Defendants' Trial Memorandum

    WILE 

CITY OF MOBILE, et al., 

IY. 

11. 

IV. 

  

IN THE UNITED STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

Y L. BOLDEWN, et al., 

Plaintiffs, 

75-297-~P 

CIVIL ACTION NO: 

  

“
N
N
 
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Defendants. 

DEFENDANTS' TRIAL MEMORANDUM 
  

Contents 
  

Procedural Stance, . . . 0 0 Ji 

Form of City Government. 

A. In General «, 0. . iin se a, 

B, Act 823.7%. ov Lo 

C. Validity of Act 823 Under 1965 
Voring RIshis ACL. . vv vie vie vss 

Three-Judge Court Need Not be Convened . 

A. Under 1965 Voting Rishts ACL . . vv iv 

B. Under 28 U.S.C. §2281. 

Applicable Law . 

A. Necessity of Discriminatory Purpose. . . 

B. Burden of Proof and Standing . 

1. Plaintiffs Must be an Identifiable 

Segment of the Population. 

2. Mere Showing of Adverse Impact Has 

Never Met the Burden . ... . . 

3. No Constitutional Right to a 
Black District 

C. Evidentiary Factors to be Considered 

in Deciding Whether Political Processes 

Open > LJ Ed Ld Ld LJ - LJ LJ * LJ Ld Ld * * Ld Ld * 

. 14 

16



  

a 

; 

. I. VPrimary PactorS. . . J va vine : . 16 

2. "Enhancing Pactors. . . hi. sii, eid in 7 

V. Defendants! Contentions of Fact . . , vii isis" 18 

A. Tdentifiasble Segment. i.  '« . ivi ie vie 18 

B. Discriminatory Purpose. . . . iv 4 0 a wie 19 

C. Effect: The Zimmer Criteria. ., . ... . .-. 5.2% 

1, Npeimaey Paeckors » . i. ov vind een 

(a) No "lack of access to the process 
of slating candidates’, , . , .. . Vo... 21 

(b) No "unresponsiveness of legislators 

to [blacks'] particularized interests'. 23 

(1) Clty Services . . i. tv vie 2 una 23 

(il) Boards & Commissions. . . . . . . . 26 

(iii) Disparity in Employment 
SEACISELCS, vw vue 0 iia ara 26 

(c) No "tenuous state policy underlying 
the preference for multi-member or 
gtelaree districting LiL. Lu. 27 

(d) No "existence of past discrimination 
in general preclud[ing] the effective 
participation in the electoral system'. 28 

(e) Summary of "Primary" Factors. . . . . . 30 

2. Enhancing” Factors « '. u,v a. 0530 

(a) Large Districts. . .. ih Jd, 0.52, 30 

(b) Majority Vote Requirement . . . . . . . 30 

(¢) Anti-Singleshot Voting Provision. . . . 30 

(d) Lack of Residence Requirement . . . . . 31 

(e) Summary of "Enhancing' Factors and 
VAgoregate' of ‘All Factors. . ... J. .,.32 

VI. Defenses and Other Pertinent Considerations . . . 33 

A. Traditional Tolerance of Various Forms 

Of Local.Bovernmentk. . , i, ou Ja, Jit ipnionas 33 

B. Necessity for Change in Form of City 
Government if Single-~Member Districts 
OrQeradi, oir hy Fie ie i i pa Bh 

 



  

Cel Swing Vote. vv so ov ons set Sly, LR [BS 

D. Banzhaf theory. RR TTR RB SR | 

FE." Ciry~wide Perspective . . .. v.ofe 4 v4 vi vv's 36 

F. Increased Polarization and Possible 

"Minority Freeze-out' Under Single- 
Member Plan. or. ve ere ay 0B 

G. Single~Member Districting and New 

Constitutional Proplems . . i. . oo + iv vin uw 38 

1. Reapportionment... . . . ... . 5 uiis Joe . 38 

2. CorrymanderIng., . + 4 se ois ive a. v0 wrria 39 

H. Flexibility of Federal Equitable Relief . . . . 40 

VII, Available Political Remedy . . , ic. "ue vivian hl 

A. Legislative RemeBy. i. oi vst oie sv iniviviehy 

Be AD ONAONNBII i, i ie ee aT ee aT NE AD 

Appendix: City of Mobile Governance (18l4-present) 
  

ear A RE RR ST nt 0 SE BN A BS SB 3 Ty Re RE i A i i A a eli”         
 



  

I. PROCEDURAL STANCE 
  

Plaintiffs,! as named representatives of a class com- 

posed of black citizens of the City of Mobile,” brought 

suit in this Court? claiming that the system of at-large 

election of the three Commissioners of the City of Mobile 

abridges the rights of plaintiffs and the class they rep- 

resent, guaranteed to them under the First, Thirteenth, 

Fourteenth, and Fifteenth Amendments to the Constitution 

of the United States. The plaintiffs' claims are asserted 

under 42 U.S.C. §§1973 and 1983.4 

> and each of the Defendants are the City of Mobile, 

: 6 
Commissioners of the City of Mobile, Gary A. Greenough, 

Robert B. Doyle, Jr., and Lambert Mims. 

  

Lhe remaining named plaintiffs are Wiley L. Bolden, 

R. L. Hope, Janet O. LeFlore, John L. LeFlore, Charles 

Maxwell, O. B. Purifoy, Raymond Scott, Sherman Smith, Ollie 

Lee Taylor, Ed Williams, Sylvester Williams, and Mrs. F. C. 

Wilson. Plaintiffs Johnson and Turner voluntarily dismissed 

their claims, and Scott and Williams have moved to do so. 

Plaintiff John LeFlore died during the pendency of this 

cause, but his death was not suggested upon the record. 

2 he complaint alleged a class claim under Rule 23(b) (2) 

of the Federal Rules of Civil Procedure. The action was cer- 

tified as a class action by order dated January 19, 1976. 

3The jurisdiction of this Court was invoked under 28 

U.S.C. §§1331-1343, 

ba claim originally asserted under 42 U.S.C. §1985(3) 

was dismissed for failure to state a claim upon which relief 

can be granted. 

5 
The City of Mobile is sued only under 42 U.S.C. §1973. 

Claims against it based upon 42 U.S.C. §1983 and 1985(3) 

were dismissed by order of the Court on November 18, 1975. 

6 
The three Commissioners are each sued in their indi- 

vidual and official capacities. C. WRIGHT, LAW OF FEDERAL 

COURTS §48 (1970). 

 



  

Plaintiffs seek a declaratory judgment that the at- 

large election of City Commissioners violates the Consti- 

tution of the United States, and seek also an injunction 

against any city election under the present plan. Plain- 

tiffs also seek to have defendants enjoined "from failing 

to adopt" a single-member city government plan.’ 

IT, FORM OF CITY GOVERNMENT 
  

A. In General. The City of Mobile, over its history   

(at least since prior to the statehood of Alabama) has had, 

in its city government, at least some feature or form of 

at-large election. A chart tracing in brief the governance 

of the City since 1814 is attached hereto as "Appendix A" 

for the convenience of the Court. 

