Appendix — Bennett v. Kelley (Nos. 00-133, 00-132)

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00-Tr32 pe 133 JUL 24200

FICE OF THE CLERK OFFIC

In The

Supreme Court of the United States

JAMES BENNETT, in his official capacity

as Secretary of State of Alabama, et al.,

Appellants,

PEGGY KELLEY, et al.,

Appellees,

and

DARRYL SINKFIELD, et al.,

Appellants,

PEGGY KELLEY, et al.,

Appellees.

On Appeals From The United States District Court

For The Middle District Of Alabama

APPENDIX TO JURISDICTIONAL STATEMENTS

Volume II, Pages 180a to 374a

Epwarp STILL* Brit Pryor

Lawyers’ Committee for Attorney General

Civil Rights Under Law JOHN J. Park, Jr.*

1401 New York Avenue Assistant Attorney

NW, Suite 400 General

Washington, DC 20005-2124 Office of the Attorney

(202) 662-8600 General

11 South Union Street

Montgomery, AL 36130

(334) 242-7300

“Counsel of Record, *Counsel of Record,

Sinkfield Appellants Bennett Appellants

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TABLE OF CONTENTS

Volume I

Kelley v. Bennett, 96 F. Supp. 2d 1301 (M.D. Ala.

April 24, 2000) (3-judge court)..................

Kelley v. Bennett, Final Judgment and Injunction,

SUE My SOND cae cactivcdescéeveieunnesnaeneness

Kelley v. Bennett, Writ of Injunction, April 24, 2000...

Kelley v. Bennett, Order denying reviewed motions

to dismiss by the State and Sinkfield defen-

GRMER, TUE DR TOO ob ccicvcccccscsccevesscciis

Kelley v. Bennett, Notice of Appeal by the State

defendants, May 23, 2000..............20eeeeees

Kelley v. Bennett, Notice of Appeal by the Sinkfield

Gatendamin, Ray ZB, BI... cccccccscceccccsceoes

Rice v. Smith, CA No. 97-A-715-E, Verified Com-

ae see with exhibits A, B, & D (Exhibit C is

odged with the clerk), May 2, 1997............

Rice v. Smith, Order instructing the Rices to inter-

vene in state court and to add other plaintiffs,

FN, BE FE ee acctdd se cheveretecssedécsstiovees

Rice v. Smith, Order denying the Rices’ Motion to

Reconsider and setting deadline for state court

fk Oe PTT TITTTT Tri rer ieee

Rice v. Smith, First Amendment to Verified Com-

ENE, GR. BH, BSE cccccncccccesccccceceseseees

Rice v. Smith, Second Amendment to Verified

Commptniat, Gat. 8B, BOG. scccsccccccscccwsvececs

Sinkfield v. Rice, CA No. 93-689-PR (15th Ala. Judi-

ee Ge SL Se ona panconetedsxacnsssn see

TABLE OF CONTENTS - Continued

Page

Volume II

Rice v. Smith, 988 F. Supp. 1437 (M.D. Ala. 1997) .. 180a

Sinkfield v. Rice, 732 So. 2d 993 (Ala. 1998) (per

Ee ee oer cote as inecenueneuasess 197a

Thompson v. Smith, 52 F. Supp. 2d 1364 (M.D. Ala

SPONDS oe aches cectasssecednececesecccnccoccceces 201a

Thompson v. Smith, Opinion on summary judgment

against Peggy Kelley as to HD 88, Dec. 30, 1999 .. 219a

Thompson v. Smith, Opinion on summary judgment

against Andrew D. Thompson as to HD 82, Jan.

Ee PS SEC one douedcesereceensecenseceseoeccees 226a

Thompson v. Smith, Memorandum Opinion on

summary judgment against Daniel P. Brown as

i ow on sou unauecceneceetes 235a

Pe EWE WOGUS GGUS. 2... nrccccccccccccccccces 244a

State trial testimony of Speaker of the House

SEY GEE ob ose dccccencececnccoecesesaeoseess 274a

Dr. Robert J. Norell’s trial testimony .............. 286a

Dr. Joe Reed deposition 1997, Sinkfield Ex 177....295a

Trial testimony of Curtis Travis................... 33la

Trial testiomny of Glen McCord................... 335a

Trial testimony of Bryant Melton.................. 337a

Trial testimony of Wendell Mitchell ............... 342a

TABLE OF CONTENTS - Continued

Rice v. Sinkfield, on appeal to the Supreme Court of

Alabama, State defendants’ arguments on moot-

Pere

Rice v. Sinkfield, on Appeal to the Supreme Court

of Alabama, Rice plaintiffs’ argument on moot-

Excerpts of plaintiff Peggy Kelley deposition....

Excerpts of plaintiff Bibb Gunter deposition... ..

Excerpts of plaintiff Karen Outlaw deposition...

Excerpts of plaintiff Ricardo Montiel deposition .

CG, Comsd, Gememd. B..cccccccccccscccvccsccseses

U.S. Const amend. XIV, § 1............00 eee ees

Items lodged with Clerk of the Court.

Exhibit C (the Reed-Buskey Plan) to the Verified

Complaint in Rice v. Smith, Case No. CA 97-

A-715-E (M.D. Ala.) three-judge court), App. at

97a

1993-94 Alabama highway map showing 1993 Sen-

ate districts

1993-94 Alabama highway map showing 1993

House districts

Alabama Population Data Sheet, released Decem-

ber 1999

Sanders v. Dooly County, __ FSupp.2d __, CA No.

98-00412-CV-2-DF-5 (M.D. Ga., May 11, 2000)

Maxwell v. Foster, __ F.Supp.2d __, CA No.

98-1378 (W.D. La., Nov. 24, 1999) (3-judge court)

Page

.. 370a

.. 374a

180a

John RICE and Camilla L. Rice, etc., Plaintiffs,

Hal SMITH, etc., et al., Defendants.

Civil Action No. 97-A-715-E.

United States District Court,

M.D. Alabama,

Eastern Division.

Dec. 19, 1997.

Kathleen A. Brown, Mark G. Montiel, Montgomery,

AL, for John Rice and Camilla Rice.

John J. Park, Jr., Stanley E. Graham, Office of Attor-

ney General, Montgomery, AL, Charles E. Grainger, Jr.,

Assistant Attorney General, Alabama Secretary of State’s

Office, Montgomery, Al, for Hal Smith and James Bennett.

James U. Blacksher, Birmingham, AL, Terry G. Davis,

Terry G. Davis, P.C., Montgomery, AL, Solomon S. Seay,

Jr., Montgomery, AL, Edward Still, Lawyers’ Committee

for Civil Rights Under Law, Director, Voting Rights Pro-

ject, Washington, DC, for Darryl Sinkfield, Quinton Ross,

Bernest Brooks, Rubin McKinnon, Andrew Hayden and

State of Alabama.

Before JOEL F. DUBINA, Circuit Judge, MYRON H.

THOMPSON, Chief Judge, and W. HAROLD ALBRIT-

TON, District Judge.

MEMORANDUM OPINION

MYRON H. THOMPSON, Chief Judge.

This three-judge court, which has been empaneled

pursuant to 28 U.S.C.A. § 2284, is confronted with a

18la

recently recurring issue: how a federal court confronted

with a challenge to the apportionment of a State govern-

ing body should proceed when State courts have

addressed, or appear poised to address, the challenge.

This is also an important issue because it directly impli-

cates federal-state relations.

In this lawsuit, plaintiffs John Rice and Camilla L.

Rice (Rice plaintiffs) and plaintiffs Andrew Thompson, et

al. (Thompson plaintiffs) challenge the apportionment

plan of Alabama’s State Legislature.! They claim that the

plan impermissibly impinges in several ways on the

equal protection clause of the fourteenth amendment: it

violates the one person-one vote principle, it dilutes the

voting strength of non-black voters, and it is a product of

racial gerrymandering. The defendants are the Secretary

of State of Alabama and the Probate Judge of Lee County,

Alabama (State defendants), and the named representa-

tives of a plaintiff class of African-American voters in a

parallel State court proceeding (Sinkfield defendants).

Jurisdiction is proper under 28 U.S.C.A. §§ 1331, 1343.

At oral argument on November 26, 1997, the Rice

plaintiffs contended that we should stay this proceeding

as to their claims because, although the State trial court

has addressed the claims, the Alabama Supreme Court

* Some of the defendants dispute whether the Thompson

plaintiffs were properly added to this litigation. The Thompson

plaintiffs were added to the Rice plaintiffs’ complaint pursuant

to Federal Rule of Civil Procedure 15, rather than by intervening

pursuant to Federal Rule of Civil Procedure 24. By referring to

the Thompson plaintiffs as “plaintiffs,” we should not be

understood to have resolved this dispute in this memorandum

opinion today.

182a

has yet to hear their appeal. The Thompson plaintiffs

contended that we should proceed ahead as to their

claims because the claims were not part of the State court

proceeding.

Twice now, this federal court has been confronted

with a challenge to Alabama’s legislative plan for the

State House and Senate. In 1992 and 1993, two groups of

plaintiffs - a group of African-American plaintiffs and a

group of Republicans - brought two lawsuits challenging

legislative apportionment.? The federal court stayed and

eventually dismissed the cases in favor of a State court

consent decree.?

Four years later, in 1997, the Rice plaintiffs brought

the current federal lawsuit, essentially challenging the

apportionment plan adopted in the 1993 State court con-

sent decree. We stayed our hand again, finding that it

appeared that the State court which had entered the 1993

2 These two federal lawsuits are Brooks v. Camp, civil action

no. 92-T-364-N (M.D.Ala.), and Peters v. Folsom, civil action no.

93-T- 124-N (M.D.Ala.).

3 This court initially stayed the proceedings on the ground

that the legislative process had not run its course. In the

meantime, a state lawsuit was brought in which the court

entered a consent decree adopting a reapportionment plan for

the entire State legislature. Sinkfield v. Bennett, civil action no.

93-689-PR (Aug. 13, 1993). A question then arose as to whether

the State court had authority to adopt the plan. We certified the

question to the Alabama Supreme Court, which answered in the

affirmative. Brooks v. Hobbie, 631 So.2d 883 (Ala.1993). We then

dismissed the federal court proceedings.

183a

consent decree was still available to consider the Rice

plaintiffs’ challenge. The Rice plaintiffs then presented

their claims to the State court, which, after setting an

aggressive trial schedule, found the claims to be without

merit. The Rice plaintiffs have now appealed the State

court judgment to the Alabama Supreme Court.

In the meantime, and before the State court con-

ducted its trial, the Rice plaintiffs amended their federal

court complaint to add the Thompson plaintiffs as par-

ties.°

As stated, the important issue for us is how to pro-

ceed on the Rice plaintiffs’ and the Thompson plaintiffs’

claims in light of the recent events in State court.

II.

In Growe v. Emison, the United States Supreme Court

held that federal judges are “required . . . to defer consid-

eration of disputes involving redistricting where the

State, through its legislative or judicial branch, has begun

to address that highly political task itself.” 507 U.S. 25, 33,

113 S.Ct. 1075, 1080, 122 L.Ed.2d 388 (1993) (emphasis in

original). Federal judges are to “prefer{] both state

branches to federal courts as agents of apportionment.”

Id. at 34, 113 S.Ct. at 1081 (emphasis in original). The

Court based this holding on a doctrine - the abstention

* State defendants’ submission of documents filed in

parallel State court proceedings, filed in this court December 11,

1997.

5 Order, filed September 23, 1997.

184a

doctrine —- whose origins arise out of principles of federal-

ism and reach back over half a century. The Court

explained that it has “required deferral, causing a federal

court to ‘sta[y] its hands,’ when a constitutional issue in

the federal action will be mooted or presented in a differ-

ent posture following conclusion of the state-court case.”

Id. at 32, 113 S.Ct. at 1080 (quoting Railroad Comm’n of

Texas v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85

L.Ed. 971 (1941)). It has allowed abstention “when the

federal action raises difficult questions of state law bear-

ing on important matters of state policy, or when federal

jurisdiction has been invoked to restrain ongoing state

criminal proceedings.” Id. (citing Colorado River Water

6 Indeed, some commentators have rejected the singular

use of an abstention doctrine: “[I]t is more precise to refer to

‘abstention doctrines,’ since there are several distinguishable

lines of cases, involving different factual situations, different

procedural consequences, different policy considerations, and

different arguments for and against their validity.” 17A Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 4241, at 25. We use the term “abstention” broadly to refer not

only to the decision to “abstain” from hearing a plaintiff's

claims, requiring dismissal, but also to the decision to “defer” to

parallel state proceedings while staying the federal court

litigation. Although the United States Supreme Court

differentiated in Growe, 507 U.S. at 32 n. 1, 113 S.Ct. at 1080 n. 1,

between abstention and deferral, the lower courts and other

authorities have continued to use the term “abstention” to

describe both actions. See, e.g., Benavidez v. Eu, 34 F.3d 825,

832-33 (9th Cir.1994) (distinguishing between “deferral

abstention” and “dismissal abstention”); 17A Charles A.

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice

and Procedure (2d ed. Supp.1997) § 4241, at 1 (“to change the

terminology now would be confusing rather than clarifying.”).

185a

Conservation Dist. v. United States, 424 U.S. 800, 814-817,

96 S.Ct. 1236, 1244-1246, 47 L.Ed.2d 483 (1976)).

However, abstention within the reapportionment

context differs in an important respect from that in other

contexts, for it marks a unique burden shift within the

doctrine. In other contexts, a federal court’s decision to

decline to exercise jurisdiction is disfavored and thus

exceptional. Quackenbush v. Allstate Ins. Co., 517 U.S. 706,

—_. 116 S.Ct. 1712, 1721, 135 L.Ed.2d 1 (1996) (“We have

often acknowledged that federal courts have a strict duty

to exercise the jurisdiction that is conferred upon them by

Congress.”); Colorado River, 424 U.S. at 813, 96 S.Ct. at

1244 (“The doctrine of abstention, under which a District

Court may decline to exercise or postpone the exercise of

its jurisdiction, is an extraordinary and narrow exception

to the duty of a District Court to adjudicate a controversy

properly before it. Abdication of the obligation to decide

cases can be justified under this doctrine only in the

exceptional circumstances where the order to the parties

to repair to the State court would clearly serve an impor-

tant countervailing interest.”) (quoting Allegheny County

v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct. 1060,

1062-63, 3 L.Ed.2d 1163 (1959)). But in the reapportion-

ment context, when parallel State proceedings exist, the

decision to refrain from hearing the litigant’s claims

should be the routine course.

The rationale behind this distinction lies in the inher-

ently greater interest a State has in legislative reappor-

tionment. As the Court explained in Growe, “the

Constitution leaves with the States primary responsibility

for apportionment of their federal congressional and state

legislative districts.” 507 U.S. at 34, 113 S.Ct. at 1081.

186a

“Absent evidence,” the Court continued, “that these state

branches will fail timely to perform that duty, a federal

court must neither affirmatively obstruct state reappor-

tionment nor permit federal litigation to be used to

impede it.” Id. See also Brooks v. Hobbie, 631 So.2d 883,

889-90 (Ala.1993) (“Redistricting is both a sensitive and

political issue. There is no dispute that the legislature has

the initial responsibility to act in redistricting mat-

ters . . . However, in the event the legislature fails to act,

the responsibility shifts to the state judiciary.”) (citations

omitted). The Court also focused on the more universal

practical factor in favor of abstention, “the nature of the

relief requested,” Growe, 507 U.S. at 35, 113 S.Ct. at 1081,

and observed that a State “can have only one set of

legislative districts.” Id.

Relying on these principles, this court has twice

deferred or stayed federal proceedings in favor of State

court proceedings in which there was a challenge to

Alabama’s legislative apportionment. In 1993, when the

federal court stayed and eventually dismissed the two

original cases challenging State apportionment, it relied

on Growe. And more recently, in the fall of 1997, when we

stayed proceedings on the Rice plaintiffs’ claims, we

again expressly relied on Growe.

The Rice plaintiffs admit that we cannot consider

their claims in the face of the State court decision on their

claims. Relying on Growe, however, they ask that we stay,

rather than dismiss, their claims. We cannot agree.

Because the State court has adjudicated the merits of their

187a

claims, both res judicata and the Rooker-Feldman doc-

trine preclude this court’s review of that decision.” The

Rice plaintiffs argue that because the Alabama Supreme

Court could potentially fail to grant timely review of their

appeal, this court should retain jurisdiction so as to pro-

vide them with a forum in which to obtain substantive

review of the State court decision. Not only does this

argument contravene the above-stated Rooker-Feldman

doctrine - under which only the United States Supreme

Court can entertain a proceeding to reverse or modify a

State court judgment on the merits* - but the United

States Supreme Court expressly rejected such an argu-

ment in Growe, when it wrote: “We fail to see the rele-

vance of the speed of appellate review. [Precedent]

requires only that the state agencies adopt a constitu-

tional plan ‘within ample time . . . to be utilized in the

[upcoming] election . . . It does not require appellate

review of the plan prior to the election.’ ” 507 U.S. at 35,

113 S.Ct. at 1081 (citations omitted). The Rice plaintiffs

further note that the Alabama Supreme Court could

reverse the State court decision and find that the State

court was without jurisdiction from the start. This argu-

ment, however, is a compelling reason as to why the

dismissal of the Rice plaintiffs’ claims should be without

prejudice, which we will do.

7 District courts are courts of original jurisdiction; only the

Supreme Court can entertain a proceeding to reverse or modify

a State court judgment on the merits. Rooker v. Fidelity Trust Co.,

263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75

L.Ed.2d 206 (1983).

8 Id.

188a

With regard to the Thompson plaintiffs’ claims, we

believe we should again take our instructions from Growe

and stay our hand. First, by ruling on the merits of the

Rice plaintiffs’ constitutional claims in a timely fashion,

the State court has indicated not only its willingness to

entertain challenges to Alabama’s redistricting plan, but

also its ability to resolve such claims in an exigent man-

ner. The United States Supreme Court has made clear

that, “Absent evidence that the[] state branches will

timely fail to perform [the redistricting] duty,” a federal

court should not interject itself into the State’s matter.

Growe, 507 U.S. at 34, 113 S.Ct. at 1081. While it is true

that the Thompson plaintiffs have not had their claims

resolved by the State court, we are convinced that the

State court is willing or able to hear such claims. Indeed,

the State court offered the Thompson plaintiffs an oppor-

tunity to intervene in the Rice plaintiffs’ proceedings, but

the Thompson plaintiffs declined to do so. We know of no

reason why the State court would not still entertain the

Thompson plaintiffs’ claims.’

