City of Pensacola, Florida v. Jenkins Jurisdictional Statement

    No.

IN THE
Supreme Court of the United States

OCTOBER TERM, 1980

CITY OF PENSACOLA, FLORIDA, et al.,
Appellants,

v.

ELMER JENKINS, et al.

ON APPEAL FROM THE UNITED STATES 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

JURISDICTIONAL STATEMENT

DON J. CATON, City Attorney 
JOHN W. FLEMING, Assistant 

City Attorney 
City Hall 
P.O. Box 12910 
Pensacola, Florida 32501

CHARLES S. RHYNE 
WILLIAM S. RHYNE

Suite 800
1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 466-5420

Counsel o f Record
Attorneys for City of Pensacola, et al.

THE C A S IL L A S  PRESS, INC  -1 717  It Strtel N W -W M hington, D. C .-223-1220



(i)

QUESTIONS PRESENTED*

1. Whether present discriminatory effect, as well as 
discriminatory intent, must be shown to invalidate a local 
government at-large election system under the Equal Pro­
tection Clause.

2. Whether the discriminatory intent concededly re­
quired under the Equal Protection Clause can be proved 
without any evidence of racial animus by the legislature 
enacting the challenged law, and in spite of the testimony 
of the legislative floor leader that, had he thought the bill 
racially motivated, he would have killed it.

*The parties in the Court of Appeals’ consolidated appeal pro­
ceedings (with the District Court case in which each party appeared in­
dicated) were: (in No. PCA 77-0432 (ND Fla.), McMillan v. Escambia 
County) plaintiffs Henry T. McMillan, Robert Crane, Charles L. 
Scott, William F. Maxwell and Clifford Stokes; defendants Escambia 
County, Florida; Charles Deese, Kenneth Kelson, Zearl Lancaster, 
Jack Kenney, Marvin Beck, Gerald W. Woolard; School District and 
School Board of Escambia County, Peter R. Gindl, Carol A. Mar­
shall, Richard Leeper, Lois Suarez, A.P. Bell, Frank Biasco, James 
Bailey, Vernon McDaniel, Joe Oldmixon; (in No. PCA 77-0433 (ND 
Fla.), Jenkins v. City o f Pensacola) plaintiffs Elmer Jenkins, 
Woodrow Cushon, Henry Burrell, Samuel Horton and Bradley 
Seabrook; defendants City of Pensacola, Florida; Louis L. Brown, 
Harold E. Rose, Robert Brockett, William Northrop, John E. 
Frenkel, William J. Paulk, Cecil E. Jones, Albert Klein, V. Paul 
Bruno, Hollice T. Williams, James J. Reeves, Franklin Pryor, 
Michael Bass, Jay Thornton, Bill Miller, Mike Green, Jackson V. Tut­
tle, Joe Oldmixon.

The defendants in No. PCA 77-0433 are the appellants in this 
Court.





TABLE OF CONTENTS

Opinions Below .................................................................................... 1

Jurisdiction ..........................................................................................2

Constitutional Provisions.....................................................................2

Statement ............................................................................................. 3

A. Creation of the City’s all at-large
election system .......................................................................... 4

B. Proceedings in the courts below ............................................. 6

The questions are substantial...............................................................9

I. Invalidation of government action which has no pre­
sent discriminatory effect is unjustified in any equal 
protection case. In a vote dilution case, moreover, the 
discriminatory effect which must be shown is 
something more that the absence of proportional 
representation by race ........................................................  11

II. The difficult and sensitive proof of discriminatory in­
tent of government officials must focus on the actions 
and words of those officials..................................................14

A. The intent of a legislature cannot be proved
by the motivation of a non-legislator seeking 
legislation................................................................... 14

B. The written opinion of a newspaper editorial 
writer is insufficient, without more, to prove
the intent of any official.............................................. 16

C. A plaintiff has satisfied his burden of proving
discriminatory legislative intent only on show­
ing that racial motives outweighed nonracial 
m otives......................................................................  17

(iii)

Page

Conclusion 20



Appendixes Page

A. Opinion of the Court of Appeals (CA5
Feb. 19, 1981).........................................................................la

B. Memorandum Decision of the District Court
(ND Fla. Jul. 10, 1978).......................................................  24a

C. Notice of Appeal (filed CA5 May 11, 1981) ..................... 61a

(iv)



(v)

TABLE OF AUTHORITIES

Aranda v. Van Sickle.
600 F.2d 1267 (CA9).....................................................................12

Beck v. Littlefield,
68 So.2d 889 (F la.).......................................................................... 14

Black Voters v. McDonough,
565 F.2d 1 (CA1) ............................................................................ 12

Campbell v. Gadsden County School Board,
No. TCA 73-177 (ND Fla. Dec. 5, 1980)......................................  17

City o f Mobile v. Bolden,
439 U.S. 815 (noting jurisdiction) ................................................... 2

City o f Mobile v. Bolden,
466 U.S. 5 5 ....................................................... 1, 2, 3,9, 11, 12, 15

City o f  Richmond v. United States,
422 U.S. 358 ..................................................................................  14

Gomillion v. Lighfoot,
364 U.S. 339 ..................................................................................  12

Keyes v. School Dist. No. 1,
413 U.S. 189.................................................................................... 13

Kirksey v. City o f Jackson,
506 F.Supp. 491 (SD Miss.), appeal docketed ...............................16

Lodge v. Buxton,
639 F.2d 1358 (CA5) .......................................................................13

Mt. Healthy City School District v. Doyle,
429 U.S. 274 ............................................................................  18,20

Nevett v. Sides,
571 F.2d 209 (CA5), cert, denied..................................................... 6

Cases: Page



(vi)

Palmer v. Thompson,
403U .S.217.................................................................................... 12

Personnel Administrator v. Feeney,
442U.S. 256 ..................................................................................  12

Texas Dep’t o f Community Affairs v. Burdine,
No. 79-1764 (Mar. 4, 1981)............................................................. 17

Village o f Arlington Heights v. Metropolitan Hous. Devel. Corp., 
429U.S. 252 .................................................................  8,12,15,20

Washington v. Davis,
426U.S.229 ..................................................................................  12

Whitcomb v. Chavis,
403 U.S. 124.................................................................................... 12

Wyche v. Madison Parish Policy Jury,
635 F.2d 1151 (CA5) ........................................................................ 8

Zimmer v. McKeithen,
485 F.2d 1297 (CA5), affd on other grounds...........................7, 11

Statutes:

28U.S.C.................................................................................................2
§ 1254(2)........................................................................................... 2
§ 1331 ......................................................................................... 2, 5

1959 Fla. Laws ch. 1730 ............................................................... 2, 35

Miscellaneous:

C. Abernathy, Civil Rights (1980).................................................  17

Ely, Legislative and Administrative Motivation 
in Constitutional Law, 79 Yale L.J. 1205 (1970) ..........................  17

Page



IN THE
Supreme Court of the United States

OCTOBER TERM, 1980

No.

CITY OF PENSACOLA, FLORIDA, et al.,
Appellants,

v.

ELMER JENKINS, et al.

ON APPEAL FROM THE UNITED STATES 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

JURISDICTIONAL STATEMENT

This case presents questions left open by this Court in its 
opinions last Term in City o f Mobile v. Bolden, 446 U.S. 
55 (1980). Resolution of these questions is important in 
light of the number of constitutional challenges to at-large 
election systems. Moreover, the reasoning of the Court of 
Appeals below would be applicable to any equal protec­
tion case, and conflicts with the equal protection 
precedents of this Court in both voting and other cases.

OPINIONS BELOW

The opinion of the Court of Appeals (Feb. 19, 1981) 
declaring Pensacola’s at-large election system to violate 
the Fourteenth Amendment is reported at 638 F.2d 1239, 
and is reprinted as Appendix A, infra.1 Issuance of the

'This opinion also deals with the constitutionality of the election 
systems of Escambia County, Florida, and its School Board, neither 
of which is before the Court. The plaintiffs appealed the remedy plan

(footnote continued)



2

mandate (by certified copy of the judgment) in this case 
has been stayed by the Court of Appeals (Order of March 
12, 1981), pending disposition of this appeal by this Court.

The memorandum decision of the District Court for the 
Northern District of Florida (Arnow, Ch. J.) (Jul. 10, 
1978) is unreported, and is reprinted as Appendix B, infra.

JURISDICTION
This Court has jurisdiction under 28 U.S.C. § 1254(2) 

to review the judgment of the Court of Appeals declaring 
unconstitutional under the Fourteenth Amendment the at- 
large system of city council elections embodied in the City 
Charter of Pensacola. That Charter was amended in 1959 
by special state legislation, 1959 Fla. Laws ch. 1730, 
creating the all at-large system declared unconstitutional 
by the courts below.

The District Court had jurisdiction under 28 U.S.C. 
§ 1331 to entertain the constitutional challenge to at-large 
elections. The judgment of the Court of Appeals was 
entered February 19, 1981, and the Notice of Appeal (Ap­
pendix C, infra) was filed in that Court May 11, 1981.

Therefore, this Court has jurisdiction under 28 U.S.C. 
§ 1254(2). City o f Mobile v. Bolden, 439 U.S. 815 (1978) 
(noting jurisdiction), and 446 U.S. 55 (1980) (on merits).

CONSTITUTIONAL PROVISIONS
The Fourteenth Amendment to the Constitution of the 

United States provides in part:
“No state shall. . .deny to any person within its 
jurisdiction the equal protection of the laws.”

(footnote continued)
in the City of Pensacola case; the District Court’s plan was upheld, 638 
F.2d 1249 (CAS 1981), but its implementation has been stayed pend­
ing disposition of this appeal (Order of March 19, 1981, ND Fla., 
motion to modify denied, CA5, Apr. 10, 1981). Neither the remedy 
plan nor the staying of it is before this Court.



3

STATEMENT

Cases involving the City of Pensacola, Florida, on the 
one hand,2 and Escambia County and the County School 
Board, on the other hand,3 were consolidated in the Court 
of Appeals.4 In each case, a class of black plaintiffs, some 
of whom had sought elective office, and, in the case of the 
City, some of whom had been appointed to fill vacancies 
and who were elected and reelected at-large,5 challenged 
the at-large election systems. The District Court, after a 
2-week trial, had declared all three at-large systems un­
constitutional.

The Court of Appeals postponed decision pending this 
Court’s disposition of City o f Mobile v. Bolden, 446 U.S. 
55 (1980). Declaring itself “somewhat ‘adrift on uncharted 
seas with respect to how to proceed,’ ” the court applied 
what it viewed as common ground among a majority of 
Justices in Bolden, concluding that the County’s at-large 
election system was constitutional, but that the City’s 
system had been created in 1959 in part for racially 
discriminatory reasons.6

2No. PCA 77-0433 (ND Fla.).
3No. PCA 77-0432 (ND Fla.).
“Separate appeals involved the remedy plans imposed on the City, 

No. 79-1633, and County, No. 80-5011. In those cases, the Court of 
Appeals affirmed a 7-3, part at-large, remedy plan for the City, and, 
having reversed on constitutional liability as to the County in this 
case, reversed the imposition of an all single-member district remedy 
plan for the County. The School Board took no appeal, although one 
incumbent boardmember appealed on the constitutional merits only.

5Appendix A, infra, 4a.
6The plaintiffs in No. PCA 77-0432 (ND Fla.) have petitioned for 

rehearing or rehearing en banc, challenging the Court of Appeals’ con­
clusion that the County election system is constitutional. Thus, that 
part of the opinion below, Appendix A, infra, 1 la-18a, is not yet 
before this Court.



4

A. Creation of the City’s All At-Large Election System

From 1931 to 1959, Pensacola operated under an elec­
tion system in which the 10 city councilmembers were 
elected part from districts and part at-large. The City was 
divided into 5 districts, from each of which 2 coun­
cilmembers were elected, 1 by the voters of that district 
and 1 from the entire city at-large. This anomalous and 
hybrid system necessarily required council candidates to 
be dispersed throughout the City’s 5 districts, and required 
a “place” rule under which a candidate within a district 
would declare for either the district-elected or the at-large 
seat.7 This unusual system was adopted when the City 
changed from a mayoral executive government to the 
council-manager form.8

City council elections were then, and are now, nonpar­
tisan. The plaintiffs made no allegation “of any actual im­
pediment to blacks voting,”9 and blacks have run 19 times 
for the City Council.10 The City is 35% black and there is, 
as there was at the time of trial, one black councilmember 
elected at-large.11

In 1959, Pensacola’s election system was changed so 
that each of the 2 places within each of the 5 districts was 
elected at-large. Candidates continued to reside in the dis­
tricts from which they ran. The change was accomplished

’There is also a majority vote requirement. Appendix A, infra, 4a.
8 In its more usual manifestation, the council-manager form in­

volves all at-large election of city councilmembers. See Jurisdictional 
Statement in City o f Mobile v. Bolden, No. 77-1844, filed in the Oc­
tober Term 1977, at 22, n. 26.

’Appendix A, infra, la.
1 “Appendix A, infra, 4a.
"R. 112, at 41 (Pltfs’ Post-Trial Proposed Findings and Conclu­

sions). “R” refers to the District Court Clerk’s numbering of 
documents, “Tr.” to the transcript of trial testimony.



5

by referendum approval following special state 
legislation.12

Reubin Askew, Governor of Florida at the time of the 
trial in 1978, was a member of the Escambia County 
delegation to the Florida legislature in 1959. Askew was 
aware that one member of the city council favored the 
1959 change for a racial motive,13 but Askew shepherded 
the change through the legislature in order to “result in a 
better quality of representation. . .citywide as opposed to 
part of it being from districts.” Tr. 1422. He had in mind 
elimination of the counterproductive parochialism of 
“ward politics.” Tr. 1434.

These racially neutral motives were also expressed by 
the League of Women Voters and other “good govern­
ment” groups, such as the Chamber of Commerce. Their 
preference, as was Governor Askew’s in 1959, was for the
121959 Fla. Laws ch. 1730.

13That councilmember did not testify at trial, having long been 
dead. Another councilmember’s views on what his brethren intended 
by their actions was relied on by the Court of Appeals, Appendix A, 
infra, 19a. Askew was unaware of the motives of the other 9 city coun- 
cilmembers, Tr. 1423; Appendix A, infra, 19a, except that he did not 
perceive the racial motive as being a consensus of the council, Tr. 
1426. The expression by the city council of a desire for special legisla­
tion was made, as always prior to the sunshine law, informally and 
without minutes; the at-large legislation was part of a larger package 
passed at the end of the 1959 legislative session, Tr. 1416-1420. Askew 
did testify that, he had thought race was a factor in the 1959 legisla­
tion, he would not have voted for it, Tr. 1423, but would have oppos­
ed the legislation, which would have killed it, Tr. 1424. Askew 
specifically denied the accuracy of an editorial in a 1959 edition of the 
local newspaper (to the effect that, while one ward might elect a black, 
the city as a whole would not), testifying that, in 1959, he saw that 
view as merely the view of the editorial writer, Tr. 1432, a view in con­
flict with that perceived by the Pensacola newspaper reporter assigned 
to the legislature, Tr. 1432; City Ex. 2A (“Proponents of the change 
say that because all business conducted by the council affects the en­
tire city, then the 10 councilmen should be elected citywide.”)



6

citywide perspective which candidates elected at-large 
must display.14

B. Proceedings in the Courts Below

Applying the then-prevailing law,15 to the effect that an 
at-large election system would be unconstitutional under 
the Fourteenth Amendment16 if either created or main­
tained for discriminatory reasons, the District Court con­
cluded that race was a “concurrent motivating factor”17 in 
the 1959 change. The court concluded that the absence of 
any invidious intent by then-Representative Askew or 
anyone else in the state legislature was “not controlling.”18 
Focusing on the 1959 city council, the court found that 
racial motivation was one, but not the only factor behind 
recommendation of the change.19 The court concluded 
that “at least the preponderance — though not an over­
whelming preponderance — of the evidence supports 
plaintiffs’ contentions."20 The court found no evidence

14Tr. 1421-22.
],Nevett v. Sides, 571 F.2d 209 (CA5 1978), cert, denied 446 U.S 

951 (1980).
l6The Court of Appeals in this case rejected claims under the Fif­

teenth Amendment and the Voting Rights Act. Appendix A, infra, 9a, 
n.9; the District Court had applied its Fourteenth Amendment 
analysis to the Fifteenth Amendment claim, and accepted the 
statutory claim. Appendix B, infra, 53a-55a.

