Plaintiff's Post-Trial Proposed Findings of Fact and Conclusions of Law

    IN THE UNITED STATES DISTRICT COURT FOR THE oie 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, REV. R. L. HOPE, 
CHARLES JOHNSON, JANET O. LeFLORE, 
JOHN L. LeFLORE, CHARLES MAXWELL, 
OSSIE B. PURIFOY, RAYMOND SCOTT, 
SHERMAN SMITH, OLLIE LEE TAYLOR, 
RODNEY O. TURNER, REV. ED WILLIAMS, 
SYLVESTER WILLIAMS and MRS. F. C. 
WILSON, 

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Plaintiffs, 
CIVIL ACTION 

VS. 

CITY OF MOBILE, ALABAMA; GARY A. 
GREENOUGH, ROBERT B. DOYLE, JR., 
and LAMBERT C. MIMS, individually 
and in their official capacities 
as Mobile City Commissioners, 

NO. 75-298-P 

Defendants. 

PLAINTIFFS' POST TRIAL PROPOSED 
FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Pursuant to the instructions of this Court at the 

conclusion of the trial on July 22, 1976, plaintiffs Wiley Ll. 

Bolden, et al., on behalf of themselves and the plaintiff class 

of all black citizens of Mobile, herewith submit their proposed 

findings of facts and conclusions of law. 

Statement of the Case 
  

This action was filed June 9, 1975, by Wiley L. Bolden, 

Rev. R. L. Hope, Charles Johnson, Janet 0. LeFlore, John L. 

LeFlore, Charles Maxwell, Ossie B. Purifoy, Raymond Scott, 

Sherman Smith, Ollie Lee Taylor, Rodney O. Turner, Rev. Ed 

Williams, Sylvester Williams and Mrs. F. C. Wilson, black 

residents and citizens of Mobile, Alabama, claiming that the 

present at-large system of electing city commissioners 

 



N » 

abridges the rights of the city's black citizens under the 

  

First, Thirteenth, Fourteenth and Fifteenth Amendments to 

1/ 
the Constitution of the United States; under the Civil 

  

4 
First Amendment: 

Congress shall make no law respecting an establishment of 

religion, or prohibiting the free exercise thereof; or abridging the 

freedom of speech, or of the press; or the right of the people peaceably 

to assemble, and to petition the Government for the redress of grievances. 

Thirteenth Amendment: 

Section 1. Neither slavery nor involuntary servitude, except as 

a punishment for crime whereof the party shall have been duly convicted, 

shall exist within the United States, or any place subject to their 

jurisdiction. 

Section 2. Congress shall have power to enforce this article by 

appropriate legislation. 

Fourteenth Amendment: 

Section 1. All persons born or naturalized in the United States, 

and subject to the jurisdiction thereof, are citizens of the United States 

and of the State wherein they reside. No State shall make or enforce any 

law which shall abridge the privileges or immunities of citizens of the 

United States; nor shall any State deprive any person of life, liberty, 

or property, without due process of law; nor deny to any person within 

its jurisdiction the equal protection of the laws. 
Section 2. Representatives shall be apportioned among the several 

States according to their respective numbers, counting the whole number of 

persons in each State, excluding Indians not taxed. But when the right to 

vote at any election for the choice of electors for President and Vice 
President of the United States, Representatives in Congress, the Executive 

and Judicial officers of a State, or the members of the Legislature there- 

of, is denied to any of the male inhabitants of such State, being twenty- 

one years of age, and citizens of the United States, or in any way abridged, 

except for participation in rebellion, or other crime, the basis of 

representation therein shall be reduced in the proportion which the number 

of such male citizens shall bear to the whole number of male citizens 

twenty-one years of age in such State. 

Section 3. No person shall be a Senator or Representative in 

Congress, or elector of President and Vice President, or hold any office, 

civil or military, under the United States, or under any State, who, 

having, previously taken an oath, as a member of Congress, or as an 

officer of the United States, or as a member of any State legislature, 

or as an executive or judicial officer of any State, to support the 

Constitution of the United States, shall have engaged in insurrection or 

rebellion against the same, or given aid or comfort to the enemies thereof. 

But Congress may by a vote of two-thirds of each House, remove such 

disability. 

Section 4. The validity of the public debt of the United States, 

authorized by law, including debts incurred for payment of pensions and 

bounties for services in suppressing insurrection or rebellion, shall not 
be questioned. But neither the United States nor any State shall assume 

or pay any debit or obligation incurred in aid of insurrection or rebellion 

against the United States, or any claim for the loss of emancipation of 

any slave; but all such debts, obligations and claims shall be held 

illegal and void. 

Section 5. The Congress shall have power to enforce, by appropriate 

legislation, the provisions of this article. 

1/ continued 

 



  

Rights Act of 1871, 42 U.S5.C.. §1983; and under the Voting 

Rights Act of 1965, as amended, 42 U.S.C. §1973 et seq. 

Plaintiffs contend that the at-large election system, in the 

historical and present contexts of official and social racism 

in Alabama and Mobile County, has for all practical purposes 

denied black Mobilians equal access to participation in city 

government and has substantially diluted their vote. Plaintiffs 

seek full declaratory and injunctive relief, including costs 

and attorney fees. 

The defendants are the City of Mobile, Alabama, and Gary A. 

Greenough, Robert B. Doyle and Lambert C. Mims, who are sued 

individually and in their official capacities as Mobile City 

Commissioners. This Court has jurisdiction over the claims 

grounded on 42 U.S.C. §1983 against the City Commissioners and 

over the claims grounded on 42 U.S.C. §1973 against all defendants 

winder 28 U.8.C. §1343(3)-(4) and 2201. 

On January 19, 1976, the Court certified this cause as a 

class action under Rule 23(b) (2), F.R.C.P., defining the plain- 

tiff class as all black persons who are now citizens of the 

City of Mobile, Alabama. Following full discovery proceedings, 

trial began on July 12, 1976, and continued for six trial days, 

whereupon both sides rested. The Court scheduled closing argu- 

ments to coincide with those in the companion case of Brown v. 
  

Moore, C. A. 75-297-P, which challenges the at-large election 

features of the Mobile County Commission and Mobile County School 

Board and was tried beginning September 9, 1976. Additionally, 

the Court, at its own request, conducted a view of neighborhoods 

in the city which were subject of testimony and was accompanied 

by counsel and one other representative of both plaintiffs 

1/ 
  

continued 

Fifteenth Amendment: 

Section 1. The right of citizens of the United States to vote 

shall not be denied or abridged by the United States or by any State on 

account of race, color, or previous condition of servitude. 

Section 2. The Congress shall have power to enforce this 

article by appropriate legislation. 

 



  

9. * 

and defendants. The Court having considered all the evidence 

and the arguments of counsel herein enters its findings of facts 

and conclusions of law. 

The Mobile City Commission is organized under Act No. 163, 

Regular Session 1911, providing for a three-membered City 

Commission elected at-large, with each Commissioner having 

legislative, executive and administrative functions. The 

electoral system, as amended, includes requirements of 

candidates running for numbered positions and for election by 

majority vote. The election is non-partisan, and there are no 

requirements that candidates for the City Commission reside in 

certain districts of the city. 

According to the 1970 federal census, the City of Mobile 

has a total population of 190,026, of whom 35.4% or 67,356, 

are black. Certain areas of Mobile are almost totally devoid 

of black residents, while other areas of the City are virtually 

all-black. According to one study performed by the University 

of South Alabama Computer Center for the defendants, the 

housing patterns in the city are so segregated it is impossible 

to divide the city into three contiguous zones of equal popu- 

lation without having at least one predominately black district 

(P1. Ex. 60). Segregated housing patterns have resulted in 

concentrations of black voting power. 

The Legal Framework 
  

The touchstone for a showing of unconstitutional racial 

vote dilution is the test enunciated by the Supreme Court in 

White v. Regester, 412 U.S. 755 (1973): whether "multi- 
  

member districts are being used individiously to cancel out 

or minimize the voting strength of racial groups." 412 U.S. 

at 765. In White, for slightly different reasons in each 

county, the Supreme Court found that the multi-member districts 

in Dallas and Bexar Counties, Texas, were minimizing black 

and Mexican-American voting strength. 

lim 

 



  

The plaintiffs' burden is to produce 
evidence to support findings that the 

political processes leading to nomination 

and election were not equally open to 
participation by the group in question-- 

that its members had less opportunity 

than did other residents in the district 

to participate in the political processes 

and to elect legislators of their choice. 

Whitcomb v. Chavis, [403 U.S. 124,] (1971). 
  

  

White v. Regester, supra, 412 U.S. at 766 (emphasis added). 
  

The Fifth Circuit, acknowledging that multi-member districts 

are not per se unconstitutional, has recently reemphasized that 

a finding of unconstitutional racial dilution in an at-large 

election system 

must be based on the criteria that the 

Zimmer [v. McKeithen, 485 F.2d 1297 (5th 
Cir. 1973) (en banc), aff'd, sub nom, 
East Carroll Parish School Ed. v. Marshall, 

. U.S. , 446 U,8.1L.W. 4320 (Mar. 8, 1975) 

(per curiam) ("but without approval of the 
constitutional views expressed by the Court 

of Appeals')] and Wallace [v. House, 515 F.2d 

619 (5th Cir. 1975), judg.vac. on other grnds, 
1.0.8. 544 U.8.1L.W,. 3607 (Apr. 26, 1976)1 

courts distilled from White v. Regester, 
412 U.S8.: 755, 765-767 (1973), and in 

accordance with all later cases. 

  

  

  

      

Nevett v. Sides, F.2d (3th Cir.* June 8, 1976) Slip Op. at 
  

In Zimmer, the Fifth Circuit synthesized the White 

opinion with the Supreme Court's earlier Whitcomb v. Chavis, 403 
  

U.S. 124 (1971), and Taylor v. McKeithen, 407 U.S. 191, decisions, 
  

as well as with its own opinion in Lipscomb v. Johnson, 459 F.2d 
  

335 (5th Cir. 1972), to produce a catalog of devices, factors, 

and conditions which could prove a plaintiff's case. Zimmer 

goes on to warn us that 

"[t]he fact of dilution is established upon 
proof of the existence of an aggregate of 

these factors. The Supreme Court's recent 

pronouncement in White v. Regester, supra, 

demonstrates, however, that all these 

factors need not be proved in order to 

obtain relief. 

  

485 F.2d at 1305 (emphasis added). The Fifth Circuit has also 

modified or added other factors to the list in Zimmer. See 

Wallace v. House, supra; Turner v. McKeithen, 490 F.2d 191 
  

{53th Cir, 1973). 

 



  

These cases have given a number of factors that the trial 

court must consider in the aggregate to decide whether the at- 

large election system in the particular local setting operates 

unconstitutionally to cancel or minimize the voting strength 

of blacks. Properly applied, these factors must be reviewed 

pragmatically as they operate upon the minority's right to an 

equal vote and access to the political process, not in the 

narrow sense of analyzing whether a particular custom or event 

of Marion County, Indiana, or Bexar County, Texas, is replicated 

in Mobile, Alabama. The real effect of the custom or event on 

constitutional rights is the relevant inquiry regardless of 

what precise forms local history has shaped it. Furthermore, 

these factors are to be considered "in the aggregate" in 
  

reaching a decision of unconstitutional dilution. Plaintiffs 

have found no case where every factor was present and no clear 

formula of how they should be weighed in importance, though 
2 

some are clearly more determinative than others. = However, 

the approach in Zimmer is instructive on this point. Judge 

Gewin, writing for the Court en banc, reviewed the factors 

found in Dallas County, Bexar County and East Carroll Parish. 

Concerning the Louisiana case, he noted first: 

As in Dallas and Bexar Counties, minority 

residents in East Carroll Parish have 
suffered from a protracted history of racial 
discrimination which touched their ability to 
participate in the electoral process. 

