Plaintiff's Memorandum on the Impact of "City of Mobile v. Bolden"

    IN THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION 

WITT CAMPBELL, 

Plaintiff, 

ily TCA NO. 73-177 

GADSDEN COUNTY SCHOOL BOARD, 
et al., 

Defendants. 

PLAINTIFF'S MEMORANDUM ON THE IMPACT OF 
"CITY OF MOBILE V. BOLDEN" 

Introduction: The Holding of "City of Mobile v. Bolden" 

In City of Mobile v. Bolden, 48 U.S.L.W. 4436 (April 22, 1980), 

the Supreme Court overruled Zimmer and its emphasis on the way an 

election system operates. To prevail, the plaintiff now must show 

the lawmakers' discriminatory intent in the selection of the at- 

large process. The alignment of the Justices as per opinions was 

as follows: 

1. Stewart (Berger, Powell, Rehnquist) (hereafter ''the 

pluralicy’) 

2. Blackmun concurring 

3 Stevens concurring in judgment 

4. Brennan dissenting 

5. White dissenting 

6. Marshall dissenting 

To discern the results and the subsidiary holdings of Bolden, 

one must "headcount" each issue through the six opinions of the 

Justices: 

(1) The Equal Protection Clause of the fourteenth amendment 

provides a cause of action for dilution of blacks' voting strength. 

48 U.S.L.W. at 4439 (Stewart), 4443 (Blackmun), 4444 (Stevens), 

4449 (Marshall). 



(2) Dilution can also violate the fifteenth amendment. 

Id. at 4443 (Blackmun), 4444 n.3 (Stevens), 4449 (White and 

Marshall). The plurality's view that the fifteenth amendment 

oes no further than guaranteeing the right to register and vote, a
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id. at 4438, was rejected by the rest of the Court. 

(3) An invidious legislative purpose to discriminate in 

either the enactment or the retention of the at-large scheme 

must be proved under both the fourteenth and fifteenth amendments. 

Id. at 4438-39 (Stewart), 4445 (Stevens), 4448 (White). 

(4) The Zimmer analysis is overruled as a sufficient measure, 

by itself, of a constitutional violation. Id. at 4441 (Stewart), 

4445 (Stevens). 

The holding of the Bolden plurality is ''that the primary, if 

not the sole, focus of the inquiry must be on the intent of the 

political body responsible for making the districting decision.” 

Id. at 4445 (Stevens, concurring in the judgment). The requisite 

intent must be discerned in the evidence by use of the legal 

principles of Washington v. Davis, 426 U.S. 229 (1976); Arlington 

Heights, 429 U.S. 252 (1977); and Feeney, 442 U.S. 256 (1979). 

48 U.S.L.W. at 4438 &n 10, 4439, 4440, 4441, The Plaintiff need 

only show that part of the motivation was racially discriminatory. 

As Justice Stewart's majority opinion in Feeney states: 

Invidious discrimination does not become 
less so because the discrimination accom- 
plished is of a lesser magnitude. Dis- 
criminatory intent is simply not amenable 
to calibration. It either is a factor 
that has influenced the legislative choice 
or.:it is not. 

60 L.Ed.24 870, 886 (footnote omitted). 

What does Bolden mean for this case? Simply put, the Supreme 

Court took from the plaintiff the Zimmer shotgun (previously 

afforded by the Fifth Circuit) and handed the plaintiff the 

Bolden rifle. Plaintiff has no difficulty in this case because 

the target is visible and quite large. 



The sole remaining issue of import is whether the passage of 

the 1947 statute mandating at-large elections in the primaries for 

school board was infected by a racially-discriminatory motivation 

or purpose. The Plaintiff adduced abundant evidence of this 

question and briefed the matter in the Proposed Memorandum Opinion 

1-5 and 23-25 (copy attached). 