' 7Appendix B, infra, 48a.
xtId., at 48a, n.9.
]9Id., at 48a. See also id., at 49a (“not the only factor”).
2 “The Court of Appeals cited the 1956 city council for racially ger­

rymandering the district lines to prevent a black being elected from 
one of the single-member district places. Appendix A, infra, 19a. The 
basis for this conclusion was testimony of one newly elected to the 
council who opined (over objection) on the motives of other coun- 
cilmembers, not himself. Tr. 600. In any event, a reapportionment 
(whether or not ill-motivated) was required by state law, Tr. 601. 
From 1931 to 1959, only one black ran from a single-member district, 
Tr. 355; R.l 12, at 35a (Pltfs’ Post-Trial Proposed Findings and Con­
clusions).



7

“that the city’s at-large system is presently intentionally 
maintained as a vehicle for racial discrimination.”21

Since it was writing before this Court’s decision in 
Bolden, the District Court made findings also under the 
Zimmer22 factors as tending to prove or disprove un­
constitutional vote dilution. The court found that there 
were no impediments to black voting and that black par­
ticipation was increasing.23 The court found two excep­
tions to an overall pattern of white bloc voting, the ap­
pointment and subsequent election and reelection of two 
blacks (one of whom is an appellant here) who “were 
chosen and thereafter received public and private white 
political support.”24 “The plaintiffs failed to show that the 
city council was generally unresponsive to the needs of the 
black community.”25 Finally, the court found that the 
“[w]hite candidates do actively seek the votes of blacks.”26

The Court of Appeals affirmed the District Court’s con­
clusion that the City’s at-large system was partly the product 
of circa-1959 discrimination, even though its present opera­
tion was without disparate racial effect on black voters, 
except in one sense.27 To the court, the at-large election 
system had the effect of “minimiz[ing] the voting strength 
of the black community”28 by “precluding] the black 
population, which comprises one-third of the city popula­

2'Appendix B, infra, 53a.
22Zimmer v. McKeithen, 485 F.2d 1297 (1973) (en banc).
23Appendix B, infra, 32a.
24 Id., at 36a.
25Id., at 38a.
26Id., at 36a.
27Appendix A, infra, 21a. “[G]ood people can be elected by a bad 

system. It is the system that is unconstitutional and that must be cor­
rected.” Id., at 22a, n. 19.

26Id., at 21a.



8

tion. . .from electing a member of its own race. . . .”29To 
the Court of Appeals, it was simply not “relevant to the 
constitutional inquiry” that in Pensacola “whites cam­
paign for black support” and that “the people in elective 
positions are responsive to minority needs.”30

Having found discriminatory effect from the failure of 
Pensacola’s election system to guarantee the proportional 
election of black candidates,31 the Court of Appeals con­
sidered whether the system was enacted in 1959 with 
discriminatory intent. The court recited the Arlington 
Heights32 test, focusing on the actions of the enacting 
(“decisionmaking”) body;33 but the court adverted only to 
the testimony of an isolated city council member and to the 
view of a newspaper editorial writer, which, “though not

29Id., at 3a. The Court of Appeals did, however, credit the finding 
of white support for the two black city councilmen who were elected 
and reelected at-large. Id., at 6a, n.6. It is, however, undisputed that 
black representation on the city council never exceeded 20%. R.l 12, 
at 41 (Pltfs’ Post-Trial Proposed Findings and Conclusions) (1975 
election of William unopposed and of Spence in election characterized 
as racially polarized with R2 factor of 0.82).

3“Appendix A, infra, 22a.
3 ‘In this respect, the decision in this case is in conflict with Wyche v. 

Madison Parish Police Jury, 635 F.2d 1151, 1160(CA5 1981)(remedy 
plan, which addresses only discriminatory effect, is not required 
to guarantee proportional representation by race). Wyche was decided 
by a panel of Unit A of the present Fifth Circuit, a shadow 
division of the present Fifth Circuit into what will be the Fifth Circuit 
in October 1981 (Texas, Louisiana, Mississippi, Canal Zone). Unit B 
of the Fifth Circuit is a shadow of the future Eleventh Circuit 
(Alabama, Florida, Georgia). See Fifth Circuit Court of Appeals 
Reorganization Act of 1980, Pub. L. No. 96-452, 94 Stat. 1994. While 
the Pensacola case was decided by a composite panel of judges now 
assigned to Units A and B, Wyche and this case present a conflict bet­
ween the inchoate Fifth and Eleventh Circuits.

32 Village o f Arlington Heights v. Metropolitan Hous. Devel. Corp., 
429 U.S. 252, 267-68 (1977).

3 3Appendix A, infra, 10a.



9

legislative history,” the court concluded was “probative 
evidence of the motivation of the action”34 of the state 
legislature.

Based on this analysis, the Court of Appeals, although 
conceding “[i]t is not easy for a court in 1980 to decide 
what motivated people in 1959,”35 concluded that “ ‘[t]he 
conclusion of plaintiffs’ expert historian that race was a 
concurrent motivating factor in the 1959 change is in­
escapable.’ ”36

THE QUESTIONS ARE SUBSTANTIAL
It is our submission that the Court of Appeals’ marshall­

ing of evidence to support its conclusions that the all at- 
large election system in Pensacola has a discriminatory ef­
fect in its failure to guarantee proportional representation by 
race, and was enacted with discriminatory motive conflicts 
with this Court’s decisions in both vote dilution and other 
Fourteenth Amendment cases. Moreover, the reasoning of 
the Court of Appeals is based on its resolution of issues 
which this Court left open in City o f Mobile v. Bolden, 
446 U.S. 55 (1980); this presents both opportunity and 
necessity for this Court to resolve the issues finally.

If the decision is allowed to stand without review by this 
Court, local governments will be powerless to justify their 
at-large election systems. Rather, the electoral choice of 
their citizens will be rendered nugatory by the federal 
courts’ citation of non-decisionmakers racial slurs decades 
old and newspaper editorials as the only preserved evidence 
of legislative intent. It will not matter that blacks vote, run 
and are elected at-large. Nor will it matter that a bi-racial 
city council now is responsive to black needs and cam­
paigns actively for black votes. It will matter only that 
blacks lack proportional representation by race.

34Id., at 20a.
35 Ibid.
36Ibid.



10

At bottom, the Court of Appeals concluded: (1) that an 
electoral system which has no present discriminatory ef­
fect except its failure to guarantee proportional represen­
tation by race can nonetheless violate the Equal Protection 
Clause and, thus, trigger a remedial order changing the 
form of a city’s government; (2) that discriminatory 
legislative intent can be proved without proof of the 
motives or actions of the state legislators who established 
the at-large system, solely by consideration of the motives 
of one importuning the legislature to action; (3) that the 
purpose of the action of a government body can be proved 
by an editorial writer’s published opinion of that purpose; 
and (4) that “concurrent” racial motive need not be weigh­
ed against legitimate legislative motive to determine 
whether a plaintiff has met his ultimate burden of proving 
discriminatory intent.

If any of the conclusions is erroneous, the judgment of 
the Court of Appeals must be reversed. None of the four 
should be permitted to stand without plenary review by 
this Court.

We consider each of the Court of Appeals’ conclusions 
in turn.



11

I

INVALIDATION OF GOVERNMENT ACTION 
WHICH HAS NO PRESENT DISCRIMINATORY EF­
FECT IS UNJUSTIFIED IN ANY EQUAL PROTEC­
TION CASE. IN A VOTE DILUTION CASE, 
MOREOVER, THE DISCRIMINATORY EFFECT 
WHICH MUST BE SHOWN IS SOMETHING MORE 
THAN THE ABSENCE OF PROPORTIONAL 
REPRESENTATION BY RACE

The issues in this case follow naturally from the 
development of an intent requirement in equal protection 
cases generally, and the application of that requirement to 
at-large voting cases. It is only the result reached by the 
Court of Appeals below which is unnatural.

Before plaintiffs were clearly required to show 
discriminatory government intent, a showing of 
discriminatory effect sufficed in a vote dilution case, and 
the Zimmer37 factors governed the proof of effect. Of the 
Zimmer factors most relevant here,38 the courts below 
found that the Pensacola incumbent councilmembers, 
both black and white, actively sought black votes, and 
were responsive to black needs. Beyond their unhindered 
exercise of the franchise in Pensacola, blacks had run 
many times for the City Council, and two different blacks 
had been appointed, elected and reelected. In 1975, 20% 
of the Council in this 35%-black city was black. If 
discriminatory effect under the congeries of Zimmer fac­
tors must be shown, plaintiffs have failed to do so. The 
only present effect of at-large elections which the plaintiffs

37Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973) (en banc), af­
firmed on other grounds sub nom. East CarrolI Parish School Board 
v. Marshall, 424 U.S. 636 (1976).

38The relevance of the Zimmer factor of past discrimination 
(especially in areas other than voting), and the so-called “enhancing” 
factors describing the structure of the at-large system was questioned 
in City o f Mobile v. Bolden 446 U.S. 55, 74 (1980).



12

have shown is a failure to seat more than 2 blacks at any 
time on the 10-member council. The conclusion of the 
Court of Appeals that this is a discriminatory effect is flat­
ly inconsistent with the precedents of this Court, from 
Whitcomb v. Chavis, 403 U.S. 124, 149 (1971), to City o f 
Mobile v. Bolden, 446 U.S. 55, 78 (1980).39

In Bolden, this Court rejected the proposition that a 
plaintiffs satisfaction of the Zimmer factors fulfilled his 
obligation to prove discriminatory intent. 446 U.S., at 73. 
Nothing in that case, or in the earlier, non-voting cases,40 
suggested that a plaintiff could prevail in an equal protec­
tion case without showing both intent and effect.41 Where 
discriminatory effect is lacking, as here, the case is over.

As a matter of proof, in this case, the City’s showing of 
present black electoral participation and success, and of 
the responsiveness of the members of the City Council to

39In each of the major cases presenting the question whether a viola­
tion of the Equal Protection Clause requires a showing of 
discriminatory intent, the prerequisite of discriminatory effect was 
clearly shown. The uncouth 28-sided figure of Gomillion v. 
Lightfoot, 364 U.S. 339 (1960), deprived the black residents thus 
fenced out of the usual municipal services. The closing of swimming 
pools in Palmer v. Thompson, 403 U.S. 217 (1971), deprived black 
residents of that municipal facility. The employment test in 
Washington v. Davis, 426 U.S. 229 (1976), foreclosed municipal 
employment, as did the preference in Personnel Administrator v. 
Feeney, 442 U.S. 256 (1979). Finally, the zoning provision in Village o f  
Arlington Heights v. Metropolitan Hous. Devel. Corp., 429 U.S. 252 
(1977), prevented both blacks and whites from enjoying the advan­
tages of an integrated neighborhood.

Nothing in these cases suggests that an equal protection case can 
proceed at all if discriminatory effect is lacking.

40Moreover, the Court of Appeals’ conclusion conflicts with that of 
the First Circuit in Black Voters v. McDonough, 565 F.2d 1, 5, n .ll 
(CA1 1977), and of the Ninth Circuit in Aranda v. Van Sickle, 600 
F.2d 1267, 1271 (CA9 1979).

41 So, the conclusion of the Court of Appeals here conflicts with that 
of the First Circuit in Black Voters, supra, 565 F.2d, at 4 & n.6.



13

black needs, negated whatever case plaintiffs might have 
developed. At least, that was the suggestion of another 
panel of the Fifth Circuit in Lodge v. Buxton, 639 F.2d 
1358, 1374-76 (CA5 1981) (“an essential element of a 
prima facie case is proof of unresponsiveness by the public 
body in question to the group claiming injury.”)42

The decision by the Court of Appeals in this case returns 
to the rejected concentration on the past and would, “in 
the manner of original sin”43 condemn a government 
system which operates today to the benefit of blacks.44 
Under the rule of this case, the same result would obtain if 
the at-large system had been created in 1859 rather than 
1959. Under a proper rule, a system presently maintained 
for a discriminatory purpose is unconstitutional. But in 
this case, both courts below found no such “maintenance” 
intent. So, this case fails where most vote dilution cases 
succeed.

This Court, of necessity, has rejected such an absolute 
stigmatization in desegregation cases. Keyes v. School 
Dist. No. 1 413 U.S. 189, 210-11 (1973). There, as here, 
the proper test is “whether the actions of. . .authorities 
were to any degree motivated by segregative intent and the 
segregation [or other discriminatory effect] resulting from

42In their unsuccessful post-decision attempt to have the Court of 
Appeals dissolve the District Court’s stay (pending disposition of this 
appeal) of its 7-3 remedy plan for the City of Pensacola, the plaintiffs 
asserted that “[w]ithout question, Lodge conflicts with the [Fifth Cir­
cuit] Court’s opinion in the instant [Pensacola] case regarding the 
relevance of unresponsiveness.” Motion for Restoration of Injunc­
tions, at 5 (Mar. 27, 1981).

43City o f Mobile v. Bolden, 446 U.S. 55, 74 (1980).
44Not the least ironic in this case is the fact that Hollice Williams, a 

black Pensacola city councilmember, is a member of the class of black 
Pensacolans whom plaintiffs have been certified to represent. 
Williams is thus suing himself, asking that the system under which he 
was elected be declared unconstitutional.



14

those actions continues to exist.” Ibid, (emphasis added). 
See also City o f Richmond v. United States, 422 U.S. 358, 
378 (1975) (record must reflect “whether there are now 
justifiable reasons for the city to retain. . . .”) (emphasis 
added).

II

THE DIFFICULT AND SENSITIVE PROOF OF 
DISCRIMINATORY INTENT OF GOVERNMENT OF­
FICIALS MUST FOCUS ON THE ACTIONS AND 
WORDS OF THOSE OFFICIALS

While it is important for this Court to settle the proper 
relation of proof of a lack of present discriminatory effect 
to proof of past discriminatory intent, in this case, the 
Court of Appeals erred also in its evaluation of the intent 
of the Florida legislature in 1959. Despite testimony from 
then-Representative Askew of his nonracial motivation and 
despite his unchallenged statement that without his support in 
1959 the change of Pensacola’s election system would not 
have passed the legislature, the Court of Appeals conclud­
ed that race was a “concurrent” motivating factor in the 
1959 legislation. That conclusion is premised on three sub­
sidiary conclusions, each of which will produce untoward 
results in all types of equal protection cases, as they did 
here.

A. The Intent of a Legislature Cannot be Proved 
by the Motivation of a Non-Legislator Seek­
ing Legislation

The Court of Appeals gave dispositive effect to a state­
ment by one 1959 Pensacola city councilmember. That 
statement proves nothing about the intent of the Florida 
legislature.45_______

45Under Florida Law, such an isolated statement would not even 
prove the intent of the 1959 Pensacola city council. Beck v. Littlefield, 
68 So.2d 889. 893 (Fla. 1953).



15

Where the focus of a dilution case is on state legislation, 
evidence of the intent of government officials other than 
the state legislators themselves “would be, of course, of 
questionable relevance.” Bolden, supra, 446 U.S., at 74, 
n.20.46 47 Only the legislators’ intent advances a plaintiffs 
dilution case.

The importance of resolution of this question 
transcends voting cases. For, the error we assign here 
comes from the Court of Appeals’ misapplication of the 
Arlington Heights47 test of legislative intent, a test which 
applies in any equal protection case. It is as if, rather than 
focusing on the intent of the Village Board in Arlington 
Heights, this Court had found a constitutional violation 
by the Village from the “quite vocal and demonstrative”48 
citizen opponents of Lincoln Green who spoke in favor of 
the rezoning action the Board eventually took (for very 
different reasons).