9 In the order entered on August 14, 1997, we not only

“stayed” our hand, we “directed” the Rice plaintiffs to intervene

in the State court proceedings. The Rice plaintiffs have taken

issue with whether the State court proceeding was in a posture

that warranted our stay and whether we had the authority to

issue a directive to a party as to what to do in another

proceeding. Whether our earlier decision was premature or

authorized is an issue we need no longer reach because the Rice

plaintiffs did intervene and the State court has now ruled on

their claims. Moreover, since our order of August 14, 1997, the

calculus has changed to make Growe deferral clearly

appropriate. As stated, the State court has not only reaffirmed

jurisdiction over the State legislative plan, it has entertained

189a

Second, the State defendants stated at oral argument,

without refutation from the Thompson plaintiffs, that a

decision by us in favor of the Thompson plaintiffs would

probably impact the remainder of the plan, including the

part addressed by the State court recently. Alabama “can

have only one set of legislative districts.” Growe, 507 U.S.

at 35, 113 S.Ct. at 1081.

Third and finally, having participated in the creation

of the reapportionment plan and having recently heard

evidence as to the constitutionality of the plan, the State

court is far better equipped to handle the Thompson

plaintiffs’ claims, as well as those of any future litigant

interested in the outcome of the proceedings. This factor

reinforces the conclusion that we should defer to the State

court. 10

An appropriate judgment will be entered.

and resolved claims almost identical to those now asserted by

the Thompson plaintiffs.

10 In Growe, the United States Supreme Court stated that

federal courts are required “to defer consideration of disputes

involving redistricting where the State, through its legislative or

judicial branch, has begun to address that highly political task

itself.” 507 U.S. at 33, 113 S.Ct. at 1080 (emphasis in original and

added). At oral argument, the Sinkfield defendants suggested

that, under a logical extension of Growe, a federal court is

required to abstain in favor of State courts even if there is no

pending or ongoing State court proceeding. Before being

eligible for relief in federal court, according to the Sinkfield

defendants, a federal plaintiff must be able to show that he or

she first sought relief in State court and the State court failed to

entertain his or her claim at all or in a timely manner. We do not

reach this issue.

190a

ORDER

In accordance with the memorandum opinion

entered on this date, it is the ORDER, JUDGMENT, and

DECREE of the court:

1. The claims of plaintiffs John and Camilla L.

Rice are dismissed without prejudice;

2. This case is stayed as to the claims of plain-

tiffs Andrew Thompson, et al.

It is further ORDERED that the following motions are

denied as moot: the Rice plaintiffs’ motion for class certi-

fication, filed May 2, 1997; the Rice plaintiffs’ motion for

a preliminary injunction, filed May 2, 1997; the Rice

plaintiff's motion for reconsideration of this court’s order

of August 14, 1997, filed August 28, 1997; the Rice plain-

tiffs’ motion to dismiss the Sinkfield defendants, filed

October 24, 1997; the Rice plaintiffs’ motion to amend and

supplement the complaint, filed October 24, 1997; the

Rice plaintiffs’ motion to compel discovery requests and

for sanctions, filed November 11, 1997; the Rice plaintiffs’

request to schedule an evidentiary hearing, filed Novem-

ber 25, 1997; the Sinkfield defendants’ motions to dismiss

and/or motions for judgment on the pleadings, filed July

10, 1997, October 9, 1997, October 27, 1997, November 25,

1997. It is further ORDERED that the Sinkfield defen-

dants’ motion for leave to withdraw their second motion

to dismiss, filed September 23, 1997, is granted.

It is further ORDERED that the disposition of the

following motions are stayed pursuant to the general stay

issued today: the State defendants’ motion for an order to

show cause why the Sinkfield defendants should not be

dismissed, filed November 10, 1997; the State defendants’

19la

motion for summary judgment, filed November 25, 1997;

the Permanent Legislative Committee’s motion to inter-

vene as defendants, filed November 7, 1997.

ALBRITTON, District Judge, concurring.

I write in concurrence to clarify my view of the

limited nature of our action in this case, and to avoid

future citation of our opinion as precedent for proposi-

tions which are not intended.

The Sinkfield defendants have asked the court

throughout the course of this litigation to hold that a

party who wishes to challenge the constitutionality of a

state’s legislative apportionment or congressional dis-

tricting must first take the case to a state court as a

prerequisite to a federal action. In their proposed scheme,

only when the state court fails to act expeditiously may

the claim then be brought to federal court. While footnote

10 of the majority opinion correctly states that we do not

reach this issue, I believe that the footnote, without more

explanation, might lend more credence to the Sinkfield’s

proposition than is due. I would only defer to an existing

state court proceeding. I would not abstain because the

Plaintiff had not first filed suit in state court.

In Growe the Supreme Court said:

In the reapportionment context, the Court has

required federal judges to defer consideration of

disputes involving redistricting where the state,

through its legislative or judicial branch, has

begun to address that highly political task itself.

192a

Growe, 507 U.S. at 33, 113 S.Ct. at 1080 (emphasis in

original).

Deferring to the state’s legislature is quite different

from requiring a party to first seek relief in a state court

when there is no ongoing case. There is only one legisla-

ture, and it has the primary responsibility for apportion-

ment and districting.! Only in the absence of legislative

action does the judicial branch come in, and then the

question arises as to which state court will act.?

Growe requires deferral only when the state “has

begun to address” the issue. Deferral to the legislative

1 Of course. giving the legislature primary responsibility

for districting is not required by any federal law or

Constitutional provision. A state may choose another method.

Indeed many states have chosen such a method in an attempt to

depoliticize (as much as possible) the duty of districting. See

Jeffrey C. Kubin, The Case for Redistricting Commissions, 75

Tex. L.Rev. 837 (1997) (discussing 17 states which have adopted

redistricting commissions, and the various forms that those

commissions may take). Apparently the idea of a redistricting

commission is being considered in Alabama's neighboring state

of Florida. See George L. Waas, The Process and Politics of

Legislative Reapportionment and Redistricting under the

Florida Constitution, 18 Nova L.Rev. 1001, 1034-35 (1994).

2 At least one state apparently uses a specialized three-

judge court, similar to this three-judge court, when a court must

redistrict or reapportion. See Growe, 507 U.S. at 28, 113 S.Ct. at

1077 (referencing fact that “Minnesota Supreme Court

appointed a Special Redistricting Panel (composed of one

appellate judge and two district judges) to preside over the

case.”). A specialized court may avoid duplicative litigation at

the state level, and could also avoid the resentment that

sometimes arises when a judge elected by a single circuit's

voters takes action which affects the entire state.

193a

branch can be justified even if no proposed legislation is

pending at the time, because of the legislature’s continu-

ing duty in this area, and because of the legislature's

freedom to act on any issue at any time. This is not so

with the judicial branch, which generally cannot act

unless someone first files the appropriate suit in some

court. This makes Growe’s requirement of deferral to a

branch of state government which “has begun” to

address the issue highly significant when applied to the

judicial branch. There is simply no way that the state

judicial branch can be said to “ha[ve] begun” to act

unless there is a pending case in a state court which has

jurisdiction over the issue.

This court's action in this case, therefore, should not

be taken to suggest in any way that a person who wishes

to raise a constitutional challenge to congressional and

legislative districts must first file a new lawsuit in some

state court. We have deferred to a state court which “has

begun to address” the issue of the constitutionality of

state legislative districts under the 1990 census. That is

the issue which was before the state court, and that court

has held that it retained jurisdiction of the case to enforce

its judgment.

3 Florida state courts apparently dealt with the problem

of multiple suits throughout the state by having the state

supreme court retain jurisdiction. See In re Apportionment Law

Appearing as Senate Joint Resolution 1 E, 1982 Special

Apportionment Session; Constitutionality Vel Non, 414 So.2d

1040, 1052 (1982) (“we retain exclusive state jurisdiction to

consider any and all future proceeding [sic] relating to the

validity of this apportionment plan”).

194a

The Plaintiffs argue that deferral is not appropriate in

this case because it is the state court's redistricting plan

itself that they challenge as being unconstitutional. There

was no appeal from the state court in 1993 because there

was a consent decree. The Plaintiffs say that the parties in

state court consented to an unconstitutional plan and that

they, as non-parties to the consent decree, should be able

to challenge the plan now in federal court.

I agree with the Plaintiffs that Growe does not pro-

hibit this court from considering their challenge, and we

have not held that it does. We have found it to be pru-

dent, and in furtherance of the concept of federalism,

however, to defer under the particular circumstances of

this case. Those circumstances are that the state court

adopted the challenged plan before the Supreme Court

enunciated new legal principles to be applied in reappor-

tionment cases, specifically in what has been referred to

as “race-based” districting. See Abrams v. Johnson, ___ U.S.

___, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997); Bush v. Vera,

517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996); Shaw

v. Hunt, 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207

(1996); Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132

L.Ed.2d 762 (1995); United States v. Hays, 515 U.S. 737, 115

S.Ct. 2431, 132 L.Ed.2d 635 (1995); and Shaw v. Reno, 509

U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). This court

determined that because of that, it would be preferable

for the state court to have an opportunity to review its

plan in light of the new Supreme Court decisions, with

appellate review available in the Alabama Supreme

Court, and possibly the Supreme Court of the United

States.

195a

The Rice Plaintiffs intervened in the state court, at

our direction. They now say that we were without

authority to direct that intervention. Be that as it may, no

motion for reconsideration was filed here before the

intervention, and the state court has acted. Since we are

dismissing the claims of the Rice plaintiffs, they are free

to seek appellate review of our decision to defer.

The Thompson Plaintiffs are free to intervene in the

state court case to seek determination there of the consti-

tutionality of the plan as it relates to their districts, with

appellate review available if necessary. If the state court

is unable or unwilling to entertain their claims, or if the

Alabama Supreme Court should hold in the Rice appeal

that the Circuit Court of Montgomery County did not

have jurisdiction over the Rice claims, then I would be

prepared to let the case proceed in this court, subject, of

. course, to consideration of pending motions and

defenses, including the defense of laches.

I wish to emphasize that it is only because (1) a state

court has held that it has retained jurisdiction over the

state legislative reapportionment plan based on the 1990

census, and (2) very substantial changes were made by

the Supreme Court of the United States in the law gov-

erning legislative reapportionment after that plan was

adopted, that I agree to defer to the state trial court, with

the possibility of appellate review of its decision. In the

absence of either of those facts, | would have favored

hearing the constitutional attack on the consent decree

entered by the state court. I do not believe that this

196a

court's decision should be viewed as going beyond that,

and, therefore,

I concur.

- =-*

197a

John RICE and Camilla L. Rice

“-*

Darryl SINKFIELD, et al.

1970449.

Supreme Court of Alabama.

Dec. 18, 1998.

Rehearing Dismissed April 1, 1999.

Mark G. Montiel and Kathleen A. Brown of Mark G.

Montiel, P.C., Montgomery, for appellants»

James U. Blacksher, Birmingham; Terry G. Davis,

Montgomery; Solomon S. Seay, Jr., Montgomery; and

Edward Still, Lawyers’ Committee for Civil Rights, Wash-

ington, D.C., for appellee Darryl Sinkfield et al.

Bill Pryor, atty. gen., and John J. Park, Jr., and Charles

E. Grainger, Jr., asst. attys. gen., for appellee Secretary of

State James Bennett.

PER CURIAM.

The plaintiffs, John Rice and Camilla L. Rice, appeal

from the Montgomery Circuit Court’s order upholding a

1993 consent judgment that adopted the “Reed-Buskey”

redistricting plan. The plan, which was approved as part

of the redistricting process due to follow the 1990 census,

created eight new majority-black House districts and

three new majority-black Senate districts. The Alabama

House of Representatives approved the plan, but the

Senate did not. The plan was precleared by the justice

Department and it is now in effect.

Four years after the adoption of the Reed-Buskey

plan, the Rices challenged the 1993 consent judgment on

198a

constitutional grounds. They specifically argued that the

legislative districts in which they live were created

through racial gerrymandering and that the votes of

white voters in those districts had been diluted.

The plaintiffs’ request for modification of the 1993

consent judgment - which is based on the 1990 federal

census — is moot because it would not affect future legis-

lative elections. See City of Birmingham v. Southern Bell Tel.

& Tel. Co., 234 Ala. 526, 529, 176 So. 301, 303 (1937) (” ‘[I]t

is not within the province of appellate courts to decide

abstract, hypothetical, or moot questions, disconnected

from the granting of actual relief or from the determina-

tion of which no practical relief can follow.’ ”) (quoting 4

C.J.S., Appeal and Error, § 40, pp. 117-18). The next legisla-

tive election is scheduled for the year 2002. See Ala.Code

1975, § 17-2-3 (providing that state legislators will be

elected every four years beginning in 1978). By that time,

the report of the 2000 federal census is scheduled to be

released, and we must assume that the Legislature will

timely fulfil! its constitutional duty to redraw legislative

districts based on that census. See 13 U.S.C. § 141(c)

(1988) (providing that the Bureau of the Census should

forward its decennial census results to the states not later

than April 1, 2001); Ala. Const.1901, §§ 198 — 200 (provid-

ing that the state Legislature will redraw election districts

in the next session after the taking of each decennial

census); Opinion of the Justices No. 269, 384 So.2d 1051,

1052 (Ala.1980) (stating that this Court must assume that

the Legislature acts in a manner consistent with the Con-

stitution) (citing Board of Revenue & Road Comm'rs v. Puck-

ett, 227 Ala. 374, 149 So. 850 (1933)). Thus, we must

conclude that the elections held in 2002 and subsequent

199a

years will be governed not by the current consent judg-

ment, but by a new districting plan that is based on the

2000 federal census. Because we must assume that any

potential modification of the current consent judgment

based on the 1990 census would not affect the outcome of

the 2002 legislative election or any successive legislative

election, we must conclude that an effort by this Court to

render the relief sought by the plaintiffs would not be

effective.!

' The Supreme Court of the United States has recognized

several exceptions to the federal doctrine of mootness that are

applicable to cases involving: (1) class actions where some

members of the class still have a live case or controversy; (2)

wrongs capable of repetition, yet evading review; (3) continuing

collateral consequences to a party; and (4) voluntary cessation

of injurious activity by a party who is free to resume it. See Sosna

v. lowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)

(holding that mootness of the class representative's particular

claim did not render the entire class action moot as long as other

members of the class continued to have a live controversy);

Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1

(1969) (holding that plaintiffs’ challenge to state election law

was not moot, even after the challenged election was completed,

because the plaintiffs could challenge the law with respect to

future elections, so that the basis of their claim might be

“capable of repetition, yet evading review”); Sibron v. New York,

392 U.S. 40, 53-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (holding

that a challenge to the seizure of evidence, brought by

defendants who had already completed their jail sentences, was

not moot, because the defendants could still suffer adverse

“collateral consequences” arising from their criminal records);

United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97

L.Ed. 1303 (1953) (holding that the Government’s antitrust

challenge to the defendant corporations’ practice of using

interlocking boards of directors was not rendered moot by the

defendants’ voluntarily ceasing the practice, because the

200a

Therefore, this appeal is dismissed as moot.

APPEAL DISMISSED AS MOOT.

HOOPER, C.J., and MADDOX, HOUSTON, KEN-

NEDY, COOK, SEE, and LYONS, JJ., concur.

ALMON, J., concurs in the result.

defendants were free to resume that practice at any time). The

rationales underlying these exceptions are not applicable to this

case.

201a

Andrew D. THOMPSON, et al., Plaintiffs,

Hal SMITH, etc., et al., Defendants.

No. Civ.A. 97-A-715-E.

United States District Court,

M.D. Alabama,

Eastern Division.

July 2, 1999.

David R. Boyd, Balch & Bingham, Montgomery, AL,

for movant represented by Boyd.

Stanley E. Graham, Waller, Lansden, Dortch & Davis,

Nashville, TN, for defendant represented by Graham.

Jeffrey G. Hunter, Montiel & Brown, P.C., Montgom-

ery, AL, for plaintiff represented by Hunter.

Jordan Dorman Walker, Jr., Balch & Bingham, Mont-

gomery, AL, for movant represented by Walker.

Before JOEL F. DUBINA, Circuit Judge, W. HAROLD

ALBRITTON, Chief District Judge, and MYRON H.

THOMPSON, District Judge.

MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

The question before this three-judge federal court,

empaneled pursuant to 28 U.S.C.A. § 2284, is whether

claims brought by a group of voters Who are challenging

a state legislative districting plan are barred by an earlier

final judgment in a state lawsuit in which two other

voters challenged the same plan. For the reasons that

202a

follow, we hold, on motions for summary judgment, that

this federal lawsuit is barred in part only.

I. SUMMARY-JUDGMENT STANDARD

The summary-judgment standard applicable here

almost needs no repeating. Rule 56(c) of the Federal Rules

of Civil Procedure provides that summary judgment is

appropriate where “there is no genuine issue as to any

material fact and . . . the moving party is entitled to a

judgment as a matter of law.” Once the party seeking

summary judgment has informed the court of the basis

for its motion, the burden shifts to the nonmoving party

to demonstrate why summary judgment would be inap-

propriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 323,

106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th

Cir.1993}-(discussing how the responsibilities on the

movant and the nonmovant vary.depending on whether

the legal issues, as to which the facts in question pertain,

are ones on which the movant or nonmovant bears the

burden of proof at trial). In making its determination, the

court must view all evidence and any factual inferences

in the light most favorable to the nonmoving party. See

_Matsushita Elec: *Tridus. Co. x, Zenith Radio Corp., 475 U.S.

57%, 587, 106 S.Ct. 1348, 1356, 89.L.Ed.2d 538 (1986).

II. BACKGROUND

This federal litigation has a long and complex history

involving two lawsuits in different fora. The first is a

state lawsujt in the Circuit Court of Montgomery County,

203a

Alabama, that resulted in a consent judgment approving

a redistricting plan for the Alabama House of Representa-

tives and Senate.' The second is this federal lawsuit in

which certain Alabama voters now seek to challenge the

state-court redistricting plan on grounds of vote dilution,

violation of the one-person-one-vote principle, and race-

based gerrymandering.

There are four groups involved in these cases. First,

there are the Rice plaintiffs, two white persons who initi-

ated the federal lawsuit.? Second, there are the Thompson

plaintiffs, a group of white persons whom the Rice plain-

tiffs later added to their complaint. Third, there are the

state defendants one of whom was also a defendant in the

state lawsuit. And, lastly, there are the Sinkfield parties,

a group of African-Americans who were successful plain-

tiffs in the state lawsuit and were later named as defen-

dants in this federal suit.°

The sequence of events leading up to the current

dispute is as follows.

1 See Sinkfield. v. Camp, CV-93-689-PR, slip op. (Ala.Cir.Ct.

Aug. 13, 1993).

