Brief for the United States as Amicus Curiae
Public Court Documents
January 17, 1979
115 pages
Cite this item
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Case Files, Bolden v. Mobile Hardbacks and Appendices. Brief for the United States as Amicus Curiae, 1979. 0c33aa7c-cdcd-ef11-8ee9-6045bddb7cb0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/043099a0-e6ef-4d86-a4e3-047ce9d54695/brief-for-the-united-states-as-amicus-curiae. Accessed May 15, 2025.
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"Nos. 77-1844 and 78-357.
Ju the Supreme Gar of the tite States ie
+ OCTOBER TERM, 1078+
CITY OF MOBILE, ALABAMA, ET i APPELLANTS Tar
V.
WILEY Li. BOLDEN, ET ALLL
RoserT 2. WiLLiaws; ET AL, APPELLANTS
“0,
I GBR, ET ALL 5
ON APPEALS FROM THE": oe
UNITED STATES COURT OF APPEALS
FOR THE FILTH CIECUIT Frit
BRIEF FOR, THE UNITED STATES
AS AMICUS CURIAE ~
+. WADE H. MCCREE, JR.
«+ Solicitor General
DREW S. DAYS, III
A Assistant, Attorney. General:
LAWRENCE G. WALLACE |
‘Deputy Solicitor General
"ELINOR HADLEY STILLMAN = RT
Assistant to the Solicitor General
BRIAN 'K. LANDSBERG
- JESSICA DUNSAY SILVER
DENNIS J, DIMSEY |
MIRIAM R. EISENSTEIN
Attorneys
Department of Justice
Washington, D.C. 20580
February 1979
Filed in W/Fs
IN THE
Supreme Court of the United States
October Term, 1978
No. 77-1844
City or MoBILE, ALABAMA, et al.,
Appellants,
Vv.
WiLey L. Borpen, ef al.,
Appellees.
ON APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR APPELLEES
J. U. BLACKSHER
LArRrYy MENEFEE
1407 Davis Avenue
Mobile, Alabama 36603
Epwarp STILL
Suite 400
Commerce Center
2027 First Avenue North
Birmingham, Alabama 35203
JACK (REENBERG
Eric ScENAPPER
Suite 2030
10 Columbus Circle
New York, New York 10019
Counsel for Appellees
TABLE OF CONTENTS
Questions: PreSens od. cide icemistsiviohe sae sseleiviorsis » « +
Statement
XI.
111.
® 8 8 © 0 0 6 0 8 2 8 PG GO GGL 9 et SET SEN Oe ee es
© © 8 © 0 5 9 5 0 0 0s TT ESO EE" SES eT Oe es ee soe
Mobile's At-Large System of
Election Violates Section 2
of the 1965 Voting Rights
ACL rico ein ie vies a Ble tee naa ee
Mobile's At-Large System of
Election Is Maintained And
Operated For The Purpose of
Discriminating On The Basis
Of RACE. oho vite ilies cin lo isibisih «Join win nies oo »
The District Court Correctly
Applied The Principles of
White v. Regester and Whitcomb
VuilCNaVEs cv ve ons nmnssismomesnrns
A. ° The Legal Standard Established
By White and Whitcomb .......
B. The Irrelevance of Intent
Under White and Whitcomb ....
C. The Applicability of White
~ and Whitcomb to Municipal
Bloctions .....coepbsesisects
D. The Application of White
and Whitcomb to the Facts
Of This (Case .cuddfdeecce casa
PAGE
11
n
18
36
37
33
61
67
TABLE OF CONTENTS
(Cont 'd)
PAGE
IV. Mobile's At-Large Election
System Violates the
Fifteenth Amendment ......... Bs ai 82
V. The District Court Correctly
Formulated A Remedy For The
Prove Violation ses ines 92
CONC US TION ot et esi ee rst sss sn tenasnsnoeiss %
TABLE OF AUTHORITIES
Cases
Abate v. Mundt, 405°U.8. 182 (1971) ....... 56
Allen v. City of Mobile, 331 F.Supp.
1134 (8.0. Ala. 1671) .ccerecnnessanssse 83
Allen v. City of Mobile, '18 7.E.P.
Cases 207:(85.D."41a. 1978) ...c..n..... 7
Allen v. Board of Elections, 393 U.S.
RESELL SRE LL CRI Co She Eg 5, 14, 16,
47 , 48
Anderson v. Martin, 375 U.S. 399
(1964) 5 il BR rd innsinss 50
Anderson v. Mobile City Commission,
Civil Action No. 7388-72-H
SD A a: 1973) i cera verre ersines 73
Arizona v. California, 2830.8.
423 (103) 2. lr. creer css rt nes &
TABLE OF AUTHORITIES
(Cont'd)
PAGE
Arlington Heights v. Metropolitan
Housing Development Corp.,
429 U.8 268 £1977) ... i ii Jolie ve 6,24,32,33,
35
Avery v. Midland County, 390 U.S.
rll LS Se RT a PR 9, 63, 64
Bailey v. Alabama, 219 U.S. 219
EY Ye aie d ai din dis ia Pra fini 88
Beer v. United States, 425 U.S 130
(19768) tosis resssinisnns Pale dale 9, 47,48,
52,00,65,%
Blacks United for Lasting Leadership,
Inc. v. City of Shreveport,
571 F.24 248 (5th Cir,
C1078) serve tsansraiinsssnnnininia . 158
Bradas v. Rapides Parish Police
Jury, S08 F.2d 1109
(53th Civ. 1975) vi cvvcitncrrisnes 68
Breare v. Smith, 321 F.Supp. 1110
{S.D. Tex, 1971) (viv eicsnrvinnne 45
Brown v. Board of Education, 347
U.B. 483 (1994) ..:iceisvevrnennsn 29, 63
Burns v. Richardson, 384 U.S. 73
(1968) 1uuurnrsnsnsnnrsesssiias sine 40,41,55, 58
Chavis v. Whitcomb, 305 F.Supp. 1364
(S:D..Ind. 1969) .ccsivccisivsvns 41
Chapman v. Meier, 421 U.S. 1 (1975) .. 57.58.93
~ iii ~
TABLE OF AUTHORITIES
(Cont'd)
PAGE
City of Richmond v. United States,
422 1.8. 338 (1975) wil. lh hn 17,30,47,48
Clark v. Uebersee Finanz Korp.,
332 U.8. 450 XX) uv vd isis 14
Connor v. Finch, 431 U.S. 407
C1977) coven Bmcianess airs a ilaliild 8, 60
Cooke v. City of Mobile, Civil
Action No. 2634-63
(8.0. Ala. 1983) cnverennnnrnninis 73
Cooper v. Aaron, 358 U.S5. 1
(1958) i FARRAR JR a 63
David v. Garrison, 553 F.2d 923
(Sth Cir. 1977). hb vcerivmnin ini, 68
Davis v. Schnell, 81 F.Supp. 872
£S..D. Ala. 1949) ...c cer. chines 27,33
East Carroll Parish School Bd. v.
Marshall, 424 U.S. 636 (1978) ..... 31,359,460
Erlenbaugh v. United States, 409
U:8. 239. (1973) ..codiondh du da 13
Evans v. Mobile City Lines, Civil
Action No. 2193-63
(S.D.0A2. 61983) sven vine iii ia 73
Fortson v. Dorsey, 379 U.S. 433
C1965) uiiidtndivdddeisvisriva. ia 6,7,39,95,46,
5 5-57
Garza v. Smith, 320 F.Supp. 131
(WD. Tex. 1971) oie renecevicessns 45
TABLE OF AUTHORITIES
(Cont'd)
Georgia v. United States, 411 U.S.
526 (1971) ... ci iment enh nam tnt
Gomillion v. Lightfoot, 364 U.S.
330 £1969)... icv ivaicir mins sitar
Graver Mfg. Co. v. Linde Co.,
336 U.8 271 LYO48) i cnesnrnvcsns
Graves v. Barnes, 343 F.Supp. 704 (W.D.
Tox, 1970) oes icacas vs camnine sven
Gray v. Sanders, 377 U.S. 3533 (1963)
Guinn v. United States, 238 U.S. 347
$1015) A. csr st rasta satire tn
Hadley v. Junior College District,
7 0.8: 50° (1970) cresnnrisn igs sns
Hendrix v. Joseph, 559 F.2d 1265
Bn Th EE Lb a pe en aI
Hendrix v. McKinney, F.Supp.
(M.D, Ala; 1978) . or ceveo-tivnnss
Holt Civic Club v. City of Tuscaloosa,
47 U.S LW. 4008 (1978) .cvvrsnnis
Bunter v. Erickson, 393 U.S. 385
(1000) sat rrr tastes sravareimsssis
Jenkins v. City of Pensacola,
F.Supp. {N.D. Fla., Aug.
Ey 1078) fees ness arses sic nnsses
18, 28
18
41,43,45
60, 81
83, 84,85
64
68
31
TABIeE OF AUTHORITIES
(Cont'd)
Keyes v. School District No. 1,
413 4,5. "189 (1073) “ve is si urs
Kirksey v. Board of Supervisors, 554
B.24 139 {Sth Civ. 1977)... recs.
Lane v. Wilson, 307 U.S. 268 (1939)
Lane v. Wilson, 98 F.2d 980
CIO Cir 1938) |. coco ivr enna
Lucas v. Colorado General Assembly,
377 U.S. 713 (1984)... . os nisviers msgratis
Mayor v. Educational Equality League,
415 0.8. 6805 (1974) +n. esnie cremans
McLaughlin v. Florida, 379 U.S. 184
L196) ccs ¢ rininuine sts ops sasunns + epi sar ats
Nevett v. Sides, 571 F.2d 209
{Oth Cir. 1078) oo ovvcoes issue
N.L.R.B. v. Drivers Local Union,
362 B.S. 279, 01980). ocr snes ccs cir ivin
Oregon v. Mitchell, 400 U.S.
112 (1970) .convrosmmopinms snnnps is
Paige v. Gray, 437 F.Supp. 151
(M.D, Miss, 1975) iu. unsicoine ash
Palmer v. Thompson, 403 U.S 217
30 a RL SE a
58
36
TABLE OF AUTHORITIES
(Cont'd)
Perkins v. Matthews, 400 U.S. 379
C1971) ccna u uriansnocsits
Pollack v. Williams,
322 U.8. & (1984) Javea
Reynolds v. Sims, 377
US. B33-C1964) 1.00, ois sions
Salyer Land Co. v. Tulare Water
District, 409 U.S. 719 (1973)
Sawyer v. City of Mobile, 208
F.Supp. 548 (S.D. Ala. 1963)
Sims v. Baggett, 247 F.Supp. 96
(MD, ALS Q9B3) vs cuir sniaien
Slaughter House Cases, 16 Wall. 36
(1873) eianensniampnolnelnns
Smith v. Allwright, 32) U.S.
649 (1944) Juce vc vee vernninnns
Smith v. Paris, 257 F.Supp. 901
(M.D. Ala. 1968) css. .encses
South Carolina v. Katzembach, 383
U.S. 30141968) 5veeeonneine
Spector Motor Freight Co. v.
McLaughlin, 323
U.S. 101 C1944) 00 Ja itd. 0s
e eo 0 a oo
ee 0 oo
® eo eo oo
PAGE
86
6, 8,37,38,
4+ 7-66
65, 66
73
27
32
86
X2
TABLE OF AUTHORITIES
(Cont'd)
Stewart v. Waller, 404 F.Supp.
208 (X.D, Miss. 19753) ve. ivvvasis,
Swann v. Charlotte Mecklenburg
Board of Education, 402 U.S.
bP C3071) re. cs eicsnosnsbnansnsen
Taylor iv. Georgia, 315 U.S. 251
CRO42) ooene ren sie tense snnnnsnsnns
C1953) ivi iets Sear a a
Thomasville Branch of the NAACP
v. Thomas County, 571 F.2d 257
{5th Cir. I078) |. ih nis iain
United Jewish Organizations v. Carey,
430°U.S. 144 (1965)... uss ny
United States v. Board of Commissioners
of Sheffield, 55 L.Ed.2d 148
(ISTRY it ies cn seat
United States v. Democratic
Executive Committee, 288
F.Supp. %3 (M.D. Ala. 1978) .....
United States v. O'Brien, 391 U.S.
367 C1988) |... cetera
United States v. State of Alabama,
192 F.Supp. 677 {M.D.
Bla. 1961) ......ccvis iii verini
PAGE
31
31
88
46
68
8, 60
18.32,47,
63, 66
32
84
28
TABLE OF AUTHORITIES
(Cont'd)
PAGE
United States v. State of Alabama,
252 F.Supp. 95 (M.D. Ala. 1966) ... 26
Washington v. Davis, 426
BeBe 229 (1976) wecoeicecosisnennens 8,10, 54,
57-61, 86
Whitcomb v. Chavis, 403 U.S. 124
LGTY) acne vns sisi senso 5 anes ns 2,36,37,40-
43,46 ,49-67,
81
White v. Regester, 412 U.S.
755 01973) csi nites 2,6-10,18, 34-
37,43-67,75,
80-82
Williams v. Brown, No. 78=337.4c. wuss ne 76
Wise v. Lipscomb, 57 L.Ed.2d
GLY CYO78) cos cies vis on tiontiss as vio ome » 60,65, 92,93,
85
Wood v. Strickland, 420
U.S. 308 (1975) ... seinsicisie simaivrenis 12
Yick Wo v. Hopkins, 118
U.S. 356 CI898) ..... vse vivecs vn 62, 88
Zimmer v. McKeithen, 485 F.2d
1297 5th Cir. 1973) verses ceceeie 31
- 1x -
TABLE OF AUTHORITIES
(Cont'd)
PAGE
Constitutional Provisions
Thirteenth Amendment to the U.S.
Constitution we ieinmssseerssors sos 87
Fourteenth Amendment to the U.S.
CONSE ALUL ION s,s rsrsnssrossness 16.582,.23
Fifteenth Amendment to the U.S.