The Court should take this opportunity to reaffirm that 
the factors of the Arlington Heights test of intent relate 
only to the actions and words of the governmental actors 
whose (legislative, in this case) acts are in issue. If state 
legislators (or local government officials where their intent 
is relevant, as in Arlington Heights) are to keep their doors 
open to the constituents they serve, gratuitous racial slurs

46The Bolden plaintiffs certainly urged this view on the Fifth Circuit 
Court of Appeals in Bolden on remand. Supplemental Brief on Re­
mand, at 15 (“inescapable conclusion that modern-day decisions of 
the legislature were designed to strengthen and preserve the City of 
Mobile’s election scheme. . . .”). So did the United States as amicus 
curiae. Memorandum for the United States, at 13 (Jul. 7, 1981) (“. . . 
evidence concerning actions of state legislators which would be rele­
vant under Arlington Heights. . . ”).

47 Village o f Arlington Heights v. Metropolitan Hous. Devel. Corp., 
429 U.S. 252, 267 (1977), applied by the Court of Appeals in 
this case at Appendix A, infra, 10a.

4*429 U.S., at 257.



16

by a constituent should not bind the legislators and 
foredoom the form of government they create.

B. The Written Opinion of a Newspaper 
Editorial Writer Is Insufficient, Without 
More, to Prove the Intent of any Official

In this case, the only evidence of the “ ‘prime reason 
behind the [1959] change’ ” cited by the Court of Appeals 
was the opinion of a newspaper editorial writer in Pen­
sacola.

The Court of Appeals was correct to lament the difficul­
ty of knowing today what motivated a collegial body in 
1959. But the difficulty of the question, on which the 
plaintiff in a vote dilution case bears the burden of proof, 
does not condone reliance on the kind of evidence cited by 
the court here. Newspaper articles are important sources 
of probative evidence in voting cases: they accurately 
preserve the voting results, often by precincts (the only 
way to determine the existence of racial bloc voting), and 
they record the public deeds and utterances of the govern­
ment actors whose intent is relevant. However, caution is 
warranted against the too-ready acceptance of printed mat­
ter the unreliability of which is clear.49 In this case, that 
caution can only be applied by this Court’s exercise of its 
supervisory power.

Caution, and rules defining the proper caution, will be required in 
cognate uses of newspaper materials. See, e.g., Kirksey v. City o f  
Jackson, 506 F.Supp. 491, 514 (SD Miss. 1981), appeal docketed 
(CA-) (newspaper advertisements offered to prove motivation of ma­
jority of voters in referendum).



17

C. A Plaintiff Has Satisfied His Burden of Prov­
ing Discriminatory Legislative Intent Only 
on Showing That Racial Motives Outweighed 
Nonracial Motives

In this case, the speculation of the editorialist was not 
the only evidence of legislative intent. Governor Askew’s 
testimony about his motivation, and the dispositive effect 
of his position on the success or failure of special (one city) 
legislation in 1959, was unrebutted. Even if the gratuitous 
racial slur of a city councilmember without power to affect 
state legislation and the musings of an editorialist were 
probative of the intent of the Florida legislature, their 
force was far outweighed by the testimony of the relevant 
government actor, Representative Askew. Certainly, when 
the City proferred its proof of the intent of the 
legislature,50 through its key member, Askew, that proof 
had to be weighed.51

5 “Under the traditional equal protection analysis, the plaintiffs proof 
of disparate racial effect shifts to the government officials “the 
burden of accounting for their actions, and it is only when they fail to 
explain their actions that the Court is justified in concluding that 
racial motivation is present which requires a compelling state interest 
in order to survive.” C. Abernathy, Civil Rights, 36 (1980), paraphras­
ing Ely, Legislative and Administrative Motivation in Constitutional 
Law, 79 Yale L.J. 1205 (1970).

Pensacola’s explanation of the action of the 1959 Florida legislature 
thus foreclosed a conclusion of racial motivation. The next step, com­
pelling justification for at-large elections, was not needed. In any 
event, that justification was also amply spread upon the record here 
through the testimony of Governor Askew and a representative of the 
League of Women Voters (Hart, Tr. 1378) and a member of the City 
Council (O’Gara, Tr. 1395), both of whom supported the 1959 legisla­
tion for racially neutral reasons. See also Campbell v. Gadsden Coun­
ty School Board, No. TCA 73-177 (ND Fla. Dec. 5, 1980) (Florida 
policy of at-large school board elections since 1893).

5‘In its view of the burden on civil rights defendants, the opinion of 
the Court of Appeals in this case is similar to that unanimously re­
jected by this Court in Texas Dep’t o f Community Affairs v. Burdine, 
No. 79-1764 (Mar. 4, 1981).



18

And, Governor Askew’s testimony satisfied, with a 
literalness seldom seen, the standard of Mt. Healthy City 
School District v. Doyle, 429 U.S. 274, 287 (1977) 
(“whether the [government] . . . would have reached the 
same decision . . . even in the absence [of the constitu­
tionally protected or objectionable stimulus]”). Governor 
Askew testified:

“I frankly was offended by the remark and 
frankly, had I thought that it was racially 
motivated I not only would not have introduced 
it, I would have opposed it, because the 1959 ses­
sion of the legislature was a difficult session in 
which there was substantial racial legislation 
coming before it and the biggest fight in the 1959 
session of the legislature was that the Senate had . 
passed what I felt was some undesirable legisla­
tion which I characterized on the floor of the 
House in rather, very clear terms, and the fight 
was to keep the House from extending the ses­
sion past the sixty days, which required a certain 
vote, in order to keep from considering the 
legislation that the Senate was passing. Governor 
Leroy Collins was Governor at the time. He 
wanted to get us out of there so we would not 
pass any bad legislation. Former Circuit Judge 
Tom Beasley, who was then Speaker of the 
House, came down from the rostrum and made a 
stirring speech that we go home and not stay 
there to consider what would have been legisla­
tion in my opinion that would have been very 
adverse to Florida, and as a freshman I had the 
privilege of leading the fight. I say that, Mr. 
Caton, so that you will put in context that from 
the time I started running in politics black people 
have supported me and from the time I started in



19

politics there was always that undercurrent that 
was attempted to be inserted in my election. I 
was sensitive in that regard.

“Q. Yes, sir.

“A. And had I felt at the time that that was the 
reason, as I say, not only would I not have in­
troduced it I would have opposed it, which 
would have killed it.

“Q. Had you opposed it, it would not have passed.

“A. That is true, because there were two members 
of the legislature, excuse me, two members of the 
House. One was Mr. Stone, a dear friend of 
mine, who was an outstanding member of the 
House, who was killed in an automobile accident 
later, and Mr. Philip Beall, who was our senator, 
and nothing could pass when there’s only two if 
both didn’t agree, so I cast off that remark, 
frankly, as being the opinion of that one coun­
cilman.”

Tr. 1423-24.



20

CONCLUSION

Had the Arlington Heights and Mt. Healthy tests -  
which apply in all equal protection cases -  been properly 
applied here, there could have been no conclusion of in­
vidious legislative motive. Because both courts below 
lauded the present Pensacola City Council for its respon­
siveness to the needs of black residents, there is no support 
in the record of this case for a court-ordered change in the 
form of Pensacola’s government.

The Court should note jurisdiction and, on the merits, 
reverse the judgment of the Court of Appeals.

Respectfully submitted,

DON J. CATON, City Attorney
JOHN W. FLEMING, Assistant 

City Attorney 
City Hall 
P.O. Box 12910 
Pensacola, Florida 32501

CHARLES S. RHYNE
WILLIAM S. RHYNE 

Suite 800
1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 466-5420

Counsel o f Record
Attorneys for City of Pensacola, et al.



la

APPENDIX A

Henry T. McMILLAN et al., 
Plaintiffs-Appellees,

v.

ESCAMBIA COUNTY, FLORIDA et al., 
Defendants-Appellants.

Elmer JENKINS et al., 
Plaintiffs-Appellees,

v.

CITY OF PENSACOLA, et al., 
Defendants-Appellants.

No. 78-3507

United States Court of Appeals,
Fifth Circuit.
Feb. 19, 1981.

APPEALS FROM THE UNITED STATES 
DISTRICT COURT FOR THE NORTHERN DISTRICT 

OF FLORIDA

Before COLEMAN, PECK* and KRAVITCH, Circuit 
Judges:

KRAVITCH, Circuit Judge:

These consolidated cases arise from an attack on the 
forms of government in the City of Pensacola and Escam­
bia County, Florida. The County Commission, City

Senior Circuit Judge of the Sixth Circuit, sitting by designation.



2a

Council and School Board are all defendants. The district 
court, after extensive hearings, found that the at-large 
election systems used to elect each of the three defendant 
bodies are unconstitutional.1 We affirm in part and 
reverse in part.

I. Overview o f Plaintiffs’ Claim

These class actions were filed simultaneously on March 
18, 1977, by black voters of Pensacola and Escambia 
County. The plaintiffs alleged that the at-large systems for 
electing members of the area’s three major governing 
bodies are unconstitutional as violative of their rights 
under the First, Thirteenth, Fourteenth and Fifteenth 
Amendments and are in violation of the Civil Rights Act 
of 1957, 42 U.S.C. § 1971(a)(1), the Voting Rights Act of

'These appeals proceeded in a piecemeal manner. After the district 
court held the three defendant bodies to be unconstitutional, but 
before a remedy was ordered, the defendants filed a notice of appeal. 
The district judge had expressed his belief that his order finding the 
systems unconstitutional was a final order, but certified it for in­
terlocutory review in case he was in error.

While that appeal (No. 78-3507) was pending but before it was set 
for oral argument, the district court entered its remedy order against 
the city council. The plaintiffs filed a notice of appeal from the 
remedy order which was docketed as 79-1633 and was consolidated 
with 78-3507 for oral argument. That appeal is being decided today in
a separate opinion. Jenkins v. City o f Pensacola, slip op. p. ___ ,
___ F.2d____ (5th Cir. 1980).

After the district court entered its remedy order for the city council, 
it entered remedy orders against the county commission and the 
school board. The school board chose not to appeal the order entered 
against it, but the county commission did appeal the remedy order. 
That appeal, 80-5011, was consolidated with 78-3507 and 79-1633 for 
oral argument and is being decided today in a separate opinion.
McMillan v. Escambia County, slip op. p .___ , ___ F.2d____ (5th
Cir. 1980).



3a

1965, as amended in 1975, 42 U.S.C. § 1973, and the Civil 
Rights Act of 1871, 42 U.S.C. § 1983.

The essence of the plaintiffs’ complaints is that the at- 
large systems operate to preclude the black population, 
which comprises one-third of the city population2 and 
one-fifth of the county population,3 from electing a 
member of its own race to any of the three governing 
bodies.

The Board of County Commissioners is composed of 
five members who serve staggered four-year terms. 
Although they must run for numbered places correspond­
ing to the districts in which they live, they are elected at- 
large by the voters of the entire county. Each major party 
is required to hold a primary in which only party members 
may vote. Candidates run at-large for numbered places in 
the primaries, and a majority vote is required for the party 
nomination. There is no majority vote requirement in the 
general election.

The School Board of Escambia County is composed of 
seven members who serve staggered four-year terms. Five 
of the members must reside in residential districts but two 
may reside anywhere in the county.4 Otherwise, the elec­
tion process for the School Board is the same as that for 
the County Commission.

The Pensacola City Council has ten members. Can­
didates must run for numbered places corresponding to

2Blacks represent 23% of the registered voters in the City of Pen­
sacola.

3Blacks represent 17% of the county’s registered voters.
4The two seats without a residency requirement were added in 1976. 

1976 Fla. Laws, ch. 76-356. This change is discussed in note 14, infra.



4a

the five wards, and must live in the corresponding ward. 
The election, however, is at-large. There are no primaries, 
but there is a majority vote requirement.

Since 1955, blacks have been candidates for the County 
Commission four times, for the School Board five times 
and for the City Council nineteen times. As of the date of 
trial, no black had ever been elected to either the County 
Commission or the School Board,5 and only two blacks 
had been elected to the City Council. The two black City 
Council members had initially been appointed to the 
Council to fill vacant seats and were then successful in 
their bids for re-election.

The plaintiffs argue that because of racially polarized 
voting,6 and because of the at-large system of elections,

5After the trial in this case, Dr. Vernon McDaniel, a black educator, 
was elected to the school board.

6Expert statistical evidence was presented which showed a very high 
correlation between the percentage of blacks in a precinct and the 
number of votes a black candidate receives in that precinct. The 
district court discussed the racial polarization of voting at length.

There is in Escambia County a consistent racially 
polarized or bloc voting pattern which operates to defeat 
black candidates. There is in the county an active Ku Klux 
Klan which has run at least one candidate for office and 
obtained a significant number of votes. More importantly, 
however, there is an even larger bloc of white voters who, 
like almost all black voters, consistently vote for the can­
didate of their race whenever black candidates face white 
candidates.

The complete record of county elections since 1955 was 
brought before the court. The first black person to run for 
a countywide office was John Reed, who was a candidate 
for the Escambia County Commission in May, 1966. He 
failed to make the runoff in the Democratic Primary. The 
R2 coefficient of the correlation between Mr. Reed’s vote 
returns and race was 0.98. The first black person to seek 
election to the Escambia County School Board was Otha



5a

the votes of blacks in Pensacola and Escambia County are 
being diluted. In essence, their argument is that although 
blacks comprise a significant minority of the area, they

Leverette in 1970. Rev. Leverette got the Democratic Party 
nomination without opposition; no other candidates 
qualified for this place. Some efforts were made to hide the 
fact he was black until the qualification date passed. But 
Leverette was beaten in the general election by a white 
Republican candidate, Richard Leeper. It was the first time 
in the modern history of Escambia County that a 
Republican had won any countywide office. Mr. Leeper 
received 22,523 votes even though there were at that time 
only 7,268 Republicans registered. There were 67,297 
whites and only 13,037 blacks registered to vote. The R2 
coefficient for the correlation between Leverette’s vote and 
race was 0.76, indicating a severely racially polarized vote. 
Richard Leeper had received only 10,712 votes in his race 
against a white Democratic candidate, Kirkland, in the 
1966 school board general election.

This pattern of black candidates losing in racially 
polarized elections continues to the present . . . .

[Election] returns and regression statistics were analyzed 
by political scientists. The analyses focused upon voting 
returns from precincts which were 95% or more of one 
race. These returns, combined with regression statistics on 
all precincts, showed that whenever a black challenges a 
white for countywide office, a significant majority of the 
whites who vote will consistently vote for the black’s oppo­
nent. Sixty percent or more of the whites will do so in most 
cases. There were some differences in the testimony of 
plaintiffs’ experts and defendants’ expert. For example, the 
defendants’ experts’ approach to statistical analyses of 
polarization was somewhat different from that of plain­
tiffs’ expert. Nonetheless, both found racial polarization in 
most, if not all, elections in which blacks ran.

Even though turnout among black voters is as high as 
that among white when black candidates run (it is regret­
tably low for both races), and black voters vote almost 
unanimously for the black candidates, black candidates 
cannot attain a majority of the votes in the county because 
of the numerical inferiority of blacks combined with the



6a

will never be able to elect members of their race to the 
governing bodies, and hence, their votes are worth less 
than those of their white counterparts. This claim has been

white bloc vote. Several prominent white politicians 
acknowledged this fact.

The situation is much the same respecting the city. 
Although blacks constitute 33% of the city’s population 
and 23% of its registered voters, with two noteworthy ex­
ceptions, black candidates have been denied office by the 
white block voting. All city election returns since 1955 were 
analyzed in the same manner as as the countywide returns 
and again it was shown that most white voters showed a 
consistent preference for white candidates over black can­
didates resulting in consistent losses and frustration for the 
minority candidates . . . .

There have been only two exceptions to the white bloc 
vote in city elections. Two blacks, Dr. Spence and Hollice 
Williams, have been appointed by the council to fill vacant 
council seats and thereafter were both winners in their bids 
for reelection. The evidence strongly suggests that the 
absence of the white bloc vote against these two candidates 
is due to the fact that both were chosen and thereafter 
received public and private white political support. Indeed, 
one of the two had run for the council prior to his appoint­
ment and was then soundly defeated by the usual white 
bloc vote. This effect of endorsement by community 
leaders is a common political phenomenon which is called 
“cuing.” See V.O. Key, The Responsible Electorate.

