondiscriminatory

reasons.

There are hints that the Supreme Court may

consider the stigmatizing nature of government ac-

tions important in judging their validity. See

United Jewish Organizations of Williamsburgh, Inc.

Vv. v. Carey, I977, 430 U.S. 144, 165, 97 S.Ct. 996,

I009, 5I L.£d.2d 229, where the plurality opinion

points out that although the state deliberately used

race in its deliberations,

"its plan represented no racial slur

or stigma with respect to whites or any

other race, and we discern no discrimi-

nation violative of the Fourteenth

Amendment."

See also Comment, Proof of Racially Discriminatory

ving one Reger Phang er Pobre perl mg

v. Davis, Arlington Heights, Mt. Healthy, and Williams-

burgh, 12 Harv.Civ.L./Civ.R.L.Rev. 725, 755-61 (1977);

Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11

L.Ed.2d 430 (1969).

It seems to comport with our notion of the

central meaning of equal protection--the

absence of "discrimination"--and it pro-

vides a tool with which to limit the other-

wise long reach of the principle. As

Justice White, writing for the majority,

pointed out in Washington v. Davis, a reading

of the equal protection clause completely

devoid of an intent requirement would

"raise serious questions about,

and perhaps invalidate, a whole

range of tax, welfare, public

service, regulatory, and licensing

statutes that may be more burden-

some to the poor and to the average

black than to the more affluent

white."

426 U.S. at 248, 96 S.Ct. at 2051.

An intent requirement is not needed

to prevent these problems with the fifteenth

amendment. Unlike the fourteenth amendment's

ambiguous "equal protection of the laws"

the fifteenth amendment demands that the right

to vote not be "abridged". This command can

be read without the elaborate judicial gloss

necessary to make sense of equal protection,

specifically, without involving "discrimi-

nation". Instead, the words could be given

a plain meaning: the right to vote should be

the same for citizens of all races. Given

the recognized importance of the right to

vote, such a preferred position is under-

standable. In light of the development of

the right to vote under both amendments

in the past century, the equality involved

is the equal opportunity to elect repre-

sentatives. It is an effective equality,

although not a guarantee of equality of

result--after all, the right to vote was

protected, not the right to vote for the

winning candidate. In the town of Fair-

field, where the number of black voters

was about the same as the number of white

voters, given no abridgement of their

right to vote, blacks had an equal opport-

unity with whites to elect representatives.

In the City of Shreveport, where blacks were

34 percent of the population (black regis-

tration had a small percentage), facially

neutral at-large voting for city commissioners

effectively diluted the black vote--regardless

of the purity of motive of the Lousiana

legislature in establishing the system in

1910, when no blacks voted.

Furthermore, the fifteenth amendment

by its terms is less expansive than the

equal protection clause. Reading of this

amendment as dealing with effects, not le-

gislative intent, does not throw into ques-

tion taxing, welfare, and regulatory schemes;

Tae aastae eee ee

merely voting schemes. And it is limited

to racial groups.

The reasons for restricting the equal

protection clause do not apply to the fif-

teenth amendment. When a government adopts

a system of voting that, considered in

light of the Zimmer factors, places black

citizens at a disadvantage, the government's

reasons are irrelevant. The right to vote

has been abridged.

The majority cites cases where vio-

lations of the fifteenth amendment were founé

in situations of purposeful discrimination.

It recognizes that it must prove the converse

proposition: that purposeful diScrimination

is required for making out a violation.

But the majority does not analyze the prob-

lem. The majority rests it conclusion on

two cases: Wright v. Rockefeller and Bradas

v. Rapides Parish Police Jury. '

There is little authority one way or

another. Until Washington v. Davis, there

was no apparent need for black plaintiffs,

or the judges reviewing their claims, to

distinguish between the right to vote under

the two amendments. Wright involved a gerry-

mander, not a voting dilution case. There,

the parties framed the question as whether

the lines had been purposefully drawn

on racial grounds. The Court affirmed the

decision of a three-judge court, finding

that the plaintiffs had not proved either

racial motivation or that the legislature

"in fact drew the district on racial lines."

The Court further noted that it was not

obvious that the lines, as drawn, were to

the disadvantage of blacks. Three dis-

tricts were majority non-white districts,

one was almost totally white. As the Court

pointed out, some of the black voters in-

volved might strongly contest an effort to

divide their numbers more evenly. The case

is distinguishable from these cases because

it was a gerrymander, and because no abridging

of black voting strength was clear. Toney v.

White, discussed below, demonstrates that

Bradas is not the only word in this Circuit

on intent and the fifteenth amendment.

The precedents cited by the majority

are weak. The reasons given by the majority

are non-existent. Whatever the status of

intent and the right to vote under the equal

protection clause, intent should be irrele-

vant to the fifteenth amendment.

Even if an intent requirement is read

into the fifteenth amendment, plaintiffs are

not foreclosed from making a case on differ-

ential effects. The plaintiffs in Bolden

brought suit under 42 U.S.C. §1973; the

plaintiffs in Thomasville sued under both

§1973 and §1971(a) (1).

Under Section 2 of the fifteenth

amendment, Congress has the power to enact

laws to carry out the purposes of the amend-_

ment. These laws may provide greater pro-

tection to voters than exists by force of

the constitution alone. South Carolina v.

Katzenbach, 1966, 383 U.S. 301, 86 S.Ct. 803,

15 L.Ed2d 769. Some of the provisions of

the laws enforcing the fifteenth amendment

speak to the Attorney General, some to the

rights of individual voters. None of them

requires discriminatory intent; at best, for

the majority, purpose and intent are alterna-

tives.