CONSEIERLION cose envrsveressnnssi . 2,10,82-0})
Statutes
28 0.8.0. (8134304) i... ..cincucnnncnans 16
Voting Rights Act of 1963, ¢
a 2,4,}¥1-17
Voting Rights Act of 1965, $4 ......... 15
Voting Rights Act of 1965, 35 ....s vee 4,12-16, 32
Ala. Code $31V=43-40 (1875) J. vecennne. | 19
Ala. Code 8311-44-11 019753) 45.) voces bus 20
Ala. Code App. §1247 (216a)
£1374. SUBD. Ya tore eis aces sioninels sis sas ens . 2}
Ala. Code App. $1603 (1966 Supp.) ..... 21
Ala. Acts, 1965 Reg. Sess., No. 823 ..,. 21,30
- Np w=
{
|
|
TABLE OF AUTHORITIES
(Cont'd)
Ala. Acts, 1956 lst Extra. Sess.,
No. 82 .viivviviBecnsnisniene
Ala. Acts, 1956 2d Extra. Sess.,
Noo 18 uses cnndunitss uueidiuite
Ala. Acts, 1956 24 Extra. Sess.,
NO. 38. coiiouio vse itovnisiate s visio av
Ala. Acts, 1956 24 Extra. Sess...
NOG 8] nev nits iontsstasinetiv. sm
Ala, Acts, 1903 Reg. Sess., No. 47 ....
Other Authorities
Cong. Globe, 40th Cong., 3d Sess.
Hearing Before the Subcommittee on
Constitutional Rights of the
Senate Judiciary Committee,
94th Cong., lst Sess. (1975)
Statistical Abstracts d972 ive eines
United States Census, City County
Data Book (1972). «+m sn suemmieies
1970 Census, Characteristics of
Population, iVeolivesosseeeses
United States Commission on
Civil Rights, With Liberty
and Justice for All (1939)...
- x1 -
PAGE
olein ed 30
corer 29
enobiiisin 29
27
we were 88-90
32
> etnies 64
cowie 30,76
cade 66
th end 28
TABLE OF AUTHORITIES
(Cont 'd)
United States Commission on Civil
Rights, Voting 1951) .....0vivess
S. Lawson, Black Ballots: Voting
Rights in the South, 1944-1969
(1976) ® © ® © 0 0 00 0° 0 0 0° 0 0 0° 0 0 0 00 O° 00 0 © 0
Municipal Yearbook: 1978
L. Tribe, American Constitutional
1a £1878) Loerie ais nsa ann snnse
T.H. White, The Making of the
President 1960 (1981) .....ce000e.
Derfner, "Racial Discrimination and
the Right to Vote", 26
Vand. 1. Rev. 323 (1973) ..v0cevss
McLaurin, "Mobile Blacks and World War II:
The Development of Political
Consciousness," 4 Proceedings
of the Gulf Coast History and
Humanities Conf. 47 (1973) ........
Parker, "County Redistricting in
Mississippi: Case Studies in
Racial Gerrymanding"
4o'Mise 7h. J."391 (1973)... ner eve
Shofner, "Custom, Law, and History:
The Enduring Influence of Florida's
Black Code, The Florida Historical
Quarterly=277"CJan. 1977) ¢.. ve cc.
- Xi1 -
28
50
31
26
31
51
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1978
No. 77-1844
CITY OF MOBILE, ALABAMA, et al.,
Appellants,
Vv.
WILEY L. BOLDEN, et al.,
Appellees.
On Appeal From The United States Court Of Appeals
For the Fifth Circuit
QUESTIONS PRESENTED
GF Should this Court overturn the con-
current findings of fact of the two courts below
that Mobile's at-large election system is main-
tained and operated for the purpose of discrimi-
nating against black voters?
2. Did the district court clearly err in
finding that the Mobile's at-large elections
"operate to minimize or cancel out the voting
strength” of blacks in violation of White v.
Regaster, 412 U.s. 755 (1973), and Whitcomb v.
Chavis, 403 U.8. 124 (1971)?
3. Does Mobile's at-large election system
violate the Fifteenth Amendment or section 2
of the 1965 Voting Rights Act?
4. Did the district court err in fashioning
a remedy for the proven violation?
STATEMENT OF THE CASE
Black citizens brought this class action to
challenge the at-large system for electing
Mobile's city commission. The complaint alleged
that the overall electoral structure was main-
tained to discriminate against blacks and that it
permitted a hostile white majority to bar blacks
from effective participation in the political
process. The district judge heard 37 witnesses
during a six day trial, received over 150 docu-
mentary exhibits (including computer analyses of
election returns), and personally toured the city
accompanied by the lawyers for all parties.
In October, 1976, he issued extensive findings of
fact and concluded that the at-large election
of Mobile's city commissioners unconstitutionally
diluted black voting strength, and was invidiously
discriminatory in purpose. J.S. 40b-42b.
Following the failure of a bill to reappor-
tion Mobile in the 1976 state legislature, and
in light of the imminence of city elections in
August 1977, the district court asked the parties
to propose remedial plans. The city defendants
opposed the election of a commission from single-
member districts, and expressed a preference for
a mayor-council form of government if single-
member districts were to be used. The defendants,
however, refused to propose any plan that did not
fully preserve at-large elections, although
agreeing to nominate two persons whom the court
appointed to a three-man advisory committee. The
advisory committee proposed a mayor-council plan
based largely on the mayor-council plan in opera-
tion in Montgomery, an Alabama city of comparable
size. After soliciting further comments from all
parties and from various other Mobile elected
officials, and after making certain modifications,
the district court adopted the committee's single-
member district plan and ordered that it be used
in the 1977 elections. At the same time, the court
offered to dissolve its injunction should the
legislature enact its own constitutional plan,
and it stayed the remedial elections pending
appeal. J.S8. 3d; A. 8.
The court of appeals affirmed the district
court's judgment and findings of fact. It
rejected the city's contention that an election
system may be maintained for a discriminatory
purpose so long as it was originally created for a
racially neutral reason. J.S. 13a-17a.
SUMMARY OF ARGUMENT
i. Section 2 of the 1965 Voting Rights Act
prohibits the use of election practices which
"deny or abridge the vieght . . . to vote on
account of race or color." This should be con-
strued in pari materia with section 5 of that Act
which forbids certain jurisdictions to use new
election practices which will have the 'purpose
or . . . effect" of so denying or abridging
the right to vote. Both sections are concerned
with the same type of denial or abridgement;
section 5 merely establishes special procedures
for new practices in particular states and sub-
divisions.
The meaning of the Act as applied to dis-
tricting plans is well established. Blacks cannot
be subjected to a districting system which would
"nullify their ability to elect the candidate of
their choice." Allen v. Board of Elections,
393: 8.8. 344, .569 (196%)... The courts below
correctly found that Mobile's at-large election
system operated in just that manner.
II. The courts below found that Alabama
had rejected the use of single-member city council
districts in Mobile in order. to prevent the
election of black city officials. The evidence
before those courts included uncontradicted
testimony by members of the state legislature that
this .was the reason for maintaining at-large
elections, as well as a long history of inten-
tional discrimination by Alabama officials against
black voters. At-large plans adopted by the
legislature for electing the state House and
officials of other cities have been invalidated by
other court decisions as racially motivated. This
Court should not disturb the concurrent findings
of fact of the two courts below that the legisla-
ture was also acting from racial motives in
rejecting plans to permit Mobile to use single-
member districts.
The courts below correctly held that a
racially motivated decision to maintain a prac-
tice or procedure violates the Fourteenth Amend-
ment even if the practice or procedure was origin-
ally created for a racially neutral purpose. In
Arlington Heights v. Metropolitan Housing Develop-
ment Corp., 429 U.S. 268 (1977), which establishes
the method of proving racial motivation, the
decision at issue was a refusal to alter a pre-
existing zoning classification.
IIT A. Reynolds v. Sims, 3770.8. 533 (1964),
prohibits the use of election systems which
systematically overweight the votes of one group
while underweighting the votes of another. In
Reynolds that unequal weighting was achieved by
placing voters in districts of unequal popula-
tion. Fortson v. Dorsey, 379. .U.8 433 (1963),
recognized that such unequal weighting could come
about in other ways including, under certain
circumstances, through the operation of an at-
large election system.
White v. Regzester, 412 U.S. 753.:(1973),
presented such circumstances. In that case whites
by voting as a bloc selected and controlled
|
|
\
all the legislators elected at-large from Dallas
and Bexar counties in Texas. The votes of
blacks and Mexican-Americans were thus systemati-
cally nullified. The system was the functional
equivalent of one in which all whites lived in a
district with an excess number of legislators,
while blacks and Mexican—-Americans lived in a
district with no representatives at all. As
a result of this system virtually no blacks or
Mexican-Americans were elected to the legislature,
and the white legislators were unresponsive if not
hostile to the interests of minority voters.
White was not based on the existence of racially
exclusive slating practices; there was no slating
in Bexar county, and the slating in Dallas county
was merely symptomatic of the underlying racial
and political realities.
B. White does not require a showing of
racial motivation in the creation or maintenance
of the at-large system. Fortson and its progeny
repeatedly stated that they applied to at-large
election systems which 'designedly or otherwise"
minimize the voting strength of a disfavored
group. 379 U.S at 433." White itself contained no
discussion of the purposes behind the Dallas and
Bexar county plans. - White, as Reynolds v. Sims,
derives from that branch of Equal Protection law
which prohibits interference with or impairment of
the franchise because it is "a fundamental right."
Washington v. Davis, 426 U.S 229 (1976), on the
other hand, applies to the Equal Protection
prohibition against 'racial classifications", and
only as to that aspect of the Fourteenth Amendment
is proof of racial intent necessary.
This Court has subsequent to Washington v.
Davis repeatedly referred with approval to the
dilution rule of White. Connor v. Finch, 431
. U.S. 407, 422 (1977); United Jewish Organizations
y. Carey, 430 U.S 144, 165, 170, 179 €1977).
OC. The appellants never urged in the lower
courts that White was inapplicable to city elec-
tions, and have thus abandoned the issue. White
should be applied to the election of local govern-
ment officials. Reynolds v. Sims, from which
White stems, applies to such local elections.
Avery v. Midland County, 390 U.S 474 (1968).
Elections of local officials frequently have a far
greater impact on voters than the selection of
state legislators. This Court applied the White
standards to the election of city officials in
Beer v,. United States, 425 U.8.°130, 142 n. 14
(1976).
D. The courts below correctly found that
Mobile's at-large election system operates to
effectively disenfranchise black voters. The
evidence showed, and the district court found,
that whites vote as a bloc against black candi-
dates or white candidates who are supported
by black voters, that no black has ever won an
at-large election in Mobile, that no black candi-
date could do so under the present system, and
that under the all-white city commission Mobile
had engaged in a wide variety of practices dis-
criminating against its black residents. The
record in this case contains the same evidence
deemed sufficient to establish a constitutional
violation in White. The district court's finding
of such.a violation, resting -on: "a blend of
history and an intensely local appraisal of
the design and impact of the [Mobile] multi-member
- 10 -
district in the light of past and present reality,
political and otherwise,'" should be upheld. White
v. Regester, 412 U.S at 769.
IV. The Fifteenth Amendment prohibits the
use of election systems "which effectively handi-
cap exercise of the franchise by the colored race
although the abstract right to vote may remain
unrestricted as to race." Lane v. Wilson, 307
U.S. 268, 275 (1939). Lane does not require any
showing that such barriers were racially motivat-
ed. In view of the fact that the Fifteenth
Amendment singles out the franchise for special
protection, a broader standard is appropriate for
election laws burdening blacks than under the
general prohibition against racial classifications
contained in the Fourteenth Amendment. See
Washington v. Davis, supra.
vy. The district court did not err in
formulating the remedy in this case. Despite the
finding of a violation the defendants refused to
propose or enact a remedy. The defendants did
indicate, however, that if at-large elections were
- 1 =~
to be abolished, they opposed continuation of the
commission form of government and preferred a
mayor-council plan. The district judge therefore
ordered into effect a mayor-council plan based
largely on the mayor-council plan in operation in
Montgomery, Alabama. The court further provided
that its plan could at any time be superseded by
any other constitutional plan authorized by the
legislature. Thus Alabama is free to use a
commission form of government with commissioners
elected from single-member districts, a system
actually utilized in several other states.
ARGUMENT
i MOBILE'S AT-LARGE SYSTEM OF ELECTION
VIOLATES SECTION 2 OF THE 1965 VOTING
RIGHTS ACT
The complaint in this action alleges that
Mobile's at-large election system violates section
2 of the ‘1965. Voting Rights Act. A. 18. "That
provision, codified in 42 U.S.C. §1973, provides:
No voting qualification or prerequisite
to voting, or standard, practice or procedure
shall be imposed or applied by any State or
political subdivision to deny or abridge the
right of any citizen of the United States to
vote on account of race or color.
-12 -
Both courts below noted the existence of this
statutory claim, but neither decided it. J.3,
da=da n. 3; cA, 27. The practice of this Court,
however, 1s to avoid the decision of constitu-
tional issues if it is possible to resolve a
case on Hondonstivus Loasy grounds. Wood v.
Strickland, 420 U.S. 308,:314:(1975); Spector
Motor Co. vi Mclaughlin, 323°-0.5,° 101,% 105
(1944).
Section 2 does not on its face require that a
forbidden practice involve a purpose of denying or
abridging the right to vote. The phrase "on
account of" appears to contemplate some causal
relation between abridgement and the race of the
victim, but does not suggest that that connection
must be a motive to discriminate in the mind of a
legislator. The legislative history of section 2
throws no direct light on the meaning of that
provision.
Elsewhere in the Voting Rights Act, however,
Congress provided a more complete definition of
the types of election practices it sought to
prohibit. Section 5 of the Act, :42 U.S.C.
§1973c, establishes special procedures for review-
ing new election laws and procedures in certain
- 13 -
jurisdictions, providing that such a law and
procedure may not be enforced unless the jurisdic-
tion involved can establish that it "does not have
the purpose and will not have the effect of
denying or abridging the right to vote on account
of. race or color." As used in section. .3.the
phrase '"on account of" cannot refer to legislative
motivation, or section 5 would turn on the pres-
ence of a "purpose or effect of purposefully
denying or abridging the right to vote."
It is unlikely that Congress used the words
Mon account of" in section .2 .in.a.different
sense than they were used in section 5. On the
contrary, section 2 should be construed in pari
materia with section 5. See Erlenbaugh v. United
States, 409.0.8 -239, 243-44 .(1973)..- This Court
has consistently taken account of a later statute
"when asked to extend the reach of [an] earlier
Act's vague language to the limits which, read
literally, the words might permit.” . N.L.R.B, wv.