2 The Rice plaintiffs are: John Rice and Camilla L. Rice.

3 The Thompson plaintiffs are: Andrew D. Thompson,

Peggy C. Kelly, Gonzalo F. Montiel, Ann G. Hunter, Daniel P.

Brown, W. Ricardo Montiel, Karen D. Outlaw, Kelly Brasher, and

Bibb Gunter.

4 The state defendants are: Hal Smith, probate judge of Lee

County, James Bennett, Secretary of State of Alabama, and the

State of Alabama. The defendant in the state lawsuit was James

Bennett, in his official capacity as Secretary of State of Alabama.

5 The Sinkfield parties are: Darryl Sinkfield, Quinton Ross,

Bernest Brooks, Rubin McKinnon, and Andrew Hayden.

204a

August 13, 1993: The state court entered a consent

judgment between the Sinkfield parties and the Secretary

of State of Alabama approving a redistricting plan for the

Alabama legislature.

May 2, 1997: The Rice plaintiffs filed this federal

lawsuit challenging the state-court plan on the following

three grounds: vote-dilution, violation of the one-person-

one-vote principle, and race-based gerrymandering.

August 14, 1997: This court, relying on Growe v.

Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993),

directed the Rice plaintiffs to intervene in the state law-

suit. They did so on August 28, 1997.

August 29 and September 9, 1997: After intervening

in the state lawsuit, the Rice plaintiffs moved to amend

their federal complaint to add the Thompson plaintiffs as

parties. The Thompson plaintiffs (with the exception of

Andrew D. Thompson) reside in different legislative dis-

tricts from the Rice plaintiffs. In the amendments, the

Thompson plaintiffs essentially adopted the Rice plain-

tiffs’ claims of vote-dilution, violation of the one-person-

one-vote principle, and race-based gerrymandering.

October 15, 1997: This court granted the Rice plain-

tiffs’ motions to amend, and the Thompson plaintiffs

were added as parties.

October 17, 1997: The state court invited the

Thompson plaintiffs to intervene in the state-court action,

but they refused.

November 20, 1997: After hearing the merits, the

state court dismissed the Rice plaintiffs’ claims. The state

205a

court found that their one-person-one-vote and vote-dilu-

tion claims lacked merit and that there was no evidence

that race was a predominant factor in the redistricting

process sufficient to support their race-based gerryman-

dering claim.

December 19, 1997: The Rice plaintiffs turned again

to this federal court, and, in light of the state-court judg-

ment, we dismissed their complaint without prejudice on

the basis of res judicata and the Rooker-Feldman doc-

trine.© See Rice v. Smith, 988 F.Supp. 1437, 1440

(M.D.Ala.1997) (three-judge court). Relying on Growe v

Emison, we also stayed the Thompson plaintiffs’ claims in

order to provide them with another opportunity to file

their claims in state court. See id. at 1441.

December 18, 1998: The Rice plaintiffs appealed the

state-court decision, and, on this date, the Alabama

Supreme Court dismissed their appeal as “moot.” Rice v.

Sinkfield, 732 So.2d 993 (Ala.1998) (per curiam). The court

reasoned that, because the “next legislative election is

scheduled for the year 2002,” and because “[b]y that time,

the report of the 2000 federal census is scheduled to be

released, . . . the elections held in 2002 and subsequent

years will be governed not by the current consent judg-

ment, but by a new districting plan that is based on the

2000 federal census.” Id.

149, 150, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals

v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 1314-15, 75 L.Ed.2d

206 (1983).

206a

January 27, 1999: This federal court required that the

parties show cause as to why this federal lawsuit should

not be dismissed in light of the decision of the Alabama

Supreme Court.

February 5, 1999: The Thompson plaintiffs responded

by asking that this court proceed with their claims.

April 30, 1999: This federal court treated as motions

for summary judgment certain motions to dismiss and for

judgment on the pleadings, filed earlier by the state

defendants and the Sinkfield parties, and the court set the

motions for briefing. These summary-judgment motions

are now before us.

Ill. DISCUSSION

The motions for summary judgment present two

issues: first, whether the Thompson plaintiffs should be

barred from further pursuit of their claims in this federal

court because they failed to take advantage of the oppor-

tunity we gave them to pursue those claims in state court;

and, second, whether the Thompson plaintiffs’ claims are

barred by the state-court judgment based on the principle

of res judicata.

A. Deferral

In the order entered December 19, 1997, relying on

Growe v. Emison, we deferred to the on-going state law-

suit, stayed our hand until the state court system had

fully addressed the claims being pursued by the Rice

plaintiffs, and suggested that, in the meantime, the

207a

Thompson plaintiffs should seek intervention in that law-

suit to present their claims. See Rice, 988 F.Supp. at 1440.

The Thompson plaintiffs have now returned to this court,

contending that, because the Alabama Supreme Court has

held that it is too late to afford redress for the upcoming

legislative elections, the Alabama courts are now closed

to them and they should now be allowed to proceed in

this court. The state defendants and the Sinkfield parties

respond that the Thompson plaintiffs should be barred

from further pursuit in this case because they failed to

intervene in the state lawsuit. We agree with the

Thompson plaintiffs.

Admittedly, we earlier deferred to the state court

because the state-court proceeding was still on-going and

“the State court [was] willing or able to hear such

claims.” Id. at 1440. However, this circumstance no longer

obtains. As the Thompson plaintiffs correctly point out,

the Alabama Supreme Court has held that their claims are

moot, and, as a result, the Alabama courts are now essen-

tially closed to them. With these changed circumstances,

there is no longer a state proceeding to which to defer.”

We also cannot accept the contention of the state

defendants and the Sinkfield parties that the Thompson

” A closer reading of Growe v. Emison could lead to the

conclusion that a federal court is required to defer to the state

court's remedial efforts only, not to the state-court proceeding

altogether. In this instance, of course, we deferred to the entire

state-court proceeding. We need not resolve whether deferral

should have been limited to the state court’s remedial efforts

only.

208a

plaintiffs, by not intervening in the state lawsuit, essen-

tially defaulted on their claims in this court. The United

States Supreme Court in Growe made clear that federal

courts and state courts have concurrent jurisdiction to

entertain challenges to redistricting plans and that, as a

result, both courts are open to such claims. See 507 US. at

32, 113 S.Ct. at 1080. Growe stands only for the proposi-

tion that the federal court must ‘defer’ to any state-court

redistricting effort; it does not say that the federal court

must dismiss its own proceedings. See id. at 32 n. 1, 113

S.Ct. at 1080 n. 1. Indeed, in Growe, the Supreme Court

acknowledged that, after the state court had completed

its proceeding, the federal court later rightfully took up

the remaining claim under § 2 of the Voting Rights Act of

1965, as amended, 42 U.S.C.A. § 1973, see 507 US. at

38-39, 113 S.Ct. at 1083; Growe did not require that the

plaintiffs there pursue their § 2 claim in state court as

well.

Similarly, here, now that the Alabama courts have

completed their involvement in the legislative redistrict-

ing, this court can take up the Thompson plaintiffs’

claims — subject, of course, to any res judicata and other

defenses that may follow from the state judgment. See id.

at 35-36, 113 S.Ct. at 1082 (federal court, under principles

of federalism and comity embodied in Full Faith and

Credit Act, 28 U.S.C.A. § 1738, required to give “legal

effect” to state redistricting judgment).

B. Res Judicata

We therefore now turn to the question whether the

judgment obtained by the Rice plaintiffs in state court

209a

bars the Thompson plaintiffs’ claims in this court. A

federal court must give preclusive effect to state-court

decisions “whenever the court of the State from which

the judgment emerged would do so.” Allen v. McCurry,

449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980);

see also Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518,

525, 106 S.Ct. 768, 772, 88 L.Ed.2d 877 (1986). The court

must therefore look to Alabama law to determine

whether an Alabama state court would give preclusive

effect to the state-court decision.

“Under Alabama law, the essential elements of res

judicata are: ‘(1) a prior judgment on the merits, (2)

rendered by a court of competent jurisdiction, (3) with

substantial identity of the parties, and (4) with the same

cause of action presented in both suits.’ If all of these

elements are met, any claim that was or could have been

adjudicated in the previous action is precluded. If even

one element of the four is not met, however, res judicata

is not applicable.” N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1560

(11th Cir.1990) (citations omitted).*

Although the Alabama Supreme Court dismissed the

appeal from the state-court judgment as moot, the first

requirement, a prior judgment on the merits, is still met

® Res judicata is usually raised as an affirmative defense in

the answer to a complaint. See Fed.R.Civ.P. 8(c). However,

“{aJithough Rule 8(c) includes res judicata and collateral

estoppel on the list of affirmative defenses that must be pleaded

specifically by answer, these defenses may be raised for the first

time on a motion for summary judgment.” Kachler v. Taylor, 849

F.Supp. 1503, 1515 (M.D.Ala.1994) (Thompson, J.). Here, the

opportunity of raising either defense was unavailable until the

state court had rendered its decision.

210a

because the appellate court did not vacate the state-court

judgment and thus that judgment is still valid. See, e.g.,

Gross v. QMS, Inc., 669 So.2d 839, 840 (Ala.1995); Masonry

Arts, Inc. v. Mobile County Comm'n, 628 So.2d 334, 335

(Ala.1993); Arrington v. State ex rel. Parsons, 422 So.2d 759,

760 (Ala.1982). It is also undisputed that the second

requirement, a court of competent jurisdiction, is met.

Therefore, the two remaining questions are whether there

is a substantial identity of parties and whether the same

causes of action were presented.

1. Identity of Parties

Alabama law defines ‘identity of the parties’ broadly

~ as broadly as due process allows. See Century 21 Prefer-

red Properties, Inc. v. Alabama Real Estate Comm'n, 401

So.2d 764, 770 (Ala.1981). The key inquiry is whether the

interests of the party against whom res judicata is

asserted were adequately represented by a party to the

prior lawsuit. See id. When the party against whom res

judicata is asserted was not itself a party to the prior

lawsuit, however, the court must undertake a further

inquiry to determine whether the application of res judi-

cata would offend the due process guarantees of the

fourteenth amendment to the United States Constitution.

See Richards v. Jefferson County, 517 U.S. 793; 797 n. 4, 116

S.Ct. 1761, 1765 n. 4, 135 L.Ed.2d 76 (1996).

There is little doubt that in state court the Rice plain-

tiffs adequately represented the interests now asserted by

the Thompson plaintiffs here. The Thompson plaintiffs

did not enter this lawsuit as intervenors seeking to assert

a separate interest in the subject matter of this law suit,

21la

see Fed.R.Civ.P. 24 (intervention), but instead were joined

as parties by amendment of the Rice plaintiffs’ complaint,

see Fed.R.Civ.P. 15 (amendment), Fed.R.Civ.P. 20 (permis-

sive joinder of parties). Together with the Rice plaintiffs,

they sought to be designated as representatives of all

non-black Alabama voters. The Rice plaintiffs sought the

same designation in state court, and all of the Thompson

plaintiffs are members of this putative class. The

Thompson plaintiffs thus cannot be characterized as

strangers to the state-court action and are more properly

characterized as alter-egos of the Rice plaintiffs with

identical or closely-aligned interests. Accordingly, we

conclude that the Thompson plaintiffs were adequately

represented in state court by the Rice plaintiffs. See Aero-

jet-General Corp. v. Askew, 511 F.2d 710, 719 (Sth Cir.)

(subsequent suit by a non-party may be precluded “if one

of the parties to the suit is so closely aligned with [the

non-party’s] interests as to be his virtual representative”),

cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137

(1975).

The court’s inquiry cannot end here, however,

because the United States Supreme Court in Richards

made clear that there is a due-process component to res

judicata as well. In that case, the Supreme Court hel?

that, as a matter of federal due process, prior taxpayer

litigation challenging an occupation t — in Jefferson

County, Alabama, could not bind a different group of

Alabama taxpayers challenging the same tax even though

the courts below had found adequate representation

under Alabama law. The Court observed that the party

against whom res judicata had been asserted had

received no notice of the prior suit and had been given no

212a

opportunity to be heard. See Richards, 517 U.S. at 799, 116

S.Ct. at 1766 (citing Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).

The Court further observed that the plaintiffs in the prior

litigation did not purport to sue on behalf of a class, and

the Court found no reason to suppose that the earlier

court took care to protect the interests of the unrepre-

sented parties. In other words, Richards suggests that

some of the concerns that should inform a court in its

due-process analysis include whether the plaintiffs in the

prior litigation purported to sue on behalf of a class that

includes the plaintiff against whom res judicata is

asserted, whether there was “full and fair consideration

of the common issue,” id. at 801, 116 S.Ct. at 1767,

whether the non-party had been informed that the origi-

nal lawsuit is pending, id. at 799, 116 S.Ct. at 1766; and

whether the non-party could “choose for himself whether

to appear or default, acquiesce or contest.” Id.

This case, therefore, presents a situation entirely dif-

ferent from that in Richards. The state court invited the

Thompson plaintiffs to participate in the prior suit, and

this court twice suggested that they do the same.? The

Thompson plaintiffs thus had notice of the state litigation

and were given ample opportunity to be heard. The Rice

plaintiffs, moreover, expressly sought to represent a class

that clearly includes the Thompson plaintiffs, and there is

* This court also ordered the Rice plaintiffs to file with the

court all pleadings and other documents they filed in the state-

court action, together with all orders issued by the state court.

See order entered September 23, 1997. The Thompson plaintiffs

were thus kept fully abreast of the state-court proceeding.

213a

every reason to conclude that the state court took care to

protect the interests of non-party class members. The

Thompson plaintiffs were fully aware of these class

claims and yet did nothing. Under these circumstances,

the court cannot conclude that it would offend due pro-

cess to bind the Thompson plaintiffs to the prior litiga-

tion, and we turn next to the issue of whether the same

causes of actions were present.

2. Same Causes of Action

To determine whether two lawsuits present the same

causes of action, Alabama courts apply a test “that in

certain respects is similar to, but which is not the same as,

the ‘same transaction’ test” in the Restatement (Second)

of Judgments. Equity Resources Management, Inc. v. Vinson,

723 So.2d 634, 637 (Ala.1998). Because there is no mathe-

matically precise definition for when there is an identity

of causes of action, the test for making such determina-

tion has many formulations, but the principal inquiries

are essentially two: (1) whether the claims ‘arise out of’

the same evidence, wrongful acts or disputes, see id. at

637, 638, or present the same issues (in particular, factual

ones), see, e.g., Selma Foundry & Supply Co. v. Peoples Bank

& Trust Co., 598 So.2d 844, 848 (Ala.1992); and (2) whether

the claims would be subject to proof by the same evi-

dence, Vinson, 723 So.2d at 637. Also probative, but not

determinative, is “the identity [of] or differences in the

forms of the two actions.” Id. at 638.

214a

a. Vote-Dilution and One-Person-One-Vote

Claims

Upon their addition as parties to the case, the

Thompson plaintiffs simply adopted the Rice plaintiffs’

one-person-one-vote and vote-dilution claims by refer-

ence to the Rice plaintiffs’ complaint. Because the Rice

plaintiffs repeated these claims verbatim in their state-

court complaint, the Thompson plaintiffs’ one-person-

One-vote and vote-dilution claims before this court are

identical in form to the Rice plaintiffs’ one-person-one-

vote and vote-dilution claims presented in state court

The one-person-one-vote claims in both state and

federal court allege that the state’s current redistricting

plan violates the equal-protection principles articulated

in Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1390,

12 L.Ed.2d 506 (1964), in that the plan as a whole fails to

establish population equality within constitutionally

acceptable percentage variations. The claims in both cases

arise out of the formation of the state’s current redistrict-

ing plan, present identical issues of fact, and are subject

to proof by the same plan-wide evidence of population

disparities and other factors considered by the state

court; in other words, the plaintiffs in both state and

federal court would arguably prove their claim by show-

ing that a district anywhere in the State exceeded the

permissible relative variations in population size. The

claims are therefore identical in substance and present the

same causes of action for purposes of res judicata.

The vote-dilution claims in state and federal court

allege that the defendants intentionally underpopulated

215a

the majority-black districts and overpopulated the major-

ity-white districts in the current redistricting plan for the

purpose of diluting white voting strength in violation of

the equal protection clause of the fourteenth amendment.

Like the one-person-one-vote claims, the vote-dilution

claims in both cases arise out of the formation of the

state’s current redistricting plan. The vote-dilution

claims, however, would require proof of racial motiva-

tion. The vote-dilution claims would nevertheless be sub-

ject to the same proof in federal court as they were in

state court and are identical in substance for purposes of

res judicata; in other words, the plaintiffs in both state

and federal court would arguably prove their claim by

showing that a district any where in the State had been

intentionally created with an underpopulated black

majority so as to dilute white voting strength.

b. Race-Based Gerrymandering Claim

Each of the Thompson plaintiffs alleges that the

House and Senate district in which he or she lives was

racially gerrymandered in violation of the equal protec-

tion clause of the fourteenth amendment. Only Andrew

Thompson, however, challenges a district named in the

Rice plaintiffs’ state-court complaint, and, in response to

a motion by the state defendants, the state court

expressly limited the Rice plaintiffs’ gerrymandering

claim to the districts in which the Rice plaintiffs reside:

House Districts 79 and 83 and Senate Districts 27 and 28.

The other Thompson plaintiffs live in districts outside of

216a

those addressed by the state court, and their gerryman-

dering claims could not have been asserted by the Rice

plaintiffs for lack of standing.?°

Andrew Thompson claims that the State has adopted

a plan which, on the basis of race, gerrymanders Senate

District 28 and House District 82. Thompson thus raises

the same issue as to his Senate district - whether Senate

District 28 was racially gerrymandered - raised by the

Rice plaintiffs in state court. The other Thompson plain-

tiffs, by contrast, raise issues specific to the districts in

which they live and which were not raised in the state-

court proceeding, as does Thompson in regard to House

District 82.

Furthermore, the evidence that would be required to

establish a race-based gerrymandering claim is neces-

sarily district-specific. A plaintiff must show either (1)

that the district in which he or she lives “has no rational

explanation except as an effort to separate voters on the

basis of race,” or (2) that, in redrawing the district, “the

legislature subordinated traditional race-neutral district-

ing principles, including but not limited to compactness,

'© Voters entitled to pursue a gerrymandering claim are

limited to those who reside within the racially gerrymandered

district or those who can show by “specific evidence” that they

suffer the “special harms” associated with “personally be[ing]

subjected to a racial classification” under the redistricting plan.

United States v. Hays, 515 U.S. 737, 744- 45, 115 S.Ct. 2431, 2436,

132 L.Ed.2d 635 (1995); see also Bush v. Vera, 517 U.S. 952, 957-58,

116 S.Ct. 1941, 1951, 135 L.Ed.2d 248 (1996) (plurality opinion).

The district-specific nature of a gerrymandering claim is in

contrast to the plan-wide nature of a vote-dilution or one-

person-one-vote claim.