485 F.2d at 1306. He then took into account the history of 

segregated schools until 1960 and the requirement of interpretation 

  

2/ 
. Webster defines the noun "aggregate" as "a total or whole; group 
or mass of distinct things gathered together." Although to some degree 
all of the Zimmer factors are present in the instant case, the Court 
wishes to dispel any notion that, after analyzing each factor separately, 
it has counted the number present or absent in a "score-keeping" fashion, 
as at least one recent district court opinion inferentially does. Nevett v. 

  

  

Sides, F.Supp. (N.D. Ala., June 11, 1976). A decision based on an 
aggregate of rational elements must be based on the fact-finder's pragmatic 
judgment of the result as "a total or whole." Thus, if sufficiently com- 
pelling, the presence of just one of many possible factors could control 
the decisional outcome. 

 



  

tests in order to qualify to vote until 1965, finding untenable 

the district court's opinion that the removal of these barriers 

"vitiated the significance of the showing of past discrimination." 

Id. Judge Gewin found instead that ''the debilitating effects of 

these impediments do persist," as evidenced by the low registra- 

tion rate among blacks. Id. Next the court pointed out the same 

majority vote requirement as existed in the Texas counties. 

But Zimmer acknowledged the differences in the cases as 

well. In Louisiana there was a state preference for single- 

member districts, whereas in Texas there was a strong state 

policy of at-large elections. There was no showing of unrespon- 

siveness to the need of minority groups in East Carroll Parish. 

Dallas County was the only one showing a highly organized slating 

group. The population of East Carroll Parish was only 12,884 

whereas Dallas County was 1.3 million. The plaintiffs were a 

minority of registered voters in all three jurisdictions but 

were a majority of population in Bexar County and East Carroll 

Parish. 
w 
-~ 

Thus Zimmer found an unconstitutional vote dilution in 

East Carroll Parish upon proof of only two factors: 1) that 

the history of past discrimination precluded an effective 

participation in the political process and 2) the absence of 

a strong state policy favoring the at-large election system. 

This exemplifies how the various factors are to be considered 

in the aggregate to reach a decision "that the political 

processes ... were not equally open to participation by the 

group in question ... VY 483 F.2d at 1305. 

The factors gleaned from these cases can be summarized as 

follows: 

(a) Openness of the slating process or candidate 

selection process to blacks, White (Dallas County), Zimmer, 

Turner; 

(b) Unresponsiveness of the elected officials to 

the minority, White (Bexar County), Zimmer; 

 



  

(c) A tenuous state policy supporting the use of 

multi-member districts, Zimmer; 

(c) The existence of past discrimination precluding 

effective participation in the election system by the minority, 

Zimmer; the existence of public and private discrimination in 

areas other than voting, White, Wallace; 
  

(e) Large districts, Zimmer; 

(f) Majority vote requirements, Zimmer, White, 
  

Wallace; 

(g) Anti-single shot laws, Zimmer, Wallace, or 
  

numbered places, White; 

(h) Lack of residency subdistricts, Chavis, Zimmer. 
  

Finally, one factor must be proved: a disparity between 

the percentage of elected officials who are black and the 

percentage of the electorate which is black. The applicability 

of each of these factors to the case at bar will be discussed 

in turn below. 

In a recent decision from the District Court for the 
- 
na 

Western District of Louisiana that is factually very similar 

to the present action, the Court reviewed the cases above and 

concluded with the following observation. 

Illumination of the principles here involved, as 

afforded by Zimmer and Wallace, lies not so much 

in their factual content as in their judicial 

method. Each represents a thoughtful, exhaustive 

analysis of the evidence in the record, paying 

close attention to the facts of the particular 

situations at hand, "Wallace v. House, supra at 
631, to discern whether the identifiable minority 

has suffered dilution depriving it of that mean- 
ingful access to the political process guaranteed 

by the Equal Protection Clause of the Fourteenth 

Amendment. The Court reminds us in each case 

that plaintiffs’ burden of proof is borne by a 

prima facie showing of an aggregate of the 

factors sketched in White. Thus our task is 

not to comb the record seeking the presence or 

absence of any particular fact or set of facts, 

for none alone is dispositive of the question 

before us. Instead, our considered opinion must 

"represent ... a blend of history and an intensely 

local appraisal of the design and impact of the 

multi-member district (under scrutiny) in light 

of past and present reality, political and 

otherwise'. White v. Regester, supra at 769-770. 
B.U.L.L. v. Shreveport, C.A. 74-272 (W.D.La.), 

  

  

  

  

  

July 16, 1976, Slip op. at 22-3. 

 



  

The B.U.L.L. case was a challenge of the at-large election 

structure for the Shreveport, Louisiana, City Commission. 

Shreveport's commission had five members and embodied majority 

vote and numbered place requirements. Also, like Mobile, 

there were no residency requirements. Shreveport, according 

to the 1970 census, had a population of 182,064, 347 of which 

was black. Shreveport has a history of official racial dis- 

crimination similar to that of Mobile and most Southern cities. 

Like Mobile, no black had ever been elected to the Shreveport 

City Commission. 26.8% of Shreveport city employees were 

black, compared to 26.37% for Mobile (Pl. Ex. 73). The housing 

segregation study which gives Shreveport an index score of 

97.4%, making it the most highly segregated of the 109 cities 

studied, finds Mobile with an index score of 91.0, the fifteenth 

most highly segregated city studied. These and other comparisons 

make the two cities appear uncannily similar. 

Lack of Access to the Slating 
or Candidate Selection Process 
  

Examining this factor at its source (White v. Regester, 
  

supra) the Court finds the Supreme Court expressing concern 

with any type of barrier to effective participation in the   

political process. Though abundantly present in the recent 

ae there are today no formal prohibitions against blacks 

seeking office in Mobile County, nor are there any organized 

groups slating candidates. However, the slating process 

includes not only the obvious legal barriers, such as the 

white primary, or highly organized groups like the Dallas 

Committee for Responsible Government that the Supreme Court 

  

v.¥) 
E.g., the qualifying fee for candidates for the city commission was 

found unconstitutional in Thomas v. Mims, 317 F.Supp. 179 (S.D. Ala. 1970).   
Of course, the City concedes that blacks were until passage of the Voting 
Rights Act of 1965 virtually excluded from the registration rolls, a 
prerequisite to qualifying as a candidate. 

 



  

discussed in White, but the entire range of factors that 

influences citizens to seek public office. Zimmer states that 

"the standards we enunciate today are applicable whether it is 

a specific law or a custom or practice which causes diminution 

of a minority voting strength." 485 F.2d at 1305 n.20. This 

Court must examine the whole process by which citizens in Mobile 

offer themselves as candidates. 

McGill v. Gadsden County Commission, F.2d (5th 
  

Cir., June 29, 1976), should not be read so narrowly that it 

forecloses further inquiry into blacks' access to the slating 

process where slating is done through an open primary election. 

See Slip Op. at 5. The balance of the Fifth Circuit's opinion 

in McGill found that Gadsden County, Florida's, open primary 

did not, as a matter of fact, limit minority access to the 
  

slating process, because half the registered voters and over 

half of the Democratic Party membership were blacks. Id. at. 0. 

A much different situation exists in Mobile, and its practical 

result is an effective deterrent to qualified black citizens 

offering themselves as candidates for City Commissioner. This 

Court cannot ignore the political realities of slating in Mobile, 

any more than could the district court in B.U.L.L. v. Shreveport, 
  

Supra, 8lip Op. at 23: 

Shreveport does not have slating organizations 
of the sort present in White. Any citizens of 
lawful age may qualify and seek election to 
city office, and in that sense the process is 
"open." However, as we have seen, our duty 
is to look beneath this facial neutrality to 
determine whether the paths "leading to 
nomination and election [are] ... equally 
open to participation by the group in question.” 
White v. Regester, supra at 766 (emphasis supplied). 

  

  

  

(Some emphasis added) 

Until single-member legislative districts were ordered in 

Sims v. Amos, 336 F.Supp. 924 (M.D. Ala.), aff'd 409 U.S. 942   

(1972), blacks had only occasionally offered themselves as 

candidates for public office in Mobile County. This vast 

discrepancy between the number of black candidates and percentage 

of blacks in the population warrants close scrutiny. 

~10~ 

 



  

Since 1962 four black candidates have sought election to 

the School Board, Dr. E. B. Goode in 1962, Dr. WW. L. Russell 

in 1966, Ms. Jackie Jacobs in 1970 and Ms. Lonia Gill in 1974. 

All four black candidates were well educated and highly respected 

members of the black community. They all received good support 

from the black voters and virtually no support from whites. 

They all lost to white opponents in run-off elections. 

Three black candidates entered the race of the Mobile 

City Commission in 1973, Ollie Lee Taylor, Alphonso Smith and 

Lula Albert. They received modest support from the black 

community and virtually no support from the white community. 

They were young, inexperienced, underfinanced, and mounted 

extremely limited campaigns. 

Two black candidates sought election to the Alabama State 

Legislature in a special legislative election held in 1969, 

Clarence Montgomery and T. C. Bell. Both were well supported 

by the black community, but both lost to white opponents. 

In 1972 A. J. Cooper, Jr., was elected the First black 

Mayor of Prichard, Alabama, and John™Langham the first black 

Councilman of that Mobile County city, which only in recent 

years has attained a majority black population. 

Then in 1974, with reapportioned single-member legislative 

districts, Cain Kennedy, John LeFlore and Gary Cooper became 

the first black candidates to win public office in Mobile County 

or City (excluding the Prichard elections supra) in modern 

times when they won seats in the Alabama House of Representatives. 

However, at the same time, James Buskey, a black candidate for 

the Alabama Senate, was defeated in a racially overtoned, head- 

to-head runoff with a white candidate. In May 1976, no less 

than six black persons sought the Democratic nomination for 

the unexpired term of the late John L. LeFlore in House District 

93. 

Out of frustration, Alabama blacks organized a third 

party, the National Democratic Party of Alabama, and occasionally 

wll 

 



  

offered candidates on that ticket. No other blacks have sought 

public office in the City or County of Mobile. Neither major 

party has ever nominated a black candidate for public office, 

except in the single-member legislative districts. The barrier 

in Mobile to blacks seeking public office is the at-large 

election system. The futility and high cost of running in 

districts as large as the city and county 208 offecrively 

prohibited blacks from seeking office. The several black poli- 

ticians who testified at trial all said it was useless to run 

for City Commissioner and would not consider becoming candidates. 

Well-qualified and respected black citizens have sought election 

to the School Board only because campaign costs for that office 

were substantially less than for the county and city commission. 

The need for sufficient money to run a campaign is a political 

reality and is exacerbated by the size of the constituency that 

must be reached. A black candidate must rely entirely on funds 

from within the black community and those resources are limited. 

The at-large system is as effective a barrier to blacks 

seeking public office as any other devised by the Alabama 

Legislature. This fact is shown by the effects of the new 

single-member legislative districts. The districts are small 

and the racial composition of some offer blacks a chance of 

being elected. In those districts where blacks have felt 

their chances of success were reasonable, many black candidates 

have sought office. In the recent election to fill the unexpired 

term of the late John lLeFlore in House District 99, six black 

candidates offered themselves in the Democratic Primary. The 

spirited campaign caused one of the highest vote turnouts in 

the City. The general election held in August pitted a 

black Republican nominee against a black Democratic nominee. 

The Court concludes that the at-large election of city 

commissioners, combined with strong racial polarization of 

Mobile's electorate (see pp. 33-36 infra), has effectively 

discouraged qualified black citizens from seeking office and 

thus denied blacks equal access to the slating or candidate 

selection process. 

19. 

 



Unresponsiveness of Elected 
Commissioners to Minority Interests 

  

  

One of the panoply of factors that Zimmer commands the 

trial court to consider is the "unresponsiveness of legislators." 

485 F.2d at 1305. The limits and importance of this factor 

are not clear. Additionally, examples of so-called responsive- 

ness can be manipulated by defendants for trial purposes. The 

necessity of any such showing is dependent on the type of 

functions performed by the governmental unit being challenged. 

  

Zimmer, in discussing the total absence of proof of unresponsive- 

ness of the challenged police jury said: 

[I]t may be that the particular functions 
of the police jury, for example, do not 

easily lend themselves to unresponsive 

representation. The record establishes 

that the primary function of the juries 

is the drainage of rural farmlands, 
maintenance of rural roads and the over- 

seeing of a prison farm. 