I. THE 1947 STATUTE MANDATING AT-LARGE PRIMARY 
ELECTIONS FOR SCHOOL BOARDS HAS BEEN DECLARED 
UNCONSTITUTIONAL. 

In McMillan v. Escambia County, PCA 77-0432, appeal pending, 

No. 78-3507 (5th Cir.), Judge Arnow held that racial motivations 

were a ''main force behind the enactment in 1947 of the current 

1 at-large system." Memorandum Opinion at 25-26. Thus, the statute 

was necessarily declared unconstitutional. 

The plaintiffs in that case did not seek relief against the 

enforcement of that statute outside of Escambia County, but it is 

clear that they could have. Once a statute has been found 

unconstitutional, subsequent decisions within the District Court 

should conform to that rule of law. This is similar to the 

practice of the Fifth Circuit in which each panel is bound by 

previous panel decisions on rules of law and only an en banc panel 

can transcend such binding authority. 

11. IN THE ALTERNATIVE, IN THE INTEREST OF THE 
BEST ADMINISTRATION OF JUSTICE, IT IS 
APPROPRIATE THAT JUDGES OF THE NORTHERN 
DISTRICT COORDINATE ON THIS QUESTION. 

Consistent adjudication is important generally and of para- 

mount importance in rulings on the constitutionality of a statute. 

This concern for the consistent administration of justice has 

been reflected in some districts in a so-called "low number rule.’ 

Thus, in the Middle District of Florida, Local Rule 1.04(b) is 

designed to assure flexibility of case administration between the 

judges on those cases in which there are ''common questions of law 

or fact." It provides that they may be assigned to the judge to 

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case has been assigned. In the instant case, A
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 whom the low numb 

such a literal reading would not be appropriate because one case 

has been decided and the other has not, and -- given the peculiar 

history of the instant case -- the decided case is technically 

not the "low numbered" one. Still, the policy of coordinated 

adjudication is a sound one which will assure continuity and 

consistency on important issues of law. 

Thus, the instant case could be referred to Judge Arnow for 

an adjudication on the constitutionality of the 1947 statute, 

then referred back to Judge Stafford for the administration of 

the remedy phase in accordance with the normal division assign- 

ment practices. 

III. THE DEFENDANT IS COLLATERALLY ESTOPPED FROM 
DENYING THAT "RACIAL MOTIVATIONS' WERE A MAIN 
FORCE BEHIND THE ENACTMENT IN 1947 OF THE 
CURRENT AT-LARGE ELECTION SYSTEM." 

This Court held, in McMillan v. Escambia County, PCA 77-0432 

(Memorandum Decision, July 11, 1978), that "racial motivations 

were a main force behind the enactment in 1947 of the current 

at-large system." The defendant in that suit, Escambia 

County School Board, acted as representative of the State of 

Florida in its enforcement and defense of the statute. The Court 

held that there was illegal racial animus in the enactment of 

the 1947 statute. In the case presently at bar, Defendant Gadsden 

County School Board seeks to show that racial animus was not a 

factor in the 1947 enactment. This new defendant, however, 

represents the same sovereign in enforcement and defense of the 

same statute. This privity cf relationship precludes a contrary 

finding of fact under the doctrine of collateral estoppel. 

ty, PCA No. 77-0432, the defendant 
oll A 

Cou =
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 school board interposed as an affirmative defense the allegation 

that the State of Florida, the Department of State of the State 

of Florida, and the Governor of the State of Florida were 



indispensable or necessary parties to the action, and had not 

been sued. Docket Entry 29. The Court ordered that memoranda 

of law be filed on this legal issue. Order of May 18, 1977. 

The defendant School Board filed its memo and stated that it 

would adopt as its own the memorandum filed by the co-defendant 

Soanty commission. Docket Entry 37. The county commission fully 

argued and briefed these issues of law in its memorandum. Docket 

Entry 35. They pointed out that the present at-large system was 

mandated by statewide law. They pointed out that the method of 

holding and administering elections was entrusted to the State of 

Florida rather than the county school board and that the failure 

to join the State of Florida as a party might well leave them 

subject to substantial risk of incurring inconsistent obligations 

because they would not be carrying out the state election laws. 

They further argued for the joinder of the Department of State 

indicating that the disposition of the action might in some 

practical manner impair or impede the ability of the Secretary of 

State to protect the interests of the State. 