Drivers Local Union, 362 U.S. 279, 291-92 (1960).
"[I]f it can be gathered from a subsequent statute
in pari materia what meaning the Legislature
attached to the words of a former statute, they
will amount to a legislative declaration of
- iu ~
its meaning. . . ." United States v. Freeman, 3
How. (44 U.S.) 556, 564-63 (1845). These con-
siderations apply with particular force when
construing related portions of a single statute.
In this case section 5 of the Voting Rights Act
should be regarded as identifying with greater
specificity the types of prohibited practices
alluded to more vaguely in section 2.
This construction serves to give to the
Voting Rights Act "the most harmonious, comprehen-
sive meaning possible." Clark v. Uebersee Finanz-
Korp, 332 U.S. 480, 488 (1947). Section 5 is "an
unusual, and in some respects a severe, procedure
for insuring that states would not discriminate on
the basis of race in the enforcement of their
voting laws." - Allen v. Board of Elections, 393
U.S. 544, 558 (1969) (emphasis added). With
regard to new election practices in covered
jurisdictions, section 5 requires approval prior
to implementation, limits approval proceedings to
submissions to the Attorney General or an action
before a three-judge federal court in the District
of Columbia, and places the burden of proof as to
factual issues on the proponents of the proposed
practice. These procedures were fashioned to
- 15 -
shift the advantages of time and inertia from the
perpetrators of the evil to its victims." United
States v. Board of Commissioners of Sheffield, 55
1L..24.24 148, 160 (1978). There is, however, no
reason to believe that Congress also intended to
set a different substantive standard under section
5 than the standard established by section 2 for
old laws in the covered jurisdictions and for new
and old laws in the rest of the country.
If sections 2 and 5 contained different
substantive standards a number of anomalies would
result. Within a state covered by section 5 a
single election law could be valid in ome city and
invalid in another based solely on the date on
which each city put the law into operation. See
Perkins v. Matthews, 400 U.S. 379, 394-95 (1971).
Practices forbidden in section 5 jurisdictions
would be permissible in the other states, even
though the practices had the same purpose and
effect in both instances. Section 4 of the Voting
Rights Act did establish temporarily a narrowly
focused different substantive standard for covered
jurisdictions, prohibiting there the use of
certain specified "tests or devices"; but Congress
in that instance was well aware it was establish-
- 16 =
ing different election rules than existed outside
the South, and it acted to abolish that distinc-
tion five years later by making that ban nation-
wide. Oregon v. Mitchell, 400 U.S 112, 133-34
(1970). This Court should not in the absence of
clear congressional intent read back into the Act
different substantive standards falling along
regional lines.
Once it 1s recognized that the standard for
judging election practices 1s the same under
section 2 as under section 5, the application of
section 2 to. this case is not difficult. Juris-
diction over section 2Z actions is conferred on the
federal courts by 28 U.S.C. §1343(4). Allen v.
Board of Elections, 393 U.S. 544, 554-57 (1969),
holds that section 5 can be enforced by private
actions ; the reasoning of Allen applies a fortiori
to section 2, since the Attorney General is not
expressly authorized to enforce that section,
and absent private enforcement the guarantees of
section 2 might well "prove an empty promise."
393 0.5. at B7.
That the use of at-large elections may have
the effect of denying or abridging the right to
vote under section 5 has been repeatedly recog-
»:l7 -
nized by this Court. City of Richmond v. United
States, 422 U.8.-:358,.-:371. (1975); Ceoxgia v:
United States, 411 :U.S. 526, 332-35 .(1973);
Perkins v. Matthews, 400 U.S 379, 388-91 (1971).
City of Richmond noted that such at-large elec-
tions may do so by '"creat[ing] or enchanc[ing]
the power of the white majority to exclude Negroes
totally from participation in the governing
of the city through membership on the city coun-
cil. 2422 U.S. at- 371. The record;and findings
in this case, which we set out in, detail infra at
pp. 67-82, demonstrate that Mobile's at-large
election system had just such an impact. That
system placed 67, 000 blacks ina district with
122,000 whites, enabling the whites by bloc
voting to consistently exclude from the city
commission not only blacks but even whites who
had revealed an interest in serving the needs of
the black community. The system predictably
resulted in a city government which discriminated
in virtually every phase of its activities
against black residents of the city. This evi-
dence was sufficient to meet plaintiffs’ burden
of establishing a violation of section 2 of
the Voting Rights Act.
- 18 -
Ii. MOBILE'S AT-LARGE SYSTEM OF ELECTION IS
MAINTAINED AND OPERATED FOR THE PURPOSE
OF DISCRIMINATING ON THE BASIS OF RACE
Although the Questions Presented described in
the Jurisdictional Statement and Brief for
Appellants deal primarily with the application of
the dilution rule of White v. Regester, 412 U.S.
755 (1973), the decisions below invalidated
Mobile's at-large method of election based on a
finding of discriminatory intent. J.S. l2a~15a,
30b. The constitutional prohibition against such
racially motivated election schemes is well
established. Gomillion v. Lightfoot, 364 U.S.
339 (1960). Accordingly the first constitutional
issue presented by this appeal is the correctness
of the factual findings of discriminatory intent
made by the lower courts. This Court does not
ordinarily "undertake to review concurrent find-
ings of fact by two courts below in the absence of
a very obvious and exceptional showing of error."
Gravey Mfg, Co, v, Linde Co., 336 U.S. 271, 275
(1949). Appellees maintain that no such unusual
circumstances are present here.
-19- =
An assessment of the factual findings of the
courts below must begin with an understanding of
the history and details of Alabama statutes
regarding the structure of municipal government.
City and town governments fall into three cate-
gories. First, the structure that prevailed
throughout the nineteenth century, and which
continues today, is a mayor-alderman government ;
under this plan the method of electing aldermen
depends on the size of the city and number of
Y/
wards, within it.="A city the size of Mobile
would ordinarily elect most if not all of its
aldermen from single-member districts.2! Second’
since Bll Alabama municipalities have also been
authorized to use the commission form of govern-
ment, under which three commissioners are elected
at large and perform both legislative and ad-
1/ Ala. Code §11-43-40 (1975).
2/ Mobile presently has 31 wards. If it adopted
the mayor-alderman system Mobile would be required
by section 11-43-40 to reduce the number of wards
to no more than 2; the city council would consist
of one member from each of these districts plus a
council president elected at-large.
- 20 -
ministrative functions. 2) alabana general law
permits cities to adopt either the mayor-alderman
or commission form of government by referendum.
Of 420 Alabama cities only 14 presently use the
4/
commission system.— In recent years, however,
the mayor—alderman plan has proved unsatisfactory,
particularly for the larger cities, because the
mayor's powers are too ree ol Accordinaly,
authorization has been sought from the legislature
for a third form of government, a mayor-council
plan with a strong mayor. Instead of adopting
general legislation permitting all municipalities
to choose this plan, however, the legislature has
authorized it only on a case-by-case basis for
particular cities. A mayor-council plan was
3/1 Ala. Code $1l-44-1, et seq. (1975).
4/ The Alabama cities governed by commissions
are Arab, Bessemer, Brundidge, Cherokee, Florence,
Gadsden, Jasper, Madison, Mobile, Muscle Shoals,
Opelika, Troy, Tuscaloosa and Tuscumbia.
The use of the commission form of government
nationally is similarly uncommon. As of 1978 only
114 of 2477 cities over 10,000 used such commis-
sions, less than 57. Municipal Yearbook: 1978,
Table 3.
3/ The most serious problem is that the council
of aldermen can interfere with routine executive
functions. Tr. 349, 1152.
- 21 -
6/
authorized for Birmingham in 1953— and for Mont-
gomery in 1873: ta both cases the city voters
chose in a subsequent referendum to adopt such a
plan in place of the commission form of govern-
ment.
The actions with which the courts below were
primarily concerned were refusals by the legisla-
ture in 1965 and 1976 to permit the people
of Mobile to adopt a mayor-council plan under
which the city council could be elected from
single-member districts. In 1965 the legislature
authorized Mobile to adopt a mayor-council plan,
but expressly considered and refused to allow
Mobilians to opt for single-member distetets.
In 1976 the legislature considered and rejected a
proposal, known as the "Roberts piv, Veo
authorize Mobile to choose a mayor-council plan
with seven single-member districts and two at-
6/ Ala. Code App. §1603 et seq. (1966 Supp.).
1 Ala. Code App. §1247 (216a) et seq. (1974
Supp.) .
8/... Ala. Acts. Beg. Sess. 1965, No..823: sees also
P. Ex. 9%, pp. 40-41.
9/ A. 9, 250, 256,
- 22 -
large council members. In each case, we maintain,
and the courts below found, that the refusal to
allow Mobile to adopt single-member districts was
caused by fear that such districts would permit
the election of black candidates.
In Alabama proposals affecting only one city
are not as a practical matter considered by the
whole legislature. The actual functioning of the
legislature was described in detail by the dis-
trict court:
The state legislature observes a courtesy
rule, that is, if the county delegation
unanimously endorses local legislation
the legislature perfunctorily approves
all local county legislation. The Mobile
County Senate delegation of three members
operates under a courtesy rule that any one
member can veto any local legislation. If
the Senate delegation unanimously approves
the legislation, it will be perfunctorily
passed in the State Senate. The county
House delegation does not operate on a
unanimous rule as in the Senate, but on a
majority vote principle, that is, if the
majority of the House delegation favors local
legislation, it will be placed on the House
calendar but will be subject to debate.
However, the proposed county legislation will
be perfunctorily approved if the Mobile
County House delegation unanimously approves
it. J.S. 29b~30b.
- 23 -
Thus the decisions to forbid Mobile voters to
choose a plan with city councilmen elected
from single-member districts were made by the
Mobile legislative delegation.
The evidence before the district court
included direct testimony by members of the
Mobile legislative delegation who were in office
when single-member council districts were rejected
in 1965 and 1976. Robert S. Edington, who served
in the Alabama legislature from 1962 to 1974,
testified candidly about the reason for rejecting
such districts in 1965:
Q. Why was the opposition to single member
districts so strong?
A. At that time, the reason argued in the
legislative delegation, very simply was this,
that if you do that, then the public is going
to come out and say that the Mobile legisla-
tive delegation has just passed a bill that
would put blacks in city office. Which it
would have done had the city voters adopted
the Mayor Council form of government. P.
Ex. 98, p. 43.
Senator Roberts testified that in 1976, even
though the Mobile delegation was well aware that
blacks could not be elected or 'be able to elect
candidates of their choice" if only multi-member
- 24 r=
districts were used, a white State Senator from
Mobile had vetoed the Roberts proposal to
create some single-member districts. A. 255-58.
Representative Gary Cooper was ''relatively cer-
tain" the Roberts Bill had been opposed in the
legislature because "it would allow the possi-
bility for blacks to hold public office in the
City government". P. Ex. 99, p. 20. Represen-
tative Cain J. Kennedy explained that the prospect
of blacks winning public office was the primary
area of legislative concern regarding 1975 pro-
posals for single-member district elections for
the school board and county commission. P. Ex,
100, pp. 29-30. Such direct testimony about the
statements and motives of the legislators who made
the actual decisions in 1965 and 1976 was "highly
relevant." Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 268
£1977).
The direct evidence was supported by the
evidence and the district court's conclusions that
[4
the impact of the decision to reject single-
member districts bore ''more heavily on one race
than another." Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. at 266. No
i
- 25 -
black has ever been elected to the at-large
commission, and no black has ever won any at-large
election in Mobile City or County. Numerous
witnesses familiar with the local political and
racial situation in Mobile testified that no
black could win such an at-large election iV rue
district court concluded:
Black candidates at this time can
only have a reasonable chance of being
elected where they have a majority or a near
majority. There is no reasonable expectation
that a black candidate could be elected in a
city-wide election because of race polariza-
tion... J.S. 10b.
Thus the effect of barring the adoption of single-
member council seats, an effect of which the
legislators were well aware, was to prohibit the
election of blacks to city office in Mobile.
That that prohibition was the purpose, and
not merely the effect, of the legislative deci-
sions of 1965 and 1976 is also confirmed by the
long and deplorable history of discrimination in
voting by Alabama officials. The Alabama Con-
10/ See n. 41, infra.
- 26 -
stitutional Convention of 1901 enacted a number of
measures intended to disenfranchise blacks,
including a poll tax, a literacy test, “and
education, employment and property qualifica-
tions. Those requirements were so effective that
by the end of World War II only 275 blacks were
registered in Mobile County, compared to 19,000
Whites. sil tateed States v. State of Alabama, 252
F.Supp. 95 (M.D. Ala. 1966), held that the purpose
of these measures was to subvert the Fourteenth
and Fifteenth Amendments, and declared the poll
tax invalid because of the discriminatory intent
behind 30. 220, 1903 the legislature authorized
11/ P. Ex. 2, Mclaurin, "Mobile Blacks and World
War II: The Development of a Political Conscious-
ness," 4 Proceedings of the Gulf Coast History and
Humanities Conf. 47, 50 (1973).
12/ One convention delegate explained:
"* * * We want the white man who once voted
in the state and controlled it to vote again. We
want to see that old condition restored. Upon
that theory we took the stump in Alabama having
pledged ourselves to the white people upon the
platform that we would not disfranchise a single
white man if you trust us to frame an organic law
for Alabama, but it is our purpose, it .is our
intention, and here 1s our registered vow to
disfranchise every Negro in the state and not a
single white man." 252 F.Supp. at 98.
-27 -
political parties to exclude voters from primary
elections on the basis of race 23 the state
Democratic Party adopted an all-white primary
which remained in effect until well after Smith v.
Allwright, 321 U.S. 649 (1944). In W946 the state
adopted a measure requiring voters to interpret
any provision of the Constitution; three years
later it too was struck down as an unconstitu-
tionally motivated "contrivance by the State
to thwart equality in the enjoyment of the right
to vote by citizens of the United States on
account of race or color". Davis v. Schnell, 8
F.Supp. $72,879 (8.D. Ala. 1949), aff'd 336 U.S.