Section 1973c is different in pro-

viding that changes in the election laws

of covered jurisdiction must be shown not to

have the purpose and will not have the effect

of denying or abridging minority voting

rights. The Attorney General, however, has

refused to authorize reapportionments under

this provision on the ground that they had

the effect, regardless of purpose, of diluting

minority voting strength, without considera-

tion of intent. See United Jewish Organiza-

tions of Williamsburgh v. Carey, 1977, 430

U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229.

Section 1973a(b) bans "tests or de-

vices" in certain jurisdictions unless they

were found not to have been used for ten

years "for the purpose or with the effect

of denying or abridging the right to vote

on account of race of color. .. ." [fem-

phasis added]. This is clearly stating

purpose and effect in the alternative.

The tests and devices involved were

"any requirement that a person

as a prerequisite for voting or

registration for voting (1)

demonstrate the ability to

read, write, understand, or

interpret any matter, (2)

demonstrate any educational

achievement or his knowledge

of any particular subject, (3)

possess good moral character,

or (4) prove his qualifications

by the voucher of registered

voters or members of any other

class."

42 U.S.C. §1973b(c). These provisions

speak only the language of effect, making

intent irrelevant when the reapportionment

abridges the right to vote, or the test

determines eligibility.

Section 1973 comes from §2 of the

same Act, the Voting Rights Act of 1965.

It provides that "no voting qualification

or prerequisite to voting, or standard,

practice, or procedure shall be imposed

or applied by any State or political sub-

division to deny or abridge the right to

any citizen of the United States to vote

On account of race or color". This pro-

vision was aimed at subtle as well as

obvious state regulations which have the

effect of denying citizens their right to

vote because of race. Allen v. State Board

of Elections, 1969, 393 U.S. 544, 89 S.Ct.

817, 22 L.Ed.2d l. Similarly, Section

1971(a) (1), derived from the Civil Rights

Act ‘of 1870, provides that all citizens

"shall be entitled and allowed to vote. .

without distinction of race".

These provisions are part of a le-

gislative scheme to protect the voting

rights of black Americans from both inten-

tional and unintentional diminution. They

speak of abridging, without requiring

intent. Congress must have intended that

those aggrieved have the power to protect

their rights to the same extent as the

Attorney General. I conclude, therefore,

that intent is not required to make out a

case under Section 1971(a) (1) or Section

1973.8

This Court has come to the same con-

clusion. In Toney v. White, 5 Cir. 1973,

476 F.2d 203, the plaintiffs challenged

discriminatory election practices on both

statutory and constitutional grounds. The

Court held that any intent to discriminate

was irrelevant.

The Civil Rights Act of 1870, as

amended, 42 U.S.C. §1971 (a) (1)

forbids any distinctions based

on race in the voting process.

And Section 2 of the Voting

Rights Act of 1965, 42 U.S.C.

§1973, prohibits imposition of

8. Different treatment of similar legis-

lative and constitutional provisions would not be

without precedent. While Washington v. Davis found

that an intent test applied to an employment dis-

crimination claim brought under the equal pro-

tection camponent of the Fifth Amendment, it spe-

cifically reaffirmed that such an intent was not

necessary under Title VII. 426 U.S. at 246-48,

96 S.Ct. 2040. See Griggs v. Duke Power . »

1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2da

158. Similarly, although the Court struck down the

equal protection: challenge to the zoning laws

of Arlington Heights, it remanded the case for

consideration of the statutory issues. On remand,

the Court of Appeals held that a violation of

Title VIII could be made out without proof of a

discriminatory intent. Me litan Housi

Devel t Corp. v. Village of Arlin Height

7 Cir. 1977, 558 F.2d 1283. Accord, United States

v. City of Black Jack, 8 Cir. 1974, 508 F.2d 1179,

1184-85.

any practice or procedure which

has the effect of denying or

abridging the right of any citi-

zen to vote on account of race

or color. [emphasis added]

Id. at 207. This reasoning was affirmed

by the Court, en banc, 5 Cir. 1973, 488

F.2d 310. Only one judge expressed any

reservation about the adoption of a pure

effect test. 488 F.2d at 316-17 (Judge

Gee, concurring in the judgment). His

concurrence makes it absolutely clear that

the en banc decision of the Court was based

on the conclusion that effect alone was

sufficient to prove a violation of these

statutes. See also Gremillion v. Rinaudo,

E.D.La. 1971, 325 F.Supp. 375, 377.

With due deference to my brothers

on the panel, to me the proof is convincing

in this case that the effect of the per-

tinent law was to reduce the value of each

black's vote. To require the plaintiffs to

prove an unconstitutional legislative mo-

tive is to burden the plaintiffs with the

necessity of finding the authoritative

meaning of an oracle that is Delphic only

to the Court.

Reverend Charles H. NEVETT et al., Individ-

ually, and on behalf of all others

Similarly situated, Plaintiffs-Appellees

Cross Appellants,

Vv.

Lawrence G. SIDES, Individually, and in

his capacity as Mayor of Fairfield,

Alabama, et al., Defendants-Appellants

Cross Appellees.

No. 75-1864.

United States Court of Appeals,

Fifth Circuit.

June 8, 1976.

Before RIVES, GOLDBERG and GEE, Circuit

Judges.

RIVES, Circuit Judge:

Three black citizens who presently

reside in Fairfield, Alabama, brought this

action on behalf of themselves and all

other black citizens residing in Fairfield.

The defendants are the City of Fairfield,

a municipal corporation, the Mayor of

Fairfield, the members of the Fairfield

City Council, the City Clerk, and the

State Attorney General. The plaintiffs

390

charge that, as applied, the state statute

which governs municipal elections in Fair-

fie1al operates to unconstitutionally di-

lute voting power.