217a

contiguity, and respect for political subdivisions or com-

munities defined by actual shared interests, to racial con-

siderations.” Miller v. Johnson, 515 U.S. 900, 903, 916, 115

S.Ct. 2475, 2482, 2488, 132 L.Ed.2d 762 (1995); see also Bush

v. Vera, 517 U.S. 952, 959, 116 S.Ct. 1941, 1952, 135 L.Ed.2d

248 (1996); Shaw v. Reno, 509 U.S. 630, 644, 113 S.Ct. 2816,

2825, 125 L.Ed.2d 511 (1993). Different evidence would

therefore be required to establish the Thompson plain-

tiffs’ gerrymandering claims, save that of Andrew

Thompson’s Senate claim, than was required in state

court to prove the Rice plaintiffs’ claims.

Although the state court did examine how the plan as

a whole was drafted, it focused primarily on the manner

in which the drafters drew House Districts 79 and 83 and

Senate Districts 27 and 28. Indeed, there is little that

Andrew Thompson could add to the evidence presented

by the Rice plaintiffs on Senate District 28. As to House

District 82 and for the other Thompson plaintiffs, though,

the evidence presented in state court would largely not

address their claim.

The court must therefore conclude that only Andrew

Thompson’s race-based gerrymandering claim for Senate

District 28 presents the same cause of action presented by

the Rice plaintiffs in state court.

In conclusion, we hold that the motions for summary

judgment filed by the state defendants and the Sinkfield

parties should be granted as to the vote-dilution and one-

person-one-vote claims of all the Thompson plaintiffs and

as to Andrew Thompson's race-based gerrymandering

challenge to Senate District 28, and otherwise denied. An

appropriate order will be entered.

218a

ORDER

In accordance with the memorandum opinion

entered this date, it is the ORDER, JUDGMENT, and

DECREE of the court that the motions for summary judg-

ment filed by the state defendants on March 17, 1999

(Doc. no.129), and the Sinkfield parties on March 17, 1999

(Doc. no. 131), are granted to the extent that the following

claims are dismissed: (1) the vote-dilution and one-per-

son-one-vote claims of all the Thompson plaintiffs; and

(2) plaintiff Andrew D. Thompson's race-based gerry-

mandering challenge to Senate District 28. This case will

Proceed as to all remaining claims and unaddressed

defenses.

219a

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA,

EASTERN DIVISION

ANDREW D.

THOMPSON, et al.,

Plaintiffs, CIVIL ACTION NO.

97-A-715-E

HAL SMITH, etc., et all.,

Defendants.

Nm ee eee ee eee eee”

Before EMMETT R. COX, Circuit Judge, W. HAROLD

ALBRITTON, Chief District Judge, and MYRON H.

THOMPSON, District Judge.

OPINION

(Filed Dec. 30, 1999)

This three-judge court will now take up the motions

for summary judgment with respect to plaintiff Peggy C.

Kelley’s challenges to Alabama House District 88 (HD

88), filed by the state defendants! and by the Sinkfield

defendants.? Kelley is one of a group of eight plaintiffs,

all white Alabama voters, who filed this lawsuit to chal-

lenge their state legislative voting districts on the

grounds that the districts were racially gerrymandered in

violation of the equal protection clause of the fourteenth

1 Filed October 13, 1999 (Doc. no. 205).

2 Filed October 25, 1999 (Doc. no. 219).

220a

amendment. The plaintiffs named two groups of defen-

dants: the state defendants, Alabama Secretary of State

James Bennett and Lee County Probate Judge Hal Smith,

both sued in their official capacities; and the Sinkfield

defendants, a group of black voters who achieved the

current legislative districting plan as part of a consent

decree in a previous lawsuit which they filed in state

court.

Both groups of defendants moved for summary judg-

ment in their favor as to Kelley’s claims regarding HD 88.

We heard oral argument on the summary judgment

motions on December 17, 1999, and entered an order

granting summary judgment on HD 88 on December 20,

1999. We now give the reasons for that order.

Rule 56(c) of the Federal Rules of Civil Procedure

Provides that summary judgment is appropriate where

“there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a

matter of law.” Where, as in this case, the non-moving

party bears the burden of proof on an issue at trial, “the

moving party, in order to prevail, must do one of two

things: show that the non-moving party has no evidence

to support its case, or present ‘affirmative evidence dem-

onstrating that the nonmoving party will be unable to

Prove its case at trial.” Hammer v. Slater, 20 F.3d 1137,

1141 (11th Cir. 1994) (quoting United States v. Four Parcels

of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en

3 Entered December 20, 1999 (Doc. no. 288).

221a

baiic)). Once the party seeking summary judgment has

informed the court of the basis for its motion, the burden

shifts to the non-moving party to demonstrate why sum-

mary judgment would be inappropriate. Celotex Corp. v.

Catrett, 477 U.S. 317, 223, 106 S.Ct. 2548, 2553 (1986). In

making its determinetivn, the court must view all evi-

dence and any factual inferences in the light most favor-

able to the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356

(1986).

Il.

This case has a long and complex history, which we

set forth at length in our opinion of July 2, 1999, reported

at 52 F. Supp.2d 1364 (M.D. Ala. 1999), and which we will

therefore not recount here. Rather, we shall focus our

attention on the particular claims raised by Kelley with

regard to HD 88.

Kelley is a resident of HD 88, whose population is

79.59% white and 19.71% black. HD 88 comprises all of

Autauga County and a small part of Elmore County,

including all of the town of Prattville and part of Mill-

brook. The part of Millbrook not included in HD 88 lies

within House District 75 (HD 75).

Kelley’s claim that HD 88 was racially gerryman-

dered focuses to a large extent on the division of the town

of Millbrook between HD 88 and HD 75. She argues that

Millbrook and Prattville together constitute a community

of interest, and therefore, under traditional districting

principles, should have been placed in the same district.

222a

The division of Millbrook, Kelley adds, does not contrib-

ute to the compactness or contiguity of HD 88. Since the

Millbrook /Prattville community was thus “needlessly”

divided, Kelley concludes that the only possible reason

for drawing HD 88 in this way is race.

Both the state defendants and the Sinkfield defen-

dants have moved for summary judgment on Kelley's

claims against HD 88, arguing that Kelley has not pro-

vided evidence to support essential elements of her

claims.

Il.

The United States Supreme Court first recognized a

cause of action under the equal protection clause of the

fourteenth amendment for claims of racial gerrymander-

ing in Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816 (1993).

Courts analyze these types of claims in two steps. First, a

court determines whether to apply the strict scrutiny

afforded to classifications based on race, by examining

whether the challenged districting plan, “though race-

neutral on its face, rationally cannot be understood as

anything other than an effort to separate voters into

different districts based on race.” Id. at 649, 113 S.Ct. at

2828. The Supreme Court further explained the require-

ments for satisfaction of this element in Miller v. Johnson,

515 U.S. 900, 916, 115 S.Ct. 2475, 2488 (1995), stating that

strict scrutiny should be applied only where race is the

“predominant factor” in the drawing of district lines.

Plaintiffs may prove that race was predominant through

evidence that “the legislature subordinated traditional

223a

race-neutral districting principles, including but not lim-

ited to compactness, contiguity, respect for political sub- ©

divisions or communities defined by actual shared

interests, to racial considerations.” Id. Once the court has

determined that strict scrutiny is appropriate, it proceeds

to the second step of Shaw analysis: consideration of

whether the district lines were narrowly tailored to fur-

ther a compelling state interest. Shaw, 509 U.S. at 658, 113

S.Ct. at 2832.

The defendants in this case focus their arguments on

the first element of Kelley’s Shaw claim. They contend

that she has provided no evidence indicating that race

was a factor in drawing the boundaries of HD 88, and

that the district lines are therefore not subject to any

equal protection analysis, much less strict scrutiny. To

support this contention, the defendants point to evidence

of the racial composition of HD 88 and its neighboring

districts. Since Kelley argues that the division of Mill-

brook between HD 88 and HD 75 demonstrates that race

was the underlying motive of the legislature, the defen-

dants have offered evidence to show that this division

had no impact on the racial composition of either district.

Both HD 88 and HD 75 are predominantly white: HD 88

is 79.59% white, and HD 75 is 78.26% white.* Demo-

graphic evidence also indicates that Millbrook was not

divided along racial lines. The part of Millbrook that lies

within HD 88 is 75.80% white, and the part that lies

4 See State Defendants’ Memo, filed Oct. 13, 1999, at 9 (Doc.

no. 206).

224a

within HD 75 is 83.23% white.5 Where the evidence

clearly demonstrates that the drawing of district lines did

not have the effect of classifying individuals by race, or

by any other impermissible category for that matter, the

equal protection clause is not implicated.

Despite the overwhelming evidence that the division

of Millbrook had no racial effect, Kelley attempts to dem-

onstrate that race was a motivating factor through the

testimony of Dr. Joe Reed, one of the central negotiators

of the current districting plan. Dr. Reed has openly stated

that his role in this process was to represent the interests

of black voters, and that his primary goal was to increase

black representation in the Alabama legislature. How-

ever, Kelley has produced no specific evidence that Dr.

Reed had race-based motivations for drawing the line

between HD 88 and HD 75. General evidence about Dr.

Reed’s goals in drawing the state-wide districting plan as

a whole is not sufficient to show that HD88 in particular

was drawn for racial reasons.

Finally, Kelley implies that the division of the town

of Millbrook is unlawful because defendants have not

proven that it was necessary. Kelley states in her brief

that Millbrook was “needlessly divided” and that “[t]here

was no one person-one vote necessity to divide Mill-

brook, Alabama.”® However, whether the drawing of dis-

trict lines was necessary to achieve one goal or another

® See Response of Plaintiff Kelley, filed Nov. 4, 1999, at 7-8

(Doc. no. 235).

225a

has no bearing on Kelley's equal protection claim. Legis-

lators may consider a wide variety of factors in drawing

district lines, and they are at liberty to prioritize among

these in whatever fashion they choose, so long as they do

not rely primarily on an impermissible factor such as

race. In cases such as this one, where the evidence dem-

onstrates clearly that race played no role in the drawing

of district lines, the State is by no means obliged to

demonstrate that the choices it made were necessary to

preserve communities of interest or to achieve any other

constitutionally permissible goal.

IV.

For the above reasons, we concluded in our order of

December 20, 1999, that summary judgment should be

entered in favor of the defendants on Kelley’s claims

regarding HD 88.

226a

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA,

EASTERN DIVISION

ANDREW D.

THOMPSON, et al.,

Paintiffs, CIVIL ACTION NO.

97-A-715-E

HAL SMITH, etc., et al.,

Defendants.

eee ee ee ee ee ee ee

Before EMMETT R. COX, Circuit Judge, W. HAROLD

ALBRITTON, Chief District Judge, and MYRON H.

THOMPSON, District Judge.

OPINION

(Filed Jan. 3, 2000)

This three-judge court will now tak up the motions

for summary judgment with respect to plaintiff Andrew

D. Thompson's challenges to Alabama House District 82

(HD 82), filed by the state defendants! and by the Sink-

field defendants.2 Thompson is one of a group of eight

plaintiffs, all white Alabama voters, whe filed this law-

suit to challenge their state legislative voting districts on

the grounds that the districts were racially gerryman-

dered in violation of the equal protection clause of the

fourteenth amendment. The plaintiffs named two groups

' Filed October 6, 1999 (Doc. no. 198).

2 Filed October 25, 1999 (Doc. no. 214)

227a

of defendants: the state defendants, Alabama Secretary of

State James Bennett and Lee County Probate Judge Hal

Smith, both sued in their official capacities; and the Sink-

field defendants, a group of black voters who achieved

the current legislative districting plan as part of a consent

decree in a previous lawsuit, which they filed in state

court.

Both groups of defendants moved for summary judg-

ment in their favor as to Thompson’s claims regarding

HD 82. We heard oral argument on the summary judg-

ment motions on December 17, 1999, and entered an

order granting summary judgment on HD 82 on Decem-

ber 20, 1999.3 We now give the reasons for that order.

Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment is appropriate where

“there is no genuine issue as to any material fact

and... the moving party is entitled to a judgment as a

matter of law.” Where, as in this case, the non-moving

party bears the burden of proof on an issue at trial, “the

moving party, in order to prevail, must do one of two

things: show that the non-moving party has no evidence

to support its case, or present ‘affirmative evidence cem-

onstrating that the nonmoving party will be unable to

prove its case at trial.’” Hammer v. Slater, 20 F.3d 1137,

1141 (11th Cir. 1994) (quoting United States v. Four Parcels

of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en

banc)). Once the party seeking summary judgment has

3 Entered December 20, 1999 (Doc. no. 289).

228a

informed the court of the basis for its motion, the burden

shifts to the non-moving party to demonstrate why sum-

mary judgment would be inappropriate. Celotex Corp. v.

Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). In

making its determination, the court must view all evi-

dence and any factual inferences in the light most favor-

able to the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356

(1986).

Il.

This case has a long and complex history, which we

set forth at length in our opinion of July 2, 1999, reported

at 52 F. Supp.2d 1364 (M.D. Ala. 1999), and which we will

therefore not recount here. Rather, we shall focus our

attention on the particular claims raised by Thompson

with regard to HD 82.

Andrew Thompson resides in Shorter, Alabama, a

town in Macon County and in HD 82, which comprises all

of Macon and Bullock Counties, as well as a small part of

Lee County. Accord’ng to 1990 census figures, HD 82 is

79.73% black and 19.81% white. The total population of

HD 82 is 38,257, including 24,928 Macon County resi-

dents, 11,042 Bullock County residents, and 2,287 persons

residing in Lee County.

Because the Macon and Bullock County portions of

HD 82 simply follow county borders, Thompson’s claim

of racial gerrymandering focuses on the inclusion of a

portion of Lee County in HD 82. His claim rests in large

part on what he contends is the bizarre shape of this

piece of Lee County, which one of plaintiff’s experts calls

229a

“a robot-arm extension,” and describes as “appear[ing] to

jump over Auburn to reach the northwest portion of

Opelika.”* Because, according to Thompson, this area

unnecessarily defeats both the compactness of HD 82 and

the preservation of communities of interest in Lee

County, he maintains that racial considerations are the

only possible reason for drawing what he considers such

a bizarrely shaped district.

Both the state defendants and the Sinkfield defen-

dants have moved for summary judgment on Thompson's

claims against HD 82, arguing that Thompson has not

provided evidence to support an essential element of his

claim, and producing additional evidence to suggest that

Thompson could not succeed in proving that HD 82 was

impermissibly racially gerrymandered.

Il.

The United States Supreme Court first recognized a

cause of action under the equal protection clause of the

fourteenth amendment for claims of racial gerrymander-

ing in Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816 (1993).

Courts analyze these types of claims in two steps. First, a

court determines whether to apply the strict scrutiny

afforded to classifications based on race, by examining

whether the challenged districting plan, “though race-

neutral on its face, rationally cannot be understood as

anything other than an effort to separate voters into

different districts based on race.” Id. at 649, 113 S. Ct. at

* Plaintiffs’ Response in Opposition to State Defendants’

Motion, filed Oct. 28, 1999, at 9 (Doc. no. 225).

230a

2828. The Supreme Court further explained the require-

ments for saticfaction of this element in Miller v. Johnson,

515 U.S. 900, 916, 115 S. Ct. 2475, 2488 (1995), stating that

strict scrutiny should be applied only where race is the

“predominant factor” in the drawing of district lines.

Plaintiffs may prove that race was predominant through

evidence that “the legislature subordinated traditional

race-neutral districting principles, including but not lim-

ited to compactness, contiguity, respect for political sub-

divisions or communities defined by actual shared

interests, to racial considerations.” Id. Once the court has

determined that strict scrutiny is appropriate, it proceeds

to the second step of Shaw analysis: consideration of

whether the district lines were narrowly tailored to fur-

ther a compelling state interest. Shaw, 509 U.S. at 658, 113

S. Ct. at 2832.

The defendants in this case focus their arguments on

the first element of Thompson’s Shaw claim. They con-

tend that Thompson’s evidence does not support the

conclusion that race was a factor in drawing the bound-

aries of HD 82, and they have produced additional evi-

dence demonstrating that race could not have been a

predominant factor in the drawing of HD 82. The defen-

dants therefore argue that HD 82’s boundaries are not

subject to any equal protection analysis, much less strict

scrutiny. We agree.

First, the shape of HD 82, which forms the cor-

nerstone of Thompson’s claim, is not bizarre enough to

support on its own a conclusion of racial gerrymander-

ing. The Supreme Court did state in Shaw v. Reno that “[ijn

some exceptional cases, a reapportionment plan may be

so highly irregular that, on its face, it rationally cannot be

23la

understood as anything other than an effort to ‘seg-

regat[e] . . . voters’ on the basis of race.” 509 U.S. at

646-47, 113 S. Ct. at 2826. However, HD 82 is not such an

exceptional case, especially as compared with the district

challenged in. Shaw v. Reno, which passed through ten

counties and “winds in snakelike fashion through tobacco

country, financial centers, and manufacturing areas,” 509

U.S. at 635, 113 S. Ct. at 2821, or with the Texas districts

challenged in Bush v. Vera, one of which was described as

having “many narrow corridors, wings, or fingers.” 517

U.S. 952, 973, 116 S. Ct. 1941, 1959 (1996). Though. the

somewhat irregular shape of HD 82 can be considered by

the court as evidence of the alleged racial gerrymander-

ing, on its own it is not sufficient to create a genuine issue

of fact and to defeat the motions for summary judgment.

In addition to the evidence of HD 82’s shape,

Thompson relies on evidence provided by two expert

witnesses. Neither expert’s testimony supports

Thompson's claim that HD 82 was racially gerryman-

dered, however. The first expert, Dr. Ron W. Weber,

makes several conclusory statements indicating that “race

was a predominant factor” in the drawing of a long list of

legislative districts in Alabama, but he does not provide

any specific evidence suggesting that racial consider-

ations predominated in the creation of HD 82 in particu-

lar.>

‘

5 Plaintiffs’ Response in Opposition to State Defendants’

Motion, filed Oct. 28, 1999, at 7 (Doc. no. 225).