Confronted with these affirmative defenses and the legal 

arguments of the parties, the Court rejected such claims. In 

its Letter Order of August 4, 1977, the Court indicated its view 

that these issues should have been raised by motion and not as 

defenses. However, the Court went on to announce that it had 

studied the memoranda presented and expressed a clear and 

unequivocable view that: 

I have reached the conclusion neither the 
State, the Governor nor the Department of 
State are indispensable parties and, for 
that matfer even proper parties, 

Judge Arnow allowed the parties to raise this question again by 

motion at the pre-trial proceedings; however, it appears from the 

Court's Pre-trial Order of May 12, 1978, that these issues were 

not raised again at that time. 



Thus, it is clear from the rulings in McMillan that the Court 

felt that the Escambia County School Board was an appropriate 

representative of the sovereign with the unconstitutionality of 

a statute at issue. 

In the instant litigation, it was clear from pleadings and 

discovery that the Plaintiff was attacking the congritucionality 

of the same state statute. The instant Defendants expressed no 

doubt about the sufficiency of their standing to defend the statute. 

In order for the doctrine of collateral estoppel to bind a 

later court in a different cause of action, there must be a showing 

of privity between the parties to be bound and those bound by the 

earlier decision. Privity may rest on concurrent relationships 

to the same right of property; successive relationships to the same 

right of property; or representation of the interests of the same 

person. “1B Moore's Federal Practice ¥ 0.4111), at 1255 (1974). 

In the latter circumstance, a judgment adverse to party X is 

binding on party Y in another cause of action, if the interests 

of the same person are represented by both X and Y with regard 

to the matter at issue. The party whose interests are represented 

may be X, Y, or indeed a third person. See Chicago, R.1. &P, Ry. 

Co. v. Schendel, 270 U.S. 611.(1926), 

There is no question that local officials may represent the 

interests of the State in the enforcement of state statutes. In 

a discussion of the applicability of 28 U.S.C. §2281 (formerly 

28 U.S.C. §380), the three-judge court statute, the United States 

Supreme Court noted: 

An official may, in enforcing a statute 
which embodies a policy of state-wide 
concern, be performing a state function 
within the meaning of §266, Judicial 
Code (28 USC §380), though he is 
localized by his geographic activities 
and the mode of his selection 

Rorick v. Everglades Drainage District, 307 U.S. 208 (1926). 

That the 1947 statute stated a policy of state-wide concern 

follows naturally from the findings of fact by the Escambia County 



Court. Judge Arnow's decision to deny the defendant's request 

to join the State of Florida implicitly recognized the adequacy 

of representation of the State's interests by Escambia County. 

Th 
Lid MD

 refore, local officials seeking to conduct elections pursuant 

to the statute must be deemed state officials for purposes of 

enforcement. And it follows, finally, that in defending their 

enforcement of the statute in a court of competent jurisdiction, 

they act as representatives of the State and its officials. 

Therefore, the issue of the legislative intent behind the 

enactment of the 1947 statute prescribing the method of county 

elections may not be relitigated by the Gadsden County School 

Board. That issue was raised before and decided by this Court 

in Escambia County, and both the State and the Gadsden County 

School Board, who were privy to that decision through the repre- 

sentation of Escambia County, are estopped. The issue has been 

decided for all Defendants to this action. 

IV. THE INFERENCE OF RACIAL MOTIVATIONS IN THE 
1947 ENACTMENT IS CLEAR IN LIGHT OF FLORIDA'S 
HISTORY OF DISENFRANCHISEMENT OF BLACKS AND 
THE LEGISLATIVE HISTORY IMMEDIATELY PRIOR TO 
THE PASSAGE OF THE ACT. 

The Plaintiff has previously analyzed the evidence showing 

the racial intent of the 1947 statute. [See attached portions 

of Proposed Memorandum Opinion.] We will only summarize in this 

Memorandum. 

1. After the Civil War, there were various acts passed by 

the Republican-controlled Legislature to enfrancise black citizens. 