1. Ala.Code tit. 37, §426 (Supp. 1973):

"Election of president of council and alder-

men.--In cities having a population of

twelve thousand or more, there shall be

elected at each general municipal elec-

tion the following officers, who shall

compose the city council for such cities,

and who shall hold office for four years

and until their successors are elected

and qualified, and who shall exercise

the legislative functions of city go-

vernment and any other powers and duties

which are or may be vested by law in the

city council or its members: A president

of the city council, and in cities having

seven wards or less, two aldermen from

each ward, to be elected by the quali-

fied voters of the several wards vot-

ing separately in every ward; except

in cities of less than twenty thousand

population, in which two aldermen from

each ward shall be elected by the

electors of the city at large; in cities

having more than seven wards, one alder-

man from each ward, and a sufficient num

ber of aldermen from the city at large to

make the total number of aldermen

fourteen exclusive of the president

of the council; and in cities having fifty

thousand population or more the city

council may create not exceeding twenty

wards. The president of the council

shall have the right to vote on all

questions the same as any other member

of the council. Provided however, that

(Footnote continued on next page)

After answers of the defendants, and

further refinement of the issues by the

(Footnote continued from preceding page)

the city council of any city having

a population of twelve thousand or

more may by ordinance or resolution,

if adopted by two-thirds vote of the

city council more than six months

prior to any general mmicipal

election, provide that the city coun-

cil of said city shall consist of five

aldermen to be elected from the city

at large. And provided ftirther, that the

city council of any city having a pop-

ulation of more than thirty thousand,

according to the last or any subse-

quent federal decennial census, or

according to any census of such city

made pursuant to article 3 of chapter

10 of this title, or Act No. 845 of

the Acts of 1953 (sections 481(1) and

481(2) of this title,) and having only

five wards, may, by ordinance or re-

solution adopted by two-thirds vote of

the city council, at least six months

prior to a general mmicipal election,

provide that the city council shall

consist of a president and five

aldermen. If such an ordinance or re-

solution is adopted one alderman shall

reside in each of the respective wards

of the city, the president and all

the aldermen shall be elected by the

voters of the city at large, and the

president shall vote only in case of

a tie." (emphasis added)

pre-trial order, voluminous evidence was

introduced. The evidence consisted of

documents, testimony from witnesses, and

interrogatories and answers thereto by the

parties. After each of the two hearings

was conducted, the district court dictated

into the record the court's findings of

fact and conclusions of law.

On February 20, 1975, after the

conclusion of the first hearing, the dis-

trict court "Ordered and Adjudged that

parties present a plan to the Court, by May

1, 1975, consistent with the Court's direc-

tions as dictated in the Court's findings

of fact and conclusions of law."

Pursuant to that order, six differ-

ent plans were presented, four by the

plaintiffs and two by the defendants. The

(Footnote continued from preceding page)

elections, the City is divided into six wards,

each containing an approximately equal number of

voters. Two council members residing in each ward

are elected at-large by the voters. The Mayor

of Fairfield whose duties and functions are

outlined by state law, is also elected by the voters

of the City as a whole. In addition, there is a

president of the city council elected by the

City voters at-large. The legislative powers and

certain other functions are vested in the city

The complaint seeking declaratory and injunctive |

relief was filed May 30, 1973. Without dispute, :

the population of Fairfield is between 12,000 and

20,000. For purposes of conducting mmicipal : wee

(Footnote continued on next page)

92 93

council which has a total membership of thirteen,

that is, the twelve regular council members plus

the president of the City Council.

second hearing was on those plans, and the

hearing concluded May 24, 1975. On June

6, 1975, the district court entered its

final judgment as follows:

It is ORDERED, ADJUDGED and

DECREED as follows:

1. The defendants’ motion for recon-

sideration of the court's order of February

20, 1975, requiring modification of the

existing system of election of members of

the City Council of the City of Fairfield,

is hereby denied.

2. Subject to possible modification

under the conditions set forth in paragraph

3 below, the City of Fairfield, Alabama,

beginning with the City Council elections

of August, 1976, shall institute the

following system of selection of a nine-

member City Council to replace the system

currently in effect pursuant to Title 37,

§426 of the Alabama Code:

(a) Eight members of the council

shall be elected from single mem-

ber districts whose boundaries shall

follow the outline of districts

submitted by the plaintiffs in their

plan for eight districts, each mem-

ber to be elected solely by the

voters of his or her respective

district.

(b) A city council president,

having the powers and duties spe-

cified by the laws of the State

of Alabama, shall be elected at

large by the voters of the City

of Fairfield.

3. In the event there is conducted

an official special census of the City of

Fairfield, the City Council may within two

months after the completion of the special

census, but not later than May 1, 1976,

request modification of the system of elec-

tion set forth above, in which event the

parties may submit to the court new pro-

posals for the selection of members of the

city council from districts apportioned

according to the results of the special

census. |

4. There being no just reason for

delay, this judgment shall constitute a

final judgment in this case, though the

court retains jurisdiction of the case

for the limited purpose of possible future

reconsideration of this judgment under the

conditions specified above.

5. Costs are hereby taxed against

the defendants. Plaintiff's motion for

995

award of attorney's fees is denied.

Done this the 6th day of June, 1975.

Sam C. Pointer, Jr.

UNITED STATES DISTRICT JUDGE

The defendants filed a notice of

appeal from each of the orders and judg-

ments; the first entered on February 20,

1975, and the second on June 6, 1975. The

plaintiffs moved for reconsideration of

the district court's denial of attorney's

fees, and on June 20, 1975, the district

court refused to reconsider and again

denied plaintiffs' motion for attorney's

fees. The plaintiffs filed notices of

appeal from the order of June 9, 1975, and

from the order of June 20, 1975.

The relevant fact findings were

either intermingled with or preceded

Judge Pointer's conclusions of law. None

of the findings of fact, considered separ-

ately from the intermingled conclusions of

law, can be set aside as clearly erroneous.

