Plaintiffs' Pre-Trial Brief

    IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, et al., 

Plaintiffs, 
CIVIL ACTION 

vs. 
NO. 75-298-P 

CITY OF MOBILE, et al., 

S
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Defendants. 

PLAINTIFFS' PRETRIAL BRIEF 
  

Plaintiffs submit this pretrial brief solely for the 

purpose of responding to the argument made in defendants’ 

trial memorandum, filed on or about July 7, 1976, that 

Washington v. Davis, U.S. , 44 U.S.L.W. 4789 (June 7, 
  

1976), establishes a ''mew Supreme Court 'purpose’' test." 

D.Br.at 9. Defendants even suggest that the Davis decision 

either supersedes ormakes unnecessary consideration of the 

"primary" and "enhancing' factors in Zimmer v. McKeithen, 
  

485. F.24 1297 (5th Cir. 1973)(en banc), aff'd, sub nom, East 

Carroll Parish School Bd. ¥. Marshall, + y.8, ., 44 ¥.5.L.W. 
  

 



4320 (March 8, 1976) (per curiad) The indicia of unconstitutional 

black vote dilution formulated in Zimmer, say the defendants, 

"do not include intent.” D.Br. at 16, Plaintiffs submit this 

  

simply is not so. As this brief will show,” Washington v, 
T_T, 

Davis, supra, merely reemphasizes the requisite concepts of 
  

intent referred to in many previous Supreme Court decisions, 

Zimmer includes these well-established principles of intent 

in its indicia of unconstitutional dilution. 

Plaintiffs, of course, agree that they must prove 

purposeful or intentional dilution of black citizens' voting 

strength by the present election system in order to prevail, 

We are fully prepared to do so. The evidence will show that 

the State of Alabama, through its legislators and officers, 

has used the at-large system for electing Mobile City 

Commissioners (1) with an actual motive or purpose to dis- 

criminate agelins The black citizens of Mobile and, in any 

case, (2) with the intent to discriminate that must be presumed 

of those who should foresee the natural consequences of 

their actions. 

I. 

Washington v. Davis Establishes No New 
“Constitutional Principles Ll 
  

  

  

One should begin consideration of Washington vy. Davis, 

supra, with the note of caution sounded in the concurring  



opinion of Justice Stevens: 

[T]he extent to which one characterizes 

the intent issue as a question of fact or 
a question of law ... will vary in different 
contexts. 

My point in making this observation is to 
suggest that the line between discriminatory 
purpose and discriminatory impact is not nearly 
as bright, and perhaps not quite as critical, 
as the reader of the Court's opinion might 
assume. 

44 U.S.L.W. at 4800. Justice Stevens’ comments comport with 

the similar warning contained in Justice White's majority 

opinion: 

Necessarily, an invidious discriminatory 
purpose may often be inferred from the totality 
of the relevant facts including the fact, if 
it is true, that the law bears more heavily on 
one race than another. 

  

  

44 U.S.L.W. at 4792 (emphasis added). Thus, the requirement 

of a discriminatory purpose is nothing new to constitutional 

law, and the Supreme Court is only reminding us of that in 

Davis. It neither suggested nor inferred that it was 

announcing new standards for determining when such discriminatory 

purpose existed in particular cases. 

Indeed, Washington v. Davis must be read in the context 
  

of the extreme stance taken by the plaintiffs-respondents in 

that action. Justice White's opinion tells us that the 

plaintiffs made no claim in the district court of "an intentional 

discrimination or purposeful discriminatory actions." 44 U.S. 

~3.  



L.W. at 4790. When the Court of Appeals for the District 

of Columbia reversed the district court, it "went on to 

declare that lack of discriminatory intent in designing and 

administering Test 21 was irrelevant...." 44 U.S.L.W. at 

4791. With the issues presented in this extreme posture, 

it could almost be said that plaintiffs and the Court of Appeals 

were daring the Supreme Court to rule against them. 

Clearly the Court was up to the task, and it simply refused 

to affirm a decision predicated on constitutional grounds 

that made no attempt to demonstrate discriminatory intent and 

even insisted that no such showing was necessary. 