485 F.2d at 1306. Zimmer found for the plaintiffs with no showing 

  

of unresponsiveness whatsoever. Judge Johnson in Yelverton v. 

Drigrers, 370 F.Supp. 612 (M.D. Ala. 1974) (Dothan) and 
  

Hendrix v. Joseph, F.Supp. (M.D. Ala. Feb. 26, 19758) 
  

(Montgomery County), found unresponsiveness relying almost 

exclusively on employment data and the appointment of blacks to 

committees. Judge Pointer in Nevett v. Sides, supra, does not 
  

mention the specific evidence before the court. 

The inquiry is not whether the unresponsiveness to the 

needs of the black community rises to the level of a constitutional 

deprivation as required in municipal services equalization suits 

such as Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 1971), 
  

aff'd on rehearing 461 F.2d 1171 (5th Cir. 1972), rather it 

1s whether the city government has generally dispensed its 

power in such a manner as to benefit the white community to 

a cognizable extent more than the black community. The inquiry 

must be about those functions of city government that are 

WR 

 



  

reasonably capable of analysis in the context of this type 

litigation and "lend themselves to unresponsive representation. 

Zimmer v. McKeithen, supra, 485 F.2d at 1306. 
  

Plaintiffs introduced employment reports filed by the 

Cicy with the EEOC. (Pl. Ex. 70, 71 and 72) Tor the most 

recent year available, 1975, they show that of the City's 

1,858 employees only 26.3% are black and that well over half 

of all blacks are employed in the lowest job and salary 

classifications. (Pl. Ex. 73) The City has hired blacks in 

substantial numbers only as garbagemen, for highway maintenance 

and as maintenance workers in the transportation department. 

Only three blacks working for the City make more than $10,000 

a year. These figures must be viewed in light of the fact 

that city government is one of the largest employers in the 

Mobile area. The City's hiring policies should reflect an 

exercise of the public trust that Judge Pointer spoke of in 

Nevett, supra, and provide an example for employers in the   

private sector. 

The black community suffers a substantially higher rate 

of unemployment than the white community. This is accompanied 

by the attendant social and physical blight in the black 

neighborhoods. The City Planning Commission's own assessment 

in 1969 put the city government on notice about the problem. 

NO MAN IS AN ISLAND 

The social blight resulting from the "tradition" of 
racial segregation in the City of Mobile must be a focal 

point for any action within the social environment. 

Lack of job opportunities and low education levels, 

two of the basic social problems resulting from racial 

segregation, have kept the Negro "in his place." The 
result has been a depressingly high incidence of social 

and physical blight in Negro neighborhoods. Indifference 

and apathy, on the part of black and white alike, have 

made it difficult for the Negro to improve his economic 

position. Now, with recent growth of the Civil Rights 

movement, opportunities have begun to open. But continued 

improvement in the social environment will depend largely 

on the elimination of all forms of racial segregation. 

The Neighborhoods of Mobile: Their Physical Characteristics 
  

and Needed Improvements, 1969, The Mobile City Planning 
  

wYlin 

 



Commission, p. 312. In spite of this assessment, made only 

  

six years ago, the city still hires blacks only in those low- 

paying jobs where they have traditionally been placed. Mobile 

City Code §2-10-1 prohibits employment discrimination by 

contractors with the City, but provides no enforcement 

mechanism. In fact none of the defendant commissioners could 

recall an instance where they took action to implement this 

measure. Furthermore, Mobile's city government is itself 

currently operating under two federal court orders enjoining 

racial employment discrimination: Allen v. Mobile, 331 F.Supp. 
  

1134 (S.D. Ala. 1971), aff'd, 466 7.24 122 (5th Cir. 1972). 

cert. denied, 412 U.S. 909 (1973), and Anderson Vv. Mobile 
    

County Commission, Civil Action 7388-72-H (S.D. Ala. 1973).   

The City government has failed to appoint blacks in 

reasonable numbers to its committees and boards. The City's 

records indicate that of more than 800 citizens appointed 

in recent years, only about 7.5% have been black. (Pl. Ex. 64) 

These figures include only the number of persons appointed and 

not the number of appointments made, because many persons are 

reappointed. The commissioners make the appointments by 

informal agreement, either by taking turns or allocating a 

number of appointments to each commissioner. Since most 

appointments are for short terms, the commissioners could, iF 

they desired, change these figures drastically in several years. 

Appointments to city committees are important not only to 

obtain diverse opinions from all parts of the community and 

share fairly what power the committee has, but for the black 

community it would open parts of the governmental processes 

to those to whom they have for so long been denied. The City 

Commission's custom or policy of appointing disproportionately 

few blacks to committees is a clear reflection of the at-large 

election system's dilution of blacks' influence. The 

Commissioners appoint citizens from their neighborhoods and 

constituencies, which are virtually all-white. The Commisioners 

15. 

 



  

have relatively less contact with the black community and 

hence are not as likely to know of black citizens who are 

qualified and interested in serving, leading one Commissioner to 

conclude that blacks are not very interested in their city govern- 

ment. 

City records indicate that black neighborhoods have received 

disparate treatment in the paving and resurfacing of streets. 

This policy is long-standing and has not changed appreciably in 

recent years. The data, prepared by city employees, was broken 

down according to the ward classification used by Pra Yorles 

in his dissertation. (Pl. Ex. 74) It shows that the black 

wards had more than twice the percentage of unpaved streets as 

the white wards and that while 9.7% of the streets in the black 

wards had been paved or resurfaced since 1970, the corresponding 

figure for white wards was 15.6%. These figures show no relation 

to number of people who might be served by the streets. If 

data provided by the city is divided by the percentage of city 

voters living in the area, it shows that for each one percent 

of voters in the white wards there were two and a half times 

the miles of streets paved or resurfaced since 1970 than in 

the black wards. Regardless of how the figures are analyzed, 

the result is clear: black neighborhoods have more unpaved 

streets, less streets paved or resurfaced, and less streets 

paved or resurfaced since 1970 than do white neighborhoods. 

(Pl. Ex." 75) 

The figures contained in Plaintiffs' Exhibit 74, although 

prepared by the City itself, were challenged by defendants as 

irrelevant on grounds that they fail to distinguish miles 

paved by private developers from those paved by the City. 

But only the City had access to the information and manpower 

resources needed to break this overall data down more 

specifically, and in compiling the document marked as Plaintiffs" 

Exhibit 74 it chose not to do so. Defendants directed that a 

color-coded map be prepared showing private and public paving, 

16 

 



  

but again failed or refused to present the information in 

numbers of miles or identify the black and white neighborhoods. 

The burden was on the defendants to rebut plaintiffs' prima 

facie showing of discrimination, and they failed to garry it; 

Nor did the defendants explain the relevance of identifying 

streets paved by private developers. After all, if the City of 

Mobile has over the years made it a practice to accept for 

city maintenance only paved streets in white neighborhoods, but 

developers were not required to pave the streets in black neighbor- 

hoods, there would be no less measure of offtotal discrimination 

against black citizens. Finally, with respect to street 

resurfacing, defendants cannot deny that the United States 

Treasury Department, in response to a formal complaint filed by 

‘the local NAACP Branch, found racial discrimination in the 

City's resurfacing program, which it said would have to be 

corrected for Mobile to comply with the antidiscrimination 

provision of the Revenue Sharing Act. (Pl. Ex. 111) 

Black neighborhoods have also always been the last to have 

their storm drainage problems attended to by city government. 

Mobile is a low-lying area generally, and drainage has historically 

required large capital outlays throughout the city. But today 

it is the predominately black northeast section of Mobile that 

still has the most serious drainage problems. This part of 

town is drained by the Three-Mile Creek system, which the City's 

Public Works Engineer characterized as like the Mississippi 

River, periodically flooding the adjoining neighborhoods. He 

estimated that it would cost three to four million dollars 

adequately to improve Three-Mile Creek, but that only within 

the past year has the City tried to find the money (now it has 

appealed to the U.S. Army Corps of Engineers and Mobile's 

Congressman for help). In the meantime, the City has improved 

only the western, more elevated reaches of Three-Mile Creek, 

which serve predominately white areas. Predictably this has 

aggravated the drainage problems of black residents downstream 

in the eastern section of town. Just as the defendants now 

-17- 

 



  

argue that paving the streets in all-black Trinity Gardens 

must wait for its terrible drainage problems to be solved 

(Trinity Gardens drains into Three-Mile Creek), similar logic 

should have prompted an unbiased city government to improve 

Three-Mile Creek's drainage at its mouth before constructing 

drainage projects upstream. 

The City has a practice of assessing for street paving. 

The assessment rate is frequently negotiated and occasionally 

waived. The policy obviously weighs most heavily on the black 

and low income community. 

The City does not, however, assess for thoroughfares. This 

has meant that neighborhoods such as Telnity Gardens have remained 

in mud while already paved streets such as Dauphin Street, 

Springhill Avenue and Airport Boulevard are widened and extended. 

Additionally, the City does not assess for resurfacing. Thus 

neighborhoods with unpaved streets, most of which are in black 

neighborhoods, are deprived of this municipal service. As one 

witness graphically phrased it, "whites get asphalt; blacks 

get red dirt and oyster shells." 

A recent incident in Mobile (which occurred after this 

suit was filed) has uncovered evidence supporting a long-standing 

complaint of the black community about unequal treatment by 

city government. Eight white Mobile police officers were 

present when an attempted lynching of a black citizen by some 

of the officers took place. The outrage in the black community 

finally forced the Mobile Police Department and Police Com- 

missioner to conduct an investigation. The resulting investiga- 

tion led to the firing of three officers and disciplinary action 

taken against sixteen. Five of these have been indicted by 

the grand jury. The investigation revealed that certain police 

supervisors had encouraged terrorist activities against black 

citizens. Furthermore, ineidents pre-dating the attempted 

lynching were finally investigated and wrongdoing on the part 

of the officers discovered. 

~18- 

 



Plaintiffs for years have complained of police brutality. 

  

The Non-Partisan Voters League, whose director was plaintiff 

John LeFlore, has assisted citizens in preparing affidavits 

regarding incidents of possible police brutality for many years, 

and these have been forwarded to the City Commission. But the 

Commission has either failed to acknowledge Non-Partisan Voter 

League's police brutality complaints or has responded only with 

anger and contempt. Had the Commissioners been sufficiently 

responsive to the complaints of the black community, it is 

likely that the practices which led to such sensational police 

excesses would have been discovered. The lack of an adequate 

response to these complaints was a major precipitant of this 

very lawsuit. 

Further unresponsiveness to the needs of the black 

community is seen in the fact that during recent cross-burning 

incidents in Mobile and threats against the lives of black 

leaders, the Police Commissioner has been silent. A responsive 

police commissioner might have spoken out publicly to denounce 

the terrorism and reassure the Black comunity that it would 

be protected. 

Mobile housing patterns are some of the most segregated 

in the United States and are becoming even more segregated. 

Mobile was ranked 95th of 109 cities in the United States; 

number 109 being the most highly segregated. In 1940 Mobile 

ranked 62nd. The location of public housing in Mobile has 

encouraged the concentration of blacks in the northern and 

eastern sections of the city. A city government responsive to 

black community interests would have dispersed public housing in 

other parts of the city and passed and enforced open housing 

ordinances. 

Blacks in Mobile and their neighborhoods endure a greater 

share of infant deaths, major crimes, TB deaths, welfare cases, 

and juvenile delinquency than do whites and their neighborhoods. 

The Neighborhoods of Mobile, supra, is the most comprehensive   

survey ever made of the city. Table Q of the Appendix ranks 

-19- 

 



  

the 78 neighborhoods of the city according to these indices 

of social blight. Nine of the 14 most blighted neighborhoods 

were predominately black. 

The same study in Table A shows the causes of physical 

blight in the neighborhoods, including inadequate drainage, 

iter streets, sidewalks, zoning and public transportation, 

all of which are to a large extent the responsibility of city 

government. Of the ten neighborhoods with the worst physical 

blight, nine are predominately black. 