Rule 52(a) F.R.Civ.P. We attach to this

opinion the findings of fact and conclusions

of law made after the hearing which con-

cluded February 20, 1975, as Appendix A,

and those which concluded after the hearing

of May 24, 1975, as Appendix B.

oe rer enss Tee,

te eee eee

The appeals and cross appeals of the

parties present for this court's disposition

the following issues: (1) Did the district

court err in deciding that the Fairfield

City Council was malapportioned? (2) Did

the district court err in rejecting the two

plans presented by the defendants or in

accepting one of the plans presented by the

plaintiffs? (3) Did the district court err in

adding one at-large member to the plaintiffs'

suggested single-member plan? (4) Did the

district court err in refusing to grant

plaintiffs an award of attorney's fees?

We vacate the judgments and remand the case

for further proceedings not inconsistent

with this opinion as more specifically

outlined in the concluding paragraph.

In Zimmer v. McKeithen, 485 F.2d

1297 (5th Cir. 1973) (en banc) ,~ after re-

cognizing that multi-member districting

schemes are not per se unconstitutional,

id. at 1304, we stated that when there is

no claim of a racially motivated gerrymander,

plaintiff has the burden of proving that a

2. Affirmed ". . .but without approval of

the constitutional views expressed by the Court of

Appeals" East Carroll Parish School v. Marshall,

U.S. _, 96 S.Ct. 1083, 47 L-Ed.2d 256 (1976).

plan operates to dilute the voting strength

of racial elements in the population in

order to establish the existence of a con-

stitutionally impermissible redistricting

plan, and we outlined the factors that

prove dilution:

[W]here a minority can demonstrate

a lack of access to the process of

slating candidates, the unres-

ponsiveness of legislators to their

particularized interests, a

tenuous state policy underlying

the preference for multi-member

or at-large districting, or that

the existence of past discrimina-

tion in general precludes the ef-

fective participation in the

election system, a strong case is

made. Such proof is enhanced

by a showing of the existence of

large districts, majority vote

requirements, anti-single shot

voting provisions and the lack

of provision for at-large candi-

dates running from particular

geographical subdistricts. The

fact of dilution is established

upon proof of the existence of

an aggregate of these factors.

. - -{AJ)1l these factors need

not be proved in order to obtain

relief.

Id. at 1305. See also Wallace v. House,

515 F.2d 619, 623 (5th Cir. 1975) vacated

and remanded on other grounds, _U.S.__,

96 S.Ct. 1721, 48 L.Ed.2d 191 (1976) (per

curiam). As indicated in Appendices A and

B to this opinion the district court made

3 and then treated

several findings of fact

each of the standards prescribed in Zimmer,

finding that the political process is rela-

tively open now, though not in the past.

“3. The court determined that blacks repre-

sent 48% of the population in Fairfield and have

at least 50% of the registered voters--while the

figures show that blacks have 500 fewer registered

voters, the lower vourt found that since federal

registrars registered 585 voters under the Voting

Rights Act, most of those presumably black, blacks

have at least as many, if not more, registered

voters now; that blacks had won six of the thirteen

council positions in 1968, which was the first tine,

with one exception, that any black had wom [sic]

a position on the council; that no blacks won in

1972, but that if blacks had voted in the same

percentage as whites, they would have elected

nine council members (assuming bloc voting); and

that there has been substantial bloc voting. The

foregoing is paraphrased from the Appendices.

4. The court said: "[I]t is possible for

blacks to prevail under the existing system.

But. . .that has not been the result with one

exception."; the district court further concluded

that there has been racial discrimination in the

past, but that apparently there has been none in

recent years; that the political process has been

far more responsive when blacks were on the city

council, but not totally unresponsive when blacks

were not represented. The foregoing is paraphrased

from the Appendices.

Having dutifully followed Zimmer,

the trial court concluded as follows:

"The Court finally ends up

with the proposition that the

various standards and indicia

that have been prescribed by

the appellate courts are not

helpful one way or the other

in this case. And it ends up with

this Court having to decide under

the basic standards, does the

present system, regardless of

purpose, operate to minimize or

cancel the voting strength of

the blacks in the City of

Fairfield. After belaboring, as

I feel I must under these de-

cisions with the principles

that are involved and finding

that they don't really help, I

come to that question, which is

the one I stated off with, and I

rule in favor of the plaintiffs.

I believe that this plan

[though not by Fairfield's

design]. . .simply does operate

to inhibit and has inhibited the

voting strength. .. .It is

possible and has been that at

some particular election that

could be reversed, but in prac-

tice it has worked that way,

and as I view what the Supreme

Court has said, that means the

system is due to be changed... .

While we sympathize with the trial

court's dilemma in light of its inconclusive

findings, we cannot affirm the ultimate

conclusion of a dilution without findings

100

of fact to fit proper standards. To hold

merely that the plan unintentionally "simply

does act to inhibit and has inhibited voting

strength" and that "in practice it has

worked that way" is not enough. Before a

court can devise a remedial plan, it must

first have found a constitutional viola-

tion. As the Supreme Court said in Dallas

County v. Reese, 421 U.S. 477, 95 S.Ct.

1706, 1708, 44 L.Ed.2d 312, 315 (1975):

[A] successful attack raising

such a constitutional question

must be based on findings in a

particular case that a plan in

fact operates impermissibly to

dilute the voting strength of

an identifiable element of the

voting population.