Not all whites vote against blacks. In every race blacks 
have received some white support. But the city, like the 
county, is, by and large, a race conscious society. There is 
an established pattern of sufficient polarized voting to 
regularly defeat black candidates. White candidates do ac­
tively seek the votes of blacks. The studies of voter tur­
nouts indicate, however, that when whites run against 
whites, black voter turnout drops, indicating a lack of in­
terest by blacks in the candidates. Defendants’ expert ad­
mitted that this may indicate that blacks view the choice of 
white candidates as irrelevant to their interests.

Dist. Ct. Order, pp. 11-15.



7a

presented to this court previously; see, e.g., Cross v. Bax­
ter, 604 F.2d 875 (5th Cir. 1979); Nevettv. Sides, 571 F.2d 
209 (5th Cir. 1978); Blacks United for Lasting Leadership 
v. Shreveport, 571 F.2d 248 (5th Cir. 1978); NAACP  v. 
Thomas County, Georgia, 571 F.2d 257 (5th Cir. 1978); 
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en 
banc), a ffd  sub nom. East Carroll Parish School Board v. 
Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 
(1976), and, more recently, to the Supreme Court in City 
o f Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 
L.Ed.2d 47 (1980).

It should be noted that there is no allegation of any ac­
tual impediment to blacks voting, such as a poll tax or 
racially motivated gerrymandering of municipal boun­
daries. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 
125, 5 L.Ed.2d 110 (I960)7 Rather, the issue here is limited 
to a claim of vote dilution.

II. City o f Mobile v. Bolden
City o f Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 

64 L.Ed.2d 47 (1980), was pending before the Supreme 
Court when these cases were argued; accordingly, we 
postponed decision in these cases pending the Bolden deci­
sion. After Bolden was announced, we requested sup­
plemental briefs from the parties. As Justice White 
predicted, however, we still are somewhat “adrift on un­
charted seas with respect to how to proceed.” 446 U.S. at 
103, 100 S.Ct. at 1519.

No view by the Supreme Court Justices commanded a 
clear majority. Mr. Justice Stewart, who authored the 
plurality opinion, joined by Justices Burger, Powell and 
Rehnquist, was of the view that a vote dilution claim, as

7In fact, the district court found that “[n]o impediments are are 
thrown in the way of blacks to register and vote.” Dist.Ct.Order, p. 
10.



8a

opposed to an actual denial of the right to vote, is not a 
Fifteenth Amendment8 claim at all, and that a Fourteenth 
Amendment claim had not been proven because the plain­
tiffs had not adduced adequate proof that the at-large 
election system constituted intentional discrimination 
against blacks, either in its inception or operation.

Although Justice Stevens considered a vote dilution 
claim to be a proper Fifteenth Amendment claim, he 
would require a plaintiff to prove that the system com­
plained of is either “totally irrational or entirely motivated 
by a desire to curtail the political strength of the 
minority.” 446 U.S. at 90, 100 S.Ct. at 1512.

In dissent, Justices Brennan, White and Marshall, for 
different reasons and in varying levels of vehemence, 
disagreed with the plurality that discriminatory purpose 
had not been shown in this case. Justice Marshall, joined 
by Justice Brennan, went further, arguing that an ap­
proach based on motivation is unworkable, and that proof 
of discriminatory impact alone should be sufficient. 
Justices White and Marshall both viewed the Bolden claim 
as a legitimate Fifteenth Amendment claim. Justice Bren­
nan took no position on this.

Justice Stewart in Bolden gently chided this court and the district 
court for failing to address the complainant’s statutory claim under 
§ 2 of the Voting Rights Act of 1965. The plurality went on to hold, 
however, that Section 2 of the Voting Rights Act does no more than 
elaborate on the Fifteenth Amendment. Under the plurality view, the 
Bolden plaintiffs had no valid Fifteenth Amendment claim and thus 
could not benefit from § 2 of the Voting Rights Act, either.

The plaintiffs here have urged this court to hold that there is an im­
plied private cause of action under the Voting Rights Act and that they 
made out a case. Assuming there is a private cause of action and ac­
cepting the plurality opinion on the scope of § 2 (none of the other 
opinions addressed the issue), the plaintiffs cannot succeed under § 2 
unless they can succeed under the Fifteenth Amendment. For a discus­
sion of the viability of the Fifteenth Amendment in vote dilution 
cases, see note 9, infa.



9a

Justice Blackmun assumed that if Justice Stewart is cor­
rect that discriminatory purpose must be shown, the 
evidence would support a finding of intent. He concurred 
in the result, however, because he disagreed with the 
remedy ordered by the district court.

Because no one analysis captured five Justices, we must 
determine the view with which a majority of the Court 
could agree. There were five clear votes (Stewart, Burger, 
Powell, Rehnquist and Stevens, JJ.) against the proposi­
tion that discriminatory impact alone is sufficient in vote 
dilution cases. Accordingly, to win a majority of the 
Court, in addition to impact, discriminatory purpose of 
some sort must be proven. Justice Stevens articulated the 
most conservative opinion on the extent to which such 
purpose must be shown. Because no other Justice con­
curred in his opinion, that discriminatory purpose must be 
the only purpose, we reject that analysis. Instead, we 
adopt Justice Stewart’s opinion, though it commanded on­
ly four votes. If, in addition to impact, a discriminatory 
purpose exists in the enactment or operation of a given 
electoral system, all members of the Court save Justice 
Stevens agree that that system is unconstitutional.9

III. Do the At-Large Electoral Systems Here Exist 
Because o f Purposeful Discrimination?

Arlington Heights v. Metropolitan Housing Corp., 429 
U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), teaches us 
that an inquiry into legislative purpose is not any easy one.

‘'Here, as in Bolden, the plaintiffs’ complaint alleges violations of 
the Fourteenth and Fifteenth Amendments. Because Justices Brennan 
and Blackmun expressed no view as to the appropriate amendment 
under which to analyze a vote dilution claim, the majority view is 
unknown. Three Justices indicated this is a proper Fifteenth Amend­
ment claim (Stevens, White and Marshall, JJ.); but the four Justice 
plurality opinion indicated it is not. We adopt the plurality view that 
vote dilution violates only the Fourteenth Amendment. Accordingly, 
the plaintiffs cannot succeed under either the Fifteenth Amendment or 
§ 2 of the Voting Rights Act. See note 8, supra.



10a

“Determining whether invidious discriminatory purpose 
was a motivating factor demands a sensitive inquiry into 
such circumstantial and direct evidence of intent as may be 
available.” 429 U.S. at 266, 97 S.Ct. at 564. The Court 
suggests several possible evidentiary sources for such a 
determination. Among them are: (1) the historical 
background of the action, particularly if a series of actions 
have been taken for invidious purposes; (2) the specific se­
quence of events leading up to the challenged action; (3) 
any procedural departures from the normal procedural se­
quence; (4) any substantive departures from normal pro­
cedure, i. e., whether factors normally considered impor­
tant by the decisionmaker strongly favor a decision con­
trary to the one reached; and (5) the legislative history, 
especially where contemporary statements by members of 
the decisionmaking body exist. 429 U.S. at 267-68, 97 
S.Ct. at 564.

The Stewart opinion in Bolden held that the so-called 
Zimmer factors regarding discriminatory impact (see Zim­
mer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en 
banc), a ffd  sub nom. East Carroll Parish School Board v. 
Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 
(1976)) were insufficient, standing alone, to support a find­
ing of discriminatory purpose. Fortunately, the district 
court below correctly anticipated that the Arlington 
Heights requirement of purposeful discrimination must be 
met, and thus made explicit findings concerning intent in 
addition to and apart from its Zimmer findings. Accord­
ingly, there is no need to remand the case for a determina­
tion of whether purposeful discrimination exists. See Arl­
ington Heights v. Metropolitan Housing Corp., 429 U.S. 
252, 272-73, 97 S.Ct. 555, 567, 50 L.Ed.2d 450 (White, J., 
dissenting).



11a

A. The County Commission

The at-large system for electing county commissioners is 
mandated by a 1901 amendment to the Florida Constitu­
tion. Fla.Const, art. 8, § 5. There is considerable evidence 
that at about that time the white citizens of Florida 
adopted various legislative plans either denying blacks the 
vote entirely or making their vote meaningless. For exam­
ple, Jim Crow laws were instituted in the early 1900’s, the 
Democratic Party established the white primary10 in 1900, 
and there was widespread disfranchisement of blacks."

Although many actions in the early 1900’s had a clear in­
vidious purpose, this court held in McGill v. Gadsden 
County Commission, 535 F.2d 277 (5th Cir. 1976), which 
also involved an at-large system mandated by the 1901 
amendment to the Florida Constitution, that no racial 
motivation was behind the amendment. This, accord­
ing to McGill and Dr. Shofner, the plaintiffs expert 
historian, is because there was such widespread disfran­
chisement of blacks by that time that they did not repre­
sent a political threat. Thus, relying upon McGill as rein­
forced by the conclusions of Dr. Shofner, the district court 
held that the at-large system for electing county commis­
sioners was not adopted for discriminatory purposes. Based 
upon the evidence, this finding of the district court was 
not clearly erroneous and supported the court’s conclu­
sion.

1 “Because the Democratic Primary was tantamount to the election, 
the exclusion of blacks from the primary effectively denied them the 
vote. Furthermore, the primary was conducted as a single-member 
district election. In essence, therefore, commissioners were elected in 
single-member districts though the general election was conducted at- 
large.

1' See generally, C. Vann Woodward, The Strange Career o f Jim 
Crow (3rd ed. 1974).



12a

Although the at-large system did not have its genesis in a 
purposeful attempt to exclude blacks from the political 
process, under the Stewart analysis in Bolden, invidious 
purpose in the operation of the plan will also invalidate it. 
446 U.S. at 65, 100 S.Ct. at 1499. The district court held 
the at-large system for electing county commissioners is 
being perpetuated for invidious purposes. According to 
the district court, evidence of such an intent can be found 
in the fact that the County Commission has twice rejected 
the recommendations of its own charter government com­
mittees that the county change to single-member districts.

Four county commissioners testified at trial that race 
did not motivate their refusal to submit the issue of single­
member districts to the electorate. Each stated that it was 
his personal belief that all voters of the county should be 
allowed to vote on each of the commissioners so the board 
would be more responsive to the needs of the community 
as a whole. Thus, the commissioners asserted “good 
government” reasons for perpetuation of the at-large 
system.

The district court held, however, that the purpose of 
perpetuating the present system was not legitimate.

In their post-trial memorandum, defendants 
admit that the rejection of the single-member 
district aspect of the charter proposal “reflects 
the commissioners’ desire to maintain their in­
cumbency.” This was also the court’s impression 
at trial. Each of these commissioners had been 
elected in county wide elections. They could not 
know how they would fare in single district elec­
tions. Yet it is apparent that in such elections one 
or more of them might be replaced by blacks.

To this court the reasonable inference to be 
drawn from their actions in retaining at-large



13a

districts is that they were motivated, at least in 
part, by the possibility single district elections 
might result in one or more of them being 
displaced in subsequent elections by blacks.

* * * *

That [the commissioners’] motivations may be 
selfish rather than malicious toward blacks does 
not alter the conclusion that their intent was to 
continue the present dilution of black voting 
strength. The present at-large election system for 
county commissioners is being maintained for 
discriminatory purposes.12

If the district court is correct in its conclusion that the 
at-large election system is being maintained for 
discriminatory purposes, then we must affirm its ultimate 
decision that the system is unconstitutional.

We have reviewed the testimony, however, and found 
no evidence of racial motivation by the county commis­
sioners in retaining the at-large system. The trial court 
stressed defendant’s statement in a post-trial memorandum 
that rejection of the charter proposal reflected the com­
missioners’ desire to retain their incumbency. Retention of 
incumbency was never mentioned in the testimony. 
Moreover, in our view the desire to retain one’s incumben­
cy unaccompanied by other evidence ought not to be 
equated with an intent to discriminate against blacks qua 
blacks. The commissioners all testified that racial con­
siderations played no role in their rejection of the charter 
proposal; the plaintiffs introduced no evidence to the con­
trary. The trial judge, of course, was entitled not to believe 
the commissioners’ testimony; in the absence of contradic­

12Dist.Ct.Order, pp. 30-31.



14a

tory evidence, however, disbelief of that testimony is not 
sufficient to support a contrary finding. See Moore v. 
Chesapeake and Ohio Railway, 340 U.S. 573, 576, 71 
S.Ct. 428, 429, 95 L.Ed. 547 (1951). Therefore, the 
evidence falls short “of showing that the appellants ‘con­
ceived or operated [a] purposeful [devise] to further racial 
discrimination.’” 446 U.S. at 66, 100 S.Ct. at 1499, 
quoting Whitcombs. Chavis, 403 U.S. 124, 149, 91 S.Ct. 
1858, 1872, 29 L.Ed.2d 363 (1971).

B. The School Board

An at-large system for electing School Board members 
was established by state law in 1947. Fla.Stat. §§ 230.08, 
.10 (1975). The district court discussed the enactment of 
that law, and, applying the Arlington Heights criteria, 
found it to have been born from a desire to exclude blacks.

From 1907, 1907 Fla.Laws, ch. 5697, § 1, until 1945 
there was clear support for single-member district elec­
tions for School Board members. During this period the 
primary elections for School Board members were con­
ducted as single-member district elections, while the 
general elections were at-large. Because the all-white 
Democratic primary was tantamount to the election, from 
1907 through 1945 the School Board was a de facto, if not 
de jure, single-member district body. Thus, in 1945 the 
clear policy of the citizenry of Escambia County was to 
favor single-member district elections for School Board 
members.

The 1945 decision in Davis v. State ex rel. Cromwell, 
156 Fla. 181, 23 So.2d 85 (1945) (en banc), changed that, 
however, by declaring unconstitutional the white primary. 
In the very first legislative session following Davis, the



15a

legislature enacted statutes requiring at-large elections in 
both the primary, 1947 Fla.Laws, ch. 23726, § 7, and the 
general election, 1947 Fla.Laws, ch. 23726, § 9.

Looking at the change from single-member districts to 
at-large districts through Arlington Heights glasses, the 
conclusion that the change had an invidious purpose is in­
escapable. The specific sequence of events leading up to 
the decision mandates the conclusion that the citizens of 
Escambia County in 1945, with the demise of the white 
primary, were not going to take any chances on blacks 
gaining power and thus purposefully sought to dilute 
black voting strength through the use of an at-large 
system. Furthermore, the history of the county suggests a 
substantive policy which favored single-member districts 
for the election of School Board members. The abrupt, 
unexplained departure from that forty-year policy upon 
the heels of the white primary’s demise justifies the district 
court’s conclusion that the change was racially motivated. 
Accordingly, we concur in the statement of the district 
court that “[t]he evidence of discriminatory motives 
behind the at-large requirements of the 1947 system is 
compelling.”

There is recent evidence of community awareness that 
the effect of the at-large system is to dilute the voting 
strength of blacks, and evidence that the dilutive effect 
will be capitalized on by the white majority to keep the 
School Board responsive to them. In 1975 the School 
Board took a position favorable to black interests on the 
question of whether the nickname “Rebel” should con- 
tinue to be used at Escambia County High School.13

,3In 1973, black students intervened in the federal school desegrega­
tion suit to challenge the continued use of the nickname “Rebel” at 
Escambia County High School. White students and parents also inter­
vened, but in defense of the nickname. This provoked considerable 
racial unrest in the school. (footnote continued)



16a

The district court found that, in at least partial retalia­
tion against the Board for its decision on the issue, the 
legislative delegation introduced a bill to increase the size 
of the Board to seven members, to change from an elective 
to an appointive school superintendent, and to reduce the 
salaries of Board members. The bill as introduced had the 
unanimous support of the local delegation.14 As is re­
quired by state law, a referendum election was held to pre­
sent the bill to the Escambia County electorate for ap­
proval. The proposals to increase the size of the Board and 
to reduce members’ salaries passed overwhelmingly, but

(footnote continued)
The district court enjoined further use of the “Rebel” name, 

Augustus v. School Board o f Escambia County, 361 F.Supp 383 
(N.D.Fla. 1973), but the decree was modified on appeal. 507 F.2d 152 
(5th Cir. 1975). The Fifth Circuit directed the district court to give the 
Board the opportunity to resolve the “Rebel” issue on its own. The 
Board’s solution was to permit reinstatement of the nickname if there 
was a two-thirds majority vote in favor of doing so by the students at 
the high school. The matter was voted on and though a majority of the 
students voted in favor of reinstatement, it was not a two-thirds ma­
jority.