2. With the end of Reconstruction, the political concensus 

became that of black disenfranchisement at the hands of the whites 

who had gained the political ascendency. Reflecting this dominant 

political tendency in the selection of school boards was the 

statute which provided that members be appointed. This had the 

effect of insulating the white minorities in the North Florida 

counties in which there were black voting majorities. Notable 



among the enactments was the passage of the poll tax in 1888 

which ensured the virtual elimination of black voters as a major 

participation was ensured in two ways: 

(2a) The most significant part of the political process 

was the Democratic Primary. Blacks were excluded from the primary 

by means of the "white primary" svstem. Having thus "taken care J v Oo 

of" black participation, such primaries were based on representation 

by district: 

(b) The only other way for blacks to participate was 

as Republicans in the general election. Thus, in the general 

election, voting for the offices was county wide at large, a 

perfect vehicle for diluting whatever strength the blacks might 

muster since it would tend to be concentrated in pockets by 

patterns of residence. 

What can be seen here is that the Legislature was conscious 

even at the turn of the century of the racial implications of 

at-large voting schemes. 

4. In the 1940's black registration began to rise. Still 

all was well for the white majority until 1945, when the Florida 

Supreme Court held the "white primary" system to be illegal. Thus 

deprived of the cornerstone of political control of blacks, the 

Legislature responded at the next legislative session by passing 

for the first time the provision for at-large primaries for school 

boards. 

In Nevett v. Sides, 571 F.24 20% (5th Cir. 1978), the Court 

analyzed the history of the at-large statute to determine if an 

inference of racial discrimination was indicated. The Court noted 

that blacks had been effectively disenfranchised in 1901. Thus, 

the Court reasoned that the inference of racial discriminatory 

intent in 1909 was weak, because it was not necessary to accomplish 

racist goals. The Court used the same analysis in McGill v. Gadsden 

County, 535 F.2d 277, 280-81 (5th Cir. 1976). 

“8 



Applying the same analysis to the instant case the opposite 

inference arises. The middle of the 1940's was a time of expanding 

black franchise generally. 

First, as Plaintiff's Exhibit 9 shows, in 1940 5 grand 

total of 725,470 persons registered to vote; 2,083 were "col. 

(i.e. colored") & misc.” This was 0.3% of the total. By 1946, 

the year before the statute in question, the totals were: 

White "Colored" Total % "Colored" 

Democrat 664,312 32,280 696,592 4.6% 

Republican 26,869 15,877 42,746 37.1% 

TOTAL 691.181 48,157 739.338 6.35% 

Thus, in a six-year period the percentage of black voters increased 

from less than 0.3% to 6.5%, 0r more than 22 times in relative 
A 

voter strength! 

Second, as discussed at length previously, the "white primary" 

had just been stricken. Thus, the new at-large system of primary 

elections was needed to implement the dominant racist ideology of 

the day. 

RESPONSE TO DEFENDANTS' BRIEF 

Since the Defendants filed earlier,we will take this opportu- 

nity to respond briefly to their memorandum. 

As the Court can see from our memorandum, we basically agree 

with 95% of what the Defendants state in pages 1-6 of their brief. 

Boiling those six pages down to a sentence -- the Plaintiff must 

take aim with the Bolden rifle rather than the Zimmer shotgun. 

First, there is no ''clear and convincing'' evidentiary burden 

on the Plaintiff. The burden is the normal civil burden of pre- 

ponderance of the evidence. 

The key to the Defendants' entire position is that they 

choose to disregard the evidence, the impact of the 1947 statute, 

ola 

“Indicating that this was a trend rather than a fluke, by 
1948 blacks constituted 8.5% of the registered voters. 



and Judge Arnow's analysis and ruling in McMillan by somehow 

pretending that what is at issue is the method of general 

rather than the method of primary election In 1947, as the 

registration figures show, the primary election was ''where t 

action was." The same is still true in North Florida That 

what this lawsuit is about. 