Such findings must be based on the criteria

that the Zimmer and Wallace courts distilled

from White v. Regester, 412 U.S. 755, 765-

767, 93 S.Ct. 2332, 2339-2340, 37 L.Ed.2d

314, 324-325 (1973) and in accordance with

all later cases. Unless those criteria in

the aggregate point to dilution, i.e., if

the criteria "don't really help", then

plaintiffs have not met their burden, and

their cause must fail. Specifically, the

trial court's findings may be read as indi-~

cating that elections must be somehow so

arranged--at any rate where there is

101

evidence of racial bloc voting--that

black voters elected at least some candi-

dates of their choice regardless of their

percentage turnout. This is not what the

constitution requires. Therefore, we

remand to the district court to reconsider

its findings according to the indicia of

dilution stated in Zimmer and other cases

and to redetermine the ultimate question

of dilution vel non in light of its conclu-

sions with respect to these criteria. If

5. If the district court on remand properly

finds unconstitutional dilution, then the district

court should reconsider its addition of one at-large

member to an otherwise single-member district plan

in light of the intervening Supreme Court decision

in East Carroll Parish School Bd. v. Marshall, _

U.S. , 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per

curiam), aff'g Zimmer v. McKeithen, 485 F.2d 1297

(1973) (en banc), which reaffirmed the rule that

when district courts must fashion a reapportionment

plan to replace state legislation found constitu-

tionally infirm, it should adopt a single-member-

district arrangement unless there are "special

circumstances." Id. U.S. at _,, 96 S.Ct. at

1085, at 299. See also Wallace v. House, U.S.

, 96 S.Ct. 1721, 47 L.Ed.2d 296, 44 U.S.L.W.

3607 (1976) (granting certiorari from our decis-

ion, 515 F.2d 619 (5th Cir. 1975) which fashioned

a "mixed" plan with one of five aldermen elected

at-large) vacating the judgment, and remanding for

reconsideration in light of East Carroll; Beer v.

United States, U.S. , 96 S.Ct.

1357, 47 L.Ed.2d 629, 639-40 (1976). If it finds

dilution, the lower court should also reconsider its

(Footnote continued on next page)

102

fees are awarded by the district court on

remand they should be for all of the ser-

vices of plaintiffs' attorney, including

his services on the present appeal.

Costs of appeal are taxed against

the defendants-appellants. The mandate

of this court shall issue forthwith.

F.R.A.P. Rule 41(a).

VACATED AND REMANDED.

(Footnote continued from preceding page)

denial of attorney's fees in light of Section

402 of the Voting Rights Act amendments of 1975,

P.L. 94-73, which adds a new section 14(e) to

Voting Rights Act, 42 U.S.C. §1973 1 (e) that

gives the district court discretion to authorize

recovery of attorney's fees by prevailing party

in any action to enforce voting rights created

by the fourteenth and fifteenth amendments. For

the statute's application to reapportionment

suits under 42 U.S.C. §1983 (1970), see 121

Cong.Rec. 4735 (daily ed. June 2, 1975) (remarks

of Congressman Drinan); id. at 4720 (remarks of

Congressman Edwards); S.Rep. No. 94-295, 94th

Cong., lst Sess. 40 (1975), U.S.Code Cong. & Admin.

News 1975, p. 774.

[The following dictated opinions, repro-

duced by the Court of Appeals, are the

opinions of the United States District

Court for the Northern District of Alabama,

Nevett v. Sides, No. 73-P-529.]

103

APPENDIX A

THE COURT:

The Court at this time will enter

findings of fact and conclusions of law

based on the evidence that has been pre-

sented in this case.

This evidence consists of testimony

from witnesses, interrogatories and answers

thereto filed by the parties, and certain

documentary evidence in addition.

The case is brought into court under

the provision of Title 28 for jurisdictional

purposes, and Title 42, Section 1983, for

purposes of the cause of action. The

charge essentially is that the defendants,

acting under color of law, have deprived

Or are depriving certain citizens, namely

the plaintiffs, or [sic] rights and privi-

leges under the Constitution of the United

States. There is no doubt but that the

defendants in what they are doing in and

about the election process are acting under

color of law. Indeed they are acting as

directed by state law, and they do not deny

that.

The City of Fairfield is a municipal

corporation which falls in the classification

of between twelve thousand and twenty thou-

sand population. Its legislative powers

and functions are vested by law in a city

council. The city council has plenary

power over a variety of activities, includ-

ing the raising and spending of funds gene-

rally, the passage and enactment of ordi-

nance, including improvement ordinances,

the awarding of or approval of certain con-

tracts for improvement, the appointment of

a number of boards and agencies of the city,

and indeed the selection of certain persons

to simply be employees of the city on

submission or of recommendation from the

Personnel Board of Jefferson County. Under

the state law which goes back to 1909, the

city of the size of Fairfield is directed

to elect its councilmen or perhaps the

terminology would be council persons which

I will reject i.sofar as this opinion is

concerned--to elect those by voting at

large.

Depending upon the number of council-

men to be elected, the law permits or di-

rects that they have residency requirements

according to wards that are drawn up or

that they be elected at large without regard

to particular residences within the city.

Fairfield within the statute has elected to

have six wards, and under this provision

105

of law this means that there are two

councilmen to be elected with respect

to each of the six wards, though they are

elected by the city as a whole. In addi-

tion, there is a president of the council

elected by the city at large without re-

gard to residency within the city. And

there is a mayor whose duties and func-

tions of course are outlined in state law.

Some of the remarks I made about the powers

and functions of the city council are, of

course, subject to certain companion rights

and duties that are given to the mayor

by state law.

The City of Fairfield is not that

different from many other cities in the

State of Alabama, at least in the sense

that until quite recently blacks were not

elected to public office within that city

and shared very little of the decision-

making processes of the city. Apparently

until 1964 there were no blacks appointed

to the city boards and agencies of Fair-

field, but there have since that time been

appointments of black men and women to var-

ious positions of leadership within the

city. Until 1968 no black, however, had

been elected to a city public office in

Fairfield.

rer Te ee

In 1967 blacks qualified to run for

city office, one, without regard to residen-

cy, being for the position of president of

the city councl, and the other six running

for ward positions. All six of those who

ran for ward positions were elected by the

voters at large in 1968. The council then

from 1968 into 1972 was comprised of seven

whites and six blacks.