There was an angry reaction to the result and at least one attempt 
was made to influence a School Board member to vote to reinstate the 
nickname notwithstanding its failure to garner the support of two- 
thirds of the student body. The School Board did not capitulate, and 
its tenacity led to the “Board packing” episode, infra.

' “•Changes in local governments are submitted to the Florida 
Legislature through the local delegation, generally based on a resolu­
tion by the local government. As a practical matter, local legislation 
will pass the legislature if it has the unanimous support of the local 
delegation. The proposed change is then submitted to the electorate in 
the form of a referendum. Discriminatory intent at any stage will in­
fect legislation.



17a

the provision to change to an appointed superintendent 
was defeated.15

It is impossible to know unequivocally what motivated 
the electorate to vote to increase the size of the School

15Generally, the change from a five-member to a seven-member 
school board is accompanied by a change from an elected to an ap­
pointed superintendent. By separately submitting the two proposals, 
Escambia County is now the only county in Florida to have a seven- 
member board and an elected superintendent.

The School Board challenged the change to a seven-member board 
in court. The Florida Supreme Court held against the board, stating 
that “[t]he political motivations of the legislature, if any . . .  are not a 
proper matter of inquiry for this Court.” School Bd. o f Escambia Co. 
v. Florida, 353 So.2d 834, 839 (Fla. 1977) (Hatchett, J., dissented).

As a general rule, a court does not inquire into the political motiva­
tions of legislators. The Supreme Court stated in Arlington Heights v. 
Metropolitan Housing Corp., 429 U.S. 252 at 265-66, 97 S.Ct. 555 at 
563:

[I]t is because legislators and administrators are properly 
concerned with balancing numerous competing considera­
tions that courts refrain from reviewing the merits of their 
decisions, absent a showing of arbitrariness or irrationality.
But racial discrimination is not just another competing 
consideration. When there is a proof that a discriminatory 
purpose has been a motivating factor in the decision, this 
judicial deference is no longer justified.

(footnote omitted). It appears that the School Board did not argue in 
state court that the plan to increase its number had an invidious pur­
pose, and thus, the Florida Supreme Court cannot be faulted for 
deferring to the legislature. In this court, however, the plaintiffs have 
made it painfully obvious that invidious purposes still motivate some 
of Florida’s legislators’ decisions. Such motivations were made not 
simply undesirable but unconstitutional over one hundred years ago. 
People have become more subtle and more careful in hiding their 
motivations when they are racially based. This makes the district 
court’s inquiry in the first instance and ours on review more difficult. 
However, it is obviously equally important to invalidate actions 
motivated by subtle, hidden invidious purposes as it is to do away with 
more blatant forms of discrimination.



18a

Board. However, the fact that an earlier referendum for 
such an increase failed by a two-to-one margin, in conjunc­
tion with the racially charged atmosphere at the time of 
the second referendum, strongly suggests the vote was 
racially motivated. The district court described the situa­
tion as follows:

The 1976 change in the school board’s election 
system was avowedly to pack the board to make 
it more responsive to the white majority on a par­
ticular racially polarized issue . . . .  This is a 
telling indication of the legislators’ and com­
munity’s recognition and use of the at-large 
system as a method of rendering black voters 
politically impotent to the desires of the white 
majority.

Dist.Ct.Order, p. 31.

The district court correctly held that the at-large system 
of electing School Board members was developed with a 
discriminatory purpose and is being utilized by the majori­
ty population for such a purpose. Accordingly, the district 
court was correct in holding the at-large system for elect­
ing School Board members unconstitutional16

l6The district court, in determining that the School Board election 
plan was being maintained for discriminatory purposes, stated that it 
considered Zimmer factors in conjunction with other evidence. Zim­
mer v. McKeithen has been invalidated by Bolden and any conclusion 
based solely on Zimmer factors would be erroneous. Here, however, 
the court’s conclusion that the plan had been maintained for 
discriminatory purposes was based on other evidence, i.e., the 1976 
referendum, in conjunction with the Zimmer factors. Moreover, as 
regarding the School Board, a finding of discriminatory motive in 
maintaining the system is not necessary to invalidate it; the court’s fin­
ding of discriminatory intent in the creation and discriminatory im­
pact suffice to satisfy the Bolden standard.



19a

C. City Council

In 1931 a council-manager form of government was in­
stituted in Pensacola. As originally enacted, it provided 
for ten council members: five were elected from single­
member wards and five were elected at-large but with a 
ward residency requirement.

In 1955, a black ran a very close race against a white for 
one of the single-member district seats. There was 
testimony that when the council next reapportioned the 
wards, it purposefully gerrymandered that ward to in­
crease its percentage of whites. Furthermore, three years 
later, the council asked the local legislative delegation to 
change the law so that all the council members would run 
at-large. A man who served on the city council at that time 
testified at trial, and the following colloquy occurred:

THE COURT: And the reason for that change 
[to 10 at-large seats] was what?

A. Was because then we wouldn’t have this has­
sle of reapportioning to keep so many blacks in 
this ward and so many whites in that ward and 
keep the population in balance as to race.

(R. XVI-605).

Other evidence of an invidious purpose in changing 
those five single-member district seats to at-large seats 
came in testimony by then-Governor Reubin Askew. In 
1959, Askew was a first-term state representative from 
Escambia County. He testified that he did not have a 
discriminatory motive in supporting the change to all at- 
large seats, testimony which was credited by the district 
court. He further testified that though he was unaware of 
the council members’ motives generally, he was aware that



20a

one council member had indicated the change was wanted 
to avoid a “salt and pepper council.”

On the eve of the referendum election at which the 
change to all at-large seats was at issue, an editorial in the 
Pensacola Journal stated that there would be advantages 
to having all council members elected at-large. “One 
reason is that small groups which might dominate one 
ward could not choose a councilman. Thus, one ward 
might conceivably elect a Negro councilman though the ci­
ty as a whole would not. This probably is the prime reason 
behind the proposed change.”

It is not easy for a court in 1980 to decide what 
motivated people in 1959. The series of events leading up 
to the current system of electing the city council of Pen­
sacola, however, certainly suggests racial motivation. Fur­
thermore, though not legislative history, editorials written 
contemporaneously with the action are probative evidence 
of the motivation of the action.

The district court found that “[t]he conclusion of plain­
tiffs’ expert historian that race was a concurrent 
motivating factor in the 1959 change is inescapable (foot­
note omitted).” We agree.

IV. Conclusion

Having found that the at-large systems for electing 
school board members and city council members were 
born out of a desire to keep blacks from being elected, our 
inquiry is virtually complete.

The Supreme Court in Bolden found proof of purpose 
to be the major stumbling block, apparently agreeing 
that if the Mobile system had been established intentional­
ly to keep blacks from being elected, then a constitutional



21a

case17 would have been made. In other words, while there 
is nothing per se unconstitutional about the at-large 
system of electing local governmental bodies, e. g., White 
v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 
(1973); Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 
29 L.Ed.2d 363 (1971), if the purpose of adopting or 
operating that particular system is invidiously to minimize 
or cancel out the voting potential of racial minorities, and 
it has that effect, then it is unconstitutional.

In this case we agree with the district court that the at- 
large systems for city council and school board were pur­
posely adopted to minimize the voting strength of the 
black community. Because it is undeniable that the 
systems have in fact had that effect,18 we conclude that 
they are unconstitutional.

The defendants argue that such a conclusion is not war­
ranted because: (1) white candidates actively seek black

17See note 9, supra, for a discussion of which constitutional provi­
sion has been violated.

18The defendants argued at length in their briefs and at oral argu­
ment that there is no discriminatory effect in this case because whites 
campaign for black votes and were found to be generally responsive to 
the needs of the black community. The defendants’ argument misses 
the point. That the governing body may be benevolent is not relevant. 
The effect necessary for a case to be made is dilution of the votes of 
the minority. This is generally proven by evidence that a substantial 
minority is consistently unable to elect candidates of its choice.

In this case it is very clear that the at-large systems are having the ef­
fect they were designed to have —blacks are consistently defeated in 
their bids for elective office. This is not to be interpreted to mean, of 
course, that every time a black is defeated in a head-to-head race 
against a white that the election is tainted. We hope eventually we will 
reach the point where local governing bodies can be elected on an at- 
large basis, and people will vote for candidates based on their in­
dividual merit and not on the color of their skin. Unfortunately, we 
have not yet reached that stage.



22a

support; (2) the district court found them to be responsive 
to the needs of the black community; and (3) as to the city, 
there is no evidence that the system is being maintained for 
invidious reasons.

The first two arguments grow out of the district court’s 
analysis of the now-discredited Zimmer criteria. After 
Bolden it would seem that neither of those two factors, 
whether whites campaign for black support or whether the 
people in elective positions are responsive to minority 
needs is relevant to the constitutional inquiry. Rather, the 
inquiry is more circumscribed — was the system pur­
posefully designed or perpetuated to minimize the voting 
strength of a recognizable, distinct class which has been 
singled out for different treatment under the laws, 
Castaneda v. Partita, 430 U.S. 482, 494, 97 S.Ct. 1272, 
1280, 51 L.Ed.2d 498 (1977), and does it have that effect? 
Whether current office holders are responsive to black 
needs and campaign for black support is simply irrelevant 
to that inquiry; a slave with a benevolent master is 
nonetheless a slave.

We can similarly dispose of the city council’s argument 
that because there is a finding that its at-large system is not 
being perpetuated to minimize black voting strength, it is 
immune from constitutional attack. Essentially, it argues 
that the passage of time can transform an unconstitutional 
system into a constitutional one. We disagree. If the 
system was unconstitutional in its inception and if it con­
tinues to have the effect it was designed to have, then the 
pure hearts of current council members are immaterial.19

19That is not to say pure hearts on the part of council members are 
not desirable or laudable but only that this is not relevant to the issue 
here presented. Our purpose is to correct a system which was set up to, 
and does, minimize the voting strength of a sizeable minority of the 
population. We are not here to punish or praise the current policies or



23a

The judgment of the district court is AFFIRMED in 
part and REVERSED in part.

motivations of these council members-good people can be elected by 
a bad system. It is the system that is unconstitutional and that must be 
corrected.



24a

APPENDIX B

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

PENSACOLA DIVISION

HENRY T. McMILLAN, et al.,
Plaintiffs,

vs. PCA No. 77-0432

ESCAMBIA COUNTY, FLORIDA, 
et al.,

Defendants.

ELMER JENKINS, et al.,
Plaintiffs,

vs. PCA No. 77-0433

CITY OF PENSACOLA, et al.,
Defendants.

MEMORANDUM DECISION

These consolidated actions were filed on March 18, 1977 
by black citizens of Pensacola and Escambia County, 
Florida alleging that the at-large systems of electing 
members of the Board of County Commissioners of 
Escambia County, the School Board of Escambia County, 
and the City of Pensacola Council deny black citizens 
equal access to the political process leading to nomination 
and election to such governmental bodies. Plaintiffs con­
tend that, accordingly, the at-large election systems are 
fundamentally unfair, with respect to black citizens, and 
violate their rights protected by the first, thirteenth and



25a

fifteenth amendments to the Constitution of the United 
States; both the Due Process and Equal Protection clauses 
of the fourteenth amendment; the Civil Rights Act of 
1870,42 U.S.C. § 1971(a)(1); and the Voting Rights Act of 
1965, 42 U.S.C. § 1973.

Defendants in Civil Action No. 77-0432 are Escambia 
County, Florida; the incumbent members of the Board of 
County Commissioners of Escambia County, who are 
sued individually and in their official capacities; the 
School District of Escambia County; the School Board of 
Escambia County; the members of the School Board of 
Escambia County, who are sued individually and in their 
official capacities; and the incumbent Supervisor of Elec­
tions for Escambia County, who is sued individually and 
in his official capacity. The defendants in Civil Action No. 
77-0433 are the City of Pensacola, Florida; the incumbent 
members of the Pensacola City Council, who are sued in­
dividually and in their official capacities; the Clerk for the 
City of Pensacola, who is sued individually and in his of­
ficial capacity; and the Supervisor of Elections for Escam­
bia County, who is sued individually and in his official 
capacity.

By way of relief plaintiffs seek a declaratory judgment 
and injunction against the present at-large election systems 
and an order requiring that the aforesaid local governmen­
tal bodies be apportioned into single-member districts so 
that all members of the county commission, the school 
board and the City Council of Pensacola will be elected in 
a manner that avoids debasing, diluting, minimizing or 
cancelling out the voting strength of black citizens. Plain­
tiffs also seek an award of their attorneys’ fees and costs 
and other general equitable relief.

Many of the facts and much of the law in these two 
cases are the same. Because this is so, to avoid repetition,



26a

one memorandum decision containing findings of fact and 
conclusions of law will be entered in the consolidated 
cases. Varying factual matter and points of law between 
the cases will, to the extent necessary, be dealt with 
separately in this decision.
THE BACKGROUND OF THE THREE ELECTION

SYSTEMS
The Board of County Commissioners is the legislative 

and governing body of Escambia County. The board is 
composed of five members who serve for four year stag­
gered terms and receive annual salaries of $20,402.88. 
Although they each must run for numbered places cor­
responding to the individual districts in which they live, 
respectively, they are elected at-large by the qualified 
voters of the entire county. Thus they must each run for 
office in a single district covering approximately 657 
square miles (fifty-one miles in length) with a population 
of 205,334 in 1970 and a projected population of 269,508 
in 1980. 1970 United States Census. There is no majority 
vote requirement to be elected, although no one has ever 
been elected without a majority. Political parties given 
major party status by the state are required to hold 
primaries in which only party members vote. Candidates 
also run at-large for numbered places in the primaries, and 
a majority vote is required for the nomination.

The School Board of Escambia County is the local 
governmental body charged with organizing and controll­
ing the public schools of the School District of Escambia 
County. The School Board is composed of seven members 
who serve four year staggered terms. Five of the members 
must reside in residency districts; two may reside anywhere 
in the county. All of them run for numbered places and 
are elected at-large in the county, just as the county com­
missioners are. There is no majority vote requirement, but



27a

no one has been elected without a majority. The party 
nominating procedure is identical to that of the county 
commissioners.

The Pensacola City Council is a ten-member panel 
which serves as the city’s policymaking body. The 
members must run for numbered places, two from each of 
five wards in which they must reside. They must, however 
run-at-large in a city with a projected 1980 population of 
62,547 (59,507 in 1970). 1970 United States Census. Elec­
tions are nonpartisan with a majority vote requirement.

The board of county commissioners and school board 
election system had their genesis in the midst of a con­
certed state effort to institutionalize white supremacy. Un­
til 1901, the county commissioners were appointed by the 
governor. The evidence shows that appointment was 
favored over election to ensure against the possibility that 
blacks might be elected in majority black counties. Efforts 
to keep blacks out of government at the county level began 
during Reconstruction and were greatly intensified during 
the state’s “redemption” by white Democrats. To ensure 
that blacks were not elected in majority black counties, 
county commissioners were appointed by the governor 
from 1868 to 1901. The poll tax was instituted in 1889 to 
disenfranchise blacks. 1889 Fla. Laws, ch. 3850, § 1. 
Although black voter registration remained high, at least 
in some parts of the state, up until the turn of the century, 
enough blacks were disenfranchised to permit the state to 
allow at-large election of county commissioners, Fla. Const., 
art. 8, § 5 (1901), and the members of the newly created 
boards of public instruction (counterpart of today’s school 
boards).1 1895 Fla. Laws, ch. 4328.

‘Members of the boards of public instruction were initially, in 1893, 
elected from single-member districts. There is no explanation for the 
quick change to at-large elections in 1895.



28a

Black participation in the electoral process was further 
hampered by the Jim Crow laws and the exclusion of 
blacks from the Democratic Party, both of which began in 
1900. A few years later, the state provided for primary 
elections of county commissioners and board members in 
which the candidates were elected from single-member 
districts. 1907 Fla. Laws, ch. 5697, § 1. By that time the 
white primary system, effectively disenfranchising black 
voters, was firmly established. The resulting anomaly be­
tween having district primary elections and at-large general 
elections worked, not surprisingly, to the unique disadvan­
tage of blacks. Since blacks could not vote in the 
Democratic Primary district elections, they were forced to 
challenge white Democratic nominees in at-large elections 
in which blacks had no voter majorities. In effect, the 
white primary was the election. Because blacks were ex­
cluded it was finally struck down by the Florida Supreme 
Court in 1945. Davis v. State ex rel. Cromwell, 156 Fla. 
181, 23 So. 2d 85 (1945).