232a

Thompson’s second expert, Dr. William Stewart, is

equally unhelpful to his claim. The main thrust of Stew-

art’s report appears to be that HD 82 must have been

racially gerrymandered in violation of the constitution,

because no evidence suggests that its particular shape

was otherwise necessary. However, whether the drawing

of district lines was necessary to achieve one goal or

another has no bearing on Thompson’s equal protection

claim. Redistrictors may consider a wide variety of fac-

tors in drawing district lines, and they are at liberty to

prioritize among these in whatever fashion they choose,

so long as they do not rely primarily on an impermissible

factor such as race. In order to defeat a claim of racial

gerrymandering, the State is by no means obliged to

demonstrate that the choices made were necessary to

preserve communities of interest or to achieve compact-

ness or any other constitutionally permissible goal.

Finally, Thompson attempts to demonstrate that race

was a motivating factor in the drawing of HD 82 through

the testimony of Dr. Joe Reed one of the central negotia-

tors of the current districting plan. Dr. Reed has openly

stated that his role in this process was to represent the

interests of black voters, and that his primary goal was to

increase black representation in the Alabama legislature.

However, Thompson has produced no specific evidence

that Dr. Reed had race-based motivations in drawing the

boundaries of HD 82. General evidence about Dr. Reed’s

goals in drawing the state-wide districting plan as a

of interest generally have been split unnecessarily and without

any compelling justification for doing so.”)

233a

whole is not sufficient to show that HD82 in particular

was drawn for racial reasons.

In addition to demonstrating that Thompson's evi-

dence is insufficient to make out a cognizable claim of

unconstitutional racial gerrymandering, the defendants

have presented evidence demonstrating that race was not

the predominant factor in drawing HD 82. First, defen-

dants have shown that the inclusion of part of Lee county

in HD 82 was necessary to achieve as close as possible to

the ideal population in the district as a whole. The 1990

census indicated that the ideal population for an Alabama

house district was 38,482; because only 35,970 people

reside in Macon and Bullock Counties combined, the

adopted plan added 2,287 people from Lee County to

raise the total population of HD 82 to 38, 257.7

The defendants have also produced demographic

evidence indicating that the race of those Lee county

residents who were added to HD 82 did not significantly

impact the racial composition of the district as a whole.

Mason and Bullock Counties standing alone, without the

part of Lee County that was added, are 81.53% black.

With the addition of 2,287 Lee County residents, HD 82 is

now 79 73% black; in other words, the addition of part of

Lee County to HD 82 changed the black majority in the

district by only 1.8%. Even more defeating to Thompson's

claim is the fact that the effect of adding part of Lee

County to HD 82 was to dilute rather than to strengthen

the black population of HD 82. Though Thompson has

7 Memorandum in Support of Motion for Summary

Judgment in Favor of State Defendants, filed Oct. 6, 1999, at 10

(Doc. No. 199).

234a

never asserted the specific basis for his Shaw claim, we

assume, since he resides in a majority-black district. that

he believes HD 82 was gerrymandered to be predomi-

nantly black. If his primary argument supporting this

claim is that an ill-formed finger was carved out of Lee

county and appended to his otherwise compact district,

then his claim falls flat when the evidence shows that the

finger actually made his district less rather than more

predominantly black.

Indeed, demographic evidence also demonstrates

that, even if every one of the Lee County residents that

was added on to HD 82 were white, the black majority in

the district as a whole would only have been reduced by

3%* Any way that the State made up for Macon and

Bullock Counties’ population deficit, HD 82 would still

have been predominantly black. Thompson's claim that

the addition of part of Lee county to HD 82 is evidence of

racial gerrymandering therefore has no merit.

IV.

For the above reasons, we concluded in our order of

December 20, 1999, that summary judgment should be

entered in favor of the defendants on Thompson’s claims

regarding HD 82.

* Sinkfield Defendants’ Consolidated Brief, filed Oct. 25,

1999, at 6 (Doc. no. 223).

235a

IN THE DISTRICT COURT OF

THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA,

EASTERN DIVISION

ANDREW D. THOMPSON, )

et al., )

sil )

Plaintiffs, ) CIVIL ACTION NO.

v. ) 97-A-715-E

HAL SMITH, etc., et al.,

Defendants. )

Before EMMETT R. COX, Circuit Judge, W. HAROLD

ALBRITTON, Chief District Judge, and MYRON H.

THOMPSON, District Judge. ALBRITTON, Chief District

Judge.

MEMORANDUM OPINION

(Filed Jan. 6, 2000)

I. INTRODUCTION ~

This three judge court will now take up the motions

for summary judgment with respect to Plaintiff Daniel

Brown's challenges to Alabama House District 73 (HD73),

filed by the state defendants! and by the Sinkfield defen-

dants.2 Brown is one of a group of eight plaintiffs, all

white Alabama voters, who filed this lawsuit to challenge

their state legislative voting districts on the ground that

the districts were racially gerrymandered in violation of

1 Filed October 25, 1999 (Doc. # 211).

2 Filed October 25, 1999 (Doc. # 217).

236a

the equal protection clause of the fourteenth amendment.

The plaintiffs named two groups of defendants: the state

defendants, Alabama Secretary of State James Bennett

and Lee County Probate Judge Hal Smith, both sued in

their official capacities; and the Sinkfield defendants, a

group of black voters who achieved the current legisla-

tive districting plan as part of a consent decree in a

previous lawsuit, which they filed in state court.

Both groups of defendants moved for summary judg-

ment in their favor as to Brown's claims regarding HD 73.

We heard oral argument on the summary judgment

motions on December 17, 1999. For the reasons discussed

below, the motions are due to be GRANTED.

—ao oseecen7* ewer © «

Il. SUMMARY JUDGMENT STANDARD ~

Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment is appropriate where

“there is no genuine issue as to any. material fact

and . . . the moving party is entitled to a judgment as a

matter of law.” Where, as in this case, the non-moving

party bears the burden of proof on an issue at trial, “the .

moving party, in order to prevail, must do one of two

things: show that the non-moving party has no evidence

to support its case, or present ‘affirmative evidence dem-

onstrating that the nonmoving party will be unable to

prove its case at trial.” -Hammer v. Slater, 20 F.3d 1137,

1141 (11th Cir. 1994) (quoting United States v. Four Parcels

of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en

banc)). Once the party seeking summary judgment has

informed the court of the basis for its motion, the burden

237a

shifts to the non-moving party to demonstrate why sum-

mary judgment would be inappropriate. Celotex Corp. v.

Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). In

making its determination, the court must view all evi-

dence and any factual inferences in the light most favor-

able to the, nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Cow., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356

(1986).

Ill. FACTS

This case has a long and complex history, which we

set forth at length in our opinion of July 2, 1999, reported

at 52 F. Supp.2d 1364 (M.D. Ala. 1999), and which we will

therefore not recount here. Rather, we shall focus our

attention on the particular claims raised by Brown with

regard to HD 73.

Daniel Brown resides at 3409 North Water Mill Road,

in the Carriage Hill subdivision in the City of Montgom-

ery, which is part of HD 73. House District 73 lies entirely

within the city limits of Montgomery. According to 1990

census figures, HD 73 is 10.52% black and 88.15% white.

The total population of HD 73 is 40,396.

Brown's claim that HD 73 was racially gerryman-

dered focuses primarily on the belief that the district is

“too white.” See Brown Depo. at 14:14-17. According to

Brown, the voting districts of Alabama should be racially

integrated like the schools were integrated to better

reflect the communities. See id. at 69:23-70:10. Both the

state defendants and the Sinkfield defendants have

moved for summary judgment on Brown’s claims against

238a

HD 73, arguing that Brown has not provided evidence to

support an essential element of his claim.

IV. DISCUSSION

The United States Supreme Court first recognized a

cause of action under the equal protection clause of the

fourteenth amendment for claims of racial gerrymander-

ing in Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816 (1993).

Courts analyze these types of claims in two steps. First, a

court determines whether to apply the strict scrutiny

afforded to classifications based on race, by examining

whether the challenged districting plan, “though race-

neutral on its face, rationally cannot be understood as

anything other than an effort to separate voters into

different districts based on race.” Id. at 649, 113 S. Ct. at

2828. The Supreme Court further explained the require-

ments for satisfaction of this element in Miller v. Johnson,

515 U.S. 900, 916, 115 S. Ct. 2475, 2488 (1995), stating that

strict scrutiny should be applied only where race is the

“predominant factor” in the drawing of district lines.

Plaintiffs may prove that race was predominant through

evidence that “the legislature subordinated traditional

race-neutral districting principles, including but not lim-

ited to compactness, contiguity, respect for political sub-

divisions or communities defined by actual shared

interests, to racial considerations.” Id. Once the court has

determined that strict scrutiny is appropriate, it proceeds

to the second step of Shaw analysis: consideration of

whether the district lines were narrowly tailored to fur-

ther a compelling state interest. Shaw, 509 U.S. at 658, 113

S. Ct. at 2832.

239a

The defendants in this case focus their arguments on

the first element of Brown's Shaw claim. They contend

that Brown’s evidence does not support the conclusion

that race was a factor in drawing the boundaries of HD

73. The defendants therefore argue that HD 73’s bound-

aries are not subject to any equal protection analysis,

much less strict scrutiny. We agree.

First, Brown relies on the evidence provided by two

expert witnesses to support his claim that HD 73 was

racially gerrymandered.* Neither expert's testimony sup-

ports Brown's claim that HD 73 was racially gerryman-

dered, however. The first expert, Dr. Ron W. Weber,

makes several conclusory statements indicating that “race

was a predominant factor” in the drawing of a long list of

legislative districts in Alabama, but he does not provide

any specific evidence suggesting that racial consider-

ations predominated in the creation of HD 73 in particu-

lar.4

Brown's second expert, Dr. William Stewart. provides

little support for Brown’s claim against HD 73. Dr. Stew-

art points only to the fact that areas with a minority

population of more than 65% were “shut out” of the

district to support his theory that “[bJlacks appear to

have been deliberately excluded from House District

3 See Corrected Thompson Plaintiffs’ Consolidated

Response in Opposition to Sinkfield Defendants’ Motions for

Summary Judgment and State Defendants’ Motions for Partial

Summary Judgment filed on November 22, 1999, at 39 (Doc. #

248).

* See Exh. E, at 17-18.

240a

73." Dr. Stewart does not specify specific “black” areas

that were excluded from HD 73, nor does he address the

implications that adding such people to the district

would have on the total population of the district. HD 73

has a population of 40,936, 4.97% above the ideal popula-

tion for a house district in Alabama. Adding additional

people to the district may likely violate the one person,

one vote requirements of the Constitution and may also

undermine the traditional districting factor of compact-

ness. Dr. Stewart only makes a generalized conclusion

about the population of HD 73, without designating spe-

cific areas that were excluded or discussing specific areas

that could be removed from HD 73 if areas with higher

black populations were added, to comport with the tradi-

tional districting factors of compactness and keeping

communities of interest together. Therefore, this report

provides little specific support to Brown’s claim that HD

73 was gerrymandered.

In addition to the expert reports, Brown makes two

arguments regarding the population composition of his

district. First, Brown argues that HD 73 is “too white.”

See Brown Depo. at 14:16. He doesn’t believe that his

district reflects his neighborhood, where he shops or

where he goes to church. See id. at 14:22-15:8 & 25:16-18.

Brown asserts that certain blocks of black voters were left

out of his district, making the district more white. See id.

at 25:20-22.

* Stewart Report at 6. Exh. D to Plaintiffs’ Response in

Opposition to State Defendants’ Motion for Summary Judgment

Against Plaintiff Andrew D. Thompson, Jr., filed on October 28,

1999 (Doc. #225).

24la

The defendants offer evidence to illustrate that the

dividing lines of HD 73 under the Reed-Buskey Plan had

little impact on the racial composition of HD 73. HD 73

was going to be a majority white district no matter how

the lines were drawn using traditional districting princi-

ples. For example, under the Pokey Plan, HD 73 was

88.14% majority white.© The Reed-Buskey Plan changed it

to 88.15% white. Consequently, merely because HD 73 is

“too white” does not illustrate that race was a predomi-

nant factor in the drawing of the district. The Shaw

majority has recognized that the “racial composition of a

particular voting district, without more,” is not enough to

support a claim for a violation of the equal protection

clause of the fourteenth amendment. Hays, 515 U.S. at

746.

Brown’s second population argument is that HD 73,

and all other house districts for that matter, should be

integrated like the school system was integrated. See

Brown Depo. 69:2370:10. Brown believes that neither

whites nor blacks can negotiate for districts. See id. at

74:17-75:17. Further, when asked who should construct

the districts, Brown stated, “Somebody much smarter

than us. Like the courts did in terms of integration and

that kind of stuff like that.” See id.

The Shaw majority specifically rejects this “integra-

tion” argument, however. In Hays, the appellees urged

the court to consider their district, “a ‘segregated’ voting

6 See Exh. 52 filed on December 15, 1999 (Doc. #283).

Plaintiff’s counsel described the Pokey Plan at the Hearing held

on December 17, 1999, as “the 1983 district with the 1990 census

information.” Hearing Transcript, December 17, 1999, at 123:13.

242a

district, and thus, that their position [was] no different

from that of a student in a segregated school district.”

Hays, 515 U.S. at 746. The Court found, however, that “an

allegation to that effect does not allege a cognizable

injury under the Fourteenth Amendment.” Id. Conse-

quently, this court also rejects Brown’s “integration”

argument.

Finally, Brown attempts to demonstrate that race was

a motivating factor in the drawing of HD73 through the

testimony of Dr. Joe Reed, a central negotiator of the

current plan. Dr. Reed has openly stated that his role in

the districting process was to represent the interests of

black voters, and that his primary goal was to increase

black representation in the Alabama legislature. How-

ever, Brown has produced no specific evidence that Dr.

Reed had race-based motivations in drawing the bound-

aries of HD 73. General evidence about Dr. Reed’s goals

in drawing the state-wide districting plan as a whole is

not sufficient to show that HD 73 in particular was drawn

for racial reasons.

In addition to their other evidence, the defendants

have presented evidence that race was not the predomi-

nant factor in drawing HD 73. First, defendants have

produced evidence to show that HD 73 comports with the

traditional factor of compactness. HD 73 is among the

most compact districts in terms of perimeter and disper-

sion. HD 73 is the fifth most compact district in terms of

perimeter out of the 105 districts and it ranks 37th out of

the 105 districts in terms of dispersion. The defendants

have also presented evidence that HD 73 reflects incum-

bent preferences. Perry Hooper, Jr. was the incumbent

representative of HD73. Representative Hooper testified

243a

in his deposition that he didn’t have any problem with

the way his district was drawn under the Reed-Buskey

plan and that “the lines virtually were very similar to the

way they were in 1983.” See Hooper Depo. 30:14-15.

Hooper asked Dr. Reed to keep his district similar to the

way it was. See id. at 73:3-4.

V. CONCLUSION

For the above reasons, it is hereby ORDERED that

summary judgment should be GRANTED in favor of the

defendants on Brown's claims regarding HD 73. A sepa-

rate order will be entered in accordance with this Mem-

orandum Opinion.

244a

Expert Witness Report

Thompson et al. v. Smith, CA 97-A-715-E

David A. Bositis

October 8, 1999

INTRODUCTION. I have been asked by James

Blacksher of Birmingham, Alabama (representing the

Sinkfield parties) to examine the organization and activ-

ities of the Alabama Democratic Conference, the New

South Coalition, and the Jefferson County Citizens Coali-

tion and to assess whether these organizations are func-

tionally equivalent to political parties. Mr. Blacksher has

provided me with copies of depositions from Joe Reed

and Jerome Gray of the Alabama Democratic Conference,

Richard Arrington of the Jefferson County Citizens Coali-

tion, Henry Sanders of the Alabama New South Coali-

tion, and John Rice, one of the plaintiff intervenors in the

Sinkfield action. Mr. Blacksher also requested that in

examining these organizations from the perspective of

political parties that I also address issues of democracy

and representation that are tied to political parties.

I am a political scientist and long-time scholar of

political parties and I have conducted research and pub-

lished extensively in that area. I am also a nationally

recognized scholar of black politics, and am presently

senior political analyst at the Joint Center for Political

and Economic Studies, a nonpartisan research institution

in Washington, DC that specializes in black studies.

Finally, I am also regarded as a voting rights scholar, and

I have been an expert witness in two federal voting rights

cases, Hays v. Louisiana and Johnson v. Mortham.

245a

POLITICAL PARTIES AND DEMOCRACY.

Political party theorists are in agreement that politi-

cal parties and party competition are essential to democ-

racy. In E.E. Schattschneider’s words “Political parties

created democracy . . . modern democracy is unthinkable

except in terms of parties”’ While there are several areas

of disagreement among political party theorists, this per-

spective (regarding parties and democracy) represents a

consensus view.

PARTY SYSTEMS.

Political parties function within party systems. Party

systems are based in durable patterns of interactions and

conflict between social groups, and include at least two

political parties as units which compete against each

other in electoral and governing institutions and result in

predictable consequences and behavior among party

leaders.

In terms of the state legislature, Alabama appears to

have had what might be termed a modified one-party

system at the time of the 1990s reapportionment. In 1992,

78.1 percent (82 of 105) of the members of the Alabama

House were Democrats, and 80 percent (28 of 35) of the

members of the Alabama State Senate were Democrats.?

In consequence, much of the significant political conflict

transpired within the Democratic party. Often in one-

! E.E. Schattschneider (1942) Party Government. New York:

Farrah and Rinehart.

2 SOURCE: The National Conference of State Legislators.

246a

party states, intra-party competition is based on factions.

This was not the case in Alabama. Factions are shifting

groups of competing elites who are not linked to popular

followings. The competition that took place in the Ala-

bama legislature and within the Alabama Democratic

party was between functional political parties. The social

groups’ (represented by the Alabama Democratic Confer-

ence, the New South Coalition, and the Jefferson County

Citizens’ Coalition’) politically salient interactions -

including conflict - with the other ‘Democratic’ parties

(as well as with the Republicans) in the legislature are

part of a durable and long-term pattern. This pattern

includes competition in elections and government, and is

associated with generally predictable consequences

among party leaders. Rather than a one-party system in

the Alabama legislature, there was a situation more

closely approximating a multi-party system.

POLITICAL PARTIES.

A political party exhibits a structure or organization;

links leaders to a popular following, which includes gen-

erating an in-group perspectives and having symbols of

party identification among leaders and followers; and it

3 From the depositions of the leaders of these three

organizations, it is clear that while functioning as political

parties, they each do so within a circumscribed geographical

area. The Alabama Democratic Conference is a statewide

organization (save one county), The Jefferson County Citizens’

Coalition functions primarily in Jefferson County, and the

Alabama New South Coalition functions in approximately 20

counties.

247a

contests elections, and seeks offices and power in govern-

ment*.