The central purpose of the Equal 
Protection Clause of the Fourteenth 
Amendment is the prevention of official 
conduct discriminating on the basis of 
race. ... But our cases have not embraced 
the proposition that a law or other official 
act, without regard to whether it reflects 
a racially discriminatory purpose, is 
unconstitutional solely because it has a 
racially disproportionate impact. 

44 U.S.L.W. at 4792. The opinion then refers to a number of 

earlier Supreme Court decisions that discuss the necessity 

of demonstrating discriminatory intent inthe constitutional 

context, including Wright v. Rockefeller, 376 U.S. 52 gin   

and Keyes v. School District No. 1, 413 U.S. 189 (1973).   

Although Davis expresses some disapproval of a long list of 

federal court decisions that might be interpreted in conflict 

with it, it neither overruled nor expressed its disapproval of. 

hi  



  

any Supreme Court or appellate court voting rights decisions, 

particularly not the seminal cases of White v. Regester, 
  

412 U.S. 755 (1973),and Zimmer v. McKeithen, supra, which the 
  

Court had reviewed only three months earlier. 

Therefore, while Washington v. Davis, supra, very clearly 
  

requires this Court to find discriminatory intent as one of 

the elements of any successful Fourteenth or Fifteenth 

Amendment claims, it in no way disturbs the principles already 

established by the Supreme Court, the Fifth Circuit and other 

federal courts concerning the proper legal standards to be 

applied to determine whether such intent in fact exists. 

Il. 

' Mobile's At-Large Election System 
Was Designed And Is Utilized With 
The Motive Or Purpose of Diluting 
The Black Vote i! 
  

The City argues that this Court should find that Act 

281, Ala.Acts (1911), "was enacted for a non-discriminatory 

purpose and, under Washington v. Davis,that finding should end 
  

the inquiry, with judgment for defendants being mandated." 

D.Br. at 20. Further, according to the defendants, such a 

finding of non-discriminatory purpose should be predicated 

entirely on the assumption that, because black Mobilians 

had already been totally disenfranchised by the Alabama 

Constitution of 1901, racial discrimination could not have 

 



  

been one of the motives behind Act 281 in 1911. D.Bxr. at 19. 

But the defendants have miscast the issue. The question 

is not just whether the Legislators who voted for Act 281 

were racially motivated, but whether the whole electoral 

system, including the intentional discrimination that both 

ante-dated and post-dated Act 28l's passage, is the product of 

a past racially discriminatory purpose, the effects of which 

are still felt today, and/or a present intention to dis- 

ctiniiate. bs the State of Alabama. For example, in Wright 

v. Rockefeller, supra,cited in Washington v. Davis, 44 U.S. 
  

  

L.W. at 4792, the Supreme Court upheld a district court's 

finding of fact that certain congressional boundaries in 

New York had not been racially gerrymandered. . The inquiry 

addressed only the motives of the New York State Legislators who 

had just drawn the lines. The Court carefully distinguished 

Hernandez v. Texas, 347 U.S. 475 (1954), and Norris v. Alabama, 
  

  

294 U.S. 587 (19 ), where in the context of jury dis- 

crimination it had previously laid down the rule that a prima 

facie case of unconstitutionality could be made out by proof 

of a long-continued state practice of discriminating against 

blacks. The fact that no such long-standing history of racial 

discrimination by the Beate of New York was either alleged 

or proved in Wright meant that the constitutional inquiry 

could focus solely on the motives of the Legislators then 

convened. As Mr. Justice Black, writing for the Court in 

6. 

 



  

Wright, carefully explained, "state contrivance to segregate 

on the basis of race ... was crucial to appellants’ case as 

  

they presented it, and for that reason their challenge cannot 

be sustained." 376 U.S. at 58. 

By contrast, the entire history of official racial 

discrimination in the State of Alabama is very much a part 

of plaintiffs' prima facie case herein. Plaintiffs will show 

(primarily through the testimony of an expert historian) that 

black people in Mobile and in Alabama generally were very 

active in the political process from the Reconstruction 

period until the Constitution of 1901 disenfranchised them. 

It is absolutely clear that the delegates to the 1901 Alabama 

Constitutional Convention were motivated by an openly 

expressed desire to take the vote away from black citizens, 

who resisted unsuccessfully. Thereafter, it could accurately 

be said that through white primaries, interpretation tests, 

poll taxes and other devices 

from the Constitutional Convention of 1901 
to the present, the State of Alabama has 
consistently devoted its official resources 
to maintaining white supremacy and a segregated 
society. 