933 (1949). Discriminatory application of regis-
tration requirements continued as a brutally
effective method of excluding blacks until adop-
13/ = Ala. Acts, 1903 Reg. Sess., No. 47, § 10.
- 28 =
tion of the Voting Rights Act of 1965.34 men
increased black registration appeared inevitable,
Alabama officials resorted to more sophisticated
measures to effectively disenfranschise blacks.
In 1957 the legislature gerrymandered virtually
all blacks out of the city of Tuskegee; this Court
held that such a clear "impairment of voting
rights" could not be accomplished by cloaking it
"in the garb of the realignment of political
subdivisions." Gomillion v. Lightfoot, 364 U.S.
339, 345 (1960).
Mobile itself was the subject of special
legislative attention. By 1956, despite the
variety of discriminatory measures then in force,
14/ See, e.g., United States Commission on
Civil Rights, With Liberty and Justice for All,
pp. 59-75 (1959); United States Commission on
Civil Rights, Voting, pp. 23-28 (1961). A list of
injunctions in force against Alabama officials is
set out in Sims v. Baggett, 247 F.Supp. 96, 108,
n.24 (M.D. Ala. 1965). See also State of Alabama
Vv. United States, 192 F.Supp. 677 (M.D. "Ala.
1961), aff'd 304 F.2d 583 (5th''Cir.), aff'd
371 U.S. 37 C1962).
- 29 -
14% of Mobile's voting age black population was
registered. A. 574. With fear of desegregation
a burning political issue in the wake of Brown v.
Board of Education, 37 U.S 483 (1954), and with
the Eisenhower Administration pressing for enact-
ment of what was to become the Civil Rights Act of
B57, special sessions of the Alabama legislature
sought to preserve the state's segregationist
policies. The legislature enacted proposed con-
stitutional amendments to authorize legislation
establishing private, racially segregated schools’
and transferring public recreational facilities to
6/ : 1 :
private control— Resolutions were adopted
denouncing Brown itself and proclaiming Alabama's
"deep determination' to preserve its long estab-
7/
lished discriminatory policies ib Along with
15/ Ala. Acts. 1956 1st Extra. -Sess., Ro.” 82.
16/: Ala. ‘Acts. 19536 2d Extra. Sess. ; No." 67,
17/- Ala. Acts. 1956 28 Extra. Sess., No. -38.
- 30 -
this avowedly racist program, the legislature
adopted a statute annexing to Mobile several
substantial white suburbs, thus tripling its total
area, but carefully excluding two nearby black
8/
aeighborhoods 23 But for this annexation the
1970 population of Mobile would have been 547%
black, compared to the 35% minority within the
19/ Cf. City of
Richmond v. United States, 422 U.S. 358 (1975).
In .1965 the legislature adopted a local
present enlarged boundaries.
tae mandating the allocation of specific
executive functions to each of the Mobile commis-
sioners; the Attorney General, acting under
section 5 of the 1965 Voting Rights Act, inter-
posed an objection to this statute on the ground
18/. Ala. Acts, 1956 24. Extra. Sess., No. 18,
These neighborhoods had originally been included
in the bill when, as required by state law, its
contents were advertised in the local papers.
Mobile Register, March 2, 1956, p. lA.
19/ The annexed area is the southwest section
of the city boardered by Interstate 10 on the
north and Interstate 65 on the east. The 26
census tracts in this area have a population
of 70,689, of whom 67,414 are white. The total
population of the city is 189,986, of whom
122,100 are white. United States Census, City
County Data Book, p. 630 (1972).
20/ Ala. Acts, 1965 Reg. Sess., No. 823.
- 31 -
that it would as a practical matter preclude the
election of commissioners from single-member
districts. J.8. 3a, n.2
In recent years the principal device used to
disenfranchise Alabama blacks has been the crea-
tion or maintenance of multi-member districts
which submerge large concentrations of black
voters .2/ Perkins Vv. Matthews, 400 1D.S. 379, 23839
(1971). In 1965 the legislature created a number
of multi-county multi-member districts for elect-
ing the state House; they were struck down as
racially motivated in Sims v. Baggett, 247 F.Supp.
96 (M.D. Ala. 1965). Hendrix v. McKinney,
21/ The shift to at-large election schemes as a
fallback against the growing numbers of newly
enfranchised blacks 1s characteristic of other
Southern states as well. See Zimmer v. McKeithen
485 F.2d 1297, 1304. (5th. Cir. 1973)(en banc),
aff'd sub nom., East Carroll Parish School
Bd. v. Marshall, 424 U.S. 636 (1976); Jenkins v.
City of Pensacola, F.Supp. {N.D. Fla.,
Aug, 11, 1978); Paige v. Cray, 437 F.Supp. 151
(M.D. Ga. 1977); Stewart v. Waller, 404 F.Supp.
206 (N.D. Miss. 1975); Derfner, "Racial Discrimi-
nation and the Right to Vote," 26 Vand. L. Rev.
523, 552-53 (1973); Parker , "County Redistricting
in Mississippi: Case Studies in Racial Gerry-
mandering,” 44 Miss... L. J. 391 (1973).
- 32 -
F.Supp.” = UAM.D. Ala. 197%), held that the
at-large plan for electing the Montgomery County
Commission was adopted by the legislature in 1957
“to dilute black voting strength”. F.Supp. at
Proposals to elect Democratic party offi-
cials at-large were found to have a discriminatory
purpose in United States v. Democratic Executive
Committee, 288 F.Supp. %3 (M.D. Ala. 1968), and
Smith v, Paris, 257 F.Supp. 901 (M.D. Ala. 1966),
aff'd, 326 F.24 979 (5th Cir. 1967). Acting under
section 5 of the Voting Rights Act, the Department
of Justice has disapproved a series of Alabama
statutes to create new at-large districts on the
ground that they had the purpose or would have the
effect of discriminating on the basis of vies 22)
The historical background of the 1965 and
1976 decisions thus reveals "a series of official
actions taken for invidious purposes’. Arlington
Heights v. Metropolitan Housing Development
Corp., 429 U.8 at 267. Indeed, that history
includes one of the same official actions which
22/ Hearing Before the Subcommittee on Constitu -
tional Rights of the Senate Judiciary Committee,
9th Cong., "lst Sess., p. 398 (1975); see also
United States v. Board of Commissioners of Shef-
field, 55 L.Ed.24 148 (1978),
- 33 -
Arlington Heights cited as an example of such a
history of discrimination, 429 U.S. at 267, citing
Davis v. Schnell, and involves the same discrimi-
natory device at issue in this case.
In light of this evidence the courts below
properly concluded that the decisions of 1965 and
1976 were racially motivated. The district court
held:
The evidence is clear that whenever a redis-
tricting bill of any type is proposed
by a county delegation member, a major
concern has centered around how many,
if any, blacks would be elected. These
factors prevented any effective redistricting
which would result in any benefit to black
voters passing until the State was redis-
tricted by a federal court order. JS.
30b.
The Fifth Circuit noted the existence of "direct
evidence of the intent behind the maintenance of
the at-large plan". J.8. l4a. lt concluded that
“the district court's findings are not clearly
erroneous", J.S. 12a, and that they support its
conclusion that "invidious discriminatory purpose
was a motivating factor" in the maintenance of
- 34 ~-
Mobile's at-large election scheme. J.S. 154. 23/
The court of appeals properly held that a law
which is maintained for a discriminatory purpose
is unconstitutional regardless of the motive
which led to its original enactment. J.S. l13a-
l4a. Arlington Heights itself recognized that a
racially motivated decision to maintain the zoning
classification of a particular lot would violate
the Fourteenth Amendment regardless of the origin
of that .classification. 429 U.S. ar 257-58,
268-71 n.17. 1In this case we have, not unex-
plained and perhaps unconsidered legislative
23/ In a companion case, Nevett v. Sides, the
court of appeals noted that much of the evidence
which would support a finding of dilution under
White v, Regester, :412 U.S. 755 (1973), would
also be evidence of a discriminatory purpose in
establishing or maintaining the at-large system.
5721 F.24 209, 222-25 {5th Cir. 1978)... Nevett
suggested that "under proper circumstances’
evidence sufficient to establish dilution might
also be sufficient to establish a prima facie case
of intentional discrimination. 571 F.2d at 223.
What those circumstances might be was not decided
by the court of appeals. Neither is that issue
presented by the instant case, since, as the Fifth
Circuit noted, J.S. 14a, the record in this
case contains an array of other types of evi-
dence, both direct and circumstantial, of dis-
criminatory intent.
- 35 -
inaction, but two affirmative and express legisla-
tive decisions. The first is the adoption of a
statute in 1965 from which the possibility of
single-member districts was intentionally excluded.
The second is the de facto veto by a single state
senator of a single-member council plan. So long
as the motivation involved is impermissible,
no ground exists for distinguishing these legis-
lative actions from others to which the Fourteenth
and Fifteenth Amendments apply.
This case well illustrates the widsom of the
two court rule. The evidence in the record would
be sufficient to require a finding of discrimina-
tory motive even 1f this Court undertook to
reconsider that issue de novo. But the decisions
of the courts below, especially that of the
district court, involve more than the review of a
cold record. In conducting the ''sensitive in-
quiry" contemplated by Arlington Heights, the
district judge was able to bring to bear an
understanding of local political, legislative and
racial realities born of years of legal, judicial
and practical experience in the state. He was
able to assess the demeanor of the witnesses who
testified with direct personal knowledge of the
- 36
motives of the legislature. Both courts below
were able to weigh the evidence with a sensitivity
to the continuing problems in states with long
histories of de jure segregation. No judge
lightly undertakes to enter a finding of inten-
tional discrimination; the decision in a case such
as this 1s invariably tempered by a desire not to
impugn the motives of local public officials.
When a district judge 1s compelled to conclude
that those officials have acted from racial
malice, and does so on a record as substantial
as that in the instant case, that conclusion is
entitled to the "great weight . . . accorded
findings of fact made by district courts in cases
turning on peculiarly local conditions and circum-
stances.” Mayor v. Educational Equality League,
415 U.S..603,. 621 .n.20.01974).
II. THE DISTRICT COURT CORRECTLY APPLIED
THE PRINCIPLES OF WHITE v. REGESTER
AND WHITCOMB v. CHAVIS
In affirming the district court finding of
unconstitutionality the court of appeals relied on
the district court finding of purposeful discrimi-
- 37 =
nation. J.S., 12a~15,, The district court had
also found that Mobile's at-large plan impermis-
sibly diluted the votes of black residents in
violation of White v. Regester, 412 U.S. 755
(1973), and Whitcomb v. Chavis, 403 U.S. 124
(1971). J.8. -22b, 33b~34b. The court of appesls
upheld those findings of fact as well, agreeing
that they "amply support the inference that
Mobile's at-large system wunconstitutionally
depreciates the value of the black vote." J.S.
12a. The court of appeals, however, thought that
a violation of White required a finding of dis-
criminatory purpose. J.S. 2a. Appellees maintain
that White prohibits at-large plans that have such
effects regardless of the motivation behind them;
accordingly we urge that these findings afford an
alternative ground for affirmance.
A. The Legal Standard Established By
White and Whitcomb
The dilution standard applied in White and
Whitcomb derives from the one-person, one-vote
rule of Reynolds v. Siws, 377 U.S. 533 (1964),
n Reynolds proceeded from the principle that "any
alleged infringement of the right of citizens to
- 38
vote must be carefully and meticulously scrutin-
ized" because "the right to exercise the franchise
in a free and unimpaired manner is preservative of
other basic civil and polizical rights.” ..377
U.S. at $1. In Reynolds, also an Alabama case,
there were no formal or party barriers to voting.
But this Court held:
There is more to the right to vote than
the right to mark a piece of paper and drop.
it in a box or the right to pull a lever in a
voting booth. The right to vote includes the
right to have the ballot counted.... It also
includes the right to have the vote counted
at full value without dilution or .4dis~
count. ... That federally protected right
suffers substantial dilution ... [where a]
favored group [h]as full voting strength
[and] the groups not in favor have their
votes discounted. 377 U.S. “at” 35 n.19.
Nothing on the face of the districting plan in
Reynolds demonstrated such unequal weighting of
votes, but evidence regarding the population of
the state senate districts proved that such
inequalities existed. 377 U.S. zt. 58-370.
Only six months after Reynolds this Court
recognized that population differences were not
the only way in which a facially neutral district-
- 39 -
ing plan might undervalue the votes of some and
overvalue the votes of others. Fortson v. Dorsey,
379 U.S. 433 (1965), held that the use of multi-
member districts was not unconstitutional per se
merely because at-large voting "could, as a matter
of mathematics, result in the nullification of the
unanimous choice of the voters" of an area large
enough to constitute a single-member district.
379 U.S. at 433. Bur, PFortson warned:
It might well be that, designedly or other-
wise, a multi-member constituency apportion-
ment scheme, under the circumstances of a
particular case, would operate to mini-
mize or cancel out the voting strength
of racial or political elements of the
voting population. When this is demonstrated
it will be time enough to consider whether
the system still passes constitutional
muster. 379 U.S. at 439.
In such a case a 60% majority, if it voted as a
bloc, could control the selection of 100% of the
at-large officials; the votes of the majority
would carry full weight, while the votes of the
minority would have no value whatever. It would
be the functional equivalent of a scheme in which
the 60% majority resides in a district with
more representatives than were warranted by the
EY om
population of the district, while the 40% minority
lived in a district with no representatives at
all.
The next year Burns v. Richardson, 384 U.S.
73 (1966), held that a scheme which in fact "would
operate to minimize or cancel out the voting
strength of racial or political elements of the
voting population'" would "constitute an invidious
discrimination,” 384 U.S. at 88, but concluded
that the multi-member plan in that particular case
had not been shown to have such an "invidious
result." 384 U.S. at 88-89. Burns noted that
there was no evidence in the record in that case
that the disputed plan, under the local conditions
there involved, would "by encouraging bloc voting
diminish the opportunity of a minority ... to
win seats.” 384 U.S. at 88 n.l4.
The first detailed consideration of the
dilution standard came in Whitcomb v. Chavis, 403
U.S. 124 (1971), where the Court rejected a claim
that a multi-member plan for electing state
legislators in Marion County, Indiana, would
operate to minimize the voting strength of black
voters. The Court held that the requisite mini-
mizing effect had not been proven. Whitcomb
“4 -
emphasized that, as in Burns, black candidates
had not lost because of bloc voting against
blacks, but because of ordinary partisan voting.