In the American context, political parties are cadre

parties as opposed to mass parties.5 Cadre parties have a

relatively small leadership group (or cadre) and also usu-

ally a somewhat larger - but still small - number of

activists, who are usually volunteers. Near election time,

the number of people active in party affairs swells, only

to recede once the election is over. Mass political parties,

typified by European Socialist parties, have large, rela-

tively permanent (or long-term) memberships. Members

pay dues, are given membership cards, and engage in

party activities on a year-round basis.

The two largest American parties, the Democratic

party and the Republican party, have official party orga-

nizations at the national, state, and local level. The rela-

tionships between the different organizational levels are

generally stratarchical,® that is, power is not completely

top-down, as in a bureaucracy, but rather it is based on a

reciprocal deference structure in which leaders at all levels

act independently but also defer to each other. There are

matters that occasionally, but rarely, arise where higher

level organizations demand acquiescence from lower

level organizations.

* Baer, Denise L. and David A. Bositis (1994), Politics and

Linkage in a Democratic Society. Englewood Cliffs, NJ: Prentice-

Hall.

5 Maurice Duverger (1954), Political Parties. New York: John

Wiley & Sons, Inc.

Analysis. Chicago: Rand McNally.

248a

Political parties generally have a party charter and

party rules. Party leaders are elected by party members -

usually delegates at party conventions. Parties have a

party platform, which identifies the party’s formal princi-

pals and issue positions and does so in a public fashion.

Parties have organizational meetings, including conven-

tions, and if the party is organized at different levels

(state, local), it usually has conventions and other meet-

ings relevant to the different levels of the party. Parties

generally have a permanent headquarters with staff and

volunteers. Finally, parties engage in issue advocacy and

they spend money on public communications and media

in connection with that advocacy.

As noted above, American parties are cadre style

parties, and do not have mass membership. The voters

who support a party at election time, but who otherwise

do not participate in any party affairs are generally

referred to as the party-in-the-electorate.? The vast majority

of Americans do not participate in party affairs. How-

ever, most Americans do identify with a political party.

For most people, party identification is a subjective state,

which is associated with certain in-group perspectives,

and is likewise associated with an individual’s voting

choices. :

The relationship between a party and its followers in

the electorate is based upon a number of factors. First, the

party is widely recognized as representing the interests -

and identifiers - of those groups associated with the

” V.O. Key (1964), Politics, Parties, and Pressure Groups. New

York: Thomas Crowell.

249a

party (e.g., the GOP and the Christian Coalition and the

Democratic party and organized labor). The formal prin-

ciples of the party are generally ones its followers sub-

scribe to. Elected officials and candidates publicly

identify themselves by the party label, and to a signifi-

cant degree personify the party to followers (a role also

played by the party’s chairman or chairwoman). Political

parties communicate with their followers, especially with

regard to their endorsements and candidate slate. Finally,

the media reports on the activities and positions of politi-

cal parties, including coverage of their conventions and

candidates.

As noted above, parties contest elections, and seek

offices and power in government. In order to contest (and

win) elections, parties raise and spend money on elec-

tion-related (and organizational) activities, including

GOTV (get out the vote) efforts. When possible, political

parties use the reapportionment process to gain electoral,

and hence political, advantage; district lines can be

drawn that distribute likely supporters - and opponents -

in such a way as to enhance a party’s chances of electoral

success, i.e., gerrymandering. Parties also train their cam-

paign workers, including candidates, volunteers, and poll

watchers. And, of course, parties slate and endorse candi-

dates. Parties not only recruit and support candidates,

but also candidates generally seek the endorsement of the

party.

250a

In order to influence (seek power) government, parties

generally have party organizations in legislative bodies*®

(e.g., the Democratic Caucus or the Republican Confer-

ence). Parties usually have a party ‘program’ in the legis-

lature (however specific or general) for which it lobbies

support (e.g., the Contract with America). The legislative

program is connected to the party’s principles and public

program. As part of this process, parties occasionally

have to enforce party discipline in order to facilitate the

enactment of their party program. The nature of this

party discipline varies, but often includes withholding

resources, withdrawing endorsements, recruiting and

supporting opponents at election time, denying favorable

committee assignments, and in extreme cases, removing

members from favored committees (e.g., Democrats in the

U.S. House tossed U.S. Senator (then Representative) Phil

Gramm (TX) off the House Budget Committee).

In sum, the overall democratic process has freely

associating citizens organized as a political party with the

intention of contesting elections and seeking power. The

principles and objectives of the party are what attracts

support from the party-in-the-electorate, and once elected,

the party seeks to implement its objectives in the best

way possible, including contesting elections and formu-

lating a legislative agenda. Thus, political party organiza-

tions represent the representational linkage between

followers, whose principal political activity is voting, and

* In American political party literature, this is referred to as

the party-in-office, a term coined by V.O. Key [see note 7].

25la

legislators (and other public officials) who pass legisla-

tion and raise and spend money as part of the govern-

mental roles.

THE ALABAMA DEMOCRATIC CONFERENCE.

Based upon the criteria outlined above, and reading

the depositions of Joe Reed and Jerome Gray of the

Alabama Democratic Conference (ADC), I concluded that

the Alabama Democratic Conference is a functioning

political party - in all but name only - at the state and

local level in Alabama. | will review the activities and

organization of the ADC based upon the depositions.

The ADC is a cadre style organization with a signifi-

cant membership, but by no means is it a mass member-

ship party. There are both members and volunteers in the

ADC. The organization of the ADC, like the two major

parties, is stratarchical with respect to the component

organizations in the ADC. According to the depositions,

there is a state committee, county-level committees

(which predominate), and local committees in the ADC.

In making endorsements, members from relevant juris-

dictions, ¢.g., counties, have the principal voice in deter-

mining who the ADC endorses for county-wide office. A

committee of the statewide organization makes similar

decisions regarding statewide candidates and issues.

The ADC has a formal charter and party rules and

by-laws. Officers are elected by the membership. The

ADC has a formal statement of principles, and publicly

takes positions on a variety of political issues. The ADC

holds regular organizational meetings at both the state

FS ee

252a

and county level, including conventions twice a year. The

ADC has a permanent headquarters with paid staff as

well as numerous volunteers. Finally, the ADC engages in

on-going issue advocacy with regard to its primary

agenda which is aimed at improving the lives of the black

citizens of Alabama.

While the membership of the ADC is comparatively

small, as indicated above, the ADC - like other American

political parties - is a cadre style party. While the ADC

does not have a large membership (relative to the electo-

rate or to the black electorate), a large proportion of black

voters in Alabama identify with the ADC, just as some

white citizens identify with the Republican party. These

citizens - mostly black - view the ADC as representing

their interests in Alabama politics. They (the black identi-

fiers with the ADC) generally favor the party’s principles

and issue positions. They are aware of the ADC and its

program through the communication and outreach efforts

of the ADC itself, but also through the mass media, which

publicizes the ADC; the media coverage reflects a recog-

nition of the ADC’s relationship with a substantial por-

tion of the black electorate in Alabama.

There are black members of the state legislature and

other black officeholders in Alabama who publicly iden-

tify themselves as ADC members and supporters, and

this influences ADC identifiers’ vote choices. Probably

two of the most prominent public symbols of the ADC are

its chairman, Joe Reed, and its yellow sample ballot.

Candidates for public office, white and black, appear

before ADC screening committees, to seek the endorse-

ment of the ADC for their election races. Those candi-

dates ~ again black and white - who receive the ADC’s

253a

endorsement generally receive the support of the ADC’s

identifiers.

The ADC as a party, operates within the larger Dem-

ocratic party, and thus does not have a separate ballot

line such as third parties like the Libertarian Party or the

Reform Party. The ADC only endorses Democratic candi-

dates. It has not become a formal third party because the

ADC does not believe that the isolation of Alabama’s

black citizens, who are in the minority, would achieve the

goals of the ADC. By working with white Democrats (and

others) and engaging in the give-and-take and compro-

mise of everyday politics within the Democratic party, the

ADC seeks equity for * labama’s black citizens. However,

it remains an independent organization by raising its own

money, selecting and supporting its own slate in the

Democratic primaries, formulating its own agenda, and

endorsing — or fauing to endorse - Democratic nominees

in the general election. Independent parties frequently

endorse the nominees of other (in the U.S., the Democrats

and Republicans) parties. The Reform party (associated

with H. Ross Perot) and the Liberal and Conservative

parties in New York and New Jersey, often endorse Dem-

ocratic and Republican candidates if they believe their

endorsements would further their party’s interests.

One of the ADC’s principal goals in contesting elec-

tions is to get more black candidates nominated and

elected to office, and to get sympathetic [with the ADC’s

goals] white Democrats nominated and elected. In order

to achieve this goal, the ADC raises money and engages

in a variety of election related activities. Like other politi-

cal parties, the ADC has attempted to use the reappor-

tionment process to distribute (in legislative districts)

254a

their likely supporters - and opponents - to their advan-

tage (see Reed deposition). The ADC trains volunteers

and members to engage in a variety of electoral activities,

including running for office, communicating with voters,

and poll watching. The ADC has a major GOTV effort

every election cycle. Depending on the circumstances, the

ADC both encourages and discourages black candidates

to seek office. Part of the long-term election activities of

the ADC is to research the vote of ADC supporters (iden-

tifiers), and to communicate that knowledge to those

considering running for office.

There are a number of members of the legislative

black caucus in the Alabama legislature who are ADC

supporters, and these members frequently meet with the

ADC. At the ADC’s last convention, there were several

black legislators in attendance. Each legislative session,

the ADC has a number of items comprising its agenda,

and the ADC leadership lobbies the legislature - both

black and white members - to obtain support for that

agenda. This is a process that often involves compromis-

ing and ‘horse trading’, but occasionally it requires the

ADC to ‘enforce party discipline’. In the past, when legis-

lators have received endorsement and other support from

the ADC, and once elected, break their commitments to

the ADC or immediately lose their interest in the ADC

agenda, the ADC has withdrawn their endorsements,

encouraged opposition candidates in the primaries, and

otherwise sought to ‘punish’ the errant legislator.

* In his deposition, Jerome Gray discussed the ADC’s

knowledge (and research) of where its electoral supporters, and

opponents, were located.

255a

In conclusion, the ADC functions much as a political

party functions. There is a cadre style party organization

at the state, county, and local level. There is a formalized

party structure with rules and regular procedures, and

well articulated principles. The ADC serves as a link

between its identifiers in the electorate and the state

government, with its political leverage based upon the

support of its identifiers in the election process.

THE JEFFERSON COUNTY CITIZENS COALITION.

Again, based upon the criteria outlined above, and

reading the deposition of Richard Arrington of the Jeffer-

son County Citizens Coalition (JCCC), I concluded that

within the context of Jefferson County, the JCCC is a

functioning political party. I will review the activities and

organization of the JCCC based upon the deposition.

The JCCC is a cadre style organization with a com-

paratively small membership, and not a mass member-

ship party. There are both members and volunteers in the

JCCC. The organization of the JCCC, is unlike the two

major parties and the ADC, since it is primarily based in

Jefferson County, and hence does not require different

levels of organization. According to ex-Mayor

Arrington’s deposition, there are different committees in

the JCCC which deal with various issues and activities.

The JCCC has a formal charter! and party rules and

by-laws. Officers are elected by the membership. The

JCCC has a formal statement of principles, and publicly

1° See deposition of Richard Arrington.

256a

takes positions on a variety of political issues. The jcece

holds regular organizational meetings. The JCCC has a

permanent headquarters with a small staff. At different

times in the past, the JCCC has had paid staff, and at

others none. Finally, the JCCC engages in on-going issue

advocacy with regard to its primary agenda which is

largely aimed at improving the lives of the black citizens

of Jefferson County.

While the membership of the JCCC is small, the jcce

- like other American political parties - is a cadre style

party. While the JCCC’s membership is small, a signifi-

cant proportion of black voters in Jefferson County iden-

tify with the JCCC and its objectives. These citizens are

mostly black, and they view the JCCC as representing

their interests in county and state politics. They (the black

identifiers with the JCCC) generally favor the party’s

Principles and issue positions. They are aware of the

JCCC and its program through the communication and

outreach efforts of the JCCC itself, but also through the

media in Jefferson County, which publicizes the JCCC;

the media coverage reflects a recognition of the JCCC’s

relationship with a substantial portion of the black electo-

rate in Jefferson County.

There are a small number of black members of the

state legislature and other black officeholders, principally

in Jefferson County, who publicly identify themselves as

JCCC supporters. At the present time, probably two of

the most prominent public symbols of the JCCC are its

chairman, and (long-time) Birmingham ex-Mayor Richard

Arrington, and its white sample ballot (which has ex-

Mayor Arrington’s picture on it). The JCCC has pro-

cedures for endorsing candidates for public office, and

257a

the JCCC endorses both white and black candidates.

Unlike the ADC, the JCCC is not affiliated with the

Democratic party. However, ex-Mayor Arrington indi-

cated in his deposition that the JCCC rarely, if ever,

endorses Republican candidates in general elections.

Those candidates - again black and white - who receive

the JCCC’s endorsement generally receive support from

the JCCC’s identifiers.

The JCCC is an independent organization not affili-

ated with any other party. It does not have a separate

ballot line such as third parties like the Libertarian Party

or the Reform Party. When it endorses, the JCCC gener-

ally endorses Democratic candidates in general elections.

However, it is an independent organization, it raises its

own money, it selects and supports its own slate in the

Democratic primaries, focuses on its own agenda, and

endorses - or fails to endorse — Democratic (usually)

nominees in the general election. As noted above, small

independent parties often endorse the nominees of other

parties.

One of the JCCC’s principal goals in contesting elec-

tions is to get more black candidates nominated and

elected to office, and to get sympathetic [with the JCCC’s

goals] white candidates nominated and elected. In order

to achieve this goal, the JCCC raises money and engages

in a variety of election related activities. The JCCC trains

volunteers and members to engage in a variety of elec-

toral activities, including running for office, communicat-

ing with voters, and poll watching. The JCCC has a

GOTV effort in Jefferson County every election cycle.

Unlike the ADC, which is associated with the Democratic

258a

party, the JCCC is not as likely to discourage black candi-

dates from seeking office, even if their prospects are

questionable.

There are a few members of the legislative black

caucus in the Alabama legislature who are JCCC suppor-

ters, and these members meet with the JCCC and its

leadership. Since the JCCC is based in Jefferson County,

its influence is largely derived from its influence there.

In conclusion, the JCCC functions much as a political

party functions. There is a cadre style party organization

at the county level. There is a formalized party structure

with rules and regular procedures, and well articulated

principles. The JCCC serves as a link between its identi-

fiers in the electorate and county (and state) government,

with its political leverage based upon the voter support

from its identifiers in Jefferson County.

THE ALABAMA NEW SOUTH COALITION.

Based upon the criteria outlined above, and reading

the deposition of Henry Sanders, chairman of the Ala-

bama New South Coalition (ANSC), I concluded that the

Alabama New South Coalition is a functioning political

party in about a third of Alabama’s counties and conse-

quently also at the state level in Alabama. I will review

the activities and organization of the ANSC based upon

the depositions.

The ANSC is a cadre style organization with a mod-

est membership, and not a mass membership party. There

are both members and volunteers in the ANSC. The orga-

nization of the ANSC, like the two major parties, is

259a

stratarchical with respect to the component organizations

in the ANSC. According to the deposition, there is a state

committee, county-level committees in the counties

where the ANSC is active, and local committees in the

ANSC. In making endorsements, members from relevant

jurisdictions, e.g., counties, have the principal voice in

determining who the ANSC endorses for county-wide

office. A committee of the statewide organization makes

similar decisions regarding statewide candidates and

issues.

The ANSC has a formal charter and party rules and

by-laws. Officers are elected by the membership. The

ANSC has a formal statement of principles, and publicly

takes positions on a variety of political issues. The ANSC

holds regular organizational meetings, including a con-

vention once a year. The ANSC has a permanent head-

quarters with a small paid staff as well as numerous

volunteers. Finally, the ANSC engages in on-going issue

advocacy with regard to its primary agenda which is

aimed at improving the lives of the black citizens of

Alabama.

While the membership of the ANSC is comparatively

small, as indicated above, the ANSC - like other Ameri-

can political parties - is a cadre style party. While the

ANSC does not have a large membership relative to the

black electorate, a significant proportion of the black

voters in those -ounties in Alabama where the ANSC is

active (and not in competition with the ADC and other

organizations) identify with the ANSC. These citizens -

mostly black - view the ANSC as representing their inter-

ests in county and Alabama politics. They (the black

identifiers with the ANSC) generally favor the party's

260a

principles and issue positions. They are aware of the

ANSC and its program through the communication and

outreach efforts of the ANSC itself, but also through the

mass media, which publicizes the ANSC; the media cov-

erage reflects a recognition of the ANSC’s relationship

with a substantial portion of the black electorate in Ala-

bama.

There are black members of the state legislature and

other black officeholders in Alabama who publicly iden-

tify themselves as ANSC members and supporters. Chair-

man Sanders is a member of the Alabama State Senate.

Presently two of the most prominent public symbols of

the ANSC are its chairman, Senator Sanders, and its blue

sample ballot. Candidates for public office, white and

black, seek the ANSC’s endorsement for their election

races. Like the JCCC, the ANSC is less likely than ADC to

discourage black candidates from entertaining improb-

able election contests. Those candidates — again black and

white - who receive the ANSC’s endorsement generally

receive significant support from ANSC’s identifiers.

The ANSC, like the JCCC is independent, and not

affiliated with the Democratic party. While the ANSC has

no rule (like the ADC) against endorsing Republicans,

Senator Sanders in his deposition indicated that the

ANSC in practice does not endorse Republican candi-

dates. The ANSC is an independent organization, raising

its own money, selecting and supporting its own slate in

the Democratic primaries, formulating its own agenda,

and endorsing - or failing to endorse - Democratic nomi-

nees in the general election.

26la

As with the ADC and JCCC, the ANSC’s principal

goals in contesting elections is to get more black candi-

dates nominated and elected to office, and to get sympa-

thetic [with the ANSC’s goals] white Democrats

nominated and elected. In order to achieve this goal, the

ANSC raises money and engages in a variety of election

related activities. The ANSC trains volunteers and mem-

bers to engage in a variety of electoral activities, includ-

ing running for office, communicating with voters, and

poll watching. The ANSC has a major GOTV effort every

election cycle.

There are a number of members of the legislative

black caucus in the Alabama legislature who are ANSC

supporters, including Senator Sanders. The ANSC’s legis-

lative supporters meet with the ANSC and discuss legis-

lative issues and strategies. Like the ADC, the ANSC has

a number of items comprising its legislative agenda, and

the ANSC leadership lobbies the legislature - both black

and white members - to obtain support for that agenda.