United States v. Alabama, 252 F.Supp. 95, 101L (M.D. Ala. 1966) .   

The black citizens of Mobile were no better off than blacks 

elsewhere in Alabama in terms of the barriers thrown up in 

the way of their right to register and vote. Some of the 

plaintiffs in this action will give personal testimony to 

these facts. 

 



  

It is true that there was little outward evidence of 

a racial motivation in the passage of Act 281 or in the 1911 

referendum that changed Mobile's city government to an at- 

large commission. However, the Court should note with interest 

that two of Mobile's most active leaders in favor of the 

1911 city govermment change, Pat Lyons and Harry Pillans, 

were also leading forces in the work of black disenfranchisement 

at the 1901 Constitutional Convention. There is then some 

evidence connecting Act 281 with the contemporary movement 

to discriminate against black voters. In any event, as a 

matter of law the State's actions in 1911 cannot be entirely 

divorced from its overt discriminatory intentions in 1901. 

On this point, we have the authority of Keyes wv. School District 
  

No. 1, supra, cited by the Supreme Court in Davis for the 
  

instruction it gives on the meaning of purpose or intent to 

discriminate. 44 U.S.L.W. at 4792. In the context of school 

desegregation, Keyes holds: 

a finding of intentional segregation ... in 
one portion of a school system is highly 

relevant to the issue of the board's intent 

with respect to the other segregated schools 
in the system. This is merely an application 
of the well-settled evidentiary principle that 
"the prior doing of other similar acts, whether 

clearly a part of a scheme or not, is useful as 
reducing the possibility that the act in question 
was done with innocent intent." 2 J. Wigmore, 
Evidence 200 (3d Ed. 1940). ... Similarly, a 

finding of illicit intent as to a meaningful 

portion of the item under consideration has 

substantial probative value on the question of 

illicit intent as to the remainder. 

 



  

413 U.S. at 207-08. The analogy to the instant case is clear. 

The admitted discriminatory state intent connected with the 

1901 constitution, which established a part of the system 

for electing Mobile City officers, "creates a presumption” 

that the 1911 Act, which further diluted black voting strength 

in the szme election system, was ''mot adventitious." Keyes 

v. School District No. 1, supra, 413 U.S. at 208. At the 
  

very least, these historical circumstances shift the burden 

of proof to the defendants to prove conclusively that racial 

intent had no part in Mobile's adoption of the at-large election 

system. 

This burden-shifting principle is not new 
or novel. There are no hard-and-fast standards 
governing the allocation of the burden of proof 

in every situation. The issue, rather, "is 
merely a question of policy and fairness based 
on the experience in the different situations.” 
9 J. Wigmore, Evidence §2486, at 275 (3d Ed. 

1940). 

Keyes, supra, 413 U.S. at 209. 
  

Neither can the defendants successfully contend that, 

although the at-large system was devised during a time when 

black citizens were being intentionally disentranditsed, the 

system is being used today for completely non-racial reasons. 

In the first place, the evidence shows that the white-dominated 

legislature of Alabama and the white officers of the City of 

Mobile are entirely aware of the diluting effect the present 

system has on the voting strength of black Mobilians. The 

continuing use of racist campaign literature in light of 

racially polarized voting patterns cannot be ignored by this 

Court. And in the second place, Keyes teaches, again in the 

Gs 

 



  

context of school desegregation: 

If the actions of school authorities were 
to any degree motivated by segregative intent 
and the segregation resulting from those actions 
continues to exist, the fact of remoteness in 
time certainly does not make those actions any 
less "intentional." 

« «» . [Alt some point in time the relation- 
ship between past segregative acts and present 
segregation may become so attenuated as to be 
incapable of supporting a finding of de jure 
segregation warranting judicial intervention. 
- . . We made it clear, however, that a 
connection between past segregative acts and 
present segregation may be present even when-< 
not apparent and that close examination is 
required before concluding that the connection 
does not exist. Intentional school desegregation 
in the past may have been a factor in creating 
a natural environment for the growth of further 
segregation. Thus, if respondent School Board 
cannot disprove segregative intent, it can 
rebut the prima facie case only by showing that 
its past segregative acts did not create or 
contribute to the current segregated condition 
of the Core City Schools. 