403 U.S. at 134 n.}l;, Blacks had been regularly
nominated by both the Democratic and tje Republi-
can parties, and had lost, when they did, only
when their entire party slate went down to defeat.
403 U.S. at 150 n.30, 152-53.2% hus direct
evidence demonstrated that minority voters had not
been disenfranchised by majority bloc voting
against minority candidates.
Whitcomb noted that this direct evidence was
confirmed by other evidence regarding the politi-
24/ It appeared that in 99% of all elections
since 1920 no candidate had lost when the rest of
his or her party's slate prevailed. Chavis v.
Whitcomb, 305 F.Supp. 1364, 1385 (S.D. Ind. 1969).
The importance of partisan rather than racial
considerations is underlined not only by the fact
that blacks often won in the majority-white
multi-member districts, but also by the fact that
black voters voted against even black Republican
candidates. Graves v. Barnes, 343 F.Supp. 704,
727 nn. 13 (3.D. Tex. 1970).
fi) -
cal and racial realities in Marion county. First,
minority candidates were not totally excluded from
the legislature or kept at nominal levels;
on the contrary, nine blacks had in fact been
elected to the legislature from the at-large
district between M960 and 1968. They had won on
their own strength, not as tokens appointed and
controlled by white officials. 403 U.S. at 150
n.29. These electoral victories were inconsistent
with the hypothesis that the white majority was
regularly electing slates composed solely of white
legislators catering only to white concerns.
Second, there was no evidence or finding that the
white legislators were unresponsive to the needs
and interests of their black constituents. 403
U.S. at 152, 153-4, 155 n.32. Such responsiveness
might have been expected if the political and
racial realities had resulted in an undervaluation
of black votes. Third, there was no evidence of a
history of official discrimination likely to
generate or reinforce the sort of racial attitudes
that would result in bloc voting against candi-
dates from, or supported by, the black community.
The record revealed no incidents of public or
private discrimination for several decades prior
- 43 -
to the disputed elections, and the state had had a
civil rights law since 1885. Graves v. Barnes,
343. .Z.8upp..-704, 727. n.,18 {H.D. Tex. 1972).
White v. Regester,: 412-.U.8. 7755 (1973),
presented the kind of evidence found absent in
Burns and Whitcomb. White held that the use of
multi-member districts had operated to '"cancel
out or minimize the voting strength of racial
groups’ in Bexar and Dallas counties in Texas.
There was direct evidence of bloc voting by whites
in Bexar County; oot in Dallas the existence of
bloc voting was indicated by the successful use of
"racial campaign tactics in white precincts to
defeat candidates who had the overwhelming support
of the black community." -White v. Regester, 412
B.S. .at. 767.
This direct evidence of the differing value
of black and white votes was confirmed by other
evidence. The multi-member system resulted in
near total exclusion of minority legislators.
25/ "The record shows that the Anglo—Americans
tend to vote overwhelmingly against Mexican—Ameri-
can candidates
F.Supp. at 704.
.! Craves v. Barnes, 343
-44 -
During the previous century only two blacks had
ever been elected from Dallas and only five
Mexican-Americans from Bexar county. Graves v.
Barnes, “343 VP.Supp.” at "726 n.l7, 732." This
pattern could not be explained as a result of
partisan voting; in both counties winning the
Democratic nomination usually guaranteed election
to the legislature, and the exclusion of minority
candidates had occurred in the Democratic pri-
azey 2S The district court found that the white
legislators were comparatively unresponsive to the
needs of minority residents of their districts,
White v. Regester, 412 U.S at 767, 769; it noted,
for example, that "[s]tate legislators from Dallas
County, elected county-wide, led the fight for
segregation legislation during the decade of the
1950's." Graves v, Barnes, 343 F.Supp. at 726.
All this occurred in a state with a long history
of official discrimination against blacks and
Mexican-Americans, a policy well calculated to
produce the racial bloc voting by whites of which
the plaintiffs complained. White v. Regester,
26/ No Republican had been elected to the House
from Bexar county since 1880. Graves v. Barnes,
343 F.Supp. at 731.
«45
412.U.8. ‘at 767-68; Craves v. Barnes, 343. 8S.Supp.
at:725,:726,' 727=731; :
Appellants urge that White holds only that
multi-member districts are unconstitutional
when there 1s an organized slating process which
is controlled by whites, which virtually never
slates black candidates or candidates favored by
the black community, and which effectively deter-
mines the outcome of the elections. Brief for
Appellants, pp. 8, 22, 23. But White struck down
multi-member districts in Bexar County where there
was no slating process whatever. Graves v.
Barnes, 343 F.Supp. at 731.2 he slating prac~
tices that existed in Dallas were merely symptoma-
27/ Appellants suggest that the decision regard-
ing Bexar County stemmed from the fact that there
were unconstitutional restrictions on registration
and voting by minority voters. Brief for Appel-
lants, p. 22 n.25. But those practices had ended
a year before the district court decision and two
years before the decision of this Court. Breare
v, Smith, 321 F.Supp. 1110 (5.0. Tex. 1971); Garza
v. Smith, 320 F.Supp. 131 (W.D. Tex. 1971). No
decision of this €ourt suggests that multi-member
districts should be struck down wherever there is
a recent history of discrimination in voting; such
a rule would preclude the use of such schemes in
most of the South. Had that been the rule contem-
plated by Fortson, that decision, arising in
Georgia in B64, would have struck down multi-
- 56 =
tic of the underlying racial situation, a formali-
zation of the process ordinarily achieved by white
bloc voting alone. In the absence of white bloc
voting, no slating process which systematically
excluded both minority candidates and white
candidates sympathetic to the needs of the minor-
ity community could long have survived in a county
that is 25% non-white. If White had turned on the
exclusion of blacks from the slating process --
there equivalent to election -- it would have
relied, not on Fortson, Burns and Whitcomb, but on
the prohibition against racially closed nominating
processes announced in Terry v. Adams, 345 U.S.
481 (13953),
White also recognized that the factual ques-
tions presented in such a case require "an in-
tensely local appraisal" of the evidence by the
district judge, who inevitably brings to the case
a personal familiarity with local history and
"past and present reality, political and other-
27/7 Cont'd
member districts throughout the state, since
discrimination against black voters was far more
virulent and open there and then than the prac-
tices that continued in Texas in 1970.
- 47 -
wise." #412 U.S. at 768-770. The district court
must assess the existence and impact of white bloc
voting, and weigh the significance of other less
direct evidence of dilution. White perceived that
these are issues often difficult to resolve on a
cold record.
The concept of dilution applied in White and
Whitcomb 1s neither amorphous nor unfamiliar
to this Court. The same concept has been re-
peatedly utilized by this Court in assessing
redistricting plans subject to section 5 of the
Voting Rights Act. Allen v. Board of Elections,
393 U.S. 544, 569 (1969); Perkins v. Matthews, 400
U.8. 379, 388-391 (197)); Ceorzia v., United
States, 411 U.8. 526, 1532+35:(1973); Cityiof
Richmond v. United States, 422! U.8..:358 (1975);
Beer v,. United States, 425 U.S. :130 (1976);
cf. United States v. Board of Commissioners of
Sheffield, 55 L.Ed.2d 149, 161 (1978). Georgia v.
United States relied on Whitcomb as demonstrating
that multi-member districts have ''the potential
for diluting the value of the Negro vote". 4l1
U.S. at. : 533. It relied as well on Reynolds v.
Sims, 411 U.5. at 532, as did Perkins, 400-V.8.
- 48 =
at 390. Allen, also relying on Reynolds, noted
that placing black voters in a majority white
at-large district, could "nullify their ability to
elect the candidate of their choice just as would
prohibiting some of them from voting." 393 U.S.
at 569. Such a system of electing a city govern-
ment, City of Richmond noted, '"created or enhanced
the power of the white majority to exclude Negroes
totally from participating in the governing of the
city through membership on the city council." 422
U.S.a8 371.
The uses of the dilution standard under White
and section 5, however, differ in two ways. First,
section 5 applies only to new redistricting plans
which increase the degree of dilution, Beer v.
United States, 3523 U.S. at 139-142, while White
prohibits the use of even old districting plans so
long as the degree of dilution is sufficient to
substantially undervalue black votes. Second, in
a section 5 proceeding the burden of establishing
the absence of increased dilution is on the city
or state seeking to enforce a new plan, whereas
under White the opponent of multi-member dis-
tricting bears the burden of proof.
- 49 -
Appellants apparently regard racially polar-
ized voting by white residents of Mobile, a prac-
tice at times actively encouraged by white offi-
ciate ius a: normal part’ of the political
process indistinguishable from voting on party
lines. Brief for Appellants, p. 31. Both the
Constitution and the decisions of this Court
properly treat that distinction as of paramount
importance. The franchise is a valuable right
because it can be exercised to decide "issue-
oriented elections.'" Whitcomb v. Chavis, 403 U.S.
at 159... But that right is rendered nugatory if
candidates are regularly defeated, not because of
their ideas or ideology, but because of the color
of their skin or of that of their supporters. In
- this case the record shows that the overwhelming
majority of white voters in Mobile consistently
vote against any black candidate regardless of his
9/ a ' 2 :
or her policies or merits.— That 1s a burden
which is not now, and historically rarely has
28/ Seep. 19, infra.
29/ See pp. 69-71, infra.
- 50 -
been, inflicted on any other ethnic, religious, or
national group other than blacks and Mexican-
pverieons 2 vate voters are entitled to cast
their ballots on any basis they may please,
including that of race. But they are not entitled
to have the state maximize the impact of racially
based votes by means of at-large elections.
The rule of White and Whitcomb, though
originating in Reynolds v. Sims, has several
alternative foundations. Anderson v. Martin,
375 U.S. 399 (1964), held that a state could not
"encourage its citizens to vote for a candidate
solely on account of race" by placing on its
30/ In 1960, for example, despite the immense
publicity and concern about President Kennedy's
religion, he received about 40% of the Protestant
vote. More than 1 out of 2 votes for President
Kennedy was cast by a Protestant voter. T.H.
White, The Making of the President 1960, p. 400
(1961).
- 5 {ne
ballots the race of each candidate. 375 U.S.
at 404. Neither can a state enforce an elec-
tion scheme which operates to maximize the im-
pact of racial voting by whites. Where, as here,
racial voting has its roots in a century of
officially practiced and advocated discrimination,
such a scheme perpetuates the effect of that past
discrimination ailtvann v. Charlotte Mecklenburg
Board of Education, 402 U.S. 1, 28 (1971). :én
election system which "places special burdens on
a racial minority within the governmental process
is no more permissible than denying them the
vote.” Hunter v, Erickson, 393 U.S5. 385, 39]
(1969). Here, as in Hunter, "although the law on
its face treats Negro and white . . . in an identi-
cal manner, the reality is that the law's impact
falls on the minority." 393 U.S8..at 391.
Reynolds and its progeny prohibit a state
from maintaining an election system which values
the votes of one group of voters higher than that
of another group, and recognize that this for-
31/ See, Shofner, "Custom, Law, and History: The
Enduring Influence of Florida's Black Code," The
Florida Historical Quarterly 277 {(Jan..1977).
- 52 -
bidden result may occur in a variety of Ways 2
White and Whitcomb hold that a plaintiff may
establish the existence of this proscribed
unequal valuation by proving that the overall
structure of a multi-member district system
operates to so maximize the weight of a bloc
voting white majority that the votes and electoral
preferences of the non-white minority are consis-
tently nullified. Such a system is the func-
tional equivalent of one in which whites reside in
a district which has an excess number of elected
representatives while blacks are relegated to a
district which has no representatives at all.
Reynolds does not require that a group be
totally disenfranchised, but only that its votes
are not given equal weight. In a malapportionment
case it 1s possible to assess with some precision
the weight given to each ballot. This precision
Of calculation is not feasible in a dilution
32/ This case presents no issue regarding when
such a forbidden result would be caused by a mixed
system of single-member and at-large districts or
by an array of single-member districts which
systematically divided a substantial non-white
community among a number of majority white dis-
tricts. Ses Beer v. United States, 425 U.S. 130,
142 n.14 (1976).
- 53 -
case under White and Whitcomb; thus a showing of
a fairly gross disparity in the weight attached by
the election system to the votes of white and
black voters will ordinarily be necessary to meet
the plaintiff's burden of proof. White and
Whitcomb do not guarantee proportional representa-
tion for blacks or any other group. If black
candidates or white candidates supported by black
voters are defeated by ordinary partisan con-
siderations and voting, Whitcomb holds that no
unconstitutional dilution of black votes is shown.
Where whites do not usually vote as a bloc, an
isolated incident in which a black or a black-sup-
ported candidate is defeated by white bloc voting
would not be sufficient to prove dilution under
- White.
B. The Irrelevance of Intent Under
White and Whitcomb
In a companion case below the court of
appeals considered whether a showing of discrimi-
natory motivation was required under Whitcomb and
-Sl -
White. Nevet: v. Sides, 571 F.24 209, 217-225
(5th Cir. 1978). This aspect of Nevett was
expressly incorporated into the decision in the
instant case. J.S. 2a. A majority of the court
of appeals in Nevett held that such intent was
necessary in light of Washington v. Davis, 426
U.S. 229 (1976); Judge Wisdom disagreed, conclud-
ing instead that proof of intent was not required
under White and Whitcomb, 571 F.2d. at 231-38, as
had an earlier en banc Fifth Circuit decision.
Kirksey v. Board of Supervisors, 554 F.2d 139, 148
{5th Cir. 1977), cert. den. 434 U.S. "%8 (1977).
Appellees maintain that this aspect of the Fifth
Circuit's majority opinion was erroneous. We
brief this issue since it bears on whether Whit-
.comb and White provide an alternative ground for
affirmance.
Insofar as appellants or the court below
suggest that White and Whitcomb required proof
of discriminatory intent prior to Washington v.