According to testimony by the head of the City Planning 

Commission, there is a near perfect correlation between the 

blackness of a neighborhood and the severity of its blight. 

Though there are indications that some progress is being made, 

especially in the area of housing conditions, much of the effort 

has been made possible by federal funds under categorical 

grants that virtually assured the money would be spent in 

minority areas. Again, statistics are only the framework to 

reaching a conclusion. Testimony by.witnesses for both sides 

and observation of the neighborhoods confirm the general 

import of the conclusions of The Neighborhoods of Mobile, 
  

supra. 

The plaintiffs presented evidence regarding recreational 

facilities. Like the street survey discussed above it was 

broken down according to predominately black and white wards 

and was prepared by the defendants. Upon analysis it shows that 

there is a greatly disproportionate allocation of recreational 

acreage favoring the white wards. The City claimed this was 

because blacks live in the older residential areas. However, 

the defendants admitted that the recreational programs in 

the black neighborhoods attract the highest participation 

in the city, indicating, it would seem, that those facilities 

should be the ones to be expanded. Instead defendants 

have now decided to construct a new, large suburban park 

at the expense of several new neighborhood parks in the older 

=30~ 

 



  

part of the city. Again the statistics only serve to 

indicate the direction and dimensions of discrepancies 

between black and white neighborhoods. The Court concludes 

there is a cognizable difference between recreational 

facilities in black and white neighborhoods. The Court 

is mindful of the evidence that several gymnasiums and 

swimming pools have been placed in black neighborhoods. 

However, these facilities present the same question as 

discussed above in determining whether they are responses 

to the needs of the black community or to federal categorical 

funds. Most of the gymnasiums were constructed in low-income 

housing projects with federal funds and most of the 

swimming pools were built to satisfy the Revenue Sharing 

compliance audit. In any event the swimming pools and gymnasiums 

constitute only a small part of the city's recreational 

facilities. 

The defendants called many city employees to tell of 

plans which would benefit black neighborhoods. These are 

admirable but the Court cannot base its decision on such 

evidence. The Revenue Sharing audit gave one clear example of 

where city plans have not been carried out. For example, 

during the compliance audit conducted by the Treasury Department 

in 1973 the city showed plans to pave the all-black Trinity 

Gardens neighborhood. Trinity Gardens probably endures more 

dirt streets and drainage problems than any neighborhood in 

the city. The city spent revenue sharing funds for many needed 

improvements, including some drainage, safer sidewalks in 

the downtown area for handicapped citizens, the swimming 

pools and new city road equipment. 

This cumulation of evidence that the Mobile city govern- 

ment has failed to. respond to the needs of the black community 

for better jobs, participation in city government, better 

streets, a professional police force and neighborhoods free 

TY 

 



  

of blight and better recreational facilities. far exceeds that 

on which other courts have based findings of unresponsiveness. : 

Most of this evidence comes from the defendants' own records, 

although a number of black citizens gave testimony confirming 

the problems in their particular neighborhoods. Their efforts 

to gain better municipal services have been met with 

platitudes, promises and little action. Their view of their 

own neighborhoods as compared to white neighborhoods accords 

with all the professional studies and naturally contributes 

to their disillusionment with city government. 

Furthermore, this Court takes judicial notice of Mobile's 

long history of official racial discrimination in the 

provision of governmental services, as reflected in the records 

of this Court. Anderson v. Mobile County Commission, supra 
  

(employment discrimination); Allen v. Mobile, supra (police 
  

segregation and discrimination against black officers); Davis 

  

v. Board of School Commissioners of Mobile County, Civil Action 

No. 3003-63-H (pending school desegregation suit); Evans v. 
  

Mobile City Lines, Inc., Civil Action No. 2193-63 (S.D. Ala. 
  

1963) (segregation in public transportation), Cooke v. Mobile, 
  

Civil Action No. 2634(S.D. Als. 1963) (segregation at city airport). 

But racially unequal distribution of city services required 

by all citizens is only one measure of official unresponsiveness. 

Zimmer speaks of the '"particularized interests" of blacks as 

a minority group. 485 F.2d at 1305. In the case of black 

people, as an identifiable minority, their particularized 

interests are rooted in long-standing historical discrimination 

practiced against them in this country. Defendant Lambert 

Mims, the incumbent Mayor of Mobile, concedes the central 

importance of our racist heritage to today's black citizens 

and has written about his own (patronizing) approach to the 

problem: 

DT 

 



  

We can no longer live in the days of our 
forefathers. Negroes no longer live down the 

lane and pick cotton. The black man has been 

thrust into society. It matters not whether 

we like this fact. There is no escape! This 
problem must be faced. 

Reasonable white men must realize that the 

Negro needs training and education, and that 
in many cases he needs to be advanced culturally. 
Reasonable white men must patiently go through 

this period of adjustment. We must provide 

opportunities for the Negro to become qualified, 
and once he is qualified, provide an opportunity 
for him to prove himself. 

L. Mims, For Christ and Country 67-8 (1969). 
  

Mr. Mims' statement illustrates the popular attitude of 

even well-intentioned white politicans that is not responsive 

to the most deeply felt particularized interests of the black 

community today, 4/ as seen by blacks themselves. Black 
  

voters have a constitutional right to an equal opportunity to 

elect not only white candidates who will fairly apportion 

municipal services, but black or white officials who will 

respond to blacks' aspirations for trily affirmative public 

leadership seeking a speedy end to all remaining vestiges of 

racial discrimination. Predictably, all three incumbent 

commissioners in their trial testimony demonstrated an 

awareness of practical Mobile politics, under the current at- 

large system, by declining to support the suggestion of city ordinances 

  

4/ 
3 The Mayor's views about the problems of blacks in American society 
more closely reflect those of some black leaders in the Nineteenth Century. 
Compare the following excerpt from a speech by Booker T. Washington 
at the Atlanta Cotton States and International Exposition in 1895: 

It is important and right that all 

privileges of the law be ours, but 

it is vastly more important that we 
be prepared for the exercise of these 
privileges. The opportunity to earn 

a dollar in a factory just now is 

worth infinitely more than the 
opportunity to spend a dollar in an 
opera-house. : 

R. Kluger, Simple Justice 71 (1976). 
  

«2%. 

 



  

outlawing racial discrimination in employment, housing and 

public accomodations. Their attitude was that the federal 

government alone should safeguard blacks' civil rights, 

notwithstanding the Congressional policy encouraging local 

governments to take this responsibility. 2/ The conceded 

inability of black Mobilians, through at-large voting, to elect 

one or more members of city government who would aggressively 

represent their particularized concerns about civil rights 

lies at the heart of the electoral system's constitutional 

infirmity. The Fourteenth and Fifteenth Amendments require 

that blacks in Mobile be given an even chance of having their 
  

views expressed in the inner councils of city government. 

The Court finds that the Mobile City government has 

historically been unresponsive and remains today unresponsive 

to black community interests. 

Alabama Has Only a Tenuous Policy 
Supporting At-Large Electoral 
Systems For City Governments 
  

Since 1911 Alabama has had two primary forms of government 

authorized for its cities and towns: the mayor-council system 

and the commission system. The mayor council system is the 

system each municipality originally uses when incorporated 

(see, Ala. Code, Tit. 37, §14 (1958 Recomp.)). The commission 

system may only be adopted by referendum, while other variations 

may be imposed by local act of the Legislature. 

A. The Mayor-Council System 
  

The only form of council authorized for cities under 

12,000 is a five-member council with whom the mayor sits, 

Ala. Code, Titr.37, 8404 (1973 Supp.).. For all cities of   

larger population, Ala.Code, Tit.37, §426 (1973 Supp.), provides   

the various forms of city councils. This statute has been 

amended several times since 1907, when all cities of 6,000 or 

  

LY; 

See 42 U.S.C. $82000s-3(c), 3000s-5(c), and 3610(cY. 

200. 

 



  

more were authorized to elect up to 14 council members 

plus a council president. If the city had 7 or fewer wards, 

one was to be elected by each plus enough at-large members 

to make 14, In all of these provisions (except as noted), 

a council president was elected at-large. If the city's 

population exceeded 50,000, the city could have up to 20 wards. 

All these aldermen were elected to two-year terms. If the 

city had 35,000 or more people, it could elect its aldermen 

to staggered terms of four years. Ala.Code, §1064 (1907). 
  

In 1909, a proviso was added that the two aldermen 

elected from each ward were to be elected at-large in cities 

of less than 20,000. In other words, for small cities the 

wards became only residency districts for at-large elections. 

Act 56, 1909 General Acts of Alabama. 

The 1923 Code dropped the staggered terms proviso (which 

had only applied to cities over 35,000). Ala. Code, §1757 
  

(1923). In 1927, the Legislature changed the = term of all 

aldermen to four years. Ala. Code, §%757 (1927). 
  

In 1931, the present proviso for electing five aldemen 

at-large and no council president was inserted. 1937 General 

Acts, p. 436; Ala.Code, §1757 (1936 Supp.). In 1956, a second   

proviso was inserted to allow cities of over 30,000 to elect 

five at-large aldermen, one to be elected from each ward, 

plus a council president who voted only to break ties. 1956 

Acts of Alabama, p.288. 

Finally, in 1961, she Tower limit of applicability of 

the act was changed from 6,000 to 12,000. Since 1961, Ala. 

Code, Tit.37, §426, has remained unchanged. 

B. The Commission System 
  

In 1911, the Legislature passed four acts authorizing 

municipalities to adopt a commission form of government. 

1911 General Acts, p. 204, applied only to cities of 100,000 

“35. 

 



  

or more; 1911 General Acts, p. 289, applied only to cities 

of 25,000 to 50,000; 1911 General Acts, P. 591, applied to 

cities of 1,000 to 25,000. This last act was codified as 

§2335 of the 1923 Code. All of these acts, as amended, were 

synthesized into Ala.Code, Tit.37, §§35-88 (1940), which 
  

applied to all cities of more than 1,000 people. 

The Legislature also passed a general act of the 

commission form of government which applied to "any city". 

1911 General Acts, p. 330; now codified as Ala.Code, Tit.37, 
  

§§89-119 (1958 Recomp.). For some reason this act was not 

codified in the 1923 or (unofficial) 1928 Codes. Mobile is 

now governed by this act. 

The primary difference between these two statutes is 

that the first form of commission government has three 

commissioners chosen in an at-large election -- with the three 

candidates receiving a majority of the votes being elected. 

The three commissioners then choose one member as president 

or mayor, Ala. Code, Tit.37, §§44, 44(1) (1958 Recomp.). No   

specific duties are assigned to any member of the commission 

board under either of these systems. 

Either of these forms of government may be adopted by a 

petition of qualified electors followed by referendum 

election. On the other hand, a third commission form may be 

adopted by ordinance of any city commission, Ala. Code, Tit .317, 
  

§119(2) (1973 Supp.). The three commissioners are then given 

specific duties (established by statute) and candidates must 

run for a specific post: mayor (in charge of the administrative 

department), public improvements commissioner, or public 

safety commissioner, Ala.Code, Tit.37, §§119(4), 119(6). 

C. The Mobile History 
  

As a part of the Joint Pretrial Document, the defendants 

prepared and attached Defendants' Appendix A, which listed 

20 

 



  

all acts establishing or modifying Mobile's form of govern- 

ment. These acts range back and forth between ''true' at- 

large, at-large to numbered places, at-large with ward 

residency requirements, a single-or-multi-member districts. 

The acts are listed below (using the same numbering as the 

defendants gave them) with a notation as to the system used. 

1. 1814. Apparently a true at-large election with 

the top seven elected, since the act does not specify 

districts, numbered places, or run-off. Toulmin's Digest, 
  

p. 780 (1823). 

2. 1819. A true at-large electionwith no run- 

off, Toulmin's Digest, p. 784 (1823). 
  

3. 1826. Mayor and six aldermen elected in a 

general ticket (true at-large); they were authorized to 

divide the city into wards for the election of two or more 

aldermen from each ward (apparently a multi-member district 

scheme). 1825 Acts of Alabama, p. 33. 