413 U.S. at 210-11. Again, the same analysis applied in the 

context of Mobile's voter discrimination is precisely that 

made by plaintiffs in this action. Our case is based on a 

showing that past official disenfranchisement has created 

"a natural environment for the growth of further [dis- 

crimination] in that the at-large election system instituted 

in the past contributes to current black vote dilution. 

The defendants cite Wallace wv. House, supra, 515 F:2d at 
  

633, as Fifth Circuit judidical recognition that, with respect 

to a statute similar to Act 281, "there could have been no 

thought that the device was racially discriminatory, because 

10 

 



very few blacks were allowed to vote in Louisiana during 

that period.” However, defendants failed to complete the 

context in which the Fifth Circuit is quoted: 

We would be callous indeed to tell 
plaintiffs that seventy years of illegality 
somehow legitimizes continued dilution of 
black voting rights, but that is not the 
thrust of our discussion. In order for there 
to be substantial -- an thus illegal -- 
impairment of minority voting rights, there 
must be some fundamental unfairness in the 
electoral system, some denial of fair 
representation to a particular class. 

  

515 F.2d at 619. Wallace goes on to hold that a reapportion- 

ment plan that preserves just one at-large position is not 

"fundamentally unfair" in light of the absence of racial 

motivation in Louisiana's at-large municipal election system. 

Of course, even this one at-large position has been questioned 

by the Supreme Court, who vacated Wallace v. House, supra, 
  

44 1.8.1.W, 3607 (26 April 1976), for reconsideration in light 

of the single-member district preference expressed in Connor v. 
  

Johnson, 402 U.S. 690,692 (1971), and East Carroll Parish 
  

  

School Board v. Marshall, V.8. ,.96'3.Ct. 1083 (1.975). 

IYI. 

Discriminatory Intent Is Shown Under 
The Traditional Tort Standard 
  

Washington v. Davis, supra, also makes clear that a   

Watergate-like "smoking gun" need not now be produced to show 

discriminatory intent any more so than in the Past. Justice 

White's majority opinion includes the following priviso: 

5  



  

This is not to say that the necessary 
discriminatory racial purpose must be 
expressed or appear on the face of the statute, 
or that a law's disproportionate impact is 
irrelevant in cases involving Constitution- 
based claims of racial discrimination. A 
statute, otherwise neutral on its face, must 
not be applied so as invidiously to dis- 
criminate on the basis of race. Yick Wo v. 
Hopkins, 118 U.S. 356 (1886). 

  

44 U.S.L.W. at 4792. In his concurring opinion, Justice 

Stevens gave his version of this point: 

Frequently the most probative evidence of 
intent will be objective evidence of what 
actually happened rather than evidence 
describing the subjective state of mind of 
the actor. For normally the actor is presumed 
to have intended the natural consequences of 
his deeds. This is particularly true in the 
case of governmental action which is frequently 
the product of compromise, of collective decision- 
making, and of mixed motivation. 

  

  

  

44 U.S.L.W. at 4800 (emphasis added). 

The law in this Circuit squarely adopts the aforesaid 

"tort" standard of proving intent. Keyes v. School District 
  

No. l, supra, relisd on =o heavily in Washington v. Davis, 
  

  

supra, has already been interpreted at length by the Fifth 

Circuit with respect to the meaning of requisite discriminatory 

tntone in constitutional cases. As a result of Keyes, the 

Fifth Circuit has for several years been requiring "proof of 

segregatory intent as a part of state action" in school 

desegregation findings. Morales Vv. Shannon, 516 7.24 411, 412- 
  

13 (5th Cir.), cert.denied, 96 5.Ct. 566 (1975). Most recently,   

citing Morales, supra; Cisneros v. Corpus Christi Independent ° 
  

-17. 