Davis, the opinions of this Court clearly demon-
strate the contrary. The dilution rule was first
- 55 -
suggested by Fortson v. Dorsey, 379 U.S. 433
(1965), which indicated this Court would invali-
date a plan if
designedly or otherwise, a multimember
constituency apportionment scheme, under the
circumstances of a particular case, would
operate to minimize or cancel out the voting
strength of racial or political elements of
the voting population. 379 U.S. at 433
(emphasis added).
purns v, Richardson, 384 U.S. 73, 83 (1966),
quoted this passage, and then in its own language
emphasized that either discriminatory intent or
dilution was sufficient to invalidate a multi-
member district plan, although neither had been
proved on the record in that case.
[T]he demonstration that a particular
multi-member scheme effects an invidious
result must appear from evidence in the
record. In relying on conjecture as to the
effects of multi-member districting rather
than demonstrated fact, the court acted in a
manner more apropriate to the body respons-
ible for drawing up the districting plan.
Speculations do not supply evidence that the
multi-member districting was designed to have
or had the invidious effect necessary to a
judgment of the unconstitutionality of the
districting. 384 U.S. at 88-89 (emphasis
added).
«56, =
A legislature's proposed remedy, Burns added,
could only be rejected if it "was designed to or
would operate to minimize or cancel out the voting
strength of racial or political elements of the
voting population." 384 U.S. at 89 (emphasis
added).
Whitcomb v. Chavis noted at the outset that
there was no suggestion that the multi-member
districts in that case ''were conceived or operated
as purposeful devices to further racial or
economic discrimination. As plaintiffs concede,
'there was no basis for asserting that the
legislative districts in Indiana were designed to
dilute the vote of minorities.'" 403 U.S. at 149.
With the intent issue thus disposed of, the
Court turned to an exhaustive discussion of
whether the evidence established unconstitutional
dilution under Fortson, 403 U.S. at 149-160, and
the balance of the opinion is concerned solely
with the impact of the Marion County multi-member
district. This part of the opinion would have
been irrelevant, if not unintelligible, if the
Court had thought that the absence of discrimina-
tory intent was dispositive of the case. Abate v.
Mundt, 405 U.S. 182, 185 n.2 (1971), decided the
ne
- 57 -
same day as Whitcomb, held that multi-member plans
would be struck down if they '"operate to impair
the voting strength of particular racial or
political elements...." (Emphasis added).
White v. Regester invalidated under the
dilution rule the multi-member districting plans
for Dallas and Bexar counties. 412 U.S. at
765-770. White contains not a word regarding
the motives of the State Legislative Redistricting
Board which had adopted those plans. Rather,
it upheld a district court decision which in-
validated those plans because they "operated to
dilute the voting strength of racial and ethnic
minorities," 412 U.S. at 759 (emphasis added), and
which held .that "the impact of the multi-member
district on [Mexican-Americans] constituted
invidious discrimination." 412 0.5." at 767
(emphasis added). Two years after White this
Court reiterated that the Constitution forbids
plans which "designedly or otherwise . . . would
operate to minimize or cancel out the voting
strength of racial or political elements of the
voting population." Chapman v. Meier, 421 U.S. 1,
17 (1975) (emphasis added).
Nothing in Washington v. Davis indicates any
intent to overrule this aspect of Fortson, Burns,
- 58 .
Whitcomb, White or Chapman. On the contrary,
those five cases and Washington v. Davis deal with
two distinct and independent aspects of the Equal
Protection Clause. Burns and its progeny, like
Reynolds v. Sims, derive from the Clause's guaran-
tee that the votes of citizens will not be weight-
ed differently for any reason. Thus Reynolds does
not rest on any malicious intent to disenfranchise
urban or suburban voters; it recognized that the
differences in the size of districts often derived
from good faith concerns, but held that "neither
history alone, nor esconomic or other sorts of
group interests, are permissible factors in
attempting to justify disparities from population
based representation." 377 U.S. at 580; see also
Lucas v. Colorado General Assembly, 377 U.S. 713,
736-37 (1964). It held that statutes which
operate to abridge or deny the franchise must be
subjected to strict constitutional scrutiny
because the right to vote is "a fundamental right,
preservative of all others.” 377 U.S. at
562.
- 59 -
Washington v. Davis, on the other hand,
considered what types of laws constitute ''racial
classifications" which trigger the strict scrutiny
test. 426 U.S. at 242; see McLaughlin v. Florida,
379 U.S. 184, 191-2 (1969). The prohibition
against racial classifications is concerned with
"the prevention of official conduct discriminat-
ing on the basis of race," Washington v. Davis,
426 U.S. at 238, not the "idea that every voter is
equal to every other voter ....'" Reynolds v. Sims,
3727 U.S ar 383, Thus in discussing past cases
bearing on the racial classification aspect of the
Equal Protection Clause, none of the opinions in
Washington v. Davis had occasion to mention the
dilution cases. The majority recited a number
of lower court opinions using the disapproved
effect standards: 426 U.S...at 24 n.l12;- although
the Court was well aware of the application of the
dilution test by the lower courts, see East
Carroll Parish School Board v. Marshall, 424 U.S.
636, 638 (1976), none of those opinions was cited.
The White v. Regester effect rule was referred to
with apparent approval in two decisions handed
down during the same Term as Washington v. Davis,
a step that would have been unlikely had the
- 60 -
Court had any reservations about that rule. East
Carroll Parish School Board v. Marshall, supra;
Beer v, United States, 425 U.S. 130, 142 n.l14
(1976) 22 when more significantly, White and the
other dilution cases were relied on by this Court
after Washington v. Davis in Connor v. Finch, 431
U.S. 407, 422 (1977) ("impermissible racial
dilution"), United Jewish Organizations v. Carey,
430 U.S 144 (1877) 2 ani Wise v. Lipscomb, 57
L.Ed.2d 41), 418 n.5 (19783).
Appellants do not suggest that Washington v.
Davis has overruled Reynolds v. Sims, or that a
state could after Washington retain districts
of unequal population or restore the county unit
system invalidated by Gray v. Sanders, 377 U.S.
533 (1963), so long as the state did have .3
discriminatory motive. Yet such schemes often
33/ Similarly Keyes v. School District No. 1, 413
U.S. 189, 205, heavily relied on by Washington as
establishing a requirement of '"purpose or intent
to segregate,’ 426 U.S. at 240, was decided three
days after White.
3/ 14. at 165 (plan did not “minimize. or -un—
fairly cancel out white voting strength) (White,
J.), 170 (plan had not "effectively downgraded
minority participation in the franchise") (Bren-
nan, J.), 179 (plan did not "minimize or cancel out
the voting strength of a minority class or in-
terest") (Stewart, J.).
- 61 -
underweight the votes of disfavored voters
by just 107 or 202, giving that group only a
fractionally smaller portion of the representa-
tion to which their numbers entitle them. By
contrast at-large systems like those in White
underweight the votes of blacks by 100%, and
frequently afford them no representation at all.
Surely this more drastic form of disenfranchise-
ment remains as subject to attack as the milder
forms of geographic malapportionment also forbid-
den by Reynolds.
Washington v. Davis and this Court have thus
recognized that the prohibition against racial
classifications and the protection of equal
suffrage are two distinct branches of Equal
Protection, and that White and Whitcomb are part
of the latter branch. Thus the dilution cases,
which prior to Washington v. Davis did not require
a showing of racial motivation, remain good
Taw 33)
C. The Applicability of White and
Whitcomb to Municipal Elections
Appellants in their Opposition to Motion
to Affirm urged that the rule of White and
Whitcomb should not be applied to municipal
35/ See L. Tribe, American Constitutional Law,
7254-(1978).
=f) %
elections. This issue was not raised by their
Jurisdictional Statement, is not discussed in the
Brief for Appellants, and is not encompassed
within the Questions Presented described in
either. Most significantly, this issue was
never raised by appellants in the courts below,
and consequently none of the opinions below
considered it. See Brief for Appellants, p. 12.
Under these circumstances appellants failed to
preserve the issue.
Even were the question properly before this
Court, there can be little doubt that White and
Whitcomb apply to city elections. At least since
Yick Wo'v, Hopking, "113" U.S. 356 T1398); the
constitutional commands addressed to the states
have been applied to municipalities and other arms
of a state. "Political subdivisions of States ~——
counties, cities, or whatever -- have been tradi-
tionally regarded as subordinate government
instrumentalities created by the State to assist
in the- carrying out of State governmental func-
tions.” Reynolds v. Sims, 377 U.S. 333 (1964).
To establish lower constitutional requirements
“63 =
for such subdivisions would be to invite the
states to evade their constitutional respon-
sibilities by the simple expedient of transferring
the affected functions to local governments. See
United States v. Board of Commissioners of Shef-
field, 55 L.Ed.2d 148, 162 (majority opinion),
1721-72 (Powell, J. concurring) (1978), An
attempt to avoid by such distinctions the commands
of. Brown v. Board of Education, 347 U.S. 483
(1954), was expressly rejected in Cooper v. Aaron,
358 U.S. 1, 15-16 (1958),
The one-person, one-vote requirement of
Reynolds, from which White and Whitcomb derive,
was applied to local government units in Avery v.
Midland County, 390 U.S. 474 (1968). This
Court noted:
While state legislatures exercise
extensive power over their constituents
and over the various units of local govern-
ment, the States universally leave much
policy and decisionmaking to their governmen-
tal “subdivisions. . . .In a word, institu-
tions of local government have always been a
major aspect of our system, and their re-
sponsible and responsive operation is today
of increasing importance to the quality of
life of more and more of our citizens. We
therefore see little difference, in terms of
“Bh =
the application of the Equal Protection
Clause of the principles of Reynolds v. Sims,
between the exercise of state power through
legislatures and its exercise by elected
officials in the cities, towns, and counties.
390 U.S. at 481.
Local governments spend almost twice as much money
and have almost three times as many employees as
6/ 3 ‘
state governments.— With respect to school
board elections, this Court reasoned:
It might be suggested that equal
apportionment is required only in "important"
elections, but good judgment and common sense
tell us that what might be a vital election
to one voter might well be a routine one to
another. In some instances the election of
a local sheriff may be far more important
than the election of a United States Senator.
If there 1s any way of determining the
importance of choosing a particular govern-
mental official, we think the decision of the
State to select that official by popular vote
1s a strong enough indication that the choice
is an important one.
Hadley v. Junior College District, 397 U.S. 50, 55
(1970). Although the dissenting opinions in
Hadley questioned the extension of Reynolds to
36/ Statistical: Abstract, 1972.: pp. 410, 5 433.
- 65 -
certain special purpose entities, they acknowledg-
ed that "local units having general governmental
powers are to be considered ... like state legis-
latures.” 397 8.8 ar 61 (Harlan, J., dissenting).
Salyer Land Co. v. Tulare Water District, 409 U.S.
719, 727-29 (1973), reaffirmed the application of
Reynolds to a "local government exercising
general governmental power' or providing ''general
public services such as schools, housing, trans-
portation, utilities, roads. .. . . a fire departs
ment for) police. "
To protect city residents from undervaluation
of their votes based on geography, but deny them
protection from undervaluation based on race,
would be to stand on its head the purpose of
the Fourteenth Amendment. Slaughter House Cases,
16 Wall, 36, 71-72 (1873). Of the six decisions
of this Court reaffirming the dilution rule first
announced in Fortson, none prior to a concurring
opinion in Wise v. Lipscomb, 57 L.Ed.2d 411, 423
(1978), intimated that the applicability of that
rule was any less broad than the general require-
ment of Reynolds. On the contrary, Beer v. United
States, 425 U.S 130, 142 »n.l4 (1976), expressly
measured a city council districting plan by the
“56 =
standards of White and Whitcomb. See also
United States v. Board of Commissioners of Shef-
field, 53 :L.Ed.2d "148, "162 (1973). Indeed, the
reach of White and Whitcomb seems greater than
Reynolds itself, for while it might be permissible
in the case of a specialized water district for
the legislature to make a reasoned decision to
deny the vote to some residents because they were
not property owners, it would not be proper
to enforce an election system which enabled bloc
voting whites to effectively disenfranchise some
property owners because they are black. See
Salyer Land Co. v. Tulare Water District, supra.
Black voters must have an effective voice in
the conduct of local government if they are to
achieve the equality of treatment and freedom from
discrimination to which we are committed by
history and the Constitution. A majority of
blacks in the United States live in cities of over
25, 000.32 For them, as for the black residents
31/ See 1970 Census, Characteristics of Popu-
lation, v.l, Tables 48, 67.
67 ~
of Mobile, how those programs and laws are ad-
ministered is vital to their safety, health, and
very lives. Mobile's city government is respon-
sible for police and fire protection, sewers,
roads, drainage, zoning, libraries, job training,
public housing, industrial development, and parks
and recreational programs, and operates its own
court system. If local government, like the
states, 1s an ongoing experiment in the develop-
ment and delivery of essential public services,
Holt Civic Club v. City of Tuscaloosa, 47 U.S.L.W.
4008, 4011-12 (1978), it too is an experiment in
which blacks are entitled to participate on the
same basis as whites.
D. The Application of White and Whitcomb
to The Facts of This Case
The doctrine of White and Whitcomb is both
well established and well founded. Whether the
district court correctly found the constitu-
tionally forbidden dilution on the record in this
‘case 1s a distinct issue, but an issue of rela-
tively narrow import. Appellees did not challenge
the validity of all at-large elections or of
- 68
all at-large elections under the commission form
of government, nor could we have done so. The
courts below did not hold that at-large elections
or the commission sytem were unconstitutional
throughout the country or throughout Alabama, but
dealt solely with the facts in this record regard-
ing Mobile. In three companion cases below the
Fifth Circuit declined to strike down at-large
otens ozs it had previously refused to do in a
39/
substantial number of earlier cases.~—
The impact of such election schemes varies
widely with local circumstances; although multi-
member districts had the prohibited consequences
in Dallas and Bexar counties, that did not mean
they necessarily had such an effect elsewhere
in Texas or in the South. As appellants correctly
note, blacks are able to win elections in some
33/ MNevert vy. Sides, 571 F.2d 209 (5th Cir.
1978), cert. pending, No. 78-492; Blacks United
for Lasting Leadership, Inc. v. City of Shreveport,
571 F.2d 248 (5th Cir. 1978); Thomasville Branch
Of the NAACY? v, Thomas County, . 371 .F.28 257
(5th "Cir. 1978).