Respectfully submitted, 

t / 
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LY { 

KENT BPRIGGS ~~] 

Spriggs & Henderson 
117 8. 
Tallahassee, 
(904)224-8701 

/ 

ATTORNEY FOR 

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fartin Luther King, Jr. Blvd. 



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I. HISTORY OF BLACK VOTING RIGHTS 
AND AT-LARGE ELECTIONS 

Florida has had a longstanding, ongoing history of official 

action intended to minimize the voting strength of black citizens. 

A careful review of election laws from the Civil War to the present, 

considered in light of contemporaneous societal attitudes clearly 

1 
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a ( ple A f ( indicts the at-large election scheme for school board ir 

County as an instrument of purposeful discrimination against black 

voters. Dr. Jerrell Shofner, an expert in Florida history, 

detailed the evolution of the current law, noting that it resulted 

from political and social attitudes which had their roots in post- 

Civil War Florida. 

Reacting to post-Civil War Black Codes passed by states to 

keep blacks in their slave roles, Congress, in 1867, enacted 

several acts designed to enfranchise blacks and integrate them into 

the main stream of society. At the same time white political 

strength was greatly diluted. The 1868 Florida Constitution, 

which had to be approved by Congress, verbalized these rights and 

was viewed by white Floridians as a Constitution imposed from with- 

out. The Republican Party, composed of carpetbaggers,. scallywags 

and freedmen became the dominant political party in Florida. In 

fact, it was approximately 49% black. 

By 1876, the winds of change brought a power shift in the 

Federal government from the Republicans back to the Democrats and 

set the stage for an overthrow in Florida of Republican rule. An 

integral part of this overthrow was the disenfranchisement and 

segregation of black citizens. Restrictive state laws controlling 

elections by eliminating black voting strength were passed. 

hief among these was the passage of the poll tax in 1888. 1889 

la. Laws, Ch. 3350, §l1. It was decisive in eliminating black F
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voters as a threat to white supremacy in Florida. 

The 1888 election was the last in which the Republican Party 

presented a serious threat to conservative Democrats in this state. 

—In-the-last governor's election to be held prior to the imposition 

of the poll tax, the Republican gubernatorial candidate received 



26,000 votes to the Democratic gubernatorial candidate's 46,000 

votes. In 1890, the year the poll tax was effected, the Republicen 

candidate for Comptroller received only 4700 votes. By 1892, all 

threat of a viable Republican Party was gone. In that year's guber- 

natorial race, the Republican Party did not even slate a candidate. 

Accompanying these state laws was a change in the national 

policy. In effect, the Federal government withdrew from its 

involvement in protecting black enfranchisement through Federal 

legislation. A strengthened Federal election law failed to be 

passed by the Congress. This resulted in the termination of efforts 

to prcsecute white election law violators. 

As a consequence of these developments, after 1890 blacks 

ceased to play an important part in Florida elections. The Court 

in McMillan v. Escambia County, PCA 77-0432 (Memorandum Decision, 

July 11, 1978), concluded that by 1900: | 

. . . enough blacks were disenfranchised to 
permit the state to allow at-large election 
of county commissioners, Fla. Const., Art. 8, 
§5 (1901), and the members of the newly 
created boards of public instruction (counter- 
part of today's school boards). 1895 Fla. 
Laws, Ch. 4328. (footnote deleted) 1d. at 5. 

White isupremacy was established as the dominant political 

philosophy of the time, a unique Southern offshoot of the Progressive 

Movement. Progressives were for good government and against 

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corruption. However, in Florida and other Southern states, good 

overnment meant white man's government. Progressive reforms were 

enacted alongside a growing list of Jim Crow Laws which between 

1895 and 1915 legalized the customary segregation of the races in 

all aspects of Florida society. Paralleling the development of 

restrictive social legislation were a number of political reforms, 

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preventing blacks from voting in the only elections which actually 

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A few counties began using the primary instead of conventions 

to nominate candidates in the 1880's, and the idea spread rapidly 

A permissive primary law was passed in 1897. It allowed county 

executive committees to hold nominating elections if they so chose. 