 



School District, 467 F.2d 142 (5th Cir. 1972) (en banc), cert. 
  

denied, 413 U.S. 920 (1973); and United States v. Texas 
  

Education Agency, 467 F.2d 848 (5th Cir. 1972) (en banc), the 
  

Fifth Circuit squarely addressed the meaning of discriminatory 

intent: 

Whatever may have been the originally 
intended meaning of the tests we applied 
in Cisneros and Austin I [United States 
Vv. Texas Education Agency, supra], we agree 

with the intervenors that, after Keyes, our 

two opinions must be viewed as incorporating 

in school segregation law the ordinary rule of 
tort law that a person intends the natural ° 
and foreseeable consequences of his actions... 

  

  

Apart from the need to conform Cisneros 

and Austin I to the supervening Keyes case, 
there are other reasons for attributing 

responsibility to a state official who should 

reasonably foresee the segregative effects of 
his actions. First, it is difficult -- and 
often futile -- to obtain direct evidence of 

the official's intentions. ... Hence, courts 
usually rely on circumstantial evidence to 
ascertain the decision makers' motivations. 

  

  

United States v. Texas Education Agency (Austin Independent 
    

School District), 532 F.2d 380, 388 (5th Cir. 1976) (Austin 
  

II) (footnotes omitted). There is no reason to distinguish 

a school desegregation case from a voter discrimination case 

in the context of Washington v. Davis' underlying inquiry into 
  

discriminatory intent. 

There can be no serious question by anyone that the evidence 

in this case will demonstrate defendants' discriminatory 

intent to discriminate against Mobile's black voters according  



  

to the tort standard. The statistical analyses of racial 

vote polarization, documentary evidence of racial appeals: 

to the electorate and the abundant testimony of Mobile's 

politicans conceding the inability of black candidates to 

win in at-large elections in Mobile are matters of which the 

defendants have long been fully aware. This Court should 

hold that defsndants have intended the natural and foreseeable 

consequences of this racially discriminatory election system. 

Conclusion 
  

When Act 281 was passed in 1911, it became part of an 

overall electoral scheme in Alabama that was unquestionably 

designed and had the effect of disenfranchising black citizens. 

There is even some evidence that the legislators and political 

leaders of Mobile were consciously aware of the dilution factor 

the at-large system would add to the overall scheme. In any 

event, as a matter of law, the discriminatory intent of 1901 

is presumed to attach to the state's action in 1911 when it 

enacted Act No. 281. The defendants must show by conclusive 

proof that there was no racially discriminatory motive behind 

Act 281. 

Furthermore, the evidence in this case will show that 

the state plainly intended to dilute the voting strength of 

black Mobilians as a natural and foreseeable consequence of 

imposing an at-large election system, a consequence that has 

lls 

 



  

been frequently and dramatically demonstrated over the past 

fifteen years. 

Read in light of the Supreme Court and Fifth Circuit 

authorities cited in this brief, it can be seen that the 

dilution factors set out in Zimmer wv. McKeithen, supra, are 
  

actually indicia of both discriminatory effect and dis- 

criminatorr Intent, actual and constructive. 

Respectfully submitted this 9th day of July, 1976. 

CRAWFORD, BLACKSHER, FIGURES & BROWN 
1407 DAVIS AVENUE 

  

MOBILE, ALABAMA 36603 

By: Ni y/o 
./ U0.” BLACKSHER 
RRY MENEFEE 

EDWARD STILL, ESQUIRE 
SUITE 601 - TITLE BUILDING 
2030 THIRD AVENUE, NORTH 
BIRMINGHAM, ALABAMA 35203 

JACK GREENBERG, ESQUIRE 
CHARLES WILLIAMS, III., ESQUIRE 
SUITE: 2030 

‘10 COLUMBUS CIRCLE 
NEW YORK, N. Y. 10019 

Attorneys for Plaintiffs 

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CERTIFICATE OF SERVICE 
  

I do hereby certify that on this the 9th day of July, 

1976, I served a copy of the foregoing PLAINTIFFS' PRETRIAL 

BRIEF upon counsel of record, Charles A. Arendall, Esquire, 

David Bagwell, Esquire, Post Office Box 123, Mobile,AL and 

S. R. Sheppard, Esquire, City of Mobile, Legal Department, 

Post Office Box 1827, Mobile, AL 36601, by depositing same 

in United States Mail, postage prepaid or by HAND DELIVERY. 

  ey for Plaintiffs 
ds 7 om 
pees 

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