Since 1911, the City has been governed by a com- 

mission form of government established by the Legislature 

of the State of Alabama. Ala. Acts No. 281 (1911) (pre- 

sently codified principally as ALA.CODE tit. 37, §89, et.seq.) 

Under the commission form of government as it obtains in 

Mobile, three commissioners are elected to numbered posi- 

tions. Each come dionas engages in specific administrative 

tasks involving certain city departments under his control. 

One commissioner also serves as the Mayor, a largely cere- 

monial post. All commissioners are elected at-large by the 

entire City; that is mandated by the provisions of ALA.CODE 

tit. 37, §89. While the at-large requirement is part of a 

  

Defendants moved to strike this claim for relief upon 

the ground that they had no power to adopt a single-member 
plan, since only the state legislature has that power. The 

motion was denied at that stage of this case. 

 



  

. statute general in nature and not by its terms limited to 

Mobile, this is not, as will be discussed infra, a Three- 

Judge Court case. 

B. Act 823. In the course of the trial, referecice 

may be made to Act 823 of the 1965 Alabama Legislature, a 

general act of local application® enacted solely for the 

benefit of Mobile. As will be discussed infra, a question 

has been raised outside this Eom; respecting the validity 

of this statute under the 1965 Voting Rights Act, which 

need not be decided in this case. 

If Act 823 is valid, each commissioner is elected 

to a post which has assigned to it by that statute certain 

specific administrative duties. The mayoralty is rotated 

among the three commissioners in a statutorily~-ordained 

fashion. The City of Mobile has been operating under Act 

823 since 1965,% and remains of the view that it is valid 

  

8 he meaning of this term is explained in Adams, 

Legislation by Census: The Alabama Experience, 21 ALA. 1. 

REV. 401(1969). The Three-Judge Court implications of that 

practice are discussed, infra. 

  

The administrative and mayoral-rotation features of 

Act 823 were by no means new to the Mobile Commission gov-~ 

ernment in 1965, but had come and gone from time to time in 

; earlier decades of the twentieth century. In 1939, Act 289 

was introduced by Mr. Langan and passed, providing for elec- 

tion of the Mayor for that specific office, and also provid- 

ing a specific apportionment of the tasks of administration 

among the two associate commissioners. It was declared un- 

constitutional the next year for repugnancy to legislative 

requirements (procedural in nature) under the Alabama Consti-~ 

tution. State v. Baumhauer, 239 Ala. 476, 195 So. 869(1940). 

Almost immediately thereafter the same basic provision was 

re-enacted in the general codification of 1940. ALA. CODE 

tit. 37, §95(1940). One associate commissioner was assigned 

the fire, police, health, and sewer departments, while the 

other was assigned parks, docks, streets, public buildings, 

and the city airport. The majority of the Board of Commissioners 

assigned to each associate commissioner one set of tasks. In 

1945, this procedure was abandoned. Ala. Acts No. 295(1945). 

  

 



  

. without the approval of the Justice Department under the 

Voting Rights Act of 1965. 

If Act 823 is covered by the Voting Rights Act 

and is therefore invalid until made the subject of a declara- 

tory judgment action in the District of Columbia, then the 

same commissioners are still elected to the same numbered 

posts under Act 281 as amended, and one of their number still 

serves as Mayor. ALA.CODE tit. 37, §§94-95. The difference 

would be that the majority of the commissioners would se- 

lect the largely ceremonial mayor (rather than by a set 

rotation), and the majority of the commissioners would appor- 

tion among themselves the various administrative tasks 

(rather than under a SEatutony apportionment of tasks). 

The commissioners would still be elected to numbered posts. 

Id. at §94. 

Whether or not Act 823 is valid, the commissioners 
  

are elected at-large. ALA.CODE tit. 37, §96. 1It is of course 

the at-large feature of the plan which is under constitu- 

tional attack in this case; not the method of apportioning 

the administrative tasks or the method of rotating the 

largely ceremonial mayoralty among the commissioners. 

C. Validity of Act 823 Under 1965 Voting Rights Act. 
  

Act 823 presents a problem of the coverage of §5 of the 

Voting Rights Act of 1965, but that is a problem which need 

not be decided in this case. The validity of that statute 

has not been called into question in this case by plain- 

tiffs, either under the pleadings or pretrial order, despite 

the specific invitation of defendants in the course of 

 



  

proceedings in the Justice Pepavtment. 1° If the validity of 

Act 823 is called into question in this case, and if it is 

also necessary to decide that issue, it will of course be 

necessary to convene the special statutorily-mandated Three- 

Judge District Court to decide that issue. _Allen v. Bd. of 
  

Elections, 393 U.S. 544, 563(1969). 
  

Even if the validity of Act 823 should be called 

into question in this case, though, it will not be necessary 

to decide the issue. Since plaintiffs cannot successfully 

prove a discriminatory purpose in the enactment of the 1911 

statute, as required under a very recent Supreme Court case 

~ (discussed infra), and since plaintiffs cannot even prove 

a discriminatory effect under the Fifth Circuit Standards 

  

100k 823 was enacted shortly after passage of the 1965 
Voting Rights Act, and was not at the time submitted to the 

Department of Justice. On May 14, 1975, the City of Mobile 
submitted to the Justice Department five statutes of the 1971 

Regular Session of the Alabama Legislature for approval under 
§5 of the Voting Rights Act. On July 14, 1975, the Justice 
Department wrote the City to ask that Act 823, which had been 
minimally amended by one of the 1971 enactments, be submitted 
for approval under §5. On December 30, 1975, the City sub- 

mitted Act 823 "without prejudice to the right of the City 
to continue to insist upon its position that Act 823 is not 
within the scope of the Civil Rights Act of 1965". On March 
2, 1976, the Department of Justice interposed objection to 

portions of Act 823, upon the rationale that since the City 
was contending in this litigation that Act 823 made the impo- 
sition by this Court of single-member districting inappro- 

priate, Act 823 was invalid since it ''rigidifies use of the 
at-large system''. On March 5, 1976, counsel for the City 
wrote the Department of Justice reiterating the City's 
position that Act 823 was without the coverage of §5, and 

specifically by copy inviting plaintiffs in this action "to 
bring an appropriate legal action to determine the matter, 

if they are disposed to contend that it is unenforceable'. 
Neither plaintiffs herein nor the Department of Justice have 
done so; nor has the City instituted a declaratory judgment 
action under §5 in the United States District Court for the 

District of Columbia. There is, of course, a serious ques- 
tion as to whether or not Act 823 is covered by §5 of the 

1965 Voting Rights Act. See generally Beer v. United States, 
    

U.S, +47 L.24.2d 629(1976). 

 



  

prevailing prior to the new Supreme Court 'purpose' test, 

plaintiffs cannot prove their case. Since the issues raised 

by the pleadings and pretrial order are all single-judge 

issues upon which the case can be decided without reference 

to any three-judge issue (validity vel non of Act 823), the 

Court can proceed to a decision on the merits of this case 

without a Three-Judge Court's decision on the validity of 

Act 823. MTM v. Baxley, 420 U.S. 799, 806-07(1975) (concur~- 
  

ring opinion); Hagans v. LaVine, 415 U.S. 528(1974). 
  