In 1972 there were again blacks and

whites qualifying to run for office for the

city offices. A large number of blacks

qualified than had in 1968. Fewer whites,

I believe, qualified to run in 1972, no doubt

as at least in part the consequence of not

wanting to fragmentize or split the white

vote; and I think perhaps only in one

instance was there a vote for a council-

man from a ward in which there was more than

one white in the original race and facing

a black. In the '72 election none of the

blacks were elected. And since 1972 then

we have a situation that there is a city

council of thirteen whites and no blacks

and a white mayor.

The thing that may make a case a

little but [sic] unusual is the relatively

high proportion of blacks with respect to

population in the city. In the 1950 or

107

1960 census, perhaps both, blacks consti-

tuted a majority by a very slim margin of

the population of the City of Fairfield.

In the 1970 census, black constituted

approximately 48 percent of the population

of the City of Fairfield. Well, the Court

does not have information as to the per-

centage of registered voters which were

black back in the 1950's or even earlier.

The Court has been provided by evid-

ence with information about the number of

blacks or percentages of blacks on the

registration lists in the City of Fairfield

for the past seven years or so. It appears

that at least by 1968 there were or there

was as high a percentage of blacks who were

registered as voters within the City of

Fairfield as there was of whites. Indeed

the evidence presented by the plaintiffs

indicated that blacks in the year 1968

constituted a higher percentage of register-

ed voters within the City of Fairfield than

they did a percentage of population within

the City of Fairfield. This assumes for

the type of calculation that the population

ratio in '68 was approximately that which

was reflected in the census information of

1970, and also assumes that of the 883

108

persons who were enrolled under the Fede-

ral Registration Voters Procedure, virtually

all of those were black. The registra-

tion of blacks as voters has continued to

be relatively high, at least, or I should

say, relatively at the same rate as the

registration of whites in comparison with

population. I should again emphasize this

is only speaking to what the situation

has been over the last seven years. The

Court is not blinding itself to the like-

lihood that fifteen years ago or at some

point blacks were qualified to vote at a much

lower percentage than were whites. And

indeed there has been evidence of that

presented. i

The voting in the 1968 and 1970 elec-

tions has been presented to Court by a

series of exhibits. The Court has sub-

jected those to some scrutiny and study.

It particularly has made comparisons be-

tween the votes received by various candi-

dates in various wards and the population

within those wards, and particularly the

racial composition of the citizens within

those wards. The statistics make clear what

has been implicit in the testimony, namely,

that in the years 1968 and 1972, race has

been a major factor in determining the way

109

people voted within the City of Fairfield

at city elections. And there is a very

very high correlation between in effect

the race of voters and the persons for whom

those votes were cast or have been cast

in these past two elections.

The Court has also made an effort

to determine for purposes of this decision

what the population is, and the racial

composition is in the various wards, based

on 1970 census.

As pointed out by the plaintiffs in

the presentation, there ‘are difficulties

because there are six census blocks that

cross ward lines, and all but one of the

wards, namely, ward 2 is affected by the

fact that there are census blocks that

cross the ward lines. What the Court has

done is to take the minimum population

figures, that is, those blocks that are

totally within a particular ward, used

that as a starting point, also then deter-

mined the number of citizens and in turn

the number of black citizens that are not

wards totally or these blocks totally with-

in wards. I then have apportioned those

so-called excess persons, excess only from

110

Ne nc en

a statistical standpoint obviously, among

the five wards, wards where there are overlaps,

that each of those five wards has a possible differ-

ence between minimum and maximum population. I have

done the same thing with respect to the number of

blacks by wards. The figures I come out with are

that Ward I has a projected population as

of the 1970 census of 1859 persons of whom

69.77 percent are black, namely, 1297.

Ward No. 2 has 1912 persons population in

1970, of whom 88.39 percent or 1690 are

black. Ward No. 3 has 1365 persons of

whom 52.75 percent or 720 are black. Ward

No. 4 has 2590 persons population of whom

59.27 percent or 1535 are black. Ward 5

has 3501 persons in the 1970 population of

whom 47.84 percent or 1675 are black. And

ward Number 6 has 3142 persons of the 1970

population of which 0.10 or 3 persons are

black.

The deviation in population between

the several wards is to be done by computing

the optimum of what the population of the

wards would be if they were divided on a

numerical basis and then seeing how each

ward stands as a percentage of that opti-

mum. If that caluclation is done, it

appears that Ward No. 3 is only 56.99 per-

111

cent of optimum size, while ward No. 5 is

146.18 percent of optimum size, and ward

No. 6 is 131.19 percent of optimum size.

This further means that there is a maxi-

mum deviation by percentage point between

the smallest and the largest of the wards

of 89.19 percent. That also means that

the largest ward by population size is 2.56

times as large as the smallest.

I, after having made the calcula-

tions, I'm not sure that they are that

Significant in the total context of this

case. If this were a case in which the

residents of Ward 5 and Ward 6 were coming

before this Court saying that they were

adversely affected or having their vote

diluted by reason of the ward arrangements,

- they would have a much stronger case under

Reese v. Dallas County, Alabama, on stan-

dards enunciated by the Fifth Circuit in

December of last year in that case. That

case really involved a situation where the

identifiable group was totally confined

within a single ward or division, and

though it represented approximately 50 per-

cent of the vote in the population or total

population, it could only elect 25 per cent

of the representatives. In this case the

112

Sn ae

ST a

—

identifiable groups that the Court is in

essence being asked to look at are whites

and blacks; and they are not comfined to

one or two wards, but indeed are spread

throughout the wards, though of course

varying as I have indicated already in

terms of the different wards.