The at-large concept was thereafter instituted in the 
primaries. In the case of the School Board, the legislature 
enacted such a requirement in the very first legislative ses­
sion after the white primary was struck down, providing 
for at-large elections for both general and primary elec­
tions. Fla. Stat. §§ 230.08, .10 (1977). County commis­
sioners continued to be nominated by district elections un­
til 1954 when the anomaly between single-member district 
primary elections and at-large general elections was 
struck down by the Florida Supreme Court as contrary to 
the state’s constitution. Ervin v. Richardson, 70 So.2d 585 
(Fla. 1954).

To bring things up to date, there was a change in 1976 
which added to the school board the two seats having no 
residence requirement. 1976 Fla. Laws, ch. 76-356. The



29a

purpose behind this change was avowedly to pack the 
board to make it more sympathetic to the white majority 
respecting a racial issue at a local school concerning the 
use of the nickname “Rebels.” The change was in response 
to a board vote on that issue which coincided with the in­
terests of the black community rather than the white. 
Although one area legislator stated that the change was 
unrelated to the school controversy, his testimony was 
convincingly impeached. Furthermore, evidence, 
unrefuted, of statements by other legislators shows this 
was the purpose. One legislator even told a board member 
he would block the change if the board would reverse its 
position on the “Rebel” issue. The board did not. It is also 
interesting to note that board members’ salaries were 
reduced. Although two local civic organizations had been 
suggesting the change from five to seven members for 
some time2 as a counterpart to having an appointed rather 
than elected school superintendent, the latter proposal was 
submitted separately for voter approval and was rejected.

In Florida a change from a five to seven-member board 
usually accompanies a change from elective to appointive 
superintendent. Yet the two proposals were not submitted 
to the electorate as a package by the legislative delegation. 
The only evidence presented bearing on their reason for 
not so doing was the “packing” of the board. The board, 
in challenging the action, urged this contention upon the 
Supreme Court of Florida. In holding against the board, 
that court addressed this contention by stating only that 
“[t]he political motivations of the legislature, if any . . . 
are not a proper matter of inquiry for this Court.” School 
Bd. o f Escambia County v. Florida, 353 So.2d 834, 839 
(Fla. 1977).

2They did so for “good government” reasons, although in so doing 
they gave no consideration to possible impact on black votes. The 
racial motivation here was found in the legislative delegation.



30a

While today in Florida there are some counties having 
seven-member boards, Escambia County is the only one 
having both a seven-member board and an elective 
superintendent.

In a more recent development, the county commis­
sioners have twice, in 1975 and 1977, appointed commit­
tees to study the advisability of charter government for the 
county. Both committees recommended a change to 
single-member districts. Blacks in the community also 
argued in favor of the change. The commissioners, 
however, rejected the change and did not permit the elec­
torate to vote on that provision. The commissioners’ deci­
sion was unanimous even though one commissioner had 
served on one of the committees and joined in the recom­
mendation of single-member districts. The commissioners 
testifying in this case were also unanimous in their ra­
tionale. They stated that single-member districts would 
cause commissioners to cease serving the interests of the 
county and concern themselves only with their districts.

Like the state, the City of Pensacola adopted the white 
primary and Jim Crow ordinances in the early 1900’s when 
black voter registration and participation was high. Black 
registration and participation was, however, steadily 
reduced until the late 1930’s. In 1931, the city adopted the 
council-manager form of government which is presently in 
effect. At that time, when the poll tax and white primary 
were in effect and blacks were politically impotent, five of 
the ten councilmen were elected from single-member 
districts.

Times changed. The poll tax was repealed in 1937, the 
white primary was abolished in 1945 and black registration 
made dramatic rises into the 1950’s. In 1955 the first black 
sought office in the Ward 2 single-member district and ran 
a close race, losing to the incumbent who served as mayor.



31a

That election caused concern among members of the coun­
cil, and in 1956 Ward 2 was gerrymandered to bring in 
more whites.

By 1959, the council decided to change the election 
system to require all councilmen to run at-large. The 
testimony of a former councilman and remarks made by 
another former councilman indicate that race was a 
motivating factor in the final decision. The council thus 
called upon their local state legislators to introduce the 
change. The change was enacted into law and approved by 
the electorate that same year. 1959 Fla. Laws, ch. 59-1730.

Plaintiffs challenge the city’s election system, along with 
those of the board of county commissioners and school 
board, arguing that each dilutes the votes of their respec­
tive black electorates. This type voting dilution case has 
been thoroughly treated by the Fifth Circuit in four recent 
cases. Nevett v. Sides, (Nevett II), 571 F.2d 209 (5th Cir. 
1978); Bolden v. Mobile, 571 F.2d 238 (5th Cir. 1978); 
B.U.L.L. v. Shreveport, 571 F.2d 248 (5th Cir. 1978); 
NAACP  v. Thomas County, 571 F.2d 257 (5th Cir. 1978).

The court in Nevett II  restated an earlier mandate that 
in cases such as this, of “qualitative reapportionment,” a 
district court must consider certain factors set out in Zim­
mer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en 
banc), a ffd  sub nom, East Carroll Parish School Bd. v. 
Marshall, 424 U.S. 636 (1976). These factors were sum­
marized in Nevett II  as follows:

The court in Zimmer established two categories, 
one containing criteria going primarily to the 
issue of denial of access or dilution, the other 
containing inquiries as to the existence of certain 
structural voting devices that may enhance the 
underlying dilution. The ‘primary’ factors in­
clude: the group’s accessibility to political pro­
cesses (such as the slating of candidates), the



32a

responsiveness of representatives to the ‘par­
ticularized interests’ of the group, the weight of 
the state policy behind at-large districting, and 
the effect of past discrimination upon the group’s 
participation in the election system. 485 F.2d at 
1305. The ‘enhancing’ factors include: the size of 
the district; the portion of the vote necessary for 
election (majority or plurality); where the posi­
tions are not contested for individually, the 
number of candidates for which an elector must 
vote; and whether candidates must reside in sub­
districts.

571 F.2d at 217 (citations omitted).
The court thus makes the following findings of fact 

under each of the above criteria for the three governmen­
tal systems involved in this case:

ACCESSIBILITY
There are no slating organizations which serve to bar 

blacks from participating in the election systems of the 
county or city. No impediments are thrown in the way of 
blacks to register and vote. Active efforts are made to en­
courage eligible citizens both black and white, to register 
and to vote. The percentage of blacks registering to vote 
has steadily increased in recent years. Today there is no 
significant difference between blacks and whites in that 
respect in the county, although there is in the city. The 
evidence shows, however, that there are other barriers in 
each system which effectively operate to preclude access 
for blacks.

Although blacks constitute 20% of its registered votefs, 
no black has ever been elected under the county’s two at- 
large election systems. Blacks have run time and again, 
and always lost. Former black candidates claim that they



33a

are frustrated and will not run again because blacks can­
not win. Their frustration is evidenced by the fact that 
though several blacks have in the past run for the board of 
county commissioners, none has sought the office since 
1970. Since 1970 blacks have run for the school board, but 
there they are not faced, as they are with the county com­
mission, with the requirement of a filing fee of approx­
imately $1,000.00. The evidence further shows that the 
number of blacks seeking both offices in recent years is far 
lower than one would expect based on their percentage of 
the population. The fact that they cannot win is evidenced 
by an analysis of the election returns.

There is in Escambia County a consistent racially 
polarized or bloc voting pattern which operates to defeat 
black candidates. There is in the county an active Ku Klux 
Klan which has run at least one candidate for office and 
obtained a significant number of votes.2 More important­
ly, however, there is an even larger bloc of white voters 
who, like almost all black voters, consistently vote for the 
candidate of their race whenever black candidates face 
white candidates.

The complete record of county elections since 1955 was 
brought before the court. The first black person to run for 
a countywide office was John Reed, who was a candidate 
for the Escambia County Commission in May, 1966. He 
failed to make the runoff in the Democratic Primary. The 
R2 coefficient of the correlation between Mr. Reed’s vote 
returns and race3 was 0.98. The first black person to seek

2The 3,000 votes that candidate received were larger than the 
margin in which black candidates were defeated in several close races.

Percentage of variation in the vote attributable to the race of the 
registered voters by precinct.



34a

election to the Escambia County School Board was Otha 
Leverette in 1970. Rev. Leverette got the Democratic Par­
ty nomination without opposition; no other candidates 
qualified for this place. Some efforts were made to hide 
the fact he was black until the qualification date passed. 
But Leverette was beaten in the general election by a white 
Republican candidate, Richard Leeper. It was the first 
time in the modern history of Escambia County that a 
Republican had won any countywide office. Mr. Leeper 
received 22,523 votes even though there were at that time 
only 7,268 Republicans registered. There were 67,297 
white and only 13, 037 blacks registered to vote. The R2 
coefficient for the correlation between Leverette’s vote 
and race was 0.76, indicating a severely racially polarized 
vote. Richard Leeper had received only 10,712 votes in his 
race against a white Democratic candidate, Kirkland, in 
the 1966 school board general election.

This pattern of black candidates losing in racially 
polarized elections continues to the present. Appendices A 
and B summarize the results of all county commission and 
school board races in which there was a black candidate, 
indicating votes received, the number of black and white 
registered voters and the R2 coefficient for the correlation 
between percentage of votes received by the black can­
didate in each precinct and the percentage of blacks 
among registered voters in each precinct.

These returns and regression statistics were analyzed by 
political scientists. The analyses focused upon voting 
returns from precincts which were 95% or more of one 
race. These returns, combined with regression statistics on 
all precincts, showed that whenever a black challenges a 
white for countywide office, a significant majority of the 
whites who vote will consistently vote for the black’s oppo­
nent. Sixty percent or more of the whites will do so in most



35a

cases. There were some differences in the testimony of 
plaintiffs’ experts and defendants’ expert. For example, 
the defendants’ experts’ approach to statistical analyses of 
polarization was somewhat different from that of plain­
tiffs’ expert. Nonetheless, both found racial polarization 
in most, if not all, elections in which blacks ran.

Even though turnout among black voters is as high as 
that among white4 when black candidates run (it is regret­
tably low for both races), and black voters vote almost 
unanimously for the black candidates, black candidates 
cannot attain a majority of the votes in the county because 
of the numerical inferiority of blacks combined with the 
white bloc vote. Several prominent white politicians 
acknowledged this fact.

The situation is much the same respecting the city. 
Although blacks constitute 33% of the city’s population 
and 23% of its registered voters, with two noteworthy ex­
ceptions, black candidates have been denied office by the 
white bloc voting. All city election returns since 1955 were 
analyzed in the same manner as the countywide returns 
and again it was shown that most white voters showed a 
consistent preference for white candidates over black can­
didates resulting in consistent losses and frustration for 
the minority candidates.

The first time in present memory that a black person 
sought elective office in the city was 1955 when Charlie 
Taite ran a close race against Admiral C.P. Mason in a 
single-member district in what was then Ward 2. In 1963 
Dr. Donald Spence, a black dentist, ran for the city coun­
cil seat designated Ward 4, Group 2. He was the second 
highest vote getter in the first election, trailing the first

4Voter turnout among blacks is significantly lower when the field or 
pair of candidates is all white.



36a

place finisher, Soule, by 1,639 votes. There was an ex­
tremely high racial polarization of the votes; votes for Dr. 
Spence correlated with the percentage of blacks registered 
in each precinct with an R2 of 0.95. Subsequently, Dr. 
Spence was defeated by Mr. Soule in a runoff by a margin 
of 2,829 votes. Black candidates, A.R. Jones and W.R. 
Hendrieth, were also defeated in at-large voting, without 
runoffs, in their bids for city council in 1965. Again the 
voting was highly racially polarized, with R2’s of 0.98 and 
0.97 indicating the correlation between the black can­
didates’ votes and race of the registered voters. Appendix 
C summarizes the results of the city races in which black 
candidates ran.

There have been only two exceptions to the white bloc 
vote in a city elections. Two blacks, Dr. Spence and 
Hollice Williams, have been appointed by the council to 
fill vacant council seats and thereafter were both winners 
in their bids for reelection. The evidence strongly suggests 
that the absence of the white bloc vote against these two 
candidates is due to the fact that both were chosen and 
thereafter received public and private white political sup­
port. Indeed, one of the two had run for the council prior 
to his appointment and was then soundly defeated by the 
usual white bloc vote. This effect of endorsement by com­
munity leaders is a common political phenomenon which 
is called “cuing.” See V.O. Key, The Responsible Elec­
torate.

Not all whites vote against blacks. In every race blacks 
have received some white support. But the city, like the 
county, is, by and large, a race conscious society. There is 
an established pattern of sufficient polarized voting to 
regularly defeat black candidates. White candidates do ac­
tively seek the votes of blacks. The studies of voter turn­
outs indicate, however, that when whites run against



37a

whites, black voter turnout drops, indicating a lack of in­
terest by blacks in the candidates. Defendants’ expert ad­
mitted that this may indicate that blacks view the choice of 
white candidates as irrelevant to their interests. White 
solicitation of black votes is not controlling here. As the 
Fifth Circuit held in Bolden: “Although failure of black 
candidates because of polarized voting is not sufficient to 
invalidate a plan, . . .  it is an indication of lack of access to 
the political process.” 571 F.2d at 243 (citations omitted).

It was shown at trial that access by blacks is further in­
hibited by filing fees (5% of the salaries of county com­
missioners and school board members; $50.00 for city 
councilmen).

RESPONSIVENESS

Plaintiffs were able to show that the county commis­
sioners were unresponsive in two areas. The commis­
sioners have failed to appoint any more than a token 
number of blacks to its committees and boards. The black 
population representing 20% of the county is thus served 
by an all-white board of commissioners which depends on 
virtually (95%) all-white advisory panels. A second possi­
ble area of unresponsiveness has been housing policy. 
Special studies have indicated there may be housing 
discrimination within the county which has been ignored 
by the commissioners.

By and large, the commissioners were not shown to be 
unresponsive to the needs of the black community. Their 
efforts in employment and public recreation were im­
pressive. It was also shown that the commissioners listen 
to and act upon requests and complaints by blacks. There 
was no significant discrepancy shown between service to 
blacks and whites.



38a

The school board was not shown to be unresponsive to 
the needs of blacks. Its discipline policies were shown to be 
fair and sensitive to racial concerns. In a severe racially 
polarized issue involving the use of the nickname 
“Rebels,” the board showed sensitivity to the desires of the 
black community. No discrimination was shown in ad­
ministrative appointments.

The city council, like the board of county commis­
sioners, has made a poor showing respecting appointments 
and housing policy. Only three of the nineteen advisory 
committees or boards have any black members, though 
blacks make up 33% of the city’s population. Housing 
discrimination in the city has evoked no response from the 
council. The council has, however, been shown to be as 
responsive in providing services for blacks as it does for 
whites, and the court was impressed with the sincerity of 
its efforts in the area of employment. The city has in­
vestigated and acted upon complaints from the black com­
munity respecting matters such as police brutality. The 
plaintiffs failed to show that the city council was generally 
unresponsive to the needs of the black community.

STATE POLICY

The policies behind the at-large systems will be more 
fully discussed in the court’s findings on the intent behind 
the official action setting up the present election systems. 
Suffice it to say at this point that the evidence shows a 
tenuous policy behind the at-large requirement of each 
system. At-large requirements have been in effect for 
general elections of county commissioners and school 
board members since 1901 and 1895, respectively. 
However, in the primaries, which were then tantamount to



39a

election, the commissioners were elected in single-member 
districts from 1907 to 1954, and school board members 
from 1907 to 1947. Half the city council was elected from 
single-member districts until 1959. Moreover, the evidence 
shows, as will be more fully developed in the court’s find­
ings on intent, that there were racial motivations con­
nected with the at-large requirements of each of these elec­
tion systems.