III. THREE~JUDGE COURT NEED NOT BE CONVENED 
  

No party in this case has suggested that a Three-Judge 

Cours be convened, nor has the Court raised the issue sua 

sponte. However, because of the complexity of the issue, 

a paragraph on that problem may be appropriate. 

A. Under 1965 Voting Rights Act. As has been pre- 
  

viously discussed, it is not necessary to convene a Three- 

Judge Court under the special provisions of the Voting 

Rights Act of 1965, since this case can be decided upon the 

basis of single-judge issues. 

B. Under 28 U.S.C. §2281. A Three-~Judge Court need 
  

not be convened in this case under the provisions of 28 

U.S.C. §2281, the general Three-Judge Court statute. 

Plaintiffs seek, in effect, an injunction against 

the enforcement of parts of ALA.CODE tit. 37, §89, et.seq., 

the present codification of Act 281 of the 1911 Alabama 

Legislature, as amended. Specifically, the at-large feature 

is contained in ALA.CODE tit. 37, §96. Mobile has been gov- 

erned by the provisions of Act 281 (as amended) since 1911. 

 



  

“10 

  

Hartwell v. Pillans, 225 Ala. 685, 686, 145 So. 148(1949). 

While Act 281 purports to be a general act, Baumhauer v. 
  

State, 240 Ala. 10, 12, 198 So. 272(1940), it is impossible 

to tell what cities other than Mobile, if any, have elected 

to be governed by the statute. There are indications that 

Act 281 (or at least parts of it) constitute a general law 

of local application. Cf. State v. Baumhauer, 239 Ala. 476, 
  

196 So. 869(1940). While the statute purports to be general 

in nature, no Three-Judge Court need be convened because 

(1) an injunction is sought only against local officials, and 

(2) the statute is of local impact, solely (or at least prin- 

cipally) in Mobile. Bd. of Regents v. New Left Education 
  

Project, 404 U.S. 541, 544(1972); Moody v. Flowers, 387 U.S. 
  

97(1967). This case is much more fundamentally "local" than 

Holt Civic Club v, City of Tuscaloosa, 525 F.2d4.:653 (5th Cir. 
  

1975), where plaintiffs were a class of all "Alabama resi- 

dents" who lived in police jurisdictions surrounding cities, 

where the statute was genuinely state-wide in application, 

and where local officials were sued only because they were 

the only officials who could enforce the statute in the 

various Alabama cities. 

IV. APPLICABLE LAW 
  

A. Necessity of Discriminatory Purpose. The United 
  

States Supreme Court quite recently decided Washington wv.   

Davis, U.S. s 04 U.8.L..W., 4789 {U.8S. June 7, 1976), 
  

making clear that before a court can declare a statute un- 

constitutional by reason of its being ''racially discrimina- 

tory', the statute must first be proved to have a ''racially 

discriminatory purpose'l, U.S. aL , 44 U.8.L.W, at 

 



5 

  

4792 (emphasis added). Washington v. Davis thus clarified 
  

an issue which a number of cases--including multi-member dis- 

tricting cases--had left as ''somewhat less than a seamless 

  

web". Beer v. United States, U.S. s 47 L.Ed.24 

269, 643 n.4(1976) (dissent) . Lt While Washington technically 
  

involved equal protection analysis only, 12 the Court made 

quite clear that it was announcing a broad principle of 

constitutional law, including the Fifteenth Amendment as 

well. Writing that "[tlhe rule is the same in other con- 

texts", Washington specifically reaffirmed Wright v. Rocke- 
    

feller, 376 U.S. 52(1964), a case requiring proof of 

discriminatory purpose where voting districts were alleged 

to have been racially gerrymandered in contravention of the 

Fourteenth and Fifteenth Amendment rights of black plain- 

Ci€fa, U.S. at s O4 U.8.L.W. at 4792, 

  

Mine holdings of several courts were unclear on the 

necessity of showing of discriminatory purpose. The Supreme 
Court in Chavis v. Whitcomb, 403 U.S. 124, 149(1971), seemed 
to require proof of discriminatory purpose (''purposeful’, 
""designed'"). See Graves v. Barnes, 378 F.Supp. 640, 665 
(W.D. Tex.1974) (dissent), opinion on remand of White v. 

Regester, 412 U.S. 755(1973). The Fifth Circuit in 1974 
wrote that "[i]t is unclear whether dilution of a group's 
voting power is unconstitutional only if deliberate..." 
Reese v. Dallas County, Ala., 505 F.2d 879, 886(5th Cir.1974), 
rev'd other grounds, 421 U.S. 744(1975). But the Fifth Cir- 
cuit earlier had seemed to say that effect had greater rele- 

vance than did purpose. Zimmer v. McKeithen, 485 F.2d 1297, 
1304 n.16(5th Cir.1973) (en banc), aff'd. sub.nom. East 
Carroll Parish School Bd, v. Marshall, Uu.s. , (March 

8, 1976) (where the Supreme Court stated that its affirmance 
was "without approval of the constitutional views expressed 
by the Court of Appeals'). 

120he case involved the operation of the police department 

of the District of Columbia, which is not a ''state' bound by 
He strictures of the Fourteenth Amendment. However, as the 

ashington Court noted, it was held shortly after Brown v. 
5 of Educ. "that the Due Process Clause of the Fifth Amend- 
ment contains an equal protection component prohibiting the 
United States from invidiously discriminating between indi- 

viduals or groups. Bolling v. Sharpe, 347 U.S. 497(1954)". 
U.S. at , 44 U,8.L.W, at 4792, 

  

  

  

  

  

  

  

  

  

  

  

  

rr. 

 



12 

  

That the rule of Washington v. Davis obtains in a multi- 
  

member district voting dilution case has also quite recently 

been recognized in the United States District Court for the 

Northern District of Alabama, in Rev. Charles H. Nevett v. 
  

Lawrence G. Sides, et al., C.A. 73-P-529-S (Order of June 11, 
  

1976). While that case will be discussed in more detail 

infra’? it is informative here that after Judge Pointer made 

specific factual findings for the defendant City, he also 

added that "It may be noted that there has been no evidence 

that the claimed 'dilution' was the result of any invidious 

discriminatory purpose. Cf. Washington v. Davis..." Id. 
  

Therefore, the Alabama statute attacked by plaintiffs 

in the instant case is not due to be held unconstitutional 

unless its enactment was motivated by a racially discrimina- 

tory purpose. 1? 

Whatever may pave been the dicta, or even the holdings, 

of Fifth Circuit and lower court cases that pre-~date 

Washington, it is now certain that evidence of discriminatory 
  

  

13priefly, that case involved a suit quite similar to 
this one, involving multi-member districting in the City of 
Fairfield. After the District Court found for the plaintiff 

in an unreported decision, the United States Court of Appeals 
for the Fifth Circuit reversed for more specific factual find- 
ings on the factors outlined in Zimmer v. McKeithen, 485 F.2d 

1297(5th Cir.1973). Nevett v. Sides, F.2d (5th Cir. 
June 8, 1976). On remand, the District Court found for the 
City the day after receipt of the mandate. Nevett v. Sides, 

F.Supp. (N.D. Ala. June 11, 1976). Copies of the 
decision of the Fifth Circuit and of the District Court on 

remand are attached hereto for the convenience of the Court. 