The United States Supreme Court in

White v. Regester, has indicated for this

Court that if some plan of election by de-

Sign or otherwise operates to dilute or

cancel the voting strength of a racial

or political group, then under the Consti-

tution of the United States, Fourteenth

Amendment, it is in doubt.

There have been a series of cases

throughout the country and many in the

Southeastern United States which have at-

tempted in the last two years to deal with

that pronouncement by the United States

Supreme Court. The Fifth Circuit Court of

Appeals in Zimmer v. McKeithen, has given

the standards for this Court to apply to

the pronouncement of the Supreme Court.

And this decision by the Fifth Circuit has

in turn been applied to a situation for

the City of Dothan, Alabama, in February

of last year in the case of Yelverton v.

113

Driggers [M.D.Ala. 1974, 370 F.Supp. 612].

The principal issue for the Court to

decide is, does the plan, though required

by the state legislature, does it operate

to minimize or cancel the voting strength

of blacks in the City of Fairfield. It

is not for this purpose critical to say

that it was intentionally designed for that

purpose. Blacks who bring this suit need

not prove that. The question is whether

it operates to do that. The question is

not whether some political group or scien-

tist thinks that individual districts

rather than at large multi-member districts

are better and in part counsel for plain-

tiffs argument suggested that approach.

That is not enough, though certainly the

Supreme Court has indicated that if a Court

is to replace or order some new plan, then

there must be unusual circumstances for

not ordering one that is based upon indiv-

idual single districts.

Four standards or indicia have been

set forth as guidelines, if you will, in

making or assisting the Court in arriving

at a decision. One is the question of

whether the existing system has resulted

in a lack of openness to the political pro-

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A iii sAh nda Bihasiiaibasraiies 5

Aa a a A in .

dia ie cee 2 0 ey SDT

cess by the complaining group, here blacks

in the City of Fairfield. The Court has

heard mixed evidence on that point. It is

clear that blacks have prevailed in six or

seven races which they entered in 1968

under this very system. It also seems

probably. that had more blacks qualified

for ward positions in 1968, there would

have been a majority of blacks elected

to the city council. On the other hand, it

is clear that with that one exception,

all other election years under this system

for variety of reasons has meant that

blacks did not attain representation in

the form of another black being elected

to the city councl. What the Court is left

with then on this particular point, and

I so conclude, is that it is possible for

blacks to prevail under the existing sys-

tem. But it is also true that that has

not been the result with one exception.

I should mention that witnesses, I

think, have been quite candid, the one that

was asked, in saying that there was no

difficulty in qualifying to run for the

city council. It was essentially from a

candidate's standpoint a matter of getting

out the vote, of getting more votes than

115

the opponent or opponents did. There is

clear evidence that there is a polariza-

tion of votes by those who do vote in the

City of Fairfield on city elections. It is

clear that enough people did not vote who

were qualified to vote to have elected nine

out of twelve black can@idates in 1972 of

their own race, black, if they could have

been encouraged and helped or assisted to

vote. It's also clear that there is some

hesitancy as expressed by one of the wit-

nesses, insufficiently encouraging blacks

to involve themselves in the electoral

process because of some prior difficulty,

particularly in terms of difficulties of

registration.

The Court is given a second indicia

or factor for this Court to determine,

that is, the history of radial [sic] dis-

crimination. I have already indicated that

until 1964 there were no blacks on the

various boards of the city. The fact that

during '68 to '72 when there moreblacks on

the city council, of almost fifty percent

there were a series of blacks appointed to

various boards and agencies, indicates

rather dramatically the value and signifi-

cance to the black person in Fairfield of

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oe tee et A ed

r a Be reg

a PL NED iat AE OG Le ae Be Sa I pa ee a ct

having blacks on the city council. It also

makes some dramatic rendering of the prior

situation in which blacks essentially did

not serve on these boards. Only on one

Occasion has there been a black majority

On any board or agency of the city, and

. that related to the financing arrangement

for a black or predominantly black college.

It was significant to the Court that in

describing the method for appointment or for

replacement of persons whose terms expired

On various boards over the last several

years, one of the witnesses identified the

positions being vacated and the questions

of who would be reappointed in terms of there

being a white vacancy or a black vacancy,

indicating some conscious characterization

by city officials to the effect that boards

would not become majority dominated by

blacks, but only minority. There is little

evidence that has been presented to this

Court on as to history of racial discrimi-

nation, and little evidence presented by

the defendants as to lack of racial dis-

crimination.

I suppose the Court is being asked

to take judicial knowledge or notice of a

lot of things. Certainly the Court isn't

117

Fairfield has been responsive to the

needs of the black community. And I find

it very difficult to deal with this sub-

ject matter, though the courts have said

to me, that is, the appellate courts have

blind to things that have happened in

Jefferson County or in Fairfield or in

Alabama. I do not think, however, that it

is appropriate to belabor questions of

judicial notice in this area. It is cer-

tainly true, and the evidence shows that

there have been disparities in employment

of blacks within the City of Fairfield,

black policemen, black firemen, blacks in x ,

civil service type jobs or classified lacks on the city council. It's also

: h ly three out of same sixty are Clear that when there were blacks on the

service, where only |

Two out of city council, they were more effective in

perhaps persuading whites to join them in

getting blacks on other City boards. And

that way there were blacks on other city

said, this is a key factor in deciding

this kind of question. I think it is clear

| that blacks have gotten far more respon-

Siveness from city council when there were

black. Only one on occasions.

some twenty policemen have been black, and

none of the firenen have been black. That

type of evidence certainly demonstrates

to the Court's satisfaction that there has |

been some discrimination involved in times

past. Of course there are problems that

the city has brought out about some of its

hiring policies, and many of them are very

dependent upon what some other agent, name-

ly, civil service, may do. Evidence indi-

cated only in one instance has there been

boards, though in a minority such as two

out of five. They on occasions were suc-

cessful in having one white join with them

to constitute a majority on some particular

issue or issues.