In sum, the ANSC functions much as a political party

functions. There is a cadre style party organization at the

state, county, and local level. There is a formalized party

structure with rules and regular procedures, and well

articulated principles. The ANSC serves as a link between

its identifiers in the electorate and the state government,

with its political leverage based upon the support of its

identifiers in the election process.

262a

Dr. David A. Bositis

Senior Research Associate

Joint Center for Political and Economic Research

Washington, DC

Vita March, 1999

David A. Bositis

Senior Research Associate

The Joint Center for Political and Economic Studies

1090 Vermont Avenue, NW Suite 1100

Washington, DC 20005

(202) 789-3527

EXPERIENCE

1990-Present. Senior Research Associate, The Joint

Center for Political and Economic Studies, Washing-

ton, DC.

1988-1990. Associate Professor, Department of Political

Science, State University College - Potsdam, Pot-

sdam, NY.

1982-1988. Assistant Professor, Department of Political

Science, The George Washington University, Wash-

ington, DC.

PUBLICATIONS

BOOKS

Bositis, David A. (ed.) 1998. Redistricting and Minority

Representation: Learning from the Past, Preparing for the

Future. Washington, DC: The Joint Center for Politi-

cal and Economic Studies.

263a

Bositis, David A. 1994. The Congressional Black Caucus in

the 103RD Congress. Washington, DC: The Joint Cen-

ter for Political and Economic Studies.

Baer, Denise L. and David A. Bositis. 1993. Politics and

Linkage in a Democratic Society. Englewood Cliffs, NJ:

Prentice-Hall.

Bositis, David A. 1990. Research Designs for Political Sci-

ence: Contrivance and Demonstration in Theory and

Practice. Carbondale, IL: Southern Illinois University

Press.

Baer, Denise L. and David A. Bositis. 1988. Elite Cadres

and Party Coalitions: Representing the Public in Party

Politics. Westport, CT: Greenwood Press.

MONOGRAPHS

Bositis, David A. 1996. Blacks and the 1996 Republican

National Convention. Washington, DC: The Joint Cen-

ter for Political and Economic Studies.

Bositis, David A. 1996. Blacks and the 1996 Democratic

National Convention. Washington, DC: The Joint Cen-

ter for Political and Economic Studies.

Bositis, David A. 1992. Blacks and the 1992 Republican

National Convention. Washington, DC: The Joint Cen-

ter for Political and Economic Studies.

Bositis, David A. 1992. Blacks and the 1992 Democratic

National Convention. Washington, DC: The Joint Cen-

ter for Political and Economic Studies.

Bositis, David A. 1992. Black State Legislators: A Survey and

Analysis of Black Leadership in State Capitols. Washing-

ton, DC: The Joint Center for Political and Economic

Studies.

264a

SELECTED ARTICLES, & c. (1997-1998)

Bositis, David A. 1998. The Black Vote in 98. Washington,

DC: Joint Center for Political and Economic Studies.

Bositis, David A. 1998. Black Elected Officials: A Statistical

Summary, 1993-1997. Washington, DC: Joint Center

for Political and Economic Studies.

Bositis, David A. 1998. African-Americans and the 1998

Midterm Elections. Washington, DC: Joint Center for

Political and Economic Studies.

Bositis, David A. 1997. “The Persistence of Racially

Polarized Voting in the 1996 Elections.” Voting Rights

Review (Summer 1997).

Bositis, David A. 1997. “Some Thoughts on the 2000

Reapportionment” Congressional Black Caucus Foun-

dation Forum (September 1997). Washington, DC:

Congressional Black Caucus Foundation.

Bositis, David A. 1997. “The Current State of American

Pluralism” E Pluribus Unum? A Symposium on Plural-

ism and Public Policy. Washington, DC: The American

Jewish Committee Belfer Center for American Plural-

ism.

COMMENTARY

Bositis, David A. 1998. “Making Black Votes Count in

November.” FOCUS, September, pp. 3-4, 8.

Bositis, David A. 1998. “Political Report: Black Elected

Officials, 1994-1997.” FOCUS, September, pp. 5-6.

Bositis, David A. 1996. New York Times, Be Resolute Mr.

Clinton. Here's How. (NEW YEAR’S RESOLUTIONS

FOR BILL CLINTON) (Others contributing include

George Stephanopoulos, Gloria Steinem, Boutros

Boutros-Ghalli, Bill Bradley, Christopher Buckley,

Marian Wright Edelman, Alan Brinkley, Stephen

Goldsmith, Orlando Patterson, Charles Murray, and

P.J.O’Rourke) December 31, A13.

265a

Bositis, David A. 1996. “The Farrakhan Factor” The Wash-

ington Post, December 8.

Bositis, David A. 1996. “A Look at the Battle for Con-

gress” The Washington Post, September 29.

Bositis, David A. 1996. “A Study in Confrontational Poli-

tics” The Hill, September 18, p. 44.

Bositis, David A. 1996. “Blacks and Democrats: An Imper-

fect Alliance” FOCUS, September.

Bositis, David A. 1996. “Jack Kemp’s Rainbow Party” The

New York Times, August 15.

Bositis, David A. 1996. “African-Americans and the

Republican Party, 1996” FOCUS, August.

Bositis, David A. 1994 “ABOUT CARL MCCALL: Why

Race Made Little Difference in His Race” New York

Newsday, November 16.

Bositis, David A. 1994. “Meyerson Confused” Policy

Review, Number 69: 87-89.

Bositis, David A. 1993. “Profile of Black Voters Is Hardly

Conservative” The Wall Street Journal, December 8.

Bositis, David A. 1992. “Clinton Has the Black Vote - or

Does He?” The New York Times, August 13.

Bositis, David A. 1992. “Will Term Limits Help?” FOCUS,

20:7.

REPORTS (1997-1999)

Bositis, David A. 1999. Diverging Generations: The Chang-

ing Attitudes of Black America. A Report to the Ketter-

ing Foundation, Dayton, OH.

Bositis, David A. 1998. Joint Center for Political and Eco-

nomic Studies 1998 National Opinion Poll: Politics.

Washington, DC: The Joint Center for Political and

Economic Studies.

266a

Bositis, David A. 1998. Joint Center for Political and Eco-

nomic Studies 1998 National Opinion Poll: Education.

Washington, DC: The Joint Center for Political and

Economic Studies.

Bositis, David A. 1998. Joint Center for Political and Eco-

nomic Studies 1998 National Opinion Poll: The Environ-

ment and Economic Development. Report for the EOP

Group. Washington, DC: The Joint Center for Politi-

cal and Economic Studies.

Bositis, David A. 1998. Joint Center/Fortune Magazine Poll:

Black Professionals Attitudes toward Corporate America.

Washington, DC: The Joint Center for Political and

Economic Studies.

Bositis, David A. 1997. Joint Center for Political and Eco-

nomic Studies 1997 National Opinion Poll: Race Rela-

tions. Washington, DC: The Joint Center for Political

and Economic Studies.

Bositis, David A. 1997. Joint Center for Political and Eco-

nomic Studies 1997 National Opinion Poll: Children’s

Issues. Washington, DC: The Joint Center for Political

and Economic Studies.

Bositis, David A. 1997. Joint Center for Political and Eco-

nomic Studies 1997 National Opinion Poll: Politics.

Washington, DC: The Joint Center for Political and

Economic Studies.

Bositis, David A. 1997. Joint Center for Political and Eco-

nomic Studies 1997 National Opinion Poll: Revolution.

Washington, DC: The Joint Center for Political and

Economic Studies.

EXPERT TESTIMONY & OTHER LEGAL

WORK

Bositis, David A. 1995. Report of Dr. David A. Bositis,

October 13, 1995. Hays v. Louisiana, U.S. District

Court for the Western District of Louisiana.

267a

Bositis, David A. 1996. Report of Dr. David A. Bositis,

January 2, 1996. Johnson, et al. v. Mortham, et al., U.S.

District Court for the Northern District of Florida.

Associate Justice John Paul Stevens cited my research in

his dissenting opinion in Bush v. Vera, 1996.

Bositis, David A. 1997. “The Impact of Race on Pretrial

Release Decisions in the Second U.S. Circuit from

July 1993 through June 1996” Study conducted for

the Second Circuit Task Force on Gender, Racial, and

Ethnic Fairness (New York City)

Bositis, David A. 1997. Report of Dr. David A. Bositis,

November 2, 1997. Sinkfield, et al., v. Bennett, State of

Alabama, Circuit Court of Montgomery County.

AFRICA

Benin Project. | have travelled to Benin in French West

Africa five times over the course of 1996-1997 to

work with nongovernmental organizations (NGO) in

conducting electoral studies. The results from the

first completed study on the 1996 Beninoise Presi-

dential Election were presented at a conference in

Cotonou, Benin in September 1997. At that confer-

ence I spoke on the importance of electoral research

in democratic societies.

PUBLIC PRESENTATIONS

1999

March The Anti-Defamation League of B’nai B'rith, Office

of National and Government Affairs, Washington,

D.C. Presentation before the National Black-Jewish

Task Force.

The Sentencing Project, One Washington Circle

Hotel, Washington, DC. Presentation on Race

and the Permanent Disenfranchisement of

Felons.

268a

February The Coleman A. Young Detroit Democratic

Club, Detroit Athletic Club, Detroit, Mi. Keynote

Speaker, Presentation on the 98’ Black Vote and the

Black Agenda for 1999-2000.

January The College Board Government Affairs Commit-

tee, Hampshire Hotel, Washington, DC. Presentation

on the 98’ Midterm Elections and Education Issues.

U.S. Department of State, Foreign Service Insti-

tute, 41st Senior Seminar, NFATC, Arlington,

VA. Presentation on Polling and Governance.

1998

December. The Center for Economic Opportunity,

National Press Club, C-SPAN, Washington, D.C.

Panel: Race in the 1998 Midterm Elections. (Other

Panelists were Linda Chavez, Stuart Rothenberg, and

Tom Edsall).

Democratic National Committee & Donors,

Mayflower Hotel, Washington, DC. Presenta-

tion on the Black Vote in the 1998 Midterms.

November. Joint Center for Political and Economic

Studies, Board Dinner, Washington, DC. Presenta-

tion on 1998 Midterm Elections.

Institute for Educational Leadership, Washing-

ton, DC. Presentation on 1998 Midterm Elec-

tions.

October. Joint Center for Political and Economic Studies,

National Press Club, Washington, DC. Presentation

on the 1998 Joint Center National Opinion Poll.

September. National Black Conservative Leadership Con-

ference, Washington, DC. Presentation on 1998 Elec-

tions and Prospects for Black Conservatives’

Agenda and Candidates.

269a

Congressional Black Caucus Weekend/Brain-

trust Panel: Political Power in the Black Com-

munity: The Next Generation.

August. National Governors’ Association Meeting, Mil-

waukee, WI. Luncheon Speaker, Corporate Fellows

Luncheon. Presentation on the 1998 Midterm Elec-

tions.

July. Annual Meeting of the NAACP, Atlanta, GA. Pre-

sentation on Elections and Generational Issues.

Annual Meeting of National Association of

Black Journalists, Washington, DC. Speak on

Press Coverage of Black Elected Officials

(Other Panelists: Sen. Carol Moseley-Braun,

Reps. John Lewis and Mike Espy, Gwen Ifill, and

Sonya Ross)

June. First Thursday Session of the New Synthesis Group,

Washington, DC. Presentation on Black Politics and

Generational Issues.

Annual Meeting of National Newspaper Pub-

lishers Association, Memphis, TN. Presentation

on Generations and Politics, 2000 Census, and

Redistricting.

Brown Bag Lunch at Economic Policy Institute,

Washington, DC. Presentation on Black Politics

and Generational Issues.

May. NAACP Legal Defense and Educational Fund, New

York, NY. Presentation on Voting Rights and Black

Political Participation.

April. Democratic National Committee (Senior Staff). Pre-

sentation on Black Politics and the Democratic

Party.

270a

1997

November. National School Boards Association, Council

of Urban Boards of Education, Doubletree Hotel,

Tucson, AZ. Panel: School Vouchers.

September. Republican National Committee, New Major-

ity Council, Hyatt-Regency Capitol Hill, Washington,

DC. Panel: The Republican Party’s Prospects with

Minority Voters. Other panelists were Ed Goeas of

the Tarrance Group and Wes Anderson of Fabrizio,

McLaughlin & Associates.

September. Senior Symposium, Senior Class and Faculty,

Lynchburg College, Lynchburg, VA. Presentation:

Voting Rights in America.

August. First Annual Operation Push/Rainbow Coalition

Convention, Chicago Hilton, Chicago, IL. Panel: The

2000 Presidential Election. The other panelists were

former New York City mayor David Dinkins,

NAACP President Kweisi Mfume, and Robert Bor-

osage of the Economic Policy Institute. Rev. Jackson

was the moderator.

August. Forum on Renewing the Voting Rights Act orga-

nized by U.S. Rep. Cynthia McKinney (D-GA), U.S.

Capitol, House Ways and Means Committee Hearing

Room, Washington, DC. Panel: The Persistence of

Racially Polarized Voting. Other panelists were

SCLC President Dr. Joseph Lowery, Brenda Wright of

the Lawyers’ Committee for Civil Rights, and Pro-

fessor J. Morgan Kousser of the California Institute

of Technology.

July. Arthur F. Burns Fellowship Program. International

Center for Journalists, Washington, DC. Topic: Race

and Politics.

June. Joint Center for Political and Economic Studies,

National Press Club, Washington, DC. Release of

271a

Joint Center’s 1997 National Survey on Race Rela-

tions. Other Panelists included Joint Center Presi-

dent Eddie Williams, former Mississippi Governor

William Winter, and Black Leadership Forum Execu-

tive Director Yvonne Scruggs.

January. National Commission on Civic Renewal, Sam

Nunn and Bill Bennett, Co-Chairs, Plenary Session,

Hotel Washington, Washington, DC. Testimony on

Race and Civil Society.

January. Joint Center for Political and Economic Studies,

Sheraton-Carlton, Washington, DC. Panel: The 2000

Reapportionment and Minority Representation.

REPORTS (Continued)

Bositis, David A. 1996. The Black Electorate in 1996: A

Profile of Congressional Districts. Washington, DC: The

Joint Center for Political and Economic Studies.

Bositis, David A. 1996. Joint Center for Political and Eco-

nomic Studies 1996 National Opinion Poll: Political Atti-

tudes. Washington, DC: The Joint Center for Political

and Economic Studies.

Bositis, David A. 1996. Declining Propensity to Serve: Sur-

vey Analysis. Washington, DC: The Joint Center for

Political and Economic Studies.

Bositis, David A. 1995 (unpublished manuscript). Blacks

and Jews in the 103xp Congress. Washington, DC: The

Joint Center for Political and Economic Studies.

Bositis, David A. 1995. Redistricting and Representation: The

Creation of Majority-Minority Districts and the Evolving

Party System in the South. The Joint Center for Politi-

cal and Economic Studies (Joyce Foundation).

Bositis, David A. 1993. The Congressional Black Caucus in

the 103RD Congress. The Joint Center for Political and

Economic Studies (Ford/Joyce Foundation).

ANTI CREE EDEL EGE YEN OOIOLIE MPO NEEM A

———————————————

272a

Bositis, David A. 1993. Black Elected Officials: A National

Survey. The Joint Center for Political and Economic

Studies (Ford Foundation).

Bositis, David A. 1993. African-Americans and the 1992

Elections.

Bositis, David A. 1994. Blacks & Hispanics in Redistricting:

The Impact of Voter Participation on Representation and

as a Source of Conflict between Minority Groups.

SELECTED ARTICLES, &c. (Continued)

Bositis, David A. 1996. “Blacks and the 1996 Elections: A

Preliminary Analysis” Washington, DC: Joint Center

for Political and Economic Studies.

Bositis, David A. 1994. “African-Americans & the 1994

Midterms: What Happened?” Washington, DC: Joint

Center for political and Economic Studies.

Baer, Denise L., David A. Bositis and John S. Jackson, III.

1991. “The 1988 Party Elite Study.” Vox Pop, 10:3-5.

Bositis, David A. 1991. “Jake Arvey,” “Tulian Bond,”

“Herbert Croly,” “Carmine DeSapio,’ “Jim Farley,”

“Donald Fraser,” “Harold Gosnell,” “Frank Hague,”

“George McGovern,” “Roberto Michel,” “Elite The-

ory,” “Experimental Research on Parties,”

“McGovern-Fraser Commission,” “Party Reform,”

“Responsible Party Debate” in L. Sandy Maisel (ed.),

Encyclopedia of Political Parties and Elections. New

York: Garland.

Bositis, David A. 1988. “Some Observations on the Partic-

ipant Method.” Political Behavior, 10:333-348.

Bositis, David A. and Doug Steinel. 1987. “A Synoptic

History and Typology of Experimental Research in

Political Science.” Political Behavior, 9:263284.

273a

Bositis, David A. 1985. “Design Strategies for Theory

Testing: The Efficient Use of Field Experimentation

in Political Science.” Political Behavior, 7:374-387.

Bositis, David A., Denise L. Baer and Roy E. Miller. 1985.

“Cognitive Information Levels, Voter Preferences

and Local Partisan Political Activity: A Field Experi-

mental Study of the Effects of Timing and Order of

Message Presentation.” Political Behavior, 7:266-285.

Baer, Denise L. and David A. Bositis. 1983. “The Political

Socialization of Gender: What Contribution Biol-

ogy?” Politics and the Life Sciences, 1:125-134.

Baer, Denise L. and David A. Bositis. 1983. “Authors’

Response.” Politics and the Life Sciences, 1:140-142.

Baer, Denise L. and David A. Bositis. 1983. “Biology,

Gender and Politics: An Assessment and Critique.”

Women and Politics, 3:29-55. Also appears in Meredith

W. Watts (ed.), Biopolitics and Gender. New York:

Haworth.

Bositis, David A. and Roy E. Miller. 1982. “The Successful

Communication of Cognitive Information: A Study

of A Precinct Committeeman” in M. Burgoon (ed.),

Communication Yearbook 6. Beverly Hills: Sage.

Jackson, John S. Ill, Barbara Brown and David Bositis.

1982. “Herbert McClosky and Friends Revisted.”

American Politics Quarterly, 10:158-181.

Miller, Roy E., David A. Bositis and Denise L. Baer. 1981.

“Stimulating Voter Turnout in a Primary Election: A

Field Experiment with A Precinct Committeeman.”

International Political Science Review, 2:445-460.

Baer, Denise L., David A. Bositis and Roy E. Miller. 1981.

“A Field Experimental Study of A Precinct Commit-

teeman’s Canvassing Efforts in a Primary Election:

Cognitive Effects” in M. Burgoon (ed.), Communica-

tion Yearbook 5. New Brunswick: Transaction Books.