39/ E.g., Hendrix v. Joseph, 359 F.2d 12653
(3th Cir. 1977); David v. Garrison, 553 P.2d
923 {5th Cir. 1977); Bradas vy, Rapides Parish
Police Jury, 3508 F.2¢ 1109 (5th Qir. 1975).
pty] we
cities despite the use of multi-member districts,
Brief for Appellants, pp. 11, 18, presumably
because related election laws, local political
and/or racial realities were different than in
Dallas. The issue here is whether the evidence
and district court findings support the court's
conclusion that the use of at-large elections in
Mobile operated '"to minimize or cancel out the
voting strength" of the black population. This
factual finding was concurred in by the court of
appeals, and should be upheld in this Court.
The district court's ultimate finding of
dilution was grounded on a number of subsidiary
findings, none of which 1s seriously disputed by
appellants.
First, ‘the district court found there was
racially polarized bloc voting by white voters in
Mobile. '"The polarization has occurred with white
voting for white and black for black if a white is
opposed to a black, or if the race is between two
white candidates and one candidate is identified
with a favorable vote in the black wards, or
identified with sponsoring particularized black
needs." Appellants concede that this white bloc
- 70 -
against black candidates and interests is an
"unfortunate feature of voter behavior.'" Brief
for Appellants, pp. 30-31 .29/
Second, the district court noted that:no
black had ever won any at-large election to any
public office ‘in Mobile, including elections to
the city commission, the school board, or the
state legislature. J.S8,'p.. Hh, S, 35, It alse
concluded that in Mobile there is 'no reasonable
expectation that a black candidate could be
elected in a citywide election race because of
race polarization,” .J.8. 10b, noting that
"[plractically all active candidates for public
office itestified it is highly unlikely that
anytime in the foreseeable future, under the
at-large system, that a black can be elected
40/ Exhaustive analyses of election returns
were prepared by experts for the defendants,
A. 581-90, and for the plaintiffs, A-36-66,
591-92; P. Ex. 10-52. Both concluded that whites
voted as a bloc against blacks+rand black -supported
candidates. The trial judge noted that the
existence of such racial bloc voting in Mobile was
"common knowledge." A. 65.
- 71 -
against a white.” J.S. beh 21 Avvellents do not
directly dispute this finding, but urge that
able black candidates can carry "a City," citing
as examples Detroit, Newark and Los Angeles.
Brief for Appellants, p. #11, n.l4. But the
constitutionality of at-large elections in Mobile
depends on the political and racial realities of
Mobile, not of Detroit or Dallas.
Third, the district court concluded that '"the
city-wide elected municipal form of government as
practiced in the City of Mobile has not [been]
and is not responsive to blacks on an equal basis
with whites. . . . Past administrations not only
acquiesced to segregated folkways, but actively
enforced it by the passage of numerous city
ordinances.” °J.S5. 'p. 35b-36b. The court found
that under the all-white commission the city had
since 1960 maintained segregated givers 22/
41/ This finding is fully supported by the
record. A. 79-50, 9%, .119, 128, 129.: 138... 147,
198-09, 207-208, 305, 518; P. Ex. .98., pp. 37-38;
P..-Bx. 99,.pp.. 20-22, .26,:P, .Ex.5100, pp. .23~25,
33.
42/ nil. 5126.
- 72 -
43/ . Sas a4/ ,. :
bus,—' and recreation fachitt len, 28 atscrints
nated against black neighborhoods in provid-
ing for dtainage oo vod repatvsy co) sidewalls, ool
48/
and discriminated against blacks in
49/
the hiring and assignment of city employees,—
and parks,
particularly police ottiogreind Although blacks
constitute 35% of the Mobile population, the
evidence showed that less than 7% of some 800
people recently appointed by the white commis-
sioners to local government boards and committees
5Y/
were black, — and that 29 of the active boards and
433.5, 1%,
44/ 3.8. 175,
45/ 1.3.8: 155 A. 524-25, 531-33.
46/5-3.8. 165A." 614, 619.
47/ J.3, 16: PB, Bx. 75;
43/4. 3.8. 17.
49/- 3.8. 11p=14b1 P, Ex. 73.
Sg/ 3.5. lb; see.n.32, infra.
31/ J.3. 12b~l4b; A. 601-604; P. Bx. 6.
- 73 =
committees had no black members tat all. A.
601-604. Of the 290 city employees paid over
$10,000: 2 year, only 3 were black. A.:917. The
court emphasized that federal courts had repeat-
edly been required to enjoin discrimination by
52/
Mobile.’ The district judge noted that as
recently as 1976 white police officers in Mobile
had conducted a mock lynching of a black sus-
3/
pect B23 and that the white city officials had
S2/ 3.8. pp. _12b, 36h; Allen v. City of Mobile,
18 F.BE.P. Cases, 217 {(S.D. Ala. 1978); Allen v.
City of Mobile, 331 F.Supp. 1134 (S.D. Ala. 1971),
aff'd 466 7.23 122 (5th Cir. 1972), cert. den. 412
U.S. 909 (1973); Anderson v. Mobile City Commis-
sion, Civil Action No. 7388-72-H (S.D. Ala. 1973);
Sawyer v. City of Mobile, 208 F.Supp. 548 (S.D.
Ala, 1963); Evans v..-Mobile City Lines, Civil
Action No. 2193-63 (8.D. Ala. 1963); Cooke v. City
of Mobile," Civil Action No." 2634-63 (S.D. Ala.
1963).
83/ rp. Ex. 65; A. 605-610. Fight white officers
placed a noose around the neck of the suspect,
strung it over a tree, and pulled the man to his
tiptoes. Defendant Doyle, a white city commis-
sioner, objected to use of the term "lynch"
because the victim had not died. A. 266. Charges
against the black suspect who was the victim of
this outrage were later dropped. See also Pl. Ex.
63. :
- 74 -
investigated the incident with notable reluctance.
The court concluded that that "sluggish and timid
response 1s another manifestation of the low
priority given to the needs of the black citizens
and of the political fear of the white backlash
vote when black citizens' needs are at stake."
3.8. 196.25
Fourth, the district court noted that Alabama
had a long history of officially practiced and
advocated racial discrimination against potential
black voters, a history in which white officials
S/
from Mobile had played a leading role. 33 Not
until the Voting Rights Act of 1965 were blacks
able to register in substantial suibers Sol The
court concluded that in Mobile '"[t]he pervasive
effects of past discrimination still substantially
affect black political participation.” J.S5...70,
54/ All three of the present white commissioners
stated that they would not support local ordin-
ances prohibiting racial discrimination in housing
or employment. A. 301-02, 480, 497-99.
55/ J. 8. 19b; P. Ex. 2, pp. 50-51, 53-34,
56/ Prior to that Act the black registration rate
in Mobile was lower than even other urban areas in
the South. S. Lawson, Black Ballots: Voting
Rights in the South, 1944-13969, p. 9 (1975).
- 75 -
Finally the court noted the existence of
several election rules not essential to at-large
elections that aggravated the dilutive effect
of Mobile's at-large system. The system, like
that in White v. Regester, includes a majority
run-off and numbered place requirement, which
"enhanced the opportunity for racial discrimina-
tion."': White v. Regestey, 412-U.S. at 766;:7.8.
21b, 39h, 40b. Also, as in White, there was no
residence requirement, so that "all candidates may
be selected from outside the Negro residential
area.” White v. Regester, 412 U.S. at 766:.n.10;
3.8.::21b, 40b,
Appellants do not directly question these
findings, but offer several contentions by way of
defense.
Appellants contend that no black has ever
been elected to the city commission because in
their view the black candidates who have run were
not "able" or '"serious'" candidates. Brief for
Appellants, p. 11. The district court, however,
found, and virtually all the city politicians who
testified agreed, that a black would not win such
a city-wide race, sand thar the certainty of
electoral defeat had deterred black politicians
- 76 -
in Mobile from running for the commission. J.S.
11), 355.22 The evidence showed that a serious
58/
campaign for the city commission cost $50, 000,—
a very substantial sum in a city were the average
black family earns only %, 617.22 1¢ is hardly
surprising that few black leaders had volunteered
to undergo the pointless exercise of spending such
sums and a commensurate amount of time and effort
on a race that was certain to be lost because of
white bloc voting. There was, moreover, ample
evidence as to the bloc voting by white Mobile
city residents against black candidates of undis-
puted experience and qualification who ran for the
school board and county conmission od
57/ That finding is amply supported by the
Tecordmcads, 79-30,um%, W129, 147. 193-99: 1D. Fx:
Xs DPe..20=22: PP. Ex. 100, -p. 23~25.
S33/ A. 482-83; P.. Ex. 100," p.. 123.
59/ Census of Population, County and City Data
Book, 11972, p+ 633.
60/ J.S. %~-10b; A. 592;- see also the district
court's opinion in the Mobile school board case,
Williems v, Brown, No. 78-357, J3.S." 6b~70h.
Two-thirds of the county population lives in the
city of Mobile. The appellants' own experts
relied on data from such county races in drawing
conclusions regarding Mobile city voters. P.
Bx. 9; A. 575-90.
- 77 =
Appellants point to the election of white
Commissioner Joseph Langan as evidence of black
political influence. Brief for Appellants, pp.
8-9. We agree that what happened to Commissioner
Langan is important, but contend that it substan-
tiates the district court findings of dilution.
Langan was elected to the commission in 1953, when
black registration was so low that blacks were not
"a significant factor" in Mobile elections. A.
115. Although Langan initially had the support of
a majority of white voters, he courageously
established a moderate record of disapproval
of discrimination. The record indicates, however,
that racial polarization increased in Mobile as a
federally imposed end to segregation finally
61/1 was ~ became a reality in the late 1960's.
not until Langan's last race in 1969 that the 1965
Voting Rights Act had removed the massive dis-
crimination against blacks seeking to register and
61/ This was the view of the defendants' own
expert. See A. 582-85.
- 78 -
vote. In that race he received the overwhelm-
ing majority of the substantial black vote. But
Langan was defeated despite that black support,
"because of the fact of the backlash from the
black support and his identification with attempt-
ing to meet the particularized needs of the black
people of the city." J.S. .
The defendants' own expert concluded that
"[i]dentification with the black wards is the kiss
of death for an office-seeker in Mobile. The
black voters constitute such a visible and
emotional issue that any identification with
blacks in Mobile will produce a reaction by
white voters and defeat the black supported
candidate." A. 58522/ The record reveals that
Langan's 1969 oppponent circulated advertisements
attacking him for having received the support
of black vorers 22 ana pointedly displaying
62/ Black and white politicians agreed with this
conclusion... A. .99,..119,. 136~37: P.. Ex. 98, pv 103
P.-Bx., 9, p.- 9 P. Ex. 100, p.. 18.
83/ Court of Appeals Appendix, iv. II, p. 711.
- 79 -
photographs of a black whom Langan had appointed
64/
to a city board. Other political literature
in recent Mobile elections also attacked white
candidates for receiving black votes, juxtaposed
photographs of such candidates with black leaders,
and even villified one white female candidate for
having "been seen and photographed in the company
of black wales, "02
Finally, appellants argue that, even if
it is impossible to elect a black in Mobile,
black voters participated effectively in the
political process because they are permitted to
vote on which white candidate would be elected to
the city commission. They note that in B73 white
candidates sought the endorsement of the black
Non-Partisan Voters League, Brief for Appellants,
PY, and suggest that blacks provided the margin
of victory for Commissioner Greenough in B73 and
perhaps ‘in other races, Id. pp. 8-10 and n. 7.
647 Yd. pv. 713.
65/ 1d. pp. M4714; P. Bx. 61, 97; A. 593-99.
- 8
The record reveals a very different story.
Although several white candidates sought and
received the endorsement of the Non-Partisan
Voters League in D73, that was not indicative of
black support; a substantial majority of the black
voters voted against the endorsed candidates. oo!
The defendants own expert concluded that since
2 960, with the exception of Langan, ''mo candidate
who has won a majority in the black wards has also
carried the entire city. A, 582. The record
reveals that Commissioner Greenough lost the black
vote by a margin of about 607 to 40%, Tr. 1133-35,
and won the B73 election only because he had the
support of approximately 60% of the white voters.
It was doubtless the case in Dallas and Bexar
counties in White v. Regester that the votes of
blacks and Mexican-Americans might at times
influence the outcome of a race between white
candidates, but that was also true of the under-
86/ D, Fs, 28. 0.
“- 81 =
valued votes cast in large counties in the county-
unit system condemned by Gray v. Sanders, 372 U.S
368 (1963). White forbids the use of an at-large
system which affords to blacks 'less opportunity
than . . . other residents in the district to
participate in the political process and to elect
[officials] of their choice.” 412 U.S. at 766.
A system which, as here, operates to preclude
blacks from electing any candidate of their own
race or choice while permitting white voters to
elect a candidate of theirs does not provide that
equality of opportunity.
The record in this case thus reveals tle type
of evidence found missing in Whitcomb and deemed
sufficient to establish a constitutional violation
in White: racial bloc voting by whites that
consistently defeats black candidates, unrespon-
siveness and racial discrimination by white
officials elected at-large, a long history of
-~87 «
official discrimination, and the existence of laws
which aggravate the racial effect of the at-large
system. The district court's’ analysis ‘of that
evidence is far more exhaustive than that of
the district court in White. Representing as
it does '"a blend of history and an intensely local
appraisal of the design and impact of the [Mobile]
multi-member district in the light of past and
present reality, political and otherwise,"
412 U.S. at 769-70, the district court's finding
of dilution should be upheld.
IV. MOBILE'S AT-LARGE ELECTION SYSTEM
VIOLATES THE FIFTEENTH AMENDMENT
The domblaint in this action alleged that
Mobile's at-large election system violated the
Fifteenth Amendment as well as the Fourteenth. A.
18. Although both courts below noted the exist-
ence of this claim, J.S. 4a, lb, neither discussed
it. Appellees maintain that the Fifteenth
Amendment provides an alternative ground for
affirmance.
- 83 -
Appellees urge that the Fifteenth Amendment's
specific protection of suffrage, unlike the
Fourteenth Amendment's generalized prohibition
of racial classifications, does not require a
showing of racial motive or purpose. The Fif-
teenth Amendment forbids the denial or abridgment
of the right to vote "on account of race, color,
or previous condition of servitude." This phrase
is literally broad enough to encompass state laws
which operate to disenfranchise blacks as well a
those which are intended to do so. The decisions
of this the Court have construed the Fifteenth
Amendment to include both sorts of statutes.