It also give them the power to determine who was eligible to vote 

in a primary. 1897 Accs, Ch. 3879, 858 1 and 3. t the 1900 Demo- 

ion the Party ruled that only white peop .
 cratic Convent 

voted the entire Democratic ticket from top to bottom in the prior 

election would be eligible to vote in the party's primary. Thus, 

the institution of a mandatory primary in 1901 resulted in a white 

Democratic primary. 

Within a few years the state provided for the primary election 

of school board members to be held in single member districts. 

5.3907 Fra. Laws, Ch. 5697 +81. By rhat 
time the white primary system, effectively 
disenfranchising black voters, was firmly 
established. The resulting anomaly between 
having district primary elections and at- 
large general elections worked, not surpris- 
ingly, to the unique disadvantage of blacks 
Since blacks could not vote in the Democratic 
Primary district elections, they were forced 
to challenge white Democratic nominees in 
at-large elections in which blacks had no 
voter majorities. In effect, the white 
primary was the election. McMillan at 5. 

It is for these reasons that the white primary was, in 1945, finally 

struck down by the Florida Supreme Court. Davis v. State, ex rel. 

Cromwell. 156 Fla. 181, 23 So0.24 85 (1945). 

Closely on the heals of this decision, the Florida Legislature 

- 

met to revise the education law, the Minimum Foundation Law. In 

1947, in its first legislative session since the white primary was 

struck down, the Legislature revised the election laws as they 

applied to primary voting for school board seats. Dr. Shofner 
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this time in order to head off the possibility that majority black 

districts within a county could elect blacks to school board offices 

The legislative history shows that the measure was passed in order 

11 
to insure that "qualified people" would be selected for office. ___ _ 

However, as Dr. Shofner emphasized, this was often used as a code 

23.



phrase to mean "white people" within the traditional progressive/ 4 0:
 

white supremacy philosophy of the South. 

Granted, certain laws which on their faces showed an obviously 

discriminatory motive were considered and rejected by the Legislature. 

However, this does not mean that the ruling white majority had a 

sudden change of heart or had resigned itself to accepting a black 

1 
electorate. Indeed, Dr. St wfner indicated that it is unnecessarily 

extreme to credit the Florida Legislature with some benevolent intent 

in rejecting those laws. Clearly the types of laws proposed by 

"Senator Matthews and his associates were sO obviously racially dis- 

criminatory as to surely be challenged and struck down by the courts. 

Dr. Shofner noted that these laws simply went too far in trying to 

preserve white supremacy in Florida. There was no reason to go to 

such extreme measures when the same result could be accomplished 

with a quieter, less obvious piece of legislation. The Legislature 

was astute enough to realize that these few lines tucked away in the 

Minimum Foundation Law were sufficient to effectively dilute black 

voting strength. 

The continued use of Jim Crow Laws and physical intimidation of 

potential voters and candidates was sufficient to allay any fears 

that blacks could control the school board in counties where they con- 

stituted a majority of voting-age citizens. Dr. Shofner noted that 

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lynchings had long been commonplace in Florida and uncheck 

continued to play a part in the intimidation of potential black 

voters, including the bombing murder in 1951 of Harry Moore, head 

of Florida's NAACP, and his wife in their home in Mims. 

The development of white supremacy philosophy, social legislation 

Tr a os | 4 ~~ mn ec Tra To cks and the sequence of events leading 0h
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directly to the change in the primary election’ 

member district to at-large voting clearly shows that discriminatory 

intent was a motivating factor in the adoption of the current system. 

LThis theory is ‘supported by V.0. Key:in Southern Politics in 

State and Nation, _a very general study of politics in the South. It 

1s important to remember that Dr fey never did the kind of in-depth 

analysis of and research into the peculiarities of the development 

of Florida laws that Dr. Shofner has done 



II. BLACK PERSONS ARE DENIED "ACCESSIBILITY" 

TO THE ELECTORAL PROCESS 

There are many ways in which the "accessibility" to the 

electoral process may be impeded as a matter of law. One of the 

major impediments to access is the presence of polarized voting 

a 9 mir. wore) . ; : 
behavior.“ As the Fifth Circuit held in Bolden wv. Mobile, 571 V A 

th Cir: 1978): w
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Bo LQ L308 

... Although failure of black candidates 
because of polarized voting is not suffi- 
cient to invalidate pl wAteripalig an 

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indication of lack-o 

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cess to the political 

process, Id. at 243 (cita tions omitted). 