4. 1833. Pive containers elected only to divide 

city into wards, thereby putting into effect the 1826 ward- 

based structure. 1823-33 Acts of Alabama, p. 106. 

5. 1840. Neither the plaintiffs' or defendants’ 

counsel have been able to find a copy of this Act. 

6. 1844. A mixed system with a Mayor and seven 

Common Councilmen elected by general ticket (at-large) with 

one councilman to reside in each ward plus two aldermen 

elected by and from each ward. The Common Council and Board 

of Alderman formed a bi-cameral legislature. 1843-44 Acts 

of Alabama, p. 175.   

7. 1866. Same system as in 1844, except three 

aldermen from each of eight wards and eight common councilmen 

and the aldermen had three-year staggered terms. This 

therefore constitutes a numbered-place plan for aldermen 

within multi-member wards and residency requirements for at- 

large councilmen. 1856-66 Acts of Alabama, p. 202. 
  

27 

 



  

® ® 

8. 1868. The Governor was to appoint all officers 

under the 1866 plan -- it specifically did not repeal the 

number and residency requirements for at-large councilmen. 

1868 Acts of Alabama, p. 4 (18 July 1868). 
  

9. 1868. Voided the appointments under the earlier 

1868 act, required the Governor to appoint the aldermen and 

councilmen who would elect the mayor. All would hold office 

till the next election. The Governor was allowed to appoint 

without regard to residence, but the act did not repeal 

Section 3 of the 1866 Act (establishing residency requirements 

for election). 1868 Act of Alabama, p. 42 (21 Dec. 1868). 
  

10. 1870. Repealed all of the 21 Dec. 1868 Act 

(except the part voiding the earlier 1868 appointments), 

required the Governor to appoint a mayor, aldermen, and 

councilmen without regard to residence to hold office until 

their successors were elected, and called for annual elections. 

Because the 1866 Act, Section 3, was still not repealed, the 

form of election was probably still used. 1869-70 Acts of 

Alabama, p. 451. 

11. 1871. Repealed that part of the 18 July 1868 

act which required a particular oath of elected officials. 

1871-75 Acts of Alabama, p. 385. 

12. 1874. Made no change in the form of government. 

1874-75 Acts of Alabama, p. 532. 
  

13. 1879. The Port of Mobile, with elght wards, 

was incorporated. The only government was a Mobile Police 

Board consisting of one commissioner elected for each ward 

(by all the qualified voters of the city). 1878-79 Acts of 

Alabama, p. 392. 

14. 1886. Reestablished the city of Mobile with 

eight wards. The city government now consisted of a mayor, 

seven aldermen elected at-large and one councilman elected 

by each ward. All met together except on appropriatioms, 

when separate votes of the aldermen and councilmen were taken. 

he 1 

 



  

Aldermen had one year terms and councilmen three year terms. 

1866-87 Acts of Alabama, p. 223. 
  

15. 1897. Changed the aldermen's term to three 

years. 1896-97 Acts of Alabama, p. 542. 
  

16. 1901. Made no change in 1897 act, insofar as 

legislative department. 

17. 1911. Mobile elected the commission form of 

government. 1911 Acts of Alabama, p. 330. 
  

For the 1874, and 1886 acts, the counsel for the 

defendants (in the Pretrial Document) has characterized these 

acts as requiring at-large with residency requirements, while 

plaintiffs have interpreted them as single-member district 

plans (at least in part). The difference centers over the 

word "for". The Court notes that the 1844 act specifically 

required Common Councilmen to be elected at-large with a 

residence requirement, using the following terminology: 

wae 

The Board of Aldermen shall consist of 

two Aldermen from each Ward; and the Board 

of Common Council shall consist of seven 

members***: Provided, One of the said Common 

Councilmen shall reside in each of the several 

Wards. 

Section 5, Act 221, 1843-44 Acts. 

The 1866 Act was even more explicit: 

The Board of Aldermen shall consist of three 

Aldermen for each ward, and the Board of 

Common Council shall consist of eight members 

*%%; Provided, One of the said Common 

Councilmen shall reside in each of the several 

wards.***the mayor of the said city and the 
eight common councilmen shall be elected by 

ballot in general ticket **%* and the aldermen 
aforesaid shall be elected by ballot by the 

citizens of their respective wards***, 

Sections 5 and 6, Act 165, 1865-66 Acts. 

By contrast, the 1874 act was only an act "to regulate 

the election of municipal officers in the City of Mobile." 

It made no attempt to doting the number, qualifications, or 

tenure of alderman and councilmen except to provide "the 

00. 

 



  

aldermen and members of the common council must be residents 

of the ward in which they are respectively elected. Section 

1, Act 365, 1874-75 Acts. 

1866 Act required "seven aldermen at-large’ and eight 

councilmen ''one...elected for each ward." Sections 4 and 5, 

Act 152, 1886-87 Acts. These acts clearly show that the 

General Assembly knew how to differentiate between elections 

by wards (e.g., aldermen in the 1844 and 1866 acts), election 

at-large (e.g., aldermen in the 1886 act), and election at 

large from:residency areas (e.g., common councilmen in the 1844 

and 1866 acts). 

Generally speaking, the history of Mobile government 

may be divided into the following periods and forms: 

(a) 1814-1844: at-large system. 

(b) 1844-1879: a bicameral system with two or 

three aldermen elected from each ward and councilmen elected 

at-large with ward residency requirements. The Legislature 

voided the city's elections in 1868 aie 1870 by requiring the 

governor to appoint the city government till the next election. 

(c) 1879-1886: the Port of Mobile period with 

no mayor and 8 commissioners elected at-large with residency 

districts, 

(d) 1886-1911: revision to a form like that of 

the 1844-1879 period except there was less bicameralism. 

(e) 191l1-present: the commission system with three 

commissioners elected to numbered places. 

D. Conclusion   

While the General Assembly and Legislature prescribed 

the form of Mobile City government for its first century, with 

the adoption of the optional commission form in 1911, Mobile 

became free to choose another form of commission government or 

one of the mayor-council forms. Examining these optional 

=30- 

 



  

forms leads to the conclusion that there is no strongly rooted 

state policy in favor of at-large elections for city government. 

Indeed, if the local legislative delegation agreed the electoral 

system or form of city government could be quickly changed. 

Several proposed changes were submitted in the local delegation 

during the legislative session just completed. This system 

is closely akin to a home-rule option for the form of local 

government. Alabama law authorizes Mobile to select both the 

form of its govermment (mayor-council or commission) and its 

electoral scheme (at-large, single-or dual-member districts or 

combinations thereof). It is true that no single-member 

district option is available if the city selects a commission 

form of government. But just as Nevett v. Sides, supra, slip 
  

op. at 2, holds that the statutory option precludes a finding 

of Alabama state policy favoring at-large or multi-member 

districts, the statutory option available to Mobile means there 

is no state preference for a particular form of government 

either. It is, after all, only legislatively expressed state 

policy that is relevant to the Zimmer analysis. 

The History of Entrenched Racial 
Discrimination in General Precludes 
Effective Participation by Blacks 
in Mobile's At-Large Election System 
  

The evil that men do lives after 

them; the good is oft interred with 

their bones. 

Shakespeare, Julius 

Ceasar, Act III, Scene 2 

The evil living on today in Mobile's electoral processes 

can be observed in two forms: (1) centuries of official 

racial discrimination have repressed ''citizenship training and 

engendered discouragement in the black community, and (2) 

entrenched public and private discrimination have produced 

separate racial communities in Mobile and a naturally racially 

polarized vote, which operates in the at-large election system 

to submerge black voting power. 

3%. 

 



  

"This Court takes judicial notice of Alabama's long 

history of official discrimination the basis of race.. 

Hendrix v. Joseph, supra, slip op. at 3. The discriminatory 
  

devices of state and local governments have been "abandoned, 

if at all, only after extensive litigation in the federal 

courts. Yelverton v. Driggersgs, 370 F.Supp. 812, 617 (M.D. 
  

Ala. 1974). A non-exhaustive list of such court actions 

includes Smith v. Allwright, 321 U.S. 649 (1944) (white primaries); 
  

Davis v, Schnell, 81 F.Supp. 872 (5.D, Ala. 1948), aff'd 
  

336 U.S. 933 (1949) ('interpretation" tests for voter regis- 

tration); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (racial 
  

gerrymandering of local government); Reynolds wv. Sims, 377 U.S. 
  

533 (1964) (racial gerrymandering of state government); U.S. wv. 

Alabama, 252 F.Supp. 95 (M.D. Ala. 1966) (Alabama poll tax). 

Official racial discrimination in Mobile's jury selection 

practices, Preston v. Mandeville, 479 7.24 127 (5th Civ. 1973); 
  

public schools, Davis v. School Board, supra; public transpor- 
  

tation, Evans v. Mobile City Lines, Inc., supra; public 
  

employment, Allen v. Mobile and Anderson v. Mobile County 
  

  

Comm., supra; and public facilities, Cook v. Mobile, supra,   
  

can also be noticed judicially. There can be no serious doubt 

that 

from the Constitutional Convention of 

1901 to the present, the State of 

Alabama has consistently devoted its 
official resources to maintaining 

white supremacy and a segregated society. 

U.S. v. Alabama, supra, 232 F.Supp. at 101, 
  

But the defendants do not even contest Alabama's past 

history of official race discrimination. At opening argument, 

counsel for the city conceded that until the mid-sixties 

black citizens of Mobile were generally barred from registering 

and voting. In Mobile even today blacks are appointed in 

disproportionately small numbers as poll workers in racially 

mixed wards, and the county and city continue to use some 

voting sites that have strong identification with private 

30. 

 



  

® » 

white organizations. 

The direct legacy of this official discrimination is 

[B} a retarded tradition of "citizenship training" in the black 

community. Black voter turnout and registration is generally 

lower than that of whites. The statistical data in evidence 

fully supports Dr. Voyles' dissertation conclusion that while 

there is a high correlation between income status and voter 

turnout in Mobile, the correlation between race and turnout 

is even higher. White turnout is significantly greater than 

that of blacks in the same income status groups. Voyles, 

An Analysis of Mobile Voting Patterns,1948-1970, supra at 
  

68-70. Only a fully open system, offering blacks the same 

incentives to register, vote, run for office, and work for 

candidates will erase this legacy of discrimination and allow 

black citizenship training to develop on the same basis as 

in the white community. 

The residual effect of these past governmental attempts 

to segregate and the discrimination that continues to this 

day in civic and social clubs, employment and housing 

discrimination have produced a sharply segregated society in 

Mobile. A racially polarized vote in an obvious result. 

Racial prejudice has been successfully exploited repeatedly 

in campaign tactics by those white candidates who cared to do 

so. There was testimony of racial campaign tactics in Mobile 

as recently as the May 1976 primaries. 

Plaintiffs have effectively demonstrated through 

professional statistical analyses how in recent years 

persistent racial polarization of the electorate and the 

at-large election systems have consistently defeated blacks 

and black community choices in Mobile City and County. 

The City of Mobile was, until reapportionment under 

Sims v. Amos, supra, in 1974, composed of 36 wards with 2 
  

additional small wards occassionally annexed and de-annexed. 

Likewise, the area outside the City of Mobile was divided 

33. 

 



® ® 

  

politically into wards for municipalities such as Prichard, 

Chickasaw and Saraland and precincts for the unincorporated 

areas. After reapportionment a new ward/precinct structure 

was arranged. Each voting area was designated according to 

house district, sentate district, ward and a prefix of 

letters indicating whether it was in a particular municipality. 

So MW-35-103-1 would be Mobile Ward, Senate District 35, 

House District 103, Ward 1. 

Any analysis of voting over a period of time must take 

into account population changes. Thus it was necessary to 

construct data bases for the old wards and new wards using 

1970 census data, and for the races analyzed in the early 

60's data based on the 1960 census. 

Plaintiffs have constructed these data bases showing 

the percentage black of the voting age population (i.e.,over 

18) and the median per capita income. Plaintiffs additionally 

obtained the vote returns for each race to be analyzed and 
> 
- 

converted the raw data into a percent of vote for a selected 

candidate. 