Ye fact that the city government statute is said to 

violate 42 U.S.C. §1973(c), as well as the Constitution it~ 

self, does not change the result. That statute tracks the 
language of the Fifteenth Amendment and is ''constitutional 

in nature". Wallace v. House, 515 F.2d 619, 634 n.17 (5th 
Cir.1975), vacated on other grounds, B.S. > 47 

  

  

  

  

  

L..Ed.2d4 2956(1976). 

 



      
  

® 1s » 

effect is relevant and admissible only for whatever light, 

if any, it may cast upon purpose-~-the decisive issue. 

B. Burden of Proof and Standing. The plaintiffs, of 
  

course, have the burden of proof: 

The plaintiff's burden is to produce evi- 
dence to support findings that the poli- 
tical processes leading to nomination and 
election were not equally open to parti- 
cipation by the group in question--that 
its members had less opportunity than did 

other residents in the district to parti- 

cipate in the political processes and to 
elect legislators of their choice. 

White v. Regester, 412 U.S. 755, 766(1973). 
  

1. Plaintiffs Must be an Identifiable Segment of 
  

the Population. As an initial matter, plaintiffs have the 
  

burden of proving that they constitute under the present 

facts an identifiable class for Fourteenth Amendment purposes. 

While dilution cases such as this are most commonly brought 

by blacks, membership in the Negro race is not talismanic; 

nor is the doctrine reserved exclusively for blacks. The 

Supreme Court in one recent case held that blacks as such 

did not constitute an identifiable class; under the circum-~ 

stances of that case blacks were held to be not dissimilar 

from non-black Bemocrats. for example: 

[Tlhe interest of the ghetto residents 
in certain issues did not measurably 

differ from that of other voters. 

Whitcomb v. Chavis, 403 U.S. 124, 155(1972) (claim of dilu- 
  

tion '"'seems a mere euphemism for defeat at the polls", Ié. 

at 153). 

The Supreme Court has long suggested that the dilu- 

tion doctrine extends to political as well as racial elements 

of the population id and has suggested strongly that blacks 

  

15Burns v. Richardson, 384 U.S. 73, 88(1966); Fortson v. 
Dorsey, 379 U.8. 733, 739(19653). 
  

  

a — A AS TIS S ER SU as OF TT ATI EE med Bt eis 
 



  

1k 

need not necessarily fare better in a dilution case under 

the Constitution than, for example, "union oriented workers, 

the university community, or religious or ethnic groups 

occupying identifiable areas of our heterogeneous cities and 

urban areas". Whitcomb v, Chavis, 403 U.S. 124, 156(1971).. 
  

In order to invoke the benefit of the dilution doctrine, 

blacks must prove more similarity than mere blackness. As 

one post~-Chavis commentator wrote, 

After all, if Republicans could have 
elected someone more sympathetic to 
their views in the absence of a multi- 

member district, are they not suffering 
the same harm blacks suffer...? Certain- 
ly in the case of de facto racial submer- 
gence, where racial intent is not shown, 
blacks are not suffering because they 
are black. 

Carpeneti, Legislative Apportionment: Multi-member Districts 
  

and Fair Representation, 120 U,.PA.L.REV. 666, 698(1972). 
  

2. Mere Showing of Adverse Impact Has Never Met 
  

the Burden. Even prior to the decision of the Supreme Court 
  

in Washington v. Davis, a plaintiff could not meet his bur- 
  

den by showing a mere adverse impact, but had to prove more: 

The critical question under Chavis and 
Regester is not whether the challenged 
political system has a demonstrably 
adverse effect on the political fortunes 
of a particular group, but whether the 

effect is invidiously discriminatory, 
that is, fundamentally unfair. 

  

  

  

Wallace v. House, 515 F.2d 619, 630 (5th Cir.1975), vacated 

& remanded on other grounds, u.8s. , 4721.54.24 
  

296(1976) (per curiam) (emphasis added). 
  

3. No Constitutional Right to a Black District. 
  

Plaintiffs have no constitutional right to a politically 

safe black district. The Fifth Circuit has recently reiter- 

ated that the Supreme Court's pronouncements reject such a 

"ouaranteed district" concept: 

 



-15 

  

Chavis and Regester hold explicitly that 
no racial or political group has a con- 

stitutional right to be represented in 

the legislature in proportion to its num- 
bers, so it follows that no such group is 
constitutionally entitled to an apportion- 
ment structure designed to maximize its 

political advantages...Neither does any 
voter or group of voters have a constitu- 
tional right to be included within an 
electoral district that is especially 
favorable to the interest of one's own 
group, or to be excluded from a district 
that is dominated by some other group. 

  

Wallace v. House, 515 F.2d 619, 630 (5th Cir.1975), vacated 
  

& remanded on other grounds, U.8. . 47 1..84.24 
  

296(1976). Accord, Vollin v. Kimbel, 519 F.2d 790, 791 
  

(4th Cir.1975) (''black voters are not constitutionally enti- 

tled to insist that their strength as a voting bloc be pre=- 

served"), cert.den., U.S. (1976); Cherry v. County 
    

of New Hanover, 489 F.2d 273, 274 (4th Cir.1973) (blacks 
  

"do not have a constitutional right to elect members of their 

race to public office'). The Court of Appeals for the Fifth 

Circuit in the Fairfield case, in reversing the holding of 

the District Court, recently sphineized that blacks are not 

to be guaranteed a politically-safe district of their own: 

The trial court's findings may be read 
as indicating that elections must be 
somehow so arranged-~-at any rate where 

there is racial bloc voting-~that black 
voters elect at least some candidates 
of their choice regardless of their 
percentage turnout. This is not what 
the Constitution requires. 

Nevett v. Sides, F.2d FR {Sth Cir, June 8, 1976). 
  

Plaintiffs in order to prevail have always had to 

show, as Wallace v. House indicates, that the system is 
  

"fundamentally unfair'. 515 F.2d at 630. Now, after 

  

Washington v. Davis, they must show (1) that the system is 

 



«16« 

  

"fundamentally unfair", and (2) that it was intended to be so.   

C. Evidentiary Factors to be Considered in Deciding 
  

Whether Political Process Open. Cases decided prior to 
  

Washington developed a number of evidentiary criteria to be 
  

considered upon the principal issued raised by White--wheth- 

er "the political processes leading to nomination and 

election" are "equally open'. White v. Regester, 412 U.S. 
  

766. These criteria (being pre-Washington) relate to effect 
  

only, and have been wariously stated from time to time and 

from case to case, and even from Court to Court. 

As formulated in Zimmer, these indicia of discrim- 

inatory effect comprise "a panoply of factors'. Proof of 

"an aggregate of these factors' may suffice to prove effect, 

485 F.2d at 1305; the factors do not include intent, since 

  Zimmer preceded Washington. These factors were in Zimmer 

divided further into what may be termed 'primary'" and 

"enhancing' factors. Id. 