——SESE_ aE

27 4a

IN THE FIFTEENTH JUDICIAL CIRCUIT

MONTGOMERY COUNTY, ALABAMA

DARRYL SINKFIELD, QUINTON )

ROSS, BERNEST BROOKS, RUBIN )

MCKINNON, AND ANDREW

HAYDEN, ON BEHALF OF

THEMSELVES AND OTHERS

SIMILARLY SITUATED,

PLAINTIFFS,

VS.

JIM BENNETT, IN HIS OFFICIAL

CAPACITY AS SECRETARY OF

THE STATE OF ALABAMA,

DEFENDANTS.

CV-93-689

ON ee eee ee ee ees we we

JOHN RICE AND CAMILLA L.

RICE, INDIVIDUALLY AND ON )

BEHALF OF A CLASS OF NON- ?

AFRICAN-AMERICAN VOTERS,

999996969696666666666066660550666660606000006660666066040060000c........

SS TESS SESE AS ES 4848488454 499405880888080888080808

Testimony of Jimmy Clark

* * *

[439] Q ALL RIGHT. AND IN THE PROCESS,

THERE WERE COMMENTS, AND THERE WERE LEGIS-

LATORS OR OTHER REPRESENTATIVES THAT HAD

BILLS THAT THEY WANTED THE COMMITTEE TO

CONSIDER; IS THAT CORRECT?

A THAT’S CORRECT.

Q ALL RIGHT.

275a

A MR. CAMPBELL HAD A BILL; MR. CURRY

AND MR. BOX HAD A BILL; MR. PERDUE FROM BIR-

MINGHAM HAD A BILL. JUST ABOUT EVERYBODY

AND HIS BROTHER [440] HAD A BILL THAT THEY

WANTED. ALL OF THEM WERE DIRECTED ...

Q ALL RIGHT.

A MOST OF THEM WERE DIRECTED AT GET-

TING ME OUT OF THERE, MY DISTRICT, SO THAT

THEY COULD ELECT A NEW SPEAKER.

Q ALL RIGHT. AND ACTUALLY, THESE BILLS

WERE VOTED ON AS AMENDMENTS, WERE THEY

NOT?

A THEY WERE. THERE WERE - MOST OF THEM

WERE ALLOWED TO, IF THEY COULD GET ENOUGH

SECONDS. I DON’T KNOW IF ALL OF THEM GOT A

SECOND OR NOT. MOST OF THEM WERE CONSID-

ERED BY THE COMMITTEE. A LOT THEM WERE

TURNED DOWN BY THE COMMITTEE, BUT SOME OF

THEM - WHEN THEY TOOK IT BACK AND REPORTED

OUT, I'VE FORGOTTEN WHAT THE COMMITTEE’S

BILL, WHAT EXACTLY THAT WAS; BUT THAT’S WHEN

WE DEFEATED THAT AND CAME WITH A VOTE ON

THE SO-CALLED REED PLAN.

Q AND SO IS IT SAFE TO SUMMARIZE THE PRO-

CESS TO SAY THAT IT WAS A VERY CONTESTED MAT-

TER OR ISSUE THAT CAME BEFORE THE HOUSE AS

FAR AS GETTING A PLAN APPROVED?

A VERY MUCH SO.

Q ALL RIGHT. AND YOU MENTIONED THAT A

NUMBER OF PEOPLE HAD PLANS BUT NONE OF

276a

THOSE PLANS [441] PASSED EXCEPT THE ONE THAT

ULTIMATELY WE ARE TALKING ABOUT HERE

TODAY?

A THAT’S CORRECT.

Q ALL RIGHT. NOW, DO YOU KNOW JOE REED?

A YES.

AND DO YOU KNOW HIM AS CHAIRMAN OF

THE ALABAMA DEMOCRATIC CONFERENCE?

A YES.

Q AND DID YOU HAVE THE OCCASION TO -

FIRST OF ALL, LET ME ASK YOU THIS: JOE REED

REPRESENTS A CONSTITUENCY: IS THAT CORRECT?

A THAT’S CORRECT.

Q AND WHAT DO YOU UNDERSTAND HIM TO -

WHO HIS CONSTITUENCY IS?

A HIS CONSTITUENCY IS BASICALLY THE

BLACK MEMBERS OF THE DEMOCRATIC, THE ALA-

BAMA DEMOCRATIC CONFERENCE.

Q WHICH CONSISTS PRIMARILY OF BLACK CIT-

IZENS IN THE STATE?

A AND SOME FEW WHITE; YES.

Q AND SOME WHITE. ARE THERE OTHER

POLITICAL ORGANIZATIONS, BLACK POLITICAL

ORGANIZATIONS IN THE STATE THAT YOU ARE

AWARE OF?

277a

A YES. WE’VE GOT THE NEW SOUTH ORGANI-

ZATION WHICH IS THERE; AND THERE ARE OTHERS,

I'M [442] SURE, BUT NOT OF ANY SIGNIFICANCE.

Q ALL RIGHT. NOW THERE IS ALSO THE

JEFFERSON COUNTY COALITION THAT OPERATES

OUT OF JEFFERSON COUNTY, IT OPERATES ESSEN-

TIALLY IN THAT COUNTY. ARE YOU FAMILIAR WITH

THAT ONE?

A YES.

Q ALL RIGHT. BUT AS FAR AS STATEWIDE,

A.D.C. AND THE ALABAMA NEW SOUTH COALITION

ARE TWO THAT YOU ARE FAMILIAR WITH THAT

OPERATE STATEWIDE?

A YES.

Q OKAY. AND THEY HAVE A PRIMARILY BLACK

CONSTITUENCY?

A NEW SOUTH IS KIND OF - IT’S REGIONAL,

REALLY. IT’S HEAVY IN SOME AREAS, BUT IN

OTHERS, THEY DON’T HAVE - i DON’T BELIEVE

THEY HAVE AN ORGANIZATION IN BARBOUR

COUNTY, AND MANY OF THOSE TYPE KINDS, MID-

DLE-SIZED AND RURAL COUNTIES.

Q IN BARBOUR COUNTY, DOES A.D.C. HAVE A

VIABLE -

A YES. THEY'VE ALWAYS BEEN VIABLE,

BECAUSE WE ARE A HEAVILY POPULATED BLACK

COUNTY.

Q HAVE YOU RECEIVED THE ENDORSEMENT

OF THE A.D.C. FROM -

278a

[443] A I'VE ALWAYS RECEIVED THE ENDORSE-

MENT OF THE A.D.C. I'VE ALWAYS RECEIVED THEIR

VOTE WITH A HIGH PERCENTAGE OF THE BLACK

VOTERS EVERY TIME I’VE RUN.

Q ALL RIGHT. NOW SPEAKING SPECIFICALLY

OF THE PLAN THAT’S BEEN - AND YOU HAVE BEEN

IN THE COURTROOM, SO YOU HAVE HEARD A LOT

OF TESTIMONY THAT WAS DISCUSSED HERE TODAY.

LET’S GO DIRECTLY TO THIS PLAN. WHAT WERE

YOUR CONCERNS WHEN YOU AGREED TO THIS

PLAN? THIS IS A PLAN THAT YOU SUPPORTED; IS

THAT CORRECT?

A THAT’S CORRECT.

Q ALL RIGHT. WOULD YOU TELL THE COURT

WHY YOU SUPPORTED THIS PLAN?

A I SUPPORTED THIS PLAN BECAUSE IT KEPT

TOGETHER MANY OF THE RURAL COUNTIES OF

ALABAMA; AND IN PARTICULAR, I WAS INTERESTED

IN IT MORE SO IN THE EASTERN PART, BECAUSE

THAT’S WHERE I LIVE. AND WE WORKED WITH -

YOU MENTIONED MISS GUILLOT, AND HER PROB-

LEM. WE WORKED WITH HER. WE WORKED WITH

PEOPLE ALL THE WAY UP AND DOWN TO THE LINE,

TRYING TO GET ENOUGH PEOPLE TO, YOU KNOW,

PUT TOGETHER TO HAVE SOME RURAL REPRESEN-

TATION. WE WANTED TO CONTINUE TO HAVE [444]

RURAL REPRESENTATION. THE TREND, OF COURSE,

NOW IS THAT YOU’RE GOING TO QUIT HAVING ANY

RURAL REPRESENTATION; YOU’RE GOING TO BE

BACKED UP. IN THE NEXT CENSUS, YOU’LL BE

BACKED UP AGAINST CITIES LIKE DOTHAN ON THE

279a

SOUTH, AND PHENIX CITY, AND AUBURN AND

OPELIKA ON THE NORTH. SO DAYS ARE NUMBERED

FOR MY TYPE OF COUNTY AND MY TYPE OF REPRE-

SENTATION.

Q ALL RIGHT. NOW, YOU DID PERSONALLY

NEGOTIATE WITH JOE REED AS FAR AS THIS PLAN

WAS CONCERNED, AND YOU MENTIONED MISS

GUILLOT AND OTHERS; IS THAT CORRECT?

A YES.

Q AND DID YOU CONSIDER YOURSELF TO BE

IN A NEGOTIATING PROCESS AS FAR AS GETTING

WHAT YOU NEEDED OUT OF THIS PLAN?

A I CONSIDERED MYSELF TO BE IN A LIFE OR

DEATH STRUGGLE FOR HOLDING ONTO A POLITI-

CAL SEAT FOR BARBOUR COUNTY, FIRST, AND THAT

WAS MY OBJECTIVE. AND, OF COURSE, MR. REED

HAD, YOU KNOW, A LARGE GROUP OF BLACK MEM-

BERS IN MY COUNTY AND ALL OF THE SURROUND-

ING COUNTIES, SO NATURALLY, I WORKED WITH

THEM.

Q AND IN THE PROCESS OF - WELL, WOULD

YOU EXPLAIN WHY YOU FELT YOU WERE IN A LIFE

OR [445] DEATH SITUATION?

A WELL, YOU KNOW, IN 1970, WHEN JUDGE

JOHNSON HAD THIS REAPPORTIONMENT - HAD A

FELLOW IN NEW HAMPSHIRE DRAW UP A PLAN,

THEY SPLIT BARBOUR COUNTY INTO FOUR HOUSE

SEATS AND THREE SENATE DISTRICTS. THEY ALL

CAME INTO EUFAULA. FOR NINE YEARS, EUFAULA

NEVER - I MEAN BARBOUR COUNTY NEVER HAD A

280a

SINGLE ROAD OR ANYTHING THAT WAS DIVIDED

UP BETWEEN THE COUNTIES. WE NEVER GOT ANY

FOR NINE YEARS UNTIL THEY GOT - UNTIL THAT

WAS CHANGED IN ‘83. AND SO, I REALIZED WHAT

REAPPORTIONMENT OR WHAT REVISED REAPPOR-

TIONMENT CAN DO TO DESTROY THE ECONOMIC

INTEREST OF A COUNTY; AND I WAS FIGHTING FOR

MY CONSTITUENCY TO SEE THAT THEY WERE

GOING TO BE REPRESENTED IN MONT GOMERY.

Q ALL RIGHT. SO ONE OF YOUR CONCERNS

WAS THAT YOU DIDN’T WANT BARBOUR COUNTY,

AT LEAST, SPLIT UP LIKE IT HAD BEEN IN 1970?

A THAT’S CORRECT.

Q NOW, YOU WERE AWARE THAT SOME

PLACES HAD TO BE SPLIT: IS THAT CORRECT?

A YES.

Q BUT YOU DIDN’T WANT BARBOUR COUNTY

SPLIT?

[446] A THAT’S CORRECT.

Q AND THAT’S ONE OF THE REASONS WHY

YOU SUPPORTED THE PLAN?

A YES.

Q NOW, THERE WERE PEOPLE WHO WERE

ACTUALLY - WELL, LET ME ASK YOU THIS: WOULD

YOU TELL THE COURT WHY, IF YOU KNOW, SOME OF

THE OTHER PLANS WERE DRAWN. DID THEY HAVE

A PURPOSE, IN TERMS OF YOUR SEAT?

281a

A YES. SOME OF THEM - THE PREMISE, I THINK

ON ALL OF THEM, WAS: THE FIRST THING YOU DO IS

GET RID OF THE SPEAKER’S DISTRICT; AND THEN

YOU MOVE TO TRY TO PUT TOGETHER A COALITION

THAT YOU CAN - WHETHER IT’S IN JEFFERSON, OR

IF IT’S THE REPUBLICANS OR THE DIFFERENT

GROUPS, THEY WOULD COME TOGETHER. I THINK

THERE WAS ONE, REPRESENTATIVE PERDUE, HE

HAD ONE; SOME VOTER GROUP IN WASHINGTON

OR SOMEPLACE WAS WORKING WITH HIM. MR. BOX

AND MR. CURRY HAD ONE. MR. BOX FROM MOBILE

AND MR. CURRY FROM JEFFERSON. IT WAS AIMED

AT MORE REPRESENTATION IN URBAN AREAS. MR.

CAMPBELL HAD A PLAN BECAUSE HE WANTED TO

BE SPEAKER OF THE HOUSE. LET ME THINK. RIGHT

OFF, THERE WERE ABOUT FIVE DIFFERENT PLANS

[447] FLOATING AROUND, ALL OF THEM - THEY ALL

HAD SIMILAR MOTIVES, YOU KNOW; IT WAS EITHER

TO PUT SOME INDIVIDUAL IN A BETTER POSITION

TO MAKE A MOVE TOWARDS A LEADERSHIP POSI-

TION, OR At LEAST TO GET MORE REPRESENTATION

FOR URBAN INTEREST.

Q AND IN SOME OF THESE PLANS, THEY TEN-

DED TO CARVE UP BARBOUR COUNTY, FOR EXAM-

PLE?

A WELL, ALL OF THEM DID; YES, SIR.

Q AND SO, IS IT A FAIR STATEMENT TO SAY

THAT THERE WAS A LOT OF POLITICKING GOING

ON AS FAR AS THESE DISTRICTS -

A YES, SIR.

282a

~ AND GETTING THE VARIOUS PLANS -

THAT’S CORRECT.

~- APPROVED?

THAT’S RIGHT. VERY MUCH SO.

Q AND, IN EFFECT, ALL OF THESE PLANS WERE

DEFEATED; IS THAT CORRECT?

A THAT’S CORRECT.

Q AND THE PLAN THAT WE HAVE BEEN IN

COURT ON TODAY IS THE ONE THAT ULTIMATELY

PASSED THE HOUSE?

A THAT’S CORRECT.

Q AND, IN YOUR OPINION, WHAT DID IT TAKE

TO GET [448] THIS PLAN PASSED BY THE HOUSE?

A WE HAD TO BE SURE THERE WAS A SUFFI-

CIENT NUMBER OF SEATS TAKEN CARE OF THAT WE

COULD GET TO VOTE ON THE FLOOR, THAT WE

WERE ABLE TO DO THAT.

Q AND DID THIS PLAN ACCOMMODATE WHITE

REPRESENTATIVES?

A OH, YES. IT ACCOMMODATED WHITE AND

BLACK.

MR. DAVIS: I THINK THAT’S ALL I HAVE,

YOUR HONOR.

THE COURT: ALL RIGHT. MR. MONTIEL.

MR. MONTIEL: ALL RIGHT, SIR.

> O > O

283a

CROSS EXAMINATION

(BY MR. MONTIEL:)

Q MR. SPEAKER, DID ANY PLAN GET THE SUP-

PORT OF THE SENATE?

A NO, SIR.

Q WHAT WERE THE REASONS FOR THAT?

A I REALLY CAN’T SAY EXCEPT THEY HAVE A

HISTORY OF NOT PARTICULARLY FOLLOWING

THROUGH ON CONTROVERSY OR ANY OTHER TYPE

OF LEGISLATION TO THE BENEFIT OF THE PEOPLE

OF THE STATE OF ALABAMA.

* * *

[467] Q JUST THAT PART, MR. SPEAKER. WHEN

IT WAS ACTUALLY SUBMITTED TO THE COURT,

WHAT, IF ANYTHING, DID YOU DO TO GET THE

PLAN SUBMITTED TO THE COURT BY THEN SECRE-

TARY OF STATE CAMP AND THEN ATTORNEY GEN-

ERAL OF ALABAMA, JIMMY [468] EVANS?

A OH, I THINK WE MAY HAVE DISCUSSED IT

WITH CAMP. I BELIEVE HE SAID IT WAS ALL RIGHT. I

THINK I DISCUSSED IT WITH JIMMY EVANS, AND I

BELIEVE HE SAID IT WAS ALL RIGHT.

Q DID EITHER MR. CAMP OR MR. EVANS

EXPLAIN TO YOU THESE MAPS THAT I'VE SHOWN

YOU TODAY OR THE EFFECT IT WAS GOING TO HAVE

ON THE DISTRICTS IN ALABAMA?

A WE DIDN’T ~- I DIDN’T GO INTO GREAT

DETAIL WITH THEM.

284a

Q WAS THERE ANY DISCUSSION OR WERE YOU

AWARE OF THE FACT THAT THE DISTRICT S, THE

MAJORITY BLACK HOUSE DISTRICTS WERE UNDER-

POPULATED FROM THE IDEAL IN 25 OF 27 DIS-

TRICTS?

A I CAN'T SAY THAT. I KNEW A LOT OF THEM

WERE CLOSE. WE WENT OVER A LOT OF THEM. WE

WENT THROUGH AND SAW WHAT THE BLACK-

WHITE WAS AND WHETHER IT WAS OVER OR

UNDER ON ALL OF THEM.

Q ALL RIGHT.

A BUT I DIDN’T FORM ANY FIRM FEELING

ABOUT THAT, IN DOING THAT, EXCEPT: DO WE

HAVE THE VOTES? YOU KNOW, IN THE LEGISLA-

TURE, IT IS: DO YOU HAVE THE VOTES TO PASS

SOMETHING?

Q BUT WE ARE PAST THAT POINT.

[469] A YEAH.

Q THE LEGISLATURE IS THROUGH. ALL OF

THESE FOLKS ARE RUNNING DOWN TO COURT. THE

RICE’S [sic] WEREN’T IN IT THEN. THEY RAN OVER

TO THE FEDERAL COURT, AND THEY RAN OVER TO

THE STATE COURT, AND EVERYBODY FILED THE

LAWSUIT. IN FACT, THESE FOLKS RIGHT HERE

BROUGHT A LAWSUIT. (POINTING TO MR. DAVIS.)

THE COURT: JUST ASK YOUR QUESTIONS.

ASK HIM WHAT DID HE DO.

285a

Q AT THAT POINT IN TIME, AFTER THE LAW-

SUIT WAS BROUGHT AND THE LEGI

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