This data was put in computer readable form and was 

analyzed by plaintiffs' expert statistician, Dr. Cort B. 

Schlichting, using a statistical procedure known as regression 

analysis. Regression analysis is a professionally accepted 

method of analyzing data to determine the extent of correlation 

between defendant and independent variables. In plaintiffs’ 

analyses, the dependent variable was the vote received by the 

candidate studied. Race and income were the independent 

variables whose influence on vote received was measured by the 

regression. 

The computer analysis determined not merely whether 

race or income influenced the vote each candidate received, 

but it assigned numbers approximating how much each of these 

 



  

6/ The results of demographic factors affected the vote. 

the regression analyses formed a part of the bases for 

conclusions reached by plaintiffs' expert political scientist, 

Dr. Charles Cotrell, that racial polarization governed 

significantly the voting patterns of Mobile's electorate. 

Plaintiffs' experts ran regression analyses of every 

city commission race in 1965, 1969 and 1973, both primary 

and general election for county commission in 1968 and 1972, 

selected School Board races in 1962, 1966, 1970, 1972 and 

1974; referendums held to change the form of city government 

in 1963 and 1973 and the county-wide legislative race of 

Clarence Montgomery in 1969. 

The results consistently showed the following: 

1. Race has a substantially stronger correlation 

than income among city and county voters. 

2. All of the black candidates evoked statistically 

significant correlations between race of the electorate and 

vote received. ¥ 

3. The vote returns for all winners in the city 

commission races had a high correlation with race. 

4. The vote for most county commission candidates 

had a statistically significant correlation when testing 

race in the democratic primary and, as expected, statistically 

insignificant correlations in the general elections, when the 

democratic candidates received support from both rich and 

poor, black and white. 

5. When only city wards were tested in county- 

wide races the results were very similar. 

6. The votes for and against white candidates, 

such as Joe Langan and Gerre Koffler, who were openly 

  

6/ 
For example, a technical measure (the "t-value') permits a determination 

of how wide an interval around an estimated weighting number must be taken 

in order to achieve any given level of certainty about the true value of 

that number, and another technical measure (''R-squared'') tells how close 
an estimation has been achieved by the entire regression formula. (See Note: 

"Beyond the Prima Facie Case in Employment Discrimination Law: Statistical 
Proof of Rebuttal," 89 Harv.L.Rev. 387, 398-99(1975).   

35 

 



  

associated with black community interests, showed some of 

the highest racial polarization of any elections. 

The racial polarization conclusions of plaintiffs’ 

experts were similar to those reached in 1973 by the city 

of Mobile's expert witness, Dr. James E. Voyles, who wrote 

that "[s]lince 1960 ... identification with the black wards 

is the 'kiss of death' for an office-seeker in Mobile." 

Voyles, An Analysis of Mobile Voting Patterns, 1948-1970 122 
  

  

(1973). The combination of plaintiffs' election studies 

and Dr. Voyles' dissertation and trial work presents to this 

Court one of the most complete and intensive statistical 

analyses yet developed in voting rights litigation of this 

kind. 

Dr. Voyles' dissertation was prepared while he was a 

neutral observer of the Mobile political scene. His 

conclusions at that time squarely support plaintiffs' racial 

polarization contentions. As a witness for the defense in 

this case, however, while reaffirming his earlier conclusions 

he sought to qualify them on the basis of certain observations 

he has made since 1970. Dr. Voyles testified it was now his 

opinion that racially polarized voting has substantially 

subsided in Mobile and is not likely to reoccur with the 

intensity exhibited during the 1960's, which in retrospect 

he views as an anomalous period of high racial tension 

brought on by the civil rights movement. He did not,however, 

back up his wedi Tied opinion with the professional under- 

pinnings he gave the earlier dissertation. 

In fact, Dr. Voyles' testimony was based entirely on 

just three recent races: the 1973 City Commission elections, 

in which only two seats were contested, and the 1976 County 

Commission Democratic primary race of Dan Wiley, for whom 

Dr. Voyles was campaign manager. Of these, only the two 

1973 elections were analyzed statistically, and they yielded 

Pearson coefficients of racial correlation even higher than 

~36- 

 



  

those Dr. Voyles obtained in his dissertation (and higher 

than plaintiffs' "R?" for those same elections, which Dr. 

Cotrell, in part, based his opinion on). Rather, Dr. Voyles 

based his opinion about a changing racial climate in the 

Mobile electorate solely on the arithmetical differences he 

observed between black and white wards with similar income 

characteristics and on "what he had seen recently on 

television." The Court finds it difficult to credit Dr. Voyles' 

expert testimony when his methodology admittedly suffers 

in comparison to acceptable professional standards and his 

own prior work. 

Dr. Voyles' revised conclusions are also difficult to 

reconcile with the post-1970 election results he did not 

consider and with the published opinions of nationally 

known authorities. He totally failed (or refused) to take 

into account the unsuccessful 1972 races of white candidates 

Joe Langan (County Commission) and Gerre Koffler (School 

Board) and the defeat of black candidates Lonia Gill (School 

Board) and James Buskey (State Senate) in 1974, all of whom 

were strongly identified with and supported by the black 

community. His presumption that voters in Mobile are no 

longer aligning themselves racially flies squarely in the 

face of the views expressed as recently as 1976 by many other 

political scientists acknowledging the "perverse persistency" 

of race as a factor in Southern polities. Z/ Dr. Voyles' 

assertion that local voting habits are returning to the 

racially neutral patterns of the 1950's makes no sense in 

light of the insignificant numbers of Blache registered to 

vote then. 

  

7/ 
N. Bartley, The South and the Second Reconstruction 191 (1975). 

E.g., see also Nie, Verba and Petrocik, The Changing American Voter 
(1976); Strong, "Alabama: Transition and Alienation," Changing Politics 
of the South 427 (W. Havard, ed. 1972). a 

  

      

  

  

37. 

 



  

Finally, the Court is impressed that Dr. Voyles did 

not directly contest Dr. Cotrell's expert opinion that the 

present at-large election system for Mobile city government 

Operates to dilute the votes of black citizens. To the 

contrary, he conceded that such a result still could be 

expected whenever racially identifiable issues or candidates 

were injected in a campaign. 

Of course, statistics only tell part of the story. 

Standing alone they are only indicators of social and 

political phenomenon. Testimony from politicians and students 

of politics plus the knowledge of this Court provide a logical 

interpretation of the statistics and compel the Court to 

conclude that racially polarized voting patters persist and 

are responsible for the defeat of black candidates and 

black community choices. This prevents the political process 

from being open to black candidates. It discourages black 

candidates and retards black voter registration and turnout. 

The racially polarized vote operating in the at-large 

election system limits the access of blacks to the political 

process by consistently submerging their voice and engenders 

discouragement that further affects blacks' access to the 

political process. This combination of historical and social 

factors operating in a given electoral structure is the heart 

of black vote dilution. 

The Court finds that past (and present) official 

discrimination precludes effective access of black citizens 

to the election system for Mobile City Commission. 

Other Electoral Devices Which 
Diminish Black Voting Strength 
in Mobile 
  

[Proof [of dilution] is enhanced by a showing 
of the existence of large districts, majority 

vote requirements, anti-single shot voting 
provisions and the lack of provision for at- 
large candidates running from particular 
geographical subdistricts. 

~38- 

 



  

Zimmer v. McKeithen, supra, 485 F.2d at 1305. The Fifth 
  

Circuit cites with approval Armand Defner's article "Racial 

Discrimination and the Right to Vote," 26 Vand.L.Rev., 523 

(1973), in which some of these devices are discussed and 

analyzed. 

Large districts implies multi-member districts with 

relatively large populations and numbers of members. In Mobile 

there is only one district composed of all Mobilians and | 

containing all the members of the City Commission. The City 

of Mobile is larger than East Carroll Parish, Zimmer wv. 
  

McKeithen, supra; Dothan, Alabama, Yelverton v. Driggers, 
  

  

supra; Montgomery County, Alabama, Hendrix v. Joseph, supra; 
  

Ferriday, Louisiana, Wallace v. House, supra; and Opelousas, 
  

Louisiana, Perry v. City of Opelousas, 515 F.2d 639 (5th Cir. 
  

1975). Likewise there are no residency subdistricts, which 

would do little or nothing to ameliorate the problem of 

black vote dilution anyway. The racial voting patterns of 

the city suggest that a white candidate would be elected by 

the city's white majority even if he or she lived in a black 

ward. 

[A residence] requirement does no more 

than reduce, minimally, the racial 

dilution effect of a multi-member 

districting system ... While a geographic 

array may thus be insured, a racial or 

political array may still be defeated 

by the vote at-large. 

Yelverton v. Driggers, 370 P.Supp. 612 (M.D. Ala. 1974). 
  

The majority vote requirement operates to the detriment 

of any cohesive minority group, preventing them from 

capitalizing on a split in the ranks of their opponents. 8/ 

  

8/ 
It is interesting that Alabama has such a requirement for primaries 

and non partisan municipal elections, but not for general election in 

which there is little real opposition to most Democratic candidates. In 
contrast, Mississippi has sought to adopt such a requirement for general 
elections for fear that a black Freedom Democratic Party candidate (like 
Charles Evers in 1971) might win the governorship against a white vote 
split between the Republicans and Democrats. Derfner at n. 125. 

Lag. 

 



  

Similarly, Alabama had anti-single shot laws for primaries 

and for municipal elections since 1931 and 1951, respectively 

(1931 Acts of Alabama, p. 73; 1951 Acts of Alabama, p. 1043), 

but not for general elections. In 1961, both of these were 

repealed and replaced by a general law applying to general, 

primary, special and municipal elections, which provided for 

numbered places. 1961 Acts of Alabama, p. 2234. 27 

It is clear that the numbered seat law may 

have the effect of curtailing minority voting 

power. In a true at-large election *%*%* if the 
minority candidate is forced to run against a 

specific candidate or candidates for a specific 
seat, the majority can readily identify for 
whom they must vote in order to defeat the 
minority candidate. 

Dunston v, Scot, 336 F.Supp. 206, 213 n.9 (F.0D. R.C. 1972); 
  

accord, Graves v. Barnes, 343 F.Supp. 704, 725 (W.D. Tex. 1972)   

(""[the] ultimate effect [of the place requirement] is to 

highlight the racial element where it does exist").   

- 

The Dilution Of Black Voting 
Strength By Mobile's At-Large 
Election System Is Intentional 
In The Constitutional Sense 
  

Confronted with such overwhelming evidence that votes 

of black Mobilians are critically diluted by the at-large 

election of city commissioners, the defendants primarily 

rested their defense on a narrow interpretation of the Supreme 

Court's recent decision in Washington v. Davis, U.S. , 44   

U.S.L.W. 4789 (June 7, 1976). They argue that Davis establishes 

a ''mew Supreme Court 'purpose' test" that supersedes the 

(3) re "primary" and "enhancing'' factors of Zimmer v. McKeithen, 
  

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

  

9/ 
Derfner lists anti-single shot laws and numbered place laws in the 

same category as staggered terms: ''making at-large elections even more 
unfair to minorities by superimposing various rules that prevent a 

minority from concentrating its votes to take advantage of a split among 

the majority group," Derfner, at 554. 

lyO= 

 



  

Carroll Parish School Bd. v, Marshall, U.S. , 44 U.85.1..%. 
  

4320 (Mar. 8, 1976) (per curiam). The Court rejects the 

contention that in Washington v. Davis the Supreme Court 
  

indirectly disapproved the constitutional standards of Zimmer 

it had only three months earlier declined squarely to address. 

Rather, the Court finds that the State of Alabama, through 

its legislators and officers has used the at-large system for 

electing Mobile City Commissioners (1) with an actual motive 

or purpose to discriminate against the black citizens of 

Mobile and, in any case, (2) with the intent to discriminate 

that must be presumed of those who should foresee the natural 

consequences of their actions. 

We begin our reading of Washington v. Davis with the 
  

warning contained in Justice White's majority opinion: 

Necessarily, an invidious discriminatory 
purpose may often be inferred from the totality 

of the relevant facts including the fact, if 

it is true, that the law bears more heavily on 

one race than another. 