1. "Primary'' Factors. The following factors from 
  

Zimmer were held in that case to be indicia of dilution of 

the votes of blacks (Id. at 1305): 

(a) "Lack of access to the process of slating 

candidates; 

(b) "Unresponsiveness of legislators to their 

  

16Ccommentators analyzing the Fifth Circuit's en banc de- 
cision in Zimmer v. McKeithen have suggested that a civil 
rights plaintiff may more easily prevail under the Zimmer 

criteria than under the Supreme Court cases which Zimmer pur- 

ported to follow. See, e.g., Note, 87 HARV.L.REV. 1851, 1858 
(1974) ; Note, 26 ALA.L.REV, 163, 170(1973) . Support is lent 
to this by che pointed remark of the Supreme Court in Zimmer 

that it was affirmed "without approval of the Constitutional 
views expressed by the Court of Appeals'. East Carroll Parish 
School Bd. wv. Marshall, U.8. (March 8, 1976), aff’ =. 

  

  

  

  

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc). 
  

 



i Tp 

  

[blacks'] particularized interests'; 

(c) "A tenuous state policy underlying the 

preference for multi-member or at-large districting''; 

(d) "The existence of past discrimination in 

general precludes the effective participation in the election 

system'. 

2. "Enhancing' Factors. Zimmer also says that 
  

proof of dilution made out by a showing of the above-enumer- 

ated factors may be "enhanced by" (Id. at 1305) the following 

factors: 

(a) "The existence of large districts''; 

(b) "Majority vote requirements''; 

(¢) "Anti-singleshot voting"; 

(d) "The lack of provision for at-large can- 

didates running from particular geographical subdistricts'. 

Because these factors have been explicitly followed 

17 
in later (but pre-Washington) Fifth Circuit decisions, they   

probably ought, out of an abundance of caution, to be the 

basis here of factual findings on effect, notwithstanding any 

differences between Zimmer and Supreme Court precedent. 8 

  

17Nevett v. Sides, F.24, {5th Cir. June 8, 1976); 
Perry v. City of Opelousas, 515 F.2d 639 (5th Cir.1975); 
Wallace v, House, 515 F.24 619 (5th Cir.1975); Turner v. 
IcKeithen, 490 F.2d 191(5th Cir.1973). Nevett was decided 

the day after Washington, but contains no mention of it. 

  

  

    

  

  

“See note 16 supra. The Three-Judge District Court on 
the remand of White v. Regester formulated the factors in- 

volved in a different and slightly less Procrustean fashion 
than appeared in Zimmer and its progeny. See Graves v. Barnes, 

378 F.Supp. 640, 643 (W.D. Tex.1974), on remand of White wv. 
Regester, 412 U.S. 755(1973). 

  

  

  

  

 



<15~ 

  

Therefore, the findings of fact we will propose to the Court, 

in order to insure a complete record, will address the dic- 

tates and factors stated in both Washington v. Davis (intent) 
  

and Zimmer v. McKeithen (indicia of effect), keeping in mind 
  

that "unless [the Zimmer] criteria in the aggregate point to 

dilution..., then plaintiffs have not met their burden, and 

their cause must fail''. Nevett v. Sides, F.2d 
  Sera ——— 

(5th Cir. 1976). 

V. DEFENDANTS' CONTENTIONS OF FACT 
  

A. Identifiable Segment. The evidence which will be 
  

adduced in this case will indicate that blacks in Mobile 

have interests and needs which, as in the Chavis case, '[do] 

not measurably differ from that of other voters". 403 U.S. 

19 there would be a factual basis at 155. That being so, 

for a finding that blacks do not in fact, except for their 

blackness and a common racial history, constitute an "'iden- 

tifiable segment'. While defendants do not ask that this 

Court make such a finding on the standing issue, it will be 

useful in considering the merits of this case to remember 

the fact (and it is a fact) that the needs of blacks on most 

issues do not appreciably differ from those of whites. 

  

Bror example, the testimony of Dr. James E. Voyles, an 
expert for defendants, indicates that black/white political 
scisms of the 1960's were an aberrant product of the civil 
rights struggle during that period, and that black/white 
scismatic voting trends have been significantly (if not yet 
entirely) reduced. Similarly, the answers of the named 

plaintiffs to interrogatories indicate many examples of 

identity of black/white views, thus reducing the number of 
issues upon which the blacks have '"particularized needs". 
See, e.g2., Answers of Plaintiffs to Defendants' Interroga- 
  

tories 67-114. 

 



  

“~10~ 

B. Discriminatory Purpose. Under Washington wv. Davis, 
    

plaintiffs must prove that the statute involved was enacted 

or instituted to further a discriminatory purpose. The 

statute under attack here was enacted in 1911, 

Since blacks in 1911 constituted a political cipher 

both in Mobile and state-wide, having been overtly eliminated 

from the electorate shortly after the adoption of the Ala- 

bama Constitution of 1901,%° any contention that the adop- 

tion of Act 281 was racially motivated is unsupportable. 

The Fifth Circuit has several times held (apparently 

judicially noticing the fact) that many if not most Southern 

election statutes of the late nineteenth or early twentieth 

century were totally neutral racially, since blacks had been 

directly and overtly disfranchised by direct means. For 

example, the Court of Appeals for the Fifth Circuit in 

Wallace v. House held that when the at-large election system 
  

was first passed in Louisiana in 1898, '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. 515 F.2d at 633. Judge Wisdom made 

a similar observation in Taylor v. McKeithen, finding that 
  

prior to the 1965 Voting Rights Act, 

blacks could not be elected to [public 

office] -~to be blunt--because there 

were no black voters. It is as simple 
as that. Since adoption of the Louisi- 

ana Constitution of 1898 and until re-~ 
cently, the legislature disfranchised 

blacks overtly; it was never necessary 

for the legislature to resort to covert 

  

  

  

  

20h [Alabama] Constitution of 1901...eliminated the 
Negro voter". M. McMILLAN, CONSTITUTIONAL DEVELOPMENT IN 
ALABAMA 354 (1955). 

 



«20 ~ 

  

disenfranchisement (sic) of blacks by 
manipulating [apparently neutral elec- 

toral devices]. 

  

499 F.2d 893, 896 (5th Cir. 1974) ,quoted in Wallace v. House, 

515 F.2d at 633. Additionally, we expect the evidence to 

show that the commission form of government was adopted in 

Mobile for reasons completely unrelated to race. 

This Court should make a finding in this case that 

Act 281 was enacted for a non-discriminatory purpose and, 

under Washington v. Davis, that finding should end the 
  

inquiry, with judgment for defendants being mandated. 

However, defendants recognize the position of this 

Court in the present case. Washington v. Davis, clear. though 
  

it is, did not expressly overrule the Zimmer case and its pro- 

geny (which grew like Topsy notwithstanding apparent conflict 

with White v. Regester and other pre-Washington cases?ly 
  

  

and no Fifth Circuit case has yet considered to what extent 

” : 22 
(if at all) the Zimmer case survives Washington.   