PAST DISCRIMINATION

State enforced segregation and discrimination have 
helped create two societies in the city and county — 
segregated churches, clubs, neighborhoods and, until a 
few years ago, schools. These laws left blacks in an in­
ferior social and economic position with generally inferior 
education. The lingering effects upon black individuals, 
coupled with their continued separation from the domi­
nant white society, have helped reduce black voting 
strength and participation in government. Past discrimina­
tion has helped create bloc voting, a failure of white can­
didates to arouse interest among blacks and a failure of 
the city and county governing bodies to appoint blacks to 
advisory committees and boards. In explaining his failure 
to appoint blacks to such advisory bodies, the former city 
mayor stated that the qualified black members of the com­
munity were not as visible to him as were the white 
members. Another white former city council member 
referred to the black and white communities as the black 
and white “sides of the fence.” That fence, largely the 
result of past discrimination, is a basic cause or con­
tributing factor to the fundamental problems involved in 
this suit. The racially polarized voting patterns, resulting 
from the prior state enforced segregation of the races, and 
the separate white and black societies it left behind, con­
tinue to exist.



40a

ENHANCING FACTORS

Both the city and county are large election districts. The 
city has a projected population of over 62,000 for 1980. 
The county’s projected population for that year is over 
269,000, and it is geographically large (657 square miles, 
fifty-one miles in length).

There is no majority vote requirement in the general 
elections for county commissioners and school board 
members. There is, however, a majority requirement in 
the primaries. S ee  W h ite  v. R e g is te r , 412 U.S. 755 (1973). 
Moreover, as a practical matter, no one has in recent 
history won a general election without a majority. There is 
a formal majority requirement for city councilmen.

There is no anti-single-shot requirement in the three 
election systems, but candidates do run for numbered 
places. This means that blacks are always pitted in head- 
on-head races with white candidates, and that the black 
community cannot concentrate its votes in a large field of 
candidates.

There are residency requirements for all county commis­
sioners, five of the seven school board members and all ci­
ty councilmen.

THE AGGREGATE

The court in N e v e t t  I I  restated the basic principle that 
the findings under the Z im m e r  factors must be weighed 
and that they must point to dilution “in the aggregate” to 
support such a finding. 571 F.2d at 217, citing H e n d r ix  v. 
J o se p h , 559 F.2d 1265 (5th Cir. 1977); D a v id  v. G a rriso n , 
553 F.2d 923, 929 (5th Cir. 1977); N e v e t t  v. S id es, 533 
F.2d 1361, 1365 (5th Cir. 1976); Z im m e r , 485 F.2d at 
1305.



41a

The findings under the factors are in summary form as 
follows:

(1) Blacks are denied access to the political processes of 
the county and city because of the interaction of the 
polarized voting patterns with each of the present at-large 
election systems. Blacks are further frustated by the filing 
fee requirements of the three systems.

(2) The three governmental units have been generally 
responsive to the needs of the black community. Though 
two were lacking in appointments of blacks to advisory 
boards and committees, and in housing policies, the 
systems cannot, on the whole, be found unresponsive.

(3) The state and city policies behind the at-large re­
quirement are tenuous and to some degree rooted in an in­
tent to discriminate.

(4) Past discrimination has created barriers to the full 
participation of blacks in the present political processes.

(5) The problems faced by blacks seeking access to the 
political processes are enhanced by the size of the at-large 
districts involved, the practical necessity of legal re­
quirements of getting a majority vote to be elected, and 
the requirement that candidates run in numbered places.

When weighed together, all these factors demonstrate a 
dilution of black voting strength. The finding of general 
unresponsiveness of each governmental entity does not 
foreclose this conclusion. The court in Nevett II, 571 F.2d 
at 223 and in the Shreveport case, 571 F.2d at 254, did 
stress the importance of that factor in the context of infer­
ring intentional discrimination in the maintenance of the 
at-large system. If such intent is to be inferred in the 
operation of the system, it is clear that responsiveness is a 
key indicator. The effect of dilution, however, may exist



42a

apart from the unresponsiveness of politicians. In the 
Zimmer case, dilution was found even though there was 
no proof of unresponsiveness.5 485 F.2d 1306-07. The 
Fifth Circuit has not held, as defendants contend, that the 
purpose of the Zimmer test is to measure the necessity of 
official unresponsiveness to black concerns or that dilu­
tion cannot be found unless elected officials are free to ig­
nore the needs of blacks. Although the elected officials in 
this case generally desire and actively seek the black vote 
and are generally responsive to grievances aired by black 
citizens, dilution is evident. This is so because the Zimmer 
criteria ultimately measure not the responsiveness of the 
politicians, but the responsiveness of the entire political 
system. Blacks have shown a consistent and near 
unanimous voting preference for black candidates and 
have shown a lack of interest in races between white can­
didates. The effects of past discrimination such as lower 
registration, inferior socioeconomic status and especially 
racially polarized voting, when combined with the at-large 
system and attendant barriers such as filing fees, large 
districts, majority vote requirements and numbered place 
ballots, have effectively stifled that strong preference. 
Although elected officials have been responsive, these fac­
tors show, in the aggregate, that the voting strength of

5This court does not read footnote 26 to mean that if it can be 
measured, unresponsiveness must be proved to establish dilution. 485 
F.2d at 1306-07. The court in Zimmer did find that the absence of proof 
as to unresponsiveness might be explained by the type functions per­
formed by the policy jury (though not in the case of the school board). 
The Fifth Circuit also, however, reached a general conclusion that the 
absence of unresponsiveness could not foreclose a finding of un­
constitutional voting dilution. Id. This general holding was reaffirmed 
by court in McGill v. Gadsden County Commission, 535 F.2d 277, 280 
n. 7 (5th Cir. 1976).



blacks is effectively diluted under the present election 
systems of the county and city.6

In addition, the evidence showed blacks to be severely 
underrepresented in advisory panels of the county com­
missioners and city council. The Zimmer factors are not 
exclusive in voting dilution cases, Nevett II, 571 F.2d at 
224; quoting Kirksey v. Board o f Supervisors, 554 F.2d
139 (5th Cir.) (en banc), cert, denied,_____ U.S-----------
980 S. Ct. 512 (1977), and the lack of black appointees has 
independent significance in this case because of the 
absence or near absence of blacks in elected positions. 
With such a paucity of black elected and appointed 
representatives, blacks are excluded from almost all posi­
tions of responsibility in the governmental policymaking 
machinery. Although it is not necessary to the finding of 
dilution in this case, the court finds that the lack of black 
appointees exacerbates the inability of blacks to par­
ticipate fully in the political process and is further evidence 
of dilution.

The finding of dilution on the part of the city’s election 
system is not weakened by the fact that two blacks have 
been elected to the council. The court in Zimmer held that 
election of blacks did not necessarily indicate access to the 
system. 485 F.2d at 1307. The court noted that the cir­
cumstances of particular elections might indicate other 
factors at work. Id. In the case of the city, the only blacks 
who were elected were two men previously appointed and 
publicly endorsed by the white city leaders. That the white

6The state policy criterion was not of major significance in this find­
ing of the effect of dilution. It is, however, probative of intent to 
discriminate, Nevett II, 571 F.2d at 224, and is a part of the court’s 
analysis of that issue.



44a

political establishment can at times choose a black man of 
its own liking and help get him elected certainly does not 
indicate that black votes are not diluted. Such access as my 
be given or taken away by the white politicians is not a real 
access to the political system which is possessed by the 
black community. S ee id .;  G ra ves  v. B arnes, 343 F. Supp. 
704, 726 (W.D. Tex. 1972). Though the adoption of blacks 
by the city council and white establishment was well inten- 
tioned,7 the resulting appearance of access by blacks is a 
facade which cannot hide the impotence of black voters in 
electing candidates of their choice.

INTENT

An at-large election system which operates to dilute the 
vote of black citizens is not necessarily violative of the 
Constitution. It must also be shown that discriminatory 
intent was a motivating factor in the enactment of the 
system or is a motivation in the present maintenance of the 
system. N e v e t t  II , 571 F.2d at 222. Discriminatory intent 
in the enactment is proved by the criteria set down in A r ­
lin g to n  H e ig h ts  v. M e tr o p o l i ta n  H o u s in g  C o rp . 429 U.S. 
252, 266-68 (1977). Individious purposes in the 
maintenance of the system are proved by the cir­
cumstances surrounding the operation of the system and 
may be inferred from findings under the Z im m e r  factors. 
N e v e t t  II, 571 F.2d at 222.

In A r lin g to n  H e ig h ts , the Supreme Court set out several 
factors indicative of discriminatory intent. They are (1) the 
effect of the official action, (2) the historical background 
of the decision, “particularly if it reveals a series of official 
actions taken for invidious purposes,” (3) the sequence of

7The testimony at trial in this respect was convincing to this court.



45a

events (4) substantive and procedural departures, (5) 
legislative history. 429 U.S. at 266-68. These criteria must 
be applied to the official act or acts which give rise to the 
respective election systems in this case.

The at-large requirements of the election system (both 
general election and primaries) of the board of county 
commissioners are based on the 1901 amendment to the 
Florida Constitution. Fla. Const., art. 8, § 5. The 
historical background of the 1901 amendment includes a 
general pattern of disenfranchisement and other 
discrimination at the hands of the state. The other laws of 
the period relating to selection of commissioners -  guber­
natorial appointment prior to 1901 and single-member 
district white primary after 1907 — were clearly race 
related. The Jim Crow laws were also being instituted in 
the early 1900’s. The sequence of events, including the 
Democratic Party’s establishment of the white primary in 
1900, suggest racial motivation. There was no procedural 
departure, but a substantive inconsistency was soon ap­
parent. Beginning in 1907, commissioners ran in single­
member districts in the white primary, which was tanta­
mount to election. Thus, though the constitution man­
dated at-large elections, the effect of the state policy was 
to ensure that commissioners were elected from single­
member districts. The ultimate effect of all this was a 
system in which whites were elected in single-member 
districts and blacks were forced to challenge them in at- 
large elections. No blacks were elected under this scheme.

Although these factors indicate racial motives, in affir­
ming another voting dilution case from the Northern 
District of Florida, the Fifth Circuit was able to reach the 
conclusion that there was no racial motivation behind the 
1901 amendment because blacks were effectively disen­
franchised at that time. McGill v. Gadsden County



46a

Commission, 535 F.2d 277, 280-81 (5th Cir. 1976). Dr. 
Shofner, plaintiffs’ expert historian, testified that there 
was general disenfranchisement due to the poll tax and 
that blacks were no political threat at the time. Though he 
did not specifically mention the 1901 amendment, he did 
testify that another at-large requirement passed in 1895 for 
the school board was not racially motivated due to this 
disenfranchisement. The evidence did show, however, that 
there were always some blacks registered to vote in 
Florida. Furthermore, Dr. McGovern, plaintiffs’ other 
historian, testified that in Pensacola black registration was 
high in 1900, and it was only thereafter that they were ef­
fectively excluded from the political process.

Despite this evidence indicating racial motivation in the 
1901 amendment, the conclusion of the Fifth Circuit in 
McGill was reinforced by the conclusions drawn by plain­
tiffs’ own expert historian, Dr. Shofner. For this reason, 
the holdings of McGill should not be disturbed and no 
discriminatory intent can be found as a motivating factor 
behind the 1901 amendment.8

The present election system of the school board, involv­
ing an at-large requirement in both general and primary 
elections, was enacted by statute in 1947. Fla. Stat. 
§§ 230.08, .10 (1975). The history and sequence of events 
strongly suggest racial motivations. From 1907 until 1945 
the white primary was in effect. This was a period in which 
the Jim Crow laws were also in effect and in which the 
white government was unwilling or unable to prevent a 
shocking degree of violence and intimidation suffered by

8Though it may have been acting in a race-proof situation in 1091, 
there is little chance that the legislature would have created single­
member districts if blacks could have been elected in them. See Bolden 
v. Mobile, 423 F. Supp. 397 (S.D. Ala. 1976).



47a

blacks at the hands of whites. The state policy of excluding 
blacks from the primary election was finally declared un­
constitutional in Davis v. State ex rel. Cromwell, 156 Fla. 
181, 23 So.2d 85 (1945). Then in the very first legislative 
session following the decision, the legislature enacted 
statutes providing for an at-large requirement in both 
the general election, 1947 Fla. Laws, ch. 23726, §9, 
and the primaries, 1947 Fla. Laws, ch. 23726, § 7. This 
marked a major substantive change from a system in 
which all members had been elected from single-member 
districts in the primaries, which were tantamount to elec­
tion. The effect of the change was to prevent blacks from 
running in single-member district primaries which had ex­
isted up until that time. It was the testimony of plaintiffs’ 
expert historian that the 1947 election system resulted 
from racial motivations. The evidence of discriminatory 
motives behind the at-large requirements of the 1947 
system is compelling. The court finds that racial motiva­
tions were a main force behind the enactment in 1947 of 
the current at-large election system.

The present council-manager form of government, 
adopted in 1931, originally provided for five of the ten 
councilmen to run in single-member districts. Prior to 
1931, Pensacola, like most other southern cities, had 
adopted the white primary and Jim Crow ordinances. In 
the 1940’s and 50’s, however, black voter registration 
made dramatic increases and apprehension about black 
voting strength was voiced in the community. In 1955 a black 
man ran a close race against the mayor in one of the single­
member districts. In 1956, that district was gerrymandered 
to bring in more whites. A former councilman who served 
at that time said the gerrymander was for racial purposes. 
In 1959 the council requested the area legislators to initiate 
legislation to make all seats on the council elected at-large. 
The former councilman again testified that the council’s



48a

motivations were racial. It was also related that in present­
ing the proposed change to the area legislators, another 
former councilman stated that “a salt and pepper council” 
was not wanted. The legislation was passed that year. 1959 
Fla. Laws, ch. 59-1730. When the new system was placed 
before the voters, the newspaper stated that the “prime” 
reason for the proposed change was to prevent blacks 
from being elected. It is clear from the testimony of 
Governor Reubin Askew, then a member of the Escambia 
County legislative delegation which presented the legisla­
tion, that racial motivation played no part in the 
legislature’s enactment, and that he did not believe at the 
time race was really a factor in the proposed change. 
Governor Askew did not, of course, have the benefit of all 
the testimony before this court. Race was not a factor in 
the advocacy of the change by such organizations as the 
Pensacola Chamber of Commerce and the League of 
Women Voters. But it was a factor in the recommendation 
of the council for the change. Governor Askew testified 
that it was then the practice of the local legislative delega­
tion to enact legislation concerning city government only if 
the measure was unanimously approved and proposed to 
the delegation by the city council.

The conclusion of plaintiffs’ expert historian that race 
was a concurrent motivating factor in the 1959 change is 
inescapable.9 A preponderance of the evidence shows that 
race was a motivating factor.

‘'The fact that the showing of racial motivation is largely focuesd 
upon the city council and not the legislators who voted on the pro­
posal is not controlling. Changes in local government were ac- 
omplished in a three step process — resolution by the city government, 
legislative proposal, ratification by the electorate. Discriminatory in­
tent at any stage infects the entire process.



49a

In the case of the city, as with the school board, racial 
motivation was not the only factor behind the change. The 
existence of other motivation is not controlling.

The Supreme Court stated in Arlington Heights v. 
Metropolitan Housing Corp., 429 U.S. 252, 265 (1977):

Davis does not require a plaintiff to prove that 
the challenged action rested solely on racially 
discriminatory purposes. Rarely can it be said 
that a legislature or administrative body 
operating under a broad mandate made a deci­
sion motivated solely by a single concern, or even 
that a particular purpose was the ‘dominant’ or 
‘primary’ one. In fact, it is because legislators 
and administrators are properly concerned with 
balancing numerous competing considerations 
that courts refrain from reviewing the merits of 
their decisions, absent a showing of arbitrariness 
or irrationality. But racial discrimination is not 
just another competing consideration. When 
there is proof that a discriminatory purpose has 
been a motivating factor in the decision, this 
judicial deference is no longer justified.

Discriminatory intent in the maintenance of the at-large 
requirement of the election systems, though often more 
difficult to prove, may be shown by circumstantial 
evidence. It may be inferred from the aggregate of the 
Zimmer factors.