  

  

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

of a discriminatory purpose is nothing new to constitutional 

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

Davis. It neither suggested nor inferred that it was 

announcing new standards for determining when such discriminatory 

purpose existed in particular cases. 

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

of the extreme stance taken by the plaintiffs-respondents in 

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

plaintiffs made no claim in the district court of "an 

intentional discrimination or purposeful discriminatory 

actions" by the Washington, D.C., Police Department, whose 

employment practices were being attacked as racially discrimatory. 

44 U.S.L.W. at 4790. When the Court of Appeals for the 

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

to declare that lack of discriminatory intent in designing 

AI 

 



  

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

at 4791. With the issues presented in this extreme posture, 

the Supreme Court simply refused to affirm a decision 

predicated solely on constitutional grounds that made no 

attempt to demonstrate discriminatory intent and even 

insisted that no such showing was necessary. 

The central purpose of the Equal 
Protection Clause of the Fourteenth 
Amendment is the prevention of official 

conduct discriminating on the basis of 

race. ...But our cases have not embraced 
the proposition that a law or other official 

act, without regard to whether it reflects 

a racially discriminatory purpose, is 
unconstitutional solely because it has a 
racially disproportionate impact. 

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

earlier Supreme Court decisions that discuss the necessity 

of demonstrating discriminatory intent in the constitutional 

context, including Wright v. Rockefeller, 376 U.S. 52 (1964), 
  

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

Although Davis expresses some disapproval of a long list of 

federal court decisions that might be interpreted in conflict 

with it, it neither overruled nor expressed its disapproval of 

any Supreme Court or appellate court voting rights decisions, 

particularly not the seminal cases of White v. Regester, 
  

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

Court had reviewed only three months earlier. 

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

requires this Court to find discriminatory intent as one of 

the elements of any successful Fourteenth or Fifteenth 

Amendment claims, it in no way disturbs the principles already 

established by the Supreme Court, the Fifth Circuit and other 

federal courts concerning the proper legal standards to be 

applied to determine whether such intent in fact exists. 

Indeed, a few weeks after Davis was handed down the 

Fifth Circuit, without expressly mentioning Davis, reaffirmed 

~4Js 

 



  

that the Zimmer standards ''still control voting dilution cases 

in this circuit.” McGill v. Gadsden County Commission, supra, 
  

Slip Op. at 5. 

The City contends the Court should find that Act 281, 

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

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

inquiry , with judgment for defendants being mandated.” D.Br. 

at 20. Further, according to the defendants, such a finding 

of non-discriminatory purpose should be predicated entirely 

on the assumption that, because black Mobilians had already 

been totally disenfranchised by the Alabama Constitution of 

1901, racial discrimination could not have been one of the 

motives behind Act 281 in 1911. D.Br. at 19. 

But the defendants have miscast the issue. The question 

is not just whether the Legislators who voted for Act 281 

were racially motivated, but whether the whole electoral 

system, including the intentional discrimintion that both 

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

of a past racially discriminatory purpose, the effects of 

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

criminate by the State of Alabama. For example, in Wright 

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

  

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

finding of fact that certain congressional boundaries in 

New York had not been racially gerrymandered. The inquiry 

addressed only the motives of the New York State Legislators 

who had just drawn the lines. The Court carefully distinguished 

Hernandez v, Texas, 347 U.8. 475 (1954), and Norris v. Alabama, 
  

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

crimination it had previously laid down the rule that a prima 

facie case of unconstitutionality could be made out by proof 

of a long-continued state practice of discriminating against 

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

discrimination by the State of New York was either alleged 

-43- 

 



  

or proved in Wright meant that the constitutional inquiry 

could focus solely on the motives of the Legislators then 

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

Wright, carefully explained, ''state contrivance to segregate 

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

they presented it, and for that reason their challenge cannot 
  

be sustained.” 376 U.S. at 58. By contrast, the entire 

history of official racial discrimination in the State of 

Alabama is very much a part of plaintiffs’ prima facie case 

herein. 

It is true that there is little outward evidence of 

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

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

large commission. But as a matter of law the State's actions 

in 1911 cannot be entirely divorced from its overt discriminatory 

intentions in 1901. On this point, we have the authority of 

Keyes v. School District No. 1, supra, cited by the Supreme 
  

Court in Davis for the instruction it gives on the meaning of 

purpose or intent to discriminate. 44 U.S.L.W. at 4792. The 

admitted discriminatory state intent connected with the 

1901 constitution, which established a part of the system 

for electing Mobile City officers, ''creates a presumption 

that the 1911 Act, which further diluted black voting strength 

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

V. School District No. 1, supra, 413 U.S. at 208. 
  

Even more importantly, just as the at-large system was 

devised during a time when black citizens were intentionally 

disenfranchised, the system is being used today for consciously 

racial reasons. The evidence shows that the white-dominated 

legislature of Alabama and the white officers of the City 

of Mobile have been entirely aware of the diluting effect 

the present system has on the voting strength of black Mobilians. 

The continuing use of racist campaign literature in light of 

racially polarized voting patterns cannot be ignored by this 

lili 

 



® ® 

  

Court. And there was unrebutted evidence that the Mobile 

County legislative delegation has in the last 12 years at 

least twice intentionally rejected single-member district 

proposals for Mobile City government because it would have 

given blacks the opportunity to be elected. Former State 

Senator Robert Edington, who was a member of the Mobile 

County delegation at the time, testified that the 1964 

Mayor-Council bill (voted on in the 1973 city referendum 

election) did not include single-member council districts 

precisely because the legislators thought the public would 

accuse them of putting blacks in office. (Edington deposition, 

Pp. 43) Incumbent Senator Bill Roberts testified that the same 

racial concern among the delegation was one of the reasons 

his then pending new mayor-council bill was having trouble 

in the Legislature. The Court takes judicial notice that after 

trial Senator Roberts' bill and a single-member district 

commission bill sponsored by Senator Perloff both failed to 

pass. In light of these recent legislative deliberations, 

the State of Alabama cannot claim it continues to maintain 

the at-large election system in Mobile for totally non-racial 

reasons. 

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

633, as Fifth Circuit judicial recognition that, with respect 

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

thought that the device was racially discriminatory, because 

very few blacks were allowed to vote in Louisiana during 

that period." However, defendants failed to complete the 

context in which the Fifth Circuit is quoted: 

We would be callous indeed to tell 

plaintiffs that seventy years of illegality 

somehow legitimizes continued dilution of 
black voting rights, but that is not the 

thrust of our discussion. In order for 

there to be substantial -- an thus illegal -- 

impairment of minority voting rights, there 

must be some fundamental unfairness in the 

electoral system, some denial of fair 

representation to a particular class. 

  

ily 5m 

 



  

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

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

"fundamentally unfair" in light of the absence of racial 

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

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

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

44 U.S.L.W. 3607 (26 April 1976), for reconsideration in light 

of the single-member district preference expressed in Connor 

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

  

School Board v. Marshall, U.S. , 968.0. 1083 (1978). 
  

The Court finds there has been a conscious legislative 

and political purpose in the maintenance of the current 

at-large election of Mobile City Commissioners. In any case, 

Washington v. Davis, supra, makes clear that a Watergate-like 
  

"smoking gun' need not now be produced to show discriminatory 

intent any more so than in the past. Justice White's majority 

opinion includes the following proviso: 

This is not to say that the necessary 

discriminatory racial purpose must be 

expressed or appear on the face of the statute, 

or that a law's disproportionate impact is 

irrelevant in cases involving Constitution- 

based claims of racial discrimination. A 

statute, otherwise neutral on its face, must 

not be applied so as invidiously to dis- 

criminate on the basis of race. Yick Wo v. 

Hopkins, 118 U.S. 356 (1886). 
  

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

Stevens gave his version of this point: 

Frequently the most probative evidence of 

intent will be objective evidence of what 

actually happened rather than evidence 

describing the subjective state of mind of 

the actor. For normally the actor is presumed 

to have intended the natural consequences of 
his deeds. This is particularly true in the 

case of governmental action which is frequently 

the product of compromise, of collective 

decision-making, and of mixed motivation. 

  

  

  

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

ll 

 



  

The law in this Circuit squarely adopts the aforesaid 

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

  

No, 1, supra, relied on so heavily in Washington v. Davis, 
  

supra, has already been interpreted at length by the Fifth 

Circuit with respect to the meaning of requisite discriminatory 

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

Fifth Circuit has for several years been requiring "proof of 

segregatory intent as a part of state action" in school 

desegregation findings. Morales v. Shannon, 516 F.2d 411, 412- 
  

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

citing Morales, supra; Cisneros v. Corpus Christi Independent 
  

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

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

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

Fifth Circuit squarely addressed the meaning of discriminatory 

intent: 

Whatever may have been the ériginally 
intended meaning of the tests we applied 
in Cisneros and Austin I [United States 
v. Texas Education Agency, supra), we 
agree with the intervenors that, after 
Keyes, our two opinions must be viewed 
as incorporating in school segregation 
law the ordinary rule of tort law that a 
person intends the natural and foreseeable 
consequences of his actions. 

  

  

Apart from the need to conform Cisneros 
and Austin I to the supervening Keyes case, 
there are other reasons for attributing 
responsibility to a state official who 
should reasonably foresee the segregative 
effects of his actions. First, it is 
difficult -- and often futile -- to obtain 
direct evidence of the official's intentions. 

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

  

United States v. Texas Education Agency (Austin Independent 
  

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

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

a school desegregation case from a voter discrimination case 

of Ny 

 



  

in the context of Washington v. Davis' underlying inquiry 
  

into discriminatory intent. 

The evidence in this case demonstrate's the State's 

discriminatory intent to discriminate against Mobile's 

black voters according to the tort standard. The statistical 

analyses of racial vote polarization, documentary evidence 

of racial appeals to the electorate and the abundant testimony 

of Mobile's politicans conceding the inability of black 

candidates to win in at-large elections in Mobile are matters 

of which state and local officials have long been fully aware. 

The State of Alabama has intended the natural and foreseeable 

consequences of this racially discriminatory election system. 

Conclusions 
  

The Mobile City Commission is elected through a numbered- 

place, majority vote, at-large system instituted in 1911 by 

the very same white Mobilians who in F901 had led the movement 

to disenfranchise blacks at the State Constitutional Convention. 

Every one of the "panoply of factors," including the "enhancing" 

factors, set out in Zimmer v. McKeithen, supra, as indicia of 
  

dilution is present in Mobile's electoral system. No blacks 

have ever been elected to the Mobile City Commission. In 

fact no blacks have ever been elected in any at-large election 

in the city or county in modern times. It is virtually 

impossible under these circumstances to recruit candidates 

from among the qualified, well-known black leaders in Mobile. 

Those white candidates who openly identify with black community 

interests can expect to be defeated. 

All of which has inevitably produced black voter 

disinterest and disillusionment. Black citizens' hard-won 

right to vote atrophies in the fact of an election system that 

is as effective a barrier to black political participation 

as any other previously contrived by the Constitutional 

48 

 



  

Convention and Legislature of Alabama. The only fresh 

wind of political life for Mobile's black community is the 

recently judicially created single-member district scheme 

for electing state legislators. 

The black candidate in Mobile does not have the 

possibility of success that blacks have in neighboring 

Prichard or in Fairfield, Alabama, Nevett v. Sides, supra. 
  

At 35.4 percent of the city's population, the black community 

is large enough to be a political factor, but try as hard 

as they might to register and vote, their chances of success 

in an at-large election are virtually nil. 

The recent political history of black political involve- 

ment in Mobile is perhaps best dramatized by the career of 

deceased plaintiff, John L. LeFlore. In the 1940's, 50's 

and early 60's Mr. LeFlore led the fight to get black 

Mobilians the right just to register and vote. But after 

blacks began registering in significant numbers, his white 

friend and political ally, Joe Langan suffered successive 

defeats in 1969 and 1972 following racist campaigns by his 

opponents. So in 1972 Mr. LeFlore left the Democratic Party 

and ran unsuccessfully for the United States Senate under 

the banner of the predominately black National Democratic 

Party of Alabama. Finally, with court-ordered legislative 

reapportionment, he won a seat in the Alabama House of 

Representatives. Six months later, he was one of the plaintiffs 

bringing this action to open city commission elections to 

blacks. 