Because the Zimmer case stands unreversed to date, 

‘and also since Washington leaves some room for admissibility   

of evidence of effect as it might bear on purpose in an appro- 

priate case, defendants recognize that the Court may want to 

make factual findings upon the Zimmer criteria of discriminatory 

  

21lgee n.16, supra. 

22. : he 
The Supreme Court, even before Washington, seems in its 

narrowly-grounded affirmance of Zimmer to have suggested the 
invalidity of the constitutional holding of Zimmer under prec- 
edent prevailing even at that time. East Carroll Parish 

School Bd. v. Marshall, U.S.. © (march §, 1976) (aff'd. 

  

  

  

  

"without approval of the constitutional views expressed by 
the Court of Appeals'). 

 



  

-21- 

effect, for whatever residual value they may have after 

  

Washington. 

C. Effect: The Zimmer Criteria, 
  

1. "Primarv' Factors. 
  

(a) No "lack of access to the process of slat- 
  

ing candidates'. Blacks in the City of Mobile have not 
  

been deprived of access to the slating of candidates to the 

City Commission; in Mobile there is no such slating. This 

fact parallels the finding of Judge Pointer in the Fairfield 

2 Ld > Ld Ld » 

case. 3 However pernicious the operation of slating organi- 

zations might be in other cities,?? they do not exist in 

Mobile city elections. In fact, not only are there no non- 

partisan slating organizations for the City Commission in 

Mobile, the elections are non-partisan and the Democratic 

and Republican parties themselves do not serve as slating 

organizations fiche City Commission. All that is necessary 

is for a potential candidate to qualify and to run. 

A few other, more general observations concerning 

  

231 The plaintiffs, blacks residing in the City of Fair- 
field, have not demonstrated any lack of access to the process 
of slating candidates for city elections; for in Fairfield 

  

there has been no such slating'". ©Nevett v. Sides, F. 
Supp. (N.D. Ala. June 11, 1976). 

24 In Dallas City Council elections, a slating organiza- 
tion styled the "Citizens Charter Association', or C.C.A., 
"enjoyed dominance" in city elections. Lipscomb v. Wise, 399 
F.Supp. 782, 786 (N.D. Tex.1975). A similar group, called the 
"Dallas Committee for Responsible Government' or DCRG operated 
in elections from that county to the state legislature. White 
v. Rezester, 412 1.8. 755, 766-67(1973). In other cases, 
political parties or party organizations with racial solidar- 
ity served the same function. E.g., Turner v. McKeithen, 490 

  

  

  

  

F.2d 191, 195(5th Cir.1973) (one-party parish where black 
vote solicited only after nomination). There is no such 
monolithic political organization in Mobile City Commission 
elections. 

 



  

wm 

Mobile political affairs may be in order in view of the 

suggestion of the Supreme Court in White that these cases 

call for an "intensely local appraisal...in the light of 

past and present reality, political and otherwise. 412 

U.S. at 769, 

Unlike many southern polities in which nomination 

by the Democratic Party is tantamount to election, that is 

not necessarily so in Mobile, even in races which (unlike 

the City Commission races) are conducted on partisan tickets. 

There is no longer any racial impediment of whatever 

nature to prohibit or hinder in any way a black (as such) 

from registering to vote, voting, qualifying to seek office, 

running for office, or paling elected to office. In sum, 

Mobile has an intensive, active, vigorous political life, 

one which, at the present time, is as open to blacks as to 

whites. As the Siprene Court wrote in Chavis: 

~~ 

The mere fact that one interest group or 

another concerned with the outcome of... 

elections has found itself outvoted and 

without legislative seats of its own 
provides no basis for invoking constitu- 

tional remedies where, as here, there is 

no indication that this segment of the 

population is being denied access to the 

political system. 

£03 B.S. 15. 154-55, 

To whatever degree (if any) White v. Regester differs 
  

25 ‘ : a 
from and therefore controls Zimmer, this finding alone 

should compel judgment for defendants. The Supreme Court 

in that case wrote, as noted above, that the burden was on 

plaintiffs to prove that their segment of the population 

  

255ee n.l6, supra. 

 



  

~23- 

"had less opportunity than did other residents in the 

district to participate in the political processes and to 

elect legislators of their choice'. 412 U.S. at 766. The 

finding of openness under this single Zimmer criterion appar- 

ently, under White, answers the entire question: if the 

political process is open to blacks, there is no dilution. 

(b) No "unresponsiveness of legislators to 
  

[blacks'] particularized interests'. As an initial matter, 
  

it may be noted that the evidence will reflect that on many 

issues of importance to citizens in Mobile there are no 

"particularized interests' of blacks. 

A significant segment of the proof adduced by plain- 

tiffs on the responsiveness issue is expected to be in the 

form of testimony concerning isolated instances of citizen 

complaints about, for example, drainage or paving in a par- 

ticular area inhabited largely or entirely by blacks. As 

Judge Pointer pointed out in the Fairfield case, 

it should be noted that the inquiry is 
directed to '"unresponsiveness', referring 
to a state, condition or quality of being 

unresponsive, and is not established by 

isolated acts of being unresponsive. 

  Nevett v. Sides, F.Supp. (N,D. Ala, June 11, 1975), 

Defendants expect the evidence to show that the 

City of Mobile has not, in recent years, evidenced unrespon- 

siveness to particularized needs of blacks. 

(i) City Services. The Court will 
  

doubtless hear a considerable quantity of testimony from 

both sides regarding the nature and extent of various city 

services in the black areas. This is not a case in which 

the "streets and sidewalks, sewers and public recreational 

facilities provided by the town for its black citizens are 

 



Dl 

  

clearly inferior to those which it provides for its white 

citizens," Wallace v. House, 515 F.2d at 623 (emphasis added), 
  

or one in which the City has evidenced "inexcusable neglect 

of black interests'.Id. Instead, the evidence in this case 

will show good faith efforts to extend public services to 

both black and white. A number of serious drainage problems 

exist in many sections of Mobile, including several black 

areas; the City has attempted and is attempting in good 

faith to remedy such problems inherent in a low-lying area 

such as Mobile. The evidence will further reflect that 

street paving, maintenance, and repair and cleaning and the 

like--to the extent that those activities are conducted by 

the City rather than by private do¥slopersss ~=ois performed 

by the City of Mobile in a non-discriminatory fashion. The 

evidence will further reflect that in several instances of 

unpaved streets in black neighborhoods, the condition is due 

to the fact that the cost of paving non-~thoroughfare streets 

in Mobile is normally assessed to abutting property owners, 

and that they had been unable or unwilling to be assessed 

for street paving. As Judge Johnson has noted, that unwill- 

ingness or inability to sustain a paving assessment does not 

rise to constitutional levels: 

The evidence...reflects that the reason 
that a larger percentage of the white resi- 
dents are residing in houses fronting paved 

streets is due to the difference in the re- 

spective landowners' ability and willingness 

  

26 
Not all paving of streets in the City of Mobile is per- 

formed by the City with City funds. A significant amount of 
street construction is performed by real estate developers 

in the construction of new subdivisions. There is no allega- 

tion of any improper complicity between the City and such 
developers with respect to such street paving. 