Accordingly, following this type of

approach, one can say that the lack of

councilmen who are black certainly contributes

a black on the qualification list who has

been passed over in recent years in favor

of a white.

There is much of the evidence that

has been focused here on whether or not

118

to a lack of responsiveness to the needs

of the black community. But it is also

true, and the evidence shows this, that

blacks have not had the door completely

closed in their faces insofar as expressing

119

their opinions at city council meetings,

in seeking assistance, presenting petitions,

being heard, and on some occasions being

given what amounts to private audiences

for the presentation of these matters.

While the witnesses have not been too quick

to admit it, the Court has sensed that some

of these requests have gotten answers, not

to the same degree that the witnesses or

that the black communities as a whole

wanted, but there has not been a total

lack of responsiveness merely because

there were no blacks on the city council.

The state policy insofar as at

large versus district voting is concerned

is to this Court's mind rather clear.

There is a state policy, and has been for

in excess of sixty years, acainst voting by

smaller sub districts in those cities that

were less than twenty thousand population.

The policy seems clear to the Court that

only if a city were larger than twenty

thousand was there an opportunity to have

district elections as such. What is not

clear to the Court, and neither side has

introduced evidence, is whether this ini-

tial policy of the state legislature back

in 1909 was in any way grounded upon racial

120

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{

ca RR las elie lied) 8 in a

ee ee

consideration or not. Now other courts

have found and taken judicial notice of

the fact that the 1901 Constitutional

Convention in the State of Alabama was

almost primarily directed and related to

questions of racial concern and of assur-

ing or attempting to insure that whites

would be able to control the political pro-

cesses in the state. Whether the Court can

in any way assume that a 1909 act passed

by the legislature which is only eight years

after a racially oriented Constitutional

Convention has any relationship, I'm not

sure. I think that a reasonable hypothesis

is that this particular matter dealing with

at large elections in cities of less than

twenty thousand had no racial overtones,

but there is no evidence really for the

Court one way or the other. It would be

pure guesswork as to what might have been

the considerations for that passage.

Finally, the Court has been told by

a series of appellate decisions to look at

a variety of additional factors such as

the fact that people run for positions and

hence there can be no single shot vote in

a multi-member race that might be utilized

by a minority to elect someone.

121

The Court finally ends up with the

proposition that the various standards and

indicia that have been prescribed by the

appellate courts are not helpful one way

or the other in this case. And it ends up

with this Court having to decide under the

basic standards, does the present system,

regardless of purpose, operate to minimize

or cancel the voting strength of the blacks

in the City of Fairfield. After belaboring,

as I feel I must under these decisions with

the principles that are involved and find-

ing that they don't really help, I come to

that question, which is the one I started

off with, and I rule in favor of the plain-

tiffs.

I believe that this plan--and this

is not that the City of Fairfield has inten-

tionally designed it; it came from the state

legislature--simply does operate to inhibit

and has inhibited the voting strength, which

has been from 53 per cent to the present 48

per cent or to a turnout rate of 42 per

cent, to effectively diminish that voting

strength. It is possible and has been that

at some particular election that could be

reversed, but in practice it has worked

that way, and as I view what the Supreme

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Court has said, that means the system is

due to be changed, is due to be changed

giving the preference as the Supreme Court

has directed to a single member smaller

district which will be elected merely by

the people of that particular district and

where the size of those particular dis-

tricts is consistent with the one-man-one-

vote principle, which means pretty nearly

the same population in each of the districts.

It is not clear to the Court that

there is a need for the Court to direct that

there be thirteen or fourteen or six or

seven districts. I think the question of

how many wards would then be electing

groups is a matter to some degree of play-

ing with what you have got, the size of areas

and the population and configuration. Al-

though the state statute comprehends typ-

ically fourteen councilmen, it also com-

prehends, for example, a system of five

councilmen in another way. And I'm not sure

that in terms of formulating some plan to

carry out the Court's direction, the parties

should necessarily be bound to fourteen

districts.

The question may arise as to whether

there may be some councilmen elected by

123

district, and then others elected at

large. I would say that no more than one

could be elected at large. Whether one

can be elected at large or not is I think

an open question, and I would be willing to

see. I think that is the way we ought to

handle it, depending on whether there is a

request under a plan for there to be one

such as council president to be elected at

large. There have been some decisions by

a variety of courts that have struck down

a system, even where there are only two

at large, and the rest are by smaller dis-

tricts. The elections are due in August

of 1976.

There should be presented, I think,

by the parties, and each party certainly

has an interest in this, a plan to accom-

plish the direction of the Court. I would

think that the plans should be presented

by June lst. I don't want to put it off

too long, but I think there should be

adequate amount of time to look at it and

study it and perhaps to use the resources

of different groups in the community as

well as perhaps outside assistance. I think

June lst would be adequate and still leave

plenty of time after that for considera-

124

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tion and decision, if there is no agree-

ment by the parties, and still be able to

have that in plenty of time prior to the

August, 1976 election.

Perhaps there are questions by the

parties that I should pause for.

MR. BARNES:

May it please the Court, the ques-

tion naturally arises about questions on

appeal from the Court's decision today,

and I'm in doubt whether this is a final

judgment.

THE COURT:

This could not be a final decision.

However, since that only deals with the

next election, and

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