The conclusion from all these factors weighed as an 

"aggragate' is inescapable: the present system for electing 

Mobile City Commissioners has been knowingly, intentionally 

and purposefully designed and used over the years by the 

State of Alabama to minimize and dilute the voting strength 

of black Mobilians and to deny blacks an equal opportunity 

to elect candidates of their choice. For these reasons 

oN 

 



  

the electoral system established by Act No. 281, 1911 Acts 

of Alabama, p. 330, as amended, is unconstitutional as   

applied to the Mobile City Commission. 

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CONCLUSIONS OF LAW 
  

1. The Court has jurisdiction of this action under 

42 U.8.C. §81973 et s2q., $1983, and 28 U.8.C. 81343(3)-(4). 

2. The plaintiffs must, in order to prevail, demonstrate 

that '"multi-member districts are being used invidiously 

to cancel out of minimize the voting strength of racial 

groups.” White v. Regzester, 412 U.S. 755, 765 (1973). The 
  

plaintiffs may meet this burden by showing an aggregate of 

some, but not all, of the factors cataloged in Zimmer wv. 
  

McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973) (en banc), aff'd 
  

__U.s.___, 44 U.S.L.W. 4320 (8 March 1976) (per curiam). 

3. The plaintiffs have proved that racially polarized 

voting patterns are responsible for the defeat of black 

candidates in city-wide elections. This results in a lack 

of openness of the political process to black candidates. 

4. The plaintiffs have demonstrated that the Mobile 

city government is unresponsive to thé particularized needs 

of the black community. 

5. Alabama has no strong policy supporting the use of 

multi-member districts for city governments in general or for 

Mobile in particular. Any city over 1,000 is able to adopt 

a form of government having a council of 14 single member 

districts. Ala.Code, Titc.37, 84258 (1973 Supp.). 
  

6. The residual effects of past discrimination--in voting, 

in jobs, in schools--continues to hamper the voting effectiveness 

of blacks. No black voter who is a lifetime resident of 

Mobile has escaped this official and unofficial segregation. 

Only 11 years ago did blacks begin to register in large 

numbers, after the Voting Rights Act of 1965 was passed. 

This background does have its present effect on voting behavior 

according to expert witnesses presented by the plaintiffs. 

7. The election system itself has a discouraging effect 

on blacks who try to utilize it. Constantly losing city- 

~5% « 

 



  

wide elections tends to diminish black interest in thes 

elections and thus reduces black effectiveness at the 

5 he use of at-large elections for the City government, 

when cc=bined with rzcially polarized voting patterns, has 

resultec In an exclusion of black office holders. 

S. There 1s no requirement that candidates for any 

office “ive in any district smaller than the City itself. 

The Lourc Finds that, considering the racizll olarized 
3 

voting pattern, it would make little difference to black 

  

candidates ZZ such a requirement were in force. Yelverton 

"Vv, Driggers, 370 F.Supp. 612 (M.D. Ala. 1974). 
  

10. The use of the numbered seat rule for the Mobile 

City Commission clearly operates to the detriment of black 

voters and candidates by allowing the majority readily to 

identify for whom they must vote in order to defeat black 

candidates. Dunston Vv. Scott, 336 F.Supp. 208, 213 n.9 
  

(B.D. N.C. 1972). W 

11. In summary, the Court finds that the election system 

used for the Mobile City Commission combines with racially 

polarized voting patterns to make it virtually impossible 

for black candidates to win city-wide elections. Similarly, 

the election system both reinforces and capitalizes upon 

the feelings of second-class citizenship and ineffectiveness 

among Mobile's black voters. 

12. The Supreme Court has laid down the general principle 

that "when district courts are forced to fashion apportionment 

plans, single-member districts are preferable to large multi- 

member districts as a general matter," Connor v. Johnson, 402 
  

L.S. 890, 692 (1971). The Court reaffirmed this twice in the 

last term. East Carroll Parish School Board v. Marshall, 
  

U.8. , 96.3.0. 1083 (19756) (per curiam), affirming Zimmer v,. 
  

McReiehenh, 485 F.2d 1297 (5th Cir. 1873); Wallace v. House,   
  

~ dn loey B.8...:, 44 U8. L.W, 3607 (25 April 1976), vacating 515:7.24 

-52- 

 



  

* | » 

519 (5th Cir. 1973). 

13. Two cases decided during the 1972 October Term 

1lluminzre what the Court meant by the term "as a general 

matter.” In Mahan v, Howell, 410 U.S. 315 (1973), thes Court 
  

apprcvad the use of a three-member district in the Norfolk- 

Virginiz 3each arez of Virginia, primarily on the grounds 

that zccurate census information was unavailable because 

  36,700 ==val persconel were counted as living on the piers 

Of the Jorflok Naval Sration, 410 1.8. at 331. The Court also 

allowed th2 use of floterial districts (that is, the combination 

of several single-member districts to form an additional, 

overlapping single-member district), on the basis of the 

longstanding and rationally based state policy to avoid splitting 

local government units between legislative districts, 410 

U.S. at 325. # 

14. On the other hand, the Court disestablished two 

multi-member districts in White v. Regester, 412 U.S. 775 
  

(1973), because the District Court had found that the 

districts invidiously discriminated against blacks and Mexican- 

Americans. 412 U.S. at 765-770. The multi-member districts 

were the evil being attacked in White, just as they were here. 

Once dilution by multi-member districting is shown, dis- 

establishment of those districts is the obvious remedy. 

15. Except for Mobile's brief Port of Mobile period, 

it and every other city in Alabama had only a mayor-council 

form of govermment until 1911. The three-member commission 

is the only size commission authorized in Alabama, although 

other states use five-member commissions. There is no mayor- 

council form authorized with as few as three members of the 

council. The Legislature has made a determination that three 

is the proper size for a commission, but not for a council. 

system is tnconstitutional in Mobile, has two basic choices: 

(1) a commission of three or more members in which 

legislative and executive authority are joined in one body; 

gE 

 



  

(2) a mayor-council system, with several choices 

with respect to size of the council. 

17. The defendants have objected to the use of single- 

member districts in conjunction with a commission. The Court 

concludes that, while such a system is both politically 

viablz and within the scope of the Court's remedial authority, 

having three executives chosen from various districts might 

not work in the best interests of the public, even if 

administrative functions are not apportioned among these 

executiTss until after the election. 

18. Tze next question is the choice of council size 

and apporticz—ment. On the one hand, the Court could revert to 

the plan which was in effect when Mobile adopted the commission 

  

plan; on the other it could utilize’ Ala Code, Tit.37, §426 

(1973 Supp.). For the reasons explained below, the Court 

finds both of these would be objectionable. 

19. The pre-1911 plan was a fifteen member council with 

seven elected at-large and eight elected from single-member 

wards. The evidence produced in this case demonstrates that 

blacks cannot win in city-wide elections and so would lose 

all seven at-large seats. This would amount to a perpetuation 

of exactly the same sort of multi-member districting that 

the Court has found unconstitutional. 

20. = The present form of §426 allows Mobile to adopt any 

of the following types of plans: 

(1) : five aldermen elected at-large with ward 

residency requirements and an additional council president; 

(2) dual-member districts for up to seven wards, 

plus a council president elected at-large; 

(3) five aldermen at large; 

(4) single members elected from eight to 14 wards 
Ra 

ers to make 14 members, plus 

3 

o'
 plus additional at-large mem 

an at-large council president; 

5 

 



  

(5) single members elected from 15 to 20 wards, 

plus a council president elected at-large. Each of these 

councils exercises legislative power while the executive 

power is vested in a mayor. 

21. The first three of these obviously violate the 

Connor v. Johnson rule. The last two probably violate Connor 
  

v. Johnson because of the at-large council president. The   

Fifth Circuit has just recently instructed a district court 

to reconsider the addition of such a member in light of 

East Carroll Parish School Board v. Marshall, B.S. , 96 

S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam). Nevett v. 

  

    

Sides, Fr, 24 , .81lip opinion at 4231(5th Cir. 1976).   

22. The Court therefore adopts a plan of nine single- 

member districts. This is within the council size range 

established by Ala.Code, Tit.37, §426 (1973 Supp.) ‘The exact 
  

number is rather arbitrary, in the sense that it is not 

constitutionally compelled. The nine-member plan was adopted 

in part because Alabama's two other largest cities, Birmingham 

and Montgomery, have adopted nine-member council plans. 

23. The council elected under this plan will have all 

the powers, duties, responsibilities and limitations found 

in the general law of Alabama for city councils (see generally 

Ala.Code, Tit.37) or for the city commission of Mobile (except 

executive powers). 

24. The council shall not have executive powers granted 

by law to the mayor. There shall be elected, in addition to 

the council, a mayor for the city of Mobile who shall have 

all executive powers granted to mayors by the general laws 

of Alabama or by laws applicable to Mobile. 

25. Because the next city election is scheduled for 

August 1977, the Court finds that it would not be in the public 

interest to shorten the terms of the present commissioners. 

There shall be elected at the August 1977 municipal election 

a mayor and nine council members (elected from and by single- 

-55- 

 



* » 

  

member districts). 

26. Throughout the trial and in post-trial arguments, 

the defendants argued that Alabama's general law on city 

government provided for a 'weak mayor" system and requested 

the Court to order a ''strong mayor" system, such as Montgomery 

and Birmingham have, if the Court abolished the commission 

system. The Court finds that the issue of the powers of the 

mayor are beyond its scope of authority because no one has 

complained that the weak mayor plan violates rights guaranteed 

by the Constitution or laws of the United States. 

27. In fact, the only thing which is constitutionally 

mandated is a legislative body elected by some method which 

does not dilute or cnacel the voting strength of blacks. In 

all other respects, the Court's choices have been ones of 

necessity to effectuate the constitutional aspects of the 

remedy. With this exception the City of Mobile is free to 

seek legislative action to modify the powers and duties of 

its various officers. The Court spoeiTieily retains 

jurisdiction to consider such changes in light of this order. 

28. Plaintiffs are entitled to an award of their 

attorneys' fees and costs. The parties shall confer and 

attempt to resolve by compromise the amount of this award. 

If within 15 days from the date of this order agreement has 

not been reached, plaintiffs shall petition the Court for a 

determination of reasonable fees and costs. 

29. Pending further orders, the Court retains 

jurisdiction of this action to ensure compliance with its 

decree issued contemporaneously herewith and for such other 

and further relief as may be equitable and just. 

Done this day of s- 1976, 
  

  

UNITED STATES DISTRICT JUDGE 

~-56- 

 



  

® 

Respectfully submitted this / day of September, 1976. 

CRAWFORD, BLACKSHER, FIGURES & BROWN 
1407 DAVIS AVENUE 
MOBILE, ALABAMA 36603 

By: AI OL) VEIT 37 pore BT ACKSHER 

PARRY MENEFEE 

  

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

JACK GREENBERG, ESQUIRE 
CHARLES WILLIAMS, III., ESQUIRE 
SUITE 2030 
10 COLUMBUS CIRCLE 
NEW YORK, N. Y. 10019 

Attorneys for Plaintiffs 

woe 

CERTIFICATE OF SERVICE 
  

I do hereby certify that on this the 11 Z%ay of September, 

1976, I served a copy of the foregoing PLAINTIFFS' POST TRIAL 

FINDINGS OF FACT AND CONCLUSIONS OF LAW, upon counsel of record, 

Charles Arendall, Esquire, David Bagwell , Esquire, Post Office 

Box 123, Mobile, Alabama 36601 and S. R. Sheppard, Esquire, 

Legal Department, City of Mobile, Mobile, Alabama 36602, by 

depositing same in United States Mail, postage prepaid, Of [i bcd - 

VE 

  

A TB, 

LL / Alp ph ulde ole” 
Aftdrney for Plaintiffs 

Ls 

<57«