 



25. 

  

to pay for the property improvements. 

This difference in the paving of streets 
and the establishment of sewerage and 

water lines does not constitute racially 
discriminatory inequality. The equal pro- 
tection clause of the Fourteenth Amendment 

to the Constitution of the United States 
was not designed to compel uniformity in 
the face of difference. 

Hadnott v. City of Prattville, 309 F.Supp. 967, 970 (M.D. 
  

Ala, 1970). 

To the extent {if at all) that a difference in 

quality of city services exists, it is in part attributable 

to vandalism of public property which, the evidence will 

show, is significantly worse in black areas of town. To 

the extent that vandalism in black sections causes a differ- 

ence in the quality of services, the difference is not a 

constitutional deprivation. Beal v. Lindsey, 468 F.2d 287, 
  

290-01 (2d Cir.1972). 

It is also worth noting that, to the extent there 

is any inequity in the respective quality of city services 

in black and white areas, plaintiffs have a direct pin- 

point remedy in a suit for equalization under Hawkins v. 
  

  

Town of Shaw, Miss., 437 F.2d 1286(5th Cir.1971), aff'd 

on rehearing en banc, 461 F.2d 1171(5th Cir.1972), at 
  

least to the extent that any difference in service levels 

was purposeful. Washington v. Davis, U.S. , 4b 
Smtr?   

U.S.L.W. 4789, 4793 n.12 (U.S. June 7, 1976). To the extent 

that any such inequity may be of significance to Mobile's 

black citizens, the remedy might more appropriately be the 

limited one of equalization rather than the severe one of 

changing the entire form of the city government. Whitcomb 
  

v, Chavis, 403 U.S. 124, 160(1971); Note, 87 HARV.I.REV,   

 



  

. ol » 

1851, 1859 n.50(1974). 

(ii) Boards and Commissions. Plaintiffs 
  

will probably introduce evidence reflecting that blacks are 

not represented on the City's various boards and commissions 

in proportion to their percentage of the population. Defend- 

ants concede that to be so, and there is no dispute over that 

fact. 

The discretionary appointments to city boards and 

commissions are, as a matter of comity, either entirely 

beyond federal judicial review, or very nearly so. Mayor 

of Philadelphia v. Educational Equality League, 415 U.S. 
  

605, 614-15(1974) (suit to insure bi-racial array of city 

appointees); James v. Wallace, F.2d (3th Cir. 
  

June 21, 1976) (suit to compel Governor of Alabama to appoint 

more blacks). That being so, back-door judicial relief in 

the form of a finding of lack of responsiveness based on 

appointments seems particularly inappropriate. There are, 

in any event, several black board members, and an increase 

in their number cannot be instantaneous under any form of 

government. The Commissioners are ''powerless to appoint 

blacks to boards and commissions until the appearance of 

vacancies". Yelverton v. Driggers, 370 F.Supp. 612, 619 
  

(M.D. Ala. 1974). Additionally, the overwhelming majority 

of these boards are simply irrelevant to the ''particularized 

needs of blacks. 

(iii) Disparity in Employment Statistics. 
  

The city employment statistics expected to be introduced 

will indicate a disparity between the percentages of white 

and black employed on the one hand, and their respective 

 



2 

  

percentages in the population on the other. 

The City of Mobile is limited in its ability to 

employ those whom it might otherwise choose; strictures are 

placed upon its hiring freedom by the fact that the Mobile 

County Personnel Board (which is not a department of the 

City) presents employment lists to the City from which 

hiring is effected. 

To the extent that there might have been impropri- 

eties in hiring, plaintiffs have and have had a direct remedy 

in this Court, in the form of lawsuits directly aimed at 

remedying those violations rather than at a change in the 

form of government. 

Additionally, the Supreme Court has recently noted 

in Washington that mere disproportionate hiring by the city,   

without more, does not indicate a Constitutional violation. 

U.S, at , 44 U.8.1L.W, at 479%. ‘that being so, it 
mt p—— 

  

seems inappropriate to find a constitutional violation by 

a back~door approach which instead holds the form of govern- 

ment unconstitutional upon the theory that there is a dis- 

parity in employment which is, in itself, constitutional. 

A holding changing the form of government ought not to be 

based upon such gossamer, backward logic. 

In sum, there has been no significant, general 

"lack of responsiveness'' of the city government in Mobile in 

recent years to the particularized needs of blacks. 

(¢) No "tenuous state policy underlying the 
  

  

27 oe! : ‘ 
See Allen v. City of Mobile, Civ. No. 5409-69-P(S.D. 

Ala.) ; Anderson v. Mobile County Commission et al., Civ. No. 
  

  

7383-72-0(8. 0. 41=.7. 

 



«28 

  

preference for multi-member or at-large districting'. 
  

There is no clearcut state policy either for or against 

multi-member districting in the State of Alabama, considered 

as a whole; hence, the "ambivalent state policy in this re- 

gard must be considered as a neutral factor in our consid- 

eration’. Yelverton v. Driggers, 370 F.Supp. at 619. 
  

Just as in Yelverton, however, it is appropriate 
  

to look at the state policy, as expressed by the state Yag~ 

islature, with specific reference to Mobile. 

A summary of each form of government obtaining 

in the City of Mobile since prior to Alabama statehood is 

attached as Appendix A. As that Appendix suggests, the gov- 

ernment of the City of Mobile throughout its history for 

more than a century and a half has contained, at least in 

part, some multi-member feature. For sixty-five years the 

City Commission form of government with at-large elections 

has been in effect in Mobile. 

Therefore, whatever the policy of Alabama has been 

with respect to other municipalities in the state, its mani- 

fest policy as to the City of Mobile has been, for a sig- 

nificantly long period, multi-member districting. 

(d) No "existence of past discrimination in 
  

general precludes the effective participation in the election 
  

1" system. The City of Mobile in this litigation candidly ad- 

mits at the outset that in the past, there were significant 

  

28 \10ng the lines of the "intensely local appraisal" 
suggested in White, it may be noted that Mobile has long been 

considered a political island outside the mainstream of Ala- 
bama politics. That fact makes particularly appropriate the 
consideration of the policy of the City itself regarding 
these districts, in addition to that of the State as a whole. 

 



~29. 

  

levels of official discrimination by the City. There is, 

of course, no doubt about that as Mobile's history in this 

regard is similar to that of Southern cities generally. 

The question, however, is not whether there was 

discrimination in the City's history [admittedly there was], 

but whether that discrimination today ''precludes the effec- 

tive participation in the election system''. Accord, Bradas   

v. Rapides Parish Police Jury, 508 F.2d 1109, 1112(5th Cir.1975). 
  

The history of discrimination does not presently 

preclude effective participation in the political system. 

Every phase of the processes of registration, voting, qual- 

ification, and running for a position on the City Commission 

is just as open to blacks as to whites. Past discrimination 

does not ''preclude effective participation' in Mobile City 

political affairs, nor in, for example, legislative races 

where blacks have been elected. As in the Fairfield case, 

the plaintiffs cannot prove ''that past discrimination pre- 

cludes the effective participation by blacks in the election 

system'". Nevett v. Sides, F.Supp. SUN. Du Ala, 
  

June 11, 1976). To the extent that blacks do not register, 

vote, or run for office to the same degree as whites, it is 

: a product of their own choice in the matter. 