The failure of black candidates in Gadsden County is manifest. 

Only one black has won a county-wide contest in modern times. 

Dr. Dyson was qualified as an expert in the area of quanti- 

tative analysis of voting behavior. He analyzed the voting behavior 

by race in Gadsden County with a number of different statistical 

tools. He also gave certain opinions based on studies of voting 

behavior done by other political scientists. 

The first statistical tool used by Dr. Dyson was the compu- 

tation of an "RZ? " correlation as an indication of the degree of 

polarization of white voting behavior, i.e., the degree to which 

whites vote for white candidates. Dr. Dyson testified that it was 

the same methodology as reflected in the three Appendices to the 

Si at : Tiny 2 : 
opinion in McMillan, supra. Having computed the "R“" correlations, 

he then inscribed on the three sheets which had been admitted in 

evidence as a stipulation between the parties. [Those three sheets, 

with the inscriptions as per the Dr. Dyson testimony are appended 

to this Proposed Memorandum Opinion as Appendices A, B and C.] It 

vas clear from Dr. Dyson's testimony that as a methodological matter, 

the "R » could vary from 0 to 1. Thus, the fget that all but one of 

2In the instant case there is no present denial of right to 
register, nor is there a slating requirement. However, the Court 
in McMillan found barriers to access even though again in Escambia Co 
there was no problem with registration or slating Interestingly, 
the Court found that there were barriers even though "affirmative 
efforts are made to encourage eligible citizens, both black and™ — 
white, to register..." 1d. at 10. | 

5. 



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C. Proof of an aggregate of the factors set cut in Zimmer v. 

McKeithen, supra. '{Z]immer criteria provide a factual basis from 

which the necessary intent may be inferred." Nevett II, supra, at 

223:: See also, McMillan,:supra at 28. 

A. RACIALLY MOTIVATED ENACTMENT. 

fo) 
Referring to City of Richmond v. United States, 422 U.S. 358 

(1975), the three-judge panel in Stewart v. Waller, 404 F. Supp 

206 (N.D. Miss. 1975), struck down a 1962 Mississippi law that 

required cities-of a certain size to change from single-member dis- 

tricts to at-large elections as violating the Fifteenth Amendment. 

Said the court: '"The legislative history, the inevitable and 

foreseeable effect of the statute's provisions, and the historical 

1 

context in which the Act was passed permit no other conclusion. 

404 F. Supp at 214 (emphasis added). In particular, the court 

relied on the following evidence to reach its conclusion: 

(1) It was foreseeable that blacks would have been elected in 

many wards absent the change and in light of the growing black 

registration. 404 F. Supp. at 213. 

(2) The "author' of the bill was reported in the newspapers 

to have said: "This is needed to maintain our Southern way of life.’ 

dé. m. 11. 

(3) The subsequent effect of the 1962 Act was ''entirely con- 

sistent with the racially discriminatory motive attributed to its 

sponsor." 404 F. Supp at 214. 

(4) "Another pertinent factor is the long history of statutory 

racial segregation and discrimination in Mississippi, with conse- 

quent token participation by blacks in the political processes of 

the state." Id. 

- . - 

The Stewart court cited an earlier decision by Judge Frank 

Johmson in Smith v. Paris, 257 7. Supp 901 (M.D. Ala. 1966), aff'd 

386 F.2d 979 (5th ' Cir. 1967) .. There, the court struck ddvm a local 

Democratic Party resolution changing from single-member district to 

at-large election of Democratic Party Committee members as raciall 

motivated in violation of the Fifteenth Amendment. As evidence of 

the racial motive, the court pointed to the fact that district 
? 



ined for over thirty years, during a time ®
 

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when "a minuscule number of eligible Negroes were actually regis- 

tered to vote," and that the change was made only after blacks 

began to register in significant numbers and to qualify as candi- 

dates for committee members in wards which had a majority of 

black voters. Id. at 903. Thus he gave due consideration to 'the 

long history of racial discrimination in Alabama." Id. at 904. 