Thus, an inference of intent may be raised. A finding of 
unresponsiveness is of “momentous” importance in infer­
ring a present intent. B. U.L.L. v. Shreveport, 571 F.2d at 
254. Unresponsiveness has not been found in any of the 
three systems. Such does not, however, preclude a finding 
of present discriminatory intent in maintenance.



50a

There is other circumstantial evidence surrounding the 
present maintenance of the at-large requirement in the 
election of county commissioners and school board 
members.

The county commissioners’ two charter government 
committees, appointed in 1975 and 1977, both unanimously 
recommended a change to single-member districts. Ignor­
ing the expressed concerns of the black voters and the 
recommendations of both study committees, however, the 
county commissioners struck the single-member districts 
from the charter referendum. The electorate was not given 
the opportunity to decide on the election changes; the 
charter referendum was defeated.

The four county commissioners testifying at trial all 
claimed that they struck single-member district elections 
from the proposals for reasons unrelated to race. Each 
said it was his personal belief that all of the voters of the 
county should be allowed to vote on each of the commis­
sioners because they felt that the at-large requirement 
made the board more responsive to the needs of the com­
munity. No one of them gave any other reason, and 
none expressed any concern about the effect the change 
would have on the opportunities of candidates preferred 
by blacks.

One commissioner expressed the opinion that commis­
sioners elected solely by the voters of their districts would 
not have to be fair in the apportionment of funds to other 
districts. But he could not explain how this result would 
necessarily occur when the commissioners were sworn to 
represent the interests of the whole county.

One of their members had served on one of these com­
mittees and agreed in the report submitted with the recom­
mendation for single-member districts. Yet when the 
report went to the commission he changed his position and



51a

voted against it. He gave no adequate explanation of why 
he changed his position.

The testimony also showed that the residence district of 
each commissioner is more or less regarded as the district 
of that commissioner for which he has responsibility and 
for whose needs he is the particular advocate on the com­
mission. As an example of the commission’s practice, road 
funds are arbitrarily allocated with 20% going to each 
residence district, and the individual members with greater 
needs for their particular districts must convince other 
commissioners to give up parts of their shares. No 
testimony was presented showing why the commission, 
representing the county at-large, did not initially itself try 
as a body to spend road funds where needed in the county 
without regard to residence districts. Their expressed con­
cern about countywide elections and representation does 
not stand foursquare with the with the present operation 
of the commission and its business.

In their post-trial memorandum, defendants admit that 
the rejection of the single-member district aspect of the 
charter proposal “reflects the commissioners’ desire to 
maintain their incumbency.” This was also the court’s im­
pression at trial. Each of these commissioners had been 
elected in countywide elections. They could not know how 
they would fare in single district elections. Yet it is ap­
parent that in such elections one or more of them might be 
replaced by blacks.

To this court the reasonable inference to be drawn from 
their actions in retaining at-large districts is that they were 
motivated, at least in part, by the possibility single district



52a

elections might result in one or more of them being 
displaced in subsequent elections by blacks.10

This conclusion is bolstered by the findings under the 
Zimmer factors that black voting preferences for blacks 
cannot be registered in the present system and black can­
didates are otherwise denied access to that system. That 
their motivations may be selfish rather than malicious 
toward blacks does not alter the conclusion that their in­
tent was to continue the present dilution of black voting 
strength. The present at-large election system for county 
commissioners is being maintained for discriminatory pur­
poses.

The 1976 change in the school board’s election system 
was avowedly to pack the board to make it more respon­
sive to the white majority on a particular racially polarized 
issue. The evidence showed that the seven member pro­
posal was used as a threat by area legislators who knew 
that the white majority would have its way at the polls. 
This is a telling indication of the legislators’ and communi­
ty’s recognition and use of the at-large system as a method 
of rendering black voters politically impotent to the 
desires of the white majority. This action by the 
legislators, in conjunction with this court’s findings under 
the Zimmer factors, shows that the present at-large system 
of electing school board members is being maintained, at 
least in part, by racially discriminatory motives.

This court cannot find, based on the evidence before it, 
that the city presently maintains its at-large system for 
discriminatory purposes. The lack of access, the tenuous

10It was stipulated that a fairly constructed single-member district 
system for the election of Escambia County Commissioners and 
Escambia County School Board members would produce one black 
majority county commission and school board district each out of 
five.



53a

policy, the present effects of past discrimination and the 
enhancing factors afford room for inference of such pre­
sent discriminatory maintenance as they do with the com­
mission and school board. With the city, however, there is 
no recent racially motivated action corroborating and sup­
porting a finding of present racially motivated 
maintenance as there is with the commission and school 
board. Based on the evidence here presented, without a 
finding of unresponsiveness, and with no evidence justify­
ing or corroborating an inference of intent drawn from the 
Zimmer factors, the court cannot find that the city’s at- 
large system is presently intentionally maintained as a 
vehicle for racial discrimination.

In sum, a preponderance of the evidence shows that the 
election system of the board of county commissioners ef­
fectively dilutes the votes of black citizens. Though the 
court does not conclude that the system was enacted for 
invidious purposes, the evidence does show that it is being 
maintained at least in part for discriminatory reasons. 
Thus, the present election system violates the fourteenth 
and fifteenth amendments.

The evidence shows that the election system of the 
school board dilutes the votes of black citizens. The court 
finds discriminatory intent in both the enactment and 
maintenance of the present system. That system violates 
the fourteenth and fifteenth amendments.

Insofar as the city council is concerned, there is no cur­
rent evidence respecting the present maintenance of the 
system such as there is with the commission and the school 
board. However, the present election system of the city 
council has been shown to have the present effect of 
diluting the votes of black citizens. As pointed out 
previously, racial motivations played a part in the change 
to a uniform at-large requirement. The system violates the 
fourteenth and fifteenth amendments.



54a

This court is cognizant of the general principle that 
federal courts should avoid decision on constitutional 
grounds if adequate statutory grounds are available. In 
Bolden v. Mobile, 571 F.2d 238 (5th Cir. 1978), the court 
in its footnote 3, page 242, pointed out that the statutory 
claim here at best is problematic. This court concludes, as 
did the court in Parnell v. Rapides Parish School Bd., 425 
F. Supp. 399 (W.D. La. 1976), that the interest of judicial 
economy and the need for prompt final resolution dictate 
that the court here reach the constitutional questions. As 
the footnote in Bolden points out, under similar cir­
cumstances, the Supreme Court has avoided an abusive 
application of the constitutional-decision-avoidance rule.

Plaintiffs also seek relief under the Civil Rights Act of 
1970, 42 U.S.C. § 1971(a)(1) and under the Voting Rights 
Act of 1965, 42 U.S.C. § 1973.

Throughout this litigation the parties to this litigation 
have provided this court with well prepared and thorough 
legal memoranda. Influenced perhaps, however, by the 
Bolden court’s treatment of a similar situation, 571 F.2d at 
242 n.3, they have provided this court with no memoranda 
addressed to these statutory claims. As the appellate court 
pointed out in that footnote, the statutory claim is at best 
problematic. Like the appellate court, this court knows of 
no successful dilution claim expressly founded on 42 
U.S.C. § 1973. Judge Wisdom, in his concurring opinion 
in Nevett II, appeared to have no doubt of its application 
and discussed the question whether intent was a necessary 
element of a claim under the statute.

The plaintiffs here have not established a claim for relief 
under the Civil Rights Act of 1870, 42 U.S.C. 
§ 1971(a)(1). That section concerns itself only with the en­
titlement to cast one’s vote at elections, and such is not 
presented in this voting dilution suit.



55a

Respecting 42 U.S.C. § 1973, the court concludes that 
the plaintiffs have established claims for relief under this 
section. This section, passed to carry out the purpose of 
fifteenth amendment, tracks its language in respect to 
denial or abridgement of the right to vote on account of 
race.

The findings in this case which constitute violations of 
fifteenth amendment must also constitute violations of 
this statute. The right to vote protected by the statute has, 
like that of the fifteenth amendment, been given a broad 
meaning. Allen v. State Bd. o f Elections, 393 U.S. 544 
(1969).

Inasmuch as the court has found the evidence of intent 
in its consideration of the constitutional questions involved, 
it need not and does not decide whether proof of intent 
is required under 42 U.S.C. § 1973.

IN SUMMATION

Florida, like other southern states, has a long historical 
background of black race discrimination in its govern­
ment. The demise of its poll tax and other Jim Crow laws 
and of its white primary served as catalysts in impelling it 
toward a society organized and governing itself as one free 
of racial motivations. More importantly, there has been, 
particularly in more recent years, a growing awareness 
among many responsible white citizens that race 
discrimination not only has no place in the ongoing prog­
ress of the government of our nation, but that improving 
the lot of the disadvantaged portion of the nation in the 
long run will benefit all the nation.

That has happened here. Escambia County and Pen­
sacola have come a long way in the past twenty-five or 
thirty years. But discrimination against blacks, stemming



56a

from long years of conscious and deliberate oppression 
and discrimination against blacks by whites, does not 
disappear quickly. It is a gradual and ongoing process, 
and the process is still going on here. The race discrimina­
tion that was so manifest in the earlier years in this state, 
and in this county and city, though diminished, has not yet 
disappeared.

Because this county and this city have made so much 
progress in complying with the commands of the Constitu­
tion and the law in these recent years, this case is not an 
easy one to decide.

The conclusion impelled and reached is that at least the 
preponderance — though not an overwhelming 
preponderance — of the evidence supports plaintiffs’ con­
tentions so that judgment must be entered for them.

One day, hopefully, the time will come in our nation’s 
ongoing progress when we as a people, or at least a sufficient 
number of us, have so eliminated race consciousness and 
discrimination from our hearts and minds that such is not 
reflected in governmental processes and procedures. Then 
there will be no need for suits such as these. Then there 
will be no justification for orders such as the ones entered 
here that interfere with the right of the people to establish 
for themselves the details of their government because, in 
doing so, they themselves will have complied with con­
stitutional and legal requirements. As it has not in so many 
other places in our nation, that day has not yet come to 
Escambia County and to Pensacola.

REMEDY

The Supreme Court of the United States has laid down 
the general principle that “when district courts are forced 
to fashion apportionment plans, single-member districts



57a

are preferable to large multi-member districts as a general 
matter.” C o n n e r  v. J o h n so n , 402 U.S. 690 (1971); se e  a lso  
E a s t C a rro ll  P a rish  S c h o o l B d . v. M a rsh a ll, 424 U.S. 636 
(1976); and W allace  v. H o u se , 425 U.S. 947 (1976). In ap­
proving single-member districts as a remedy for un­
constitutional dilution, even where such a reapportion­
ment required a complete change in a form of government 
from a city commission to a mayor-council, the Fifth Cir­
cuit has reminded the district courts of these principles laid 
down in their cases.

The Fifth Circuit in B o ld e n  stated:

The district courts have been repeatedly ad­
monished by the Supreme Court to avoid the 
employment of at-large seats in their remedial 
plans, unless some special circumstances re­
quired that such seats be used.

571 F.2d at 246.

However, these pronouncements of Fifth Circuit 
antedated the Supreme Court’s opinion in W ise v.
L i p s c o m b ,_____ U.S. . 46 U.S.L.W. 4777 (June
22, 1978). In that case it was pointed out that the plan 
presented by the city was legislative and was not to be 
viewed as judicial. It distinguished the case from the E a s t  
C a rro ll  P a rish  S c h o o l B o a r d  case by pointing out that the 
Dallas City Council validly met its responsibility of replac­
ing the invalid apportionment provision with one which 
could survive constitutional scrutiny.

Under the holding of the case, when an existing appor­
tionment scheme has been declared to be unconstitutional, 
it is appropriate whenever practicable to afford a 
reasonable opportunity for the legislative body itself to 
meet constitutional requirements by adopting a substitute



58a

measure rather than for the federal court to devise and 
order into effect its own plan.

Unlike the situation presented in East Carroll Parish 
School Board, Escambia County and the City of Pen­
sacola have not been brought under the Voting Rights Act 
of 1965 so that approval of the Attorney General must be 
obtained for any such legislative changes. Moreover, 
unlike the situation presented in other cases, the defen­
dants in these cases are ready and willing to assume the 
responsibility of providing what they believe will be an ef­
fective remedy for the dilution found by this court to exist.

In each of these cases the judgments to be entered will 
require the parties within 45 days after date thereof to sub­
mit proposals that they believe provide an effective 
remedy for the dilution found by this court to exist.

The plaintiffs’ claims for attorneys’ fees in each of these 
cases will be determined after a hearing on these issues.

The judgments to be entered will retain jurisdiction for 
all necessary and proper purposes.

The court concludes that the shortness of time renders it 
impracticable for the remedial systems, yet to be presented 
and approved, to be used in the September, 1978 primary 
election and the subsequent general election this year for 
the county commission and the school board.

The remedial systems should therefore become effective 
for the next ensuing primary and general elections which 
will occur in the year 1980.

There is yet another reason why such remedial systems 
should not become effective until 1980 insofar as the 
members of the county commission and the school board 
are concerned.



59a

The defendant officeholders on such commission and 
board have each been elected for specific four year terms 
of office. They were elected prior to institution of this 
suit, and neither they nor those electing them could 
reasonably have foreseen this decision. It is reasonable 
and proper that they should be allowed to finish out the 
terms for which they were elected.

This does not mean that any elected after this date shall 
also be allowed to finish out their elected terms. Any can­
didates seeking election after this date for any of the of­
fices involved may reasonably be considered to have notice 
of this decision and of the possibility that because of it the 
terms to which they are elected may be cut short.

There are some of the defendant county commissioners 
and school board members whose elected terms will expire 
this year. However, there are also members serving on 
both these boards whose elected terms will not expire until 
the 1980 elections. Postponing the effective date of the 
remedial systems until 1980 will allow all of these of­
ficeholders now serving to finish out the terms for which 
they were elected.

Inasmuch as the next Pensacola City Council election is 
in May of 1979, at which time all terms expire, the changes 
approved by this court could become effective in time for 
those elections without disturbing or shortening the terms 
for which present councilmen are elected. Thus the 
remedial system to be employed insofar as the city council 
is concerned should become effective in time for its 
employment in the May, 1979 city council election.

This court believes that the judgments entered will be 
final judgments from which appeals may be taken. 
However, in the event such would not be considered an ap­
pealable judgment, the court will of its own motion, pur­



60a

suant to 28 U.S.C. § 1292(b), include in each judgment a 
finding that the judgment entered involves a controlling 
question of law as to which there is a substantial ground 
for difference of opinion and that an immediate appeal 
from the order may materially advance the ultimate deter­
mination of the litigation.

Dated this 10 day of July, 1978.

/s /  Winston E. Arnow 
Chief Judge



61a

APPENDIX C
[Filed May 11, 1981]

No. 78-3507

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

)
HENRY T. MCMILLAN, e t  al. )

)
v. )

)
ESCAMBIA COUNTY, Florida, e t  a l., )

A p p e lla n ts . )
______________________________________)

)
ELMER JENKINS, e t  al. )

)
v. )

)
The CITY OF PENSACOLA, Florida )

A p p e lla n ts . )
________________________ l

Appeal from 
District Court 
No. PC A 
77-0432

Appeal from 
District Court 
No. PCA 
77-0433

APPEALS FROM THE UNITED STATES 
DISTRICT COURT FOR THE NORTHERN 

DISTRICT OF FLORIDA

NOTICE OF APPEAL

Notice is hereby given that the City of Pensacola, and 
the associated government officials who are the defen­
dants in No. PCA 77-0433 (ND Fla.) and who are some of



62a

the appellants in No. 78-3507 in this Court appeal the 
judgment entered by this Court on February 19, 1981, in­
sofar as it affects the City of Pensacola and the associated 
government officials, to the Supreme Court of the United 
States.

Respectfully submitted,

DON J. CATON, City Attorney 
JOHN W. FLEMING, Assistant 

City Attorney 
City Hall 
P.O. Box 12910 

Pensacola, Florida 32501

CHARLES S. RHYNE 
WILLIAM S. RHYNE 

Suite 800
1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 466-5420

Attorneys for City of Pensacola, et al.

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing 
Notice of Appeal on all counsel of record by mail this 8 
day of May, 1981.

William S. Rhyne