Virtually every Southern city or county (and many 

Northern ones) has a sad history of racial discrimination; 

Mobile is not unusual in that respect. The concern is with 

present facts; in this case we should avoid if possible a 

result controlled by "legal standards...heavily weighted in 

favor of past events'. Yelverton v. Driggers, 370 F.Supp. 
  

at 619. 

 



  

~30~ 

(e) Summary of ''Primary' Factors. It is there- 
  

fore seen that, for whatever value the Zimmer criteria may 

be after Washington, none of the four "primary" criteria of 
  

Zimmer are present in this case. 

Even under Zimmer, these negative findings 

should mandate judgment for defendants. However, to complete 

the record, the Court may wish to make findings herein on the 

"enhancing'' factors. 

2. '"Enhancing'' Factors. 
  

(a) Large Districts. The multi-member dis- 
  

trict in this case constitutes the City of Mobile as a whole. 

As Judge Pointer ruled in the Fairfield case, "the election 

district must be considered 'large', at least in a relative 

sense. The district is as large as it can be'. Nevett wv. 
  

Sides, F.Supp. (N.D. Ala. June 11, 1976). The 
  

same is obviously true in Mobile. 

However, the district in Chavis which passed 

constitutional muster was much larger than Mobile, contain- 

ing 300,000 voters in 1964. 403 U.S. at 133, n.11l. The 

two at-large counties in White v. Regester were also much 
  

larger, containing populations of 1,300,000 and 800,000. 

Graves v. Barnes, 343 F.Supp. 704, 720(W.D. Tex.1972), aff'd 
  

in part & reversed in part sub.nom. White v. Regester, 412 
  

U.S. 755(1973). While Mobile is not 'large'" in comparison 

to those districts, it is probably large enough to be con-~ 

sidered "large" within the meaning of this enhancing factor. 

(b) Majority Vote Requirement. Under Act 281, 
  

a majority vote is required for election. 

(c) Anti-Singleshot Voting Provisions. There 
  

 



“31 

  

. is in Act 281 no "anti-singleshot'" voting provision; neither 

is there one in its current codification [ALA.CODE tit. 37, 

§89 et.seq.] or in Act 823. ? In a sense, as Judge Pointer 

held in the Fairfield dase, the numbered-position provision 

of Act 823 {[ov, iE Act 823 is invalid, tit. 37, §94] may 

have to some extent the same result. At least in part, then, 

the practical result of an anti-singleshot provision obtains 

in Mobile. 

(d) Lack of Residence Requirement. Act 281 
  

does not contain any provision requiring that any commis- 

sioner reside in any portion of town. If Act 823 is valid, 

a residence requirement would be at a minimum anomalous and 

probably even unconstitutional, as it would require that the 

Commissioner in command of each particular function (for 

  

29An "anti-singleshot' provision obtained in all city 
elections in Alabama from 1951 to 1961: 

A ballot commonly known or referred to as 

"a single shot'" shall not be counted in 
any municipal election. When two or more 
candidates are to be elected to the same 

office, the voter must express his choice 

for as many candidates as there are places 
to be filled, and if he fails to do so, his 
ballot, so far as that particular office is 

concerned shall not be counted and recorded. 

ALA.CODE tit. 37, §33(1), repealed September 15, 1961. 

Judge Pointer held that: 

(3)There is no anti-single shot voting pro- 

vision since candidates run for numbered 

positions. The numbered position approach 

does have some of the same consequences how- 
ever as an anti-single shot, multi-member 

race; because a cohesive minority is unable 
to concentrate its votes on a single candidate. 
The numbered position approach does, however, 
eliminate the problem caused when a minority 
group 1s unable to field enough candidates 
in anti~single shot, multi-member races. 

Nevett v. Sides, _ F.Supp. at C{R.D. Ala. June 11, 1974), 
Sh s—————   

 



  

-32- 

example, Public Safety) reside in and be elected from one 

particular side of town, accountable only to one third of 

the population notwithstanding jurisdiction over the entire 

City. 

If Act 823 is not valid, on the other hand, 

similar problems could likely ensue. In that event, the 

majority of the Commissioners could apparently assign what- 

ever tasks it wanted to the third commissioner, ALA.CODE tit. 

37, §§95-96, or even perhaps no administrative functions, 

leaving the district which he represents effectively unrep~ 

resented in the administrative affairs of the City. There 

are no apparent, explicit state law limits upon such a 

practice contained in the optional commission form of gov~ 

ernment statute. ALA.CODE tit. 37, §89 et.seq. 

In sum, it appears that the enhancing factor 

dealing with residence requirements is intended to be con~ 

sidered in cases involving city councilmen or the like 

with identical duties, and is irrelevant to cases which, 

like this, involve the city commission form of government. 

If this factor should be deemed relevant, however, there 

is none. 

(e) Summary of Findings on "Enhancing Factors," 
  

and "Agcregate' of All Factors. There are in this case no 
  

"primary" factors present, but each relevant "enhancing" 

factor is present, for whatever value the Zimmer factors 

may have after Washington.   

Even prior to Washington, under Zimmer criteria 
  

alone, defendants would be entitled to judgment in this case. 

Since none of the "primary' factors are present, plaintiffs 

 



“33 

  

: cannot be said to have proved an "aggregate'' of the Zimmer 

factors, and their claim must therefore fail on that ground 

  

alone, even under cases formulated prior to Washington v. 

Davis. 

But there are also other considerations which, 

for purposes of completeness of the record, merit consideration. 

VI. DEFENSES AND OTHER PERTINENT CONSIDERATIONS 
  

A. Traditional Constitutional Tolerance of Various 
  

Forms of Local Government. It may be appropriate to note 
  

that as a matter of constitutional law, the more "local" a 

government, the greater the leeway which has been given to 

it in constitutional/political cases. See, e.g., Abate v. 
  

Mundt, 403 U.S. 182, 185(1971). The Supreme Court has been 

particularly alert to avoid inflexible federal limitations 

upon the form of local government: 

Viable local governments may need many 
innovations, numerous combinations of 

old and new devices, great flexibility 
in municipal arrangements to meet chang- 

ing urban conditions. We see nothing in 

the constitution to prevent experimentation. 

Sallors v, Bd, of Educ;, 387 U.S. 105, 110~-11(1967). The 
  

city commission form of government was itself an experiment, 

the evidence reflects; doubtless every form of local govern- 

ment was once in some degree experimental. To the extent 

that it is possible, cities should be allowed some measure 

of freedom in their attempts to solve or mitigate govern- 

mental problems. The Constitution should be flexible enough 

to allow that experimentation: 

Frequent intervention by the Courts in 

state and local electoral schemes would 

 



  

3 - 

seem to run counter to the Supreme 

Court's...concern for innovation 
and experimentation at the local level. 

Note, 87 HARV.L.REV, 1851, 1860(1974). 

The second, third and