The proper application of the Fifteenth
Amendment is well illustrated by Lane v. Wilson,
307 U.S 268 (1939). Lane involved an Oklahoma
statute which provided that any resident who had
not voted in the 1914 general election would have
to ‘register during a 12 day period in 1916, or
be permanently barred from registration. 307 U.S.
at 270-71. Subject to disenfranchisement if they
failed to register during this brief period were
- Sf
(a) whites eligible to vote in the 1914 elections
who had failed to do so, (b) blacks eligible to
vote in the 1914 elections who had failed to do
so, and (c) blacks ineligible to vote in the W914
elections because they could not satisfy the state
literacy test then in effect, a test held invalid
in Cuinn v. United States, 238 U.S. 347 (19153)
because it contained a ''grandfather clause" that
effectively exempted whites from the test. The
court of appeals held that the statute was valid,
emphasizing:
There were probably also some whites who were
qualified to vote at the WBl4 elections who
did not vote. They were on the same footing
as to registration as were the qualified
negroes. There was no distinction between
them. Lane v. Wilson, ‘98 F.2d 980, . 984
¢10th-Cir. 1938),
This Court agreed that the statute was neutral on
its face, and did not question the motives of the
legislature in adopting it, an inquiry apparently
precluded by this Court's decisions of that era
barring proof of legislative motivation. Arizona
Vv, California, 283 U.S. 423, 4535. (1931); see
also Palmer v. Thompson, 403 U.S. 217, 224-26
(1971); United States v. O'Brien, 391 U.S. 357,
382-86 (1968).
-85
This Court nonetheless upheld the plaintiff's
claim that the law was unconstitutional because it
"inherently operates discriminatorily.'" 307 U.S.
at 274. Justice Frankfurter reasoned that the
Fifteenth Amendment "hits onerous procedural
requirements which effectively handicap exercise
of the franchise by the colored race although the
abstract right to vote may remain unrestricted as
to race." 307 0.8. at 275. .The period afforded
for registration was "too cabined and confined",
307 U.S. at 276; although literally applicable to
both blacks and whites, the law "operated unfairly"
against blacks because of social circumstances
which deterred and discouraged the unusually swift
action required to protect the right to vote.
307. 0.8. ar; 276-77.
In attaching such significance under the
Fifteenth Amendment to the onerous operations of
an election system, Lane was fully consistent with
other opinions of this Court. In striking down
the "grandfather clause", Guinn made no reference
to the motives of the legislature which had
adopted it, and the parties there apparently
agreed that judicial consideration of such motives
-86 =
would have been inappropriate. 238" u,8. at
359-61; see also 59 L.Ed.24 ar 1341-43. South
Carolina v. Katzenbach, "383 U.S. 301 (1966),
states that the Fifteenth Amendment invalidates
"state voting qualifications or procedures which
are discriminatory on their face or in practice",
383 U.8. at 325, citing lzne and Guinn. Justice
Harlan suggested that the Amendment covered
"discriminatory . . . effect” and "unconscious"
discriminatory application in Oregon v. Mitchell,
400 US, 112, 216 (1970) (dissenting opinion).
Justices Marshall and Brennan took the same
position in Beer v. United States, 425 U.S. 130,
149 n.5 (1976) (dissenting opinion).
Washington v. Davis noted that a failure to
confine the racial classification branch of Equal
Protection law to instances of purposeful dis-
crimination "would raise serious questions about,
and perhaps invalidate, a whole range of tax,
welfare, public services, regulatory, and licens-
ing statutes that may be more burdensome to the
poor and the average black than to the more
affluent white." 426. U.8.:.at.. 48, Those con-
siderations do not support a similar restriction
«87 =~
on the Fifteenth Amendment, since its scope is
narrowly confined to the area of voting. Although
the Civil War amendments are directed generally at
protecting racial minorities, the Thirteenth and
Fifteenth Amendments single out for emphasis
the freedom of blacks from involuntary servitude
and from denial or abridgment of the right to
vote. A heightened degree of protection for these
particular rights seems warranted in light of the.
special treatment accorded them by the Constitu-
tion on its fae’ 22
The Congress which framed the Fifteenth
Amendment was not conerned merely to enable blacks
to mark ballots, but to arm them with the fran-
chise so that they could protect themselves
against discrimination. That Congress regarded
the franchise as "a fundamental political right,
67/ The Thirteenth Amendment has been consistently
construed to invalidate statutes which, regardless
of motive, operate to facilitate the coercion of
labor. Bailey v. Alabama, 219 U.S. 219, 244-45
(1911); see also Pollack v. Williams, 322 U.S. 4,
25 (1944); Tavior v, Georgia, 315 U.S. 25, 29
(1942): Clyatt v. United States, 197 U.S. 207, 2i6
{1905),
- 88 -
because preservative of all others." Yick Wo v.
Hopkins, 118 .:U.8.. 356, 370.:(1996): Senator
Stewart, the leading Senate proponent of the
Amendment, argued that the right to vote
is the only measure that will really abolish
slavery. It is the only guarantee against
peon laws and against oppression. It is
that guarantee which was put in the Constitu-
tion of the United States originally, the
guarantee that each man shall have a right
to protect his own liberty.68/
Congressman Shanks urged:
No man is safe in his person or property
in a community where he has no voice in the
protection of either. The subjugation of his
rights and liberties, the seizure and waste
of his property, the degradation of his
character, and the insecurity of his life
are only questions of time that are not
often long deferred.69/
This view was shared by numerous supporters of the
Anendment, 22 vac feared that with the end of
68/ Cong. Globe, 40th Cong., 3rd Sess., p. 668.
69/ 1d p. 693.
70/ 1a. pp. 709 (remarks of Sen. Pomeroy), 722
(remarks of Rep. Kelley), 912 (remarks of Sen.
Wilkey), 982-23 (remarks of Sen. Ross), 90 (remarks
of Sen. Morton).
“89
Reconstruction whites hostile to the Union would
regain control of the Southern states and seek to
strip the newly freed slaves of the rights for
which the Civil War had been toughen LY Some
Republicans felt that the rights of blacks would
not be secure if they could only choose among
candidates of the white aristocracy which had
2/
dominated the antebellum sobin 42 but Stewart
and others contemplated that the right to vote
would carry with it the ability of blacks to elect
black otiicials 23 me Amendment was intended
to guard against, not only state attempts to
formally ''deny" blacks the right to cast ballots,
but also state election schemes which "abridge"
that right by so nullifying the effect of black
votes as to eviscerate their value as a de-
fense against discrimination and oppression.
The Fortieth Congress envisioned that
the critical role of the Amendment would be
11/ 14. pp. 724 {remarks of Rep. Ward), 900
(remarks of Sen. Williams).
72/ 1d. p. 1626 (remarks of Sen. Edmunds).
73/ 1d. p. 1627 (remarks of Sen. Wilson),
1629 (remarks of Sen. Stewart).
- 90 -
to protect black voters from as yet unknown forms
of denial or abridgment of the right to vote.
When the Amendment was passed blacks uniformly
enjoyed the franchise throughout the South, which
was under the control of the Union Army and the
watchful eye of the Freedmen's Sureau.2t me
concern of Congress was with possible devices
and election systems which might be introduced in
the South in years ahead. The prohibition .against
abridgement of the franchise is indicative of this
concern, for there were in 1869 no practices to
which "abridge" could have applied, and none is
cited in the debates; the term was evidently
included to encompass possible forms of partial
disenfranchisement that might emerge in the
future.
The election system in operation in Mobile
strikes at the very heart and purpose of the
Fifteenth Amendment. In form blacks are able to
mark and cast ballots, but in substance they are
disenfranchised. They cannot elect any black to
the city commission. They cannot elect to the
74/. 1d. pp. 724 (remarks of Rep. Ward), 99
(remarks of Sen. Frelinghuysen), Bl (remarks of
Sen. Frelinghuysen), 94 (remarks of Sen. Ross).
i] ro
commission any white known to support fair treat-
ment for the black community. And they cannot
protect themselves against a pervasive policy
of discrimination which runs rampant through the
operations of the city government. In the dis-
trict court the defendants prbposedllthat an
appropriate remedy for this situation would be for
the court to engage in ongoing monitoring and
supervision of every city agency to detect and
redress any act of discrimination. Neither
principles of federalism nor considerations of
comity recommend such federal receivership. The
Constitution requires that an effective franchise
be conferred on blacks so that they can protect
themselves against government discrimination.
‘Mobile's election system must be modified to do
SO.
75/ Defendants Proposed Plans, p. 2.
Y. THE DISTRICT COURT CORRECTLY FORMULATED
A REMEDY FOR THE PROVEN VIOLATION
The Jurisdictional Statement contains a
question regarding the remedy fashioned by the
district court, J.S. 4, bur it is not included
in the Questions Presented in the Brief for
Appellants, pp. 3-4. Neither the body of the
Jurisdictional Statement, nor the Brief for
Appellants discusses that question. We contend
that the district court acted properly in for-
mulating a remedy.
As the court of appeals noted, the defendants
in the district court, despite the finding of a
violation, 'refused to come forward with a plan,
forcing the district court to fashion a onedy tia!
76/ At the end of the trial the court ordered the
parties to submit proposed plans in the event
that the court found the at-large system uncon-
stitutional. The defendants responded by propos-
ing several "plans," such as denying any injunc-
tive relief Dut retaining jurisdiction, all of
which contemplated electing all commissioners
at-large. Proposed Plans of Defendants, pp. 2-4
(filed September 8, 1976). This recalcitrant
response constituted neither a '"plan'" relevant to
Wise nor compliance with the district court's
order.
-93 -
J.8.: 13a: Under that circumstance it was the
obligation "of the federal court to devise
and impose a reapportionment plan." Wise v.
Lipscomb, 57 L.Ed. 2d 411, 417 (1978). Manifestly
some alteration of Mobile's method of election was
required to remedy the proven violation, and
Chapman v. Meier, 420 U.S 1 (1975), required the
district court in fashioning its own plan to use
only single-member districts.
The district court's problems were further
aggravated by the fact that the defendants ada-
mantly opposed electing commissioners from
single-member districts,2/ even though commis-
sioners are chosen in this manner in a number
of other air iestd lite tendants also indicated
77/ A. 33; Tr. 348-50, 1149-53.
78/ All the commissioners are chosen from single-
member districts in Harrison, Hatfield, Nether
Providence and Ridley, Pennsylvania. All but one
of the commissioners in Weehawken, New Jersey,
Vicksburg, Mississippi, and Ottawa, Illinois are
chosen from such districts. Municipal Yearbook,
1978, pp. 18, 26, 20, 36-37.
= 94 =
that, if there were to be single-member district
elections, they preferred to change the form of
Mobile's government to a mayor-council plan.
Anxious to induce the defendants to play some
constructive role in the preparation of a plan,
the district court persuaded the city to nominate
two members of a three member advisory committee
to propose a remedy. The committee proposed a
plan based on the mayor-council form of government
in force in Montgomery, an Alabama city comparable
in size.to Mobile. :. After submission of this
proposal the court invited and received comments
on the plan from both counsel for the parties and
other elected officials from Mobile. The district
judge adopted the plan with some modifications
based on those comments. Ever concerned to avoid
any unnecessary intrusion into state and local
affairs, the district judge also expressly provid-
ed that the legislature could at any time replace
the court approved plan with any other "constitu -
tional form of government for the City of Mobile,"
and could authorize the city itself to do so. J.S.
- 95 -
3d. The legislature, however, has never acted to
adopt or authorize any other reapportionment
plan.
We noted earlier ‘that the district court did
not condemn the use of the commission form of
government throughout the country or even else-
where in Alabama. The district court's order does
not even forbid Mobile itself to adopt a variant
of the commission system. Mobile could, with
appropriate authorization by the legislature, adopt
a commission form of government under which, as in
other states, all or most commissioners were
chosen from single-member districts. The city
might also create a city council with members
elected from both single member and at-large
districts and provide that the at-large seubers
would hold the executive power of the government.
See Wise v. Lipscomb, 57 L.Ed.2d 411 (1978) .1%/
Mobile and Alabama thus remain free to use "many
innovations, numerous combinations of old and
79/ Whether such a scheme would be constitu -
tional would depend, inter alia, on the number of
single and multi-member seats.
- 06
new devices, [and] great flexibility in municipal
arrangements to meet changing urban conditions."
Holt Civic Club v, City
4008, 4012 (1978).
of Tuscaloosa, 47 U.S.L.W.
CONCLUSION
For the above reasons the judgment of the
court of appeals should be affirmed.
Respectfully submitted,
J.0. BLACKSHER
LARRY MENEFEE
1407 Davis Avenue
Mobile, Alabama :26603
EDWARD STILL
JACK
ERIC
Suite 400
Commerce Center
2027 First Avenue North
Birmingham, Alabama :35203
GREENBERG
SCHNAPPER
Suite 230
10 Columbus Circle
New York, New York 10019
Counsel for Appellees
January 17, 1979
Hon. Michael Rodak
Clerk
Supreme Court of ‘the United States
Washington, D.C. 20543
Re: Cityv'of Mobile vy, Bolden
No. 77-1844
Dear Mr. Rodak:
Enclosed please find forty coples of the
Brief for Appellees in the above-referenced
case together with a certificate of service,
Yours sincerely,
7
/ 4
i rts 77
Eric Schhapper”
ES :aa
Encl.
10 COLUMBUS CIRCILE 586-8397 NEW YORK, IN Y:. 1001 9
CERTIFICATE OF SERVICE
TI hereby certify that on this 17th
1979, I served three copies each of the
on counsel for appellants by depositing
day of January,
Brief for Appellees
them in the United
States mail, first class postage prepaid, addressed tc:
Charles 'S. Rhyne
Suite 800
1000 Connecticut Avenue,
Washington, D.C.
William H. Allen
Covington & Burling
888 Sixteenth St., NW,
Washington, D.C. 20006
N.W.
I further certify that all parties required to be served
have been served.
Pray
of
or ik Zz
Eric Schnappér
v ©
MEILEN PRESS INC. —N. Y. C. <&5>