And, finally, the court relied on the "clear effect" of the act to 

diminish black voting strength. Ibid. 

+
 

n Paige v. Gray, 437 7. 'Supp,/ 137: (M.D: Ga. 1977), Judge 

Owens wrote a long opinion again invalidating the at-large scheme, 

this time on both the Fourteenth Amendment dilution grounds and on 

a
 

Fifteenth Amendment grounds that the 1947 act was racially motivated 

in its adoption. In 1922, Albany changed from an at-large elected 

city commission to a city-manager-council charter government using 

single-member wards. In 1946, the all-white Democratic Party Primary 

was struck down judicially in Georgia. Id. at 151. Relying heavily 

on newspaper reports and editorials, Judge Owens described at length 
& A 

the circumstances indicating that city fathers were concerned about 

growing black voter registration and participation of blacks in the 

Democratic Primary. In 1947, a statute was enacted amending Albany's 

city charter to provide that all seven commissioners (council 

members) would be elected at large. Based on these facts, Judge 

Owens concluded that the 1947 legislative change had the "inevitable 

effect" of abridging the voting rights of Albany's black citizens. 

e took place in 1947, the same 

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3 +1 A vt $+} +} £ A E. A $e Dicta in other cases accord with the foregoing precedents. 

HarnAdA+1 ~~ xr TAcanh C11 A 1350 ' = = I ~ Hendrix v. Joseph, supra at 1269 (''The adoption of an at-large 

the scheme in a dubious light and indicates that it may be a tool 



The history of the 1947 Statute changing the method of voting 

in school board primaries has been described in depth in Section 

I of this Memorandum Opinion. It is obvious from the entire 

history of voting rights of black citizens in Florida and the 

chain of events that the enactment was racially motivated. Faced 

with an almost 

lacking some of the evidence adduced by Plaintiff in thi 

identical configuration of evidence, (actually 

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the McMillan court held: 

.The history and sequence of events 
strongly suggest racial motivations. From 
1907 until 1945 the white primary was in 
effect. This was a period in which the 
Black Codes were also in effect and in 
which the white government was unwilling 
or unable to prevent a shocking degree 
of violence and intimidation suffered by 
blacks at the hands of whites. The state 
policy of excluding blacks from the primarsg 
election was finally declared unconstitu- 
tional in Davis v. State ex rel. Cromwell, 
156: Fla. 181,23 S0.27d 35 (1345). 
Then in the very first legislative session 
following the decision, the legislature 
enacted statutes providing for an at-large 
requirement in both the general election, 
1947 Fla. Laws, ich. 23726, §9, and the 
primaries, 1947 ‘Fla.::Laws, ch. 23726, §7. 
This marked a major substantive change from 
a system in which all members had been 
elected from single-member districts in the 
primaries, which were tantamount to election. 
The effect of the change was to prevent 
blacks from running in single-member district 
primaries which had existed up until that 
time. It was the ‘testimony of plaintiffs’ 
expert historian that the 1947 election 
system resulted from racial motivations 
The evidence of discriminatory motives behind 
the at-large requirements of the 1947 
is compelling. The court finds that 
motivations were a main force behind 
enactment in 1947 of the current at- 
election system. (emphasis added) Ret 25-6. 

RACTALLY MOTIVATED MAINTENANCE -- CARRYING FORWARD 
"PATTERNS 

enjoined in 1970. As has been discussed, above the mere illegal 

OF PURPOSEFUL AND INTENTIONAL DISCRIMINATION" 

there were many other indignities and inequalities 

i
 

ully visited upon the black students and employees. This 

pattern of conduct did not end with this Court's Order in 1970. If 

imited attention to adjudications of discrimination alone 

record of intentional discrimination in the three years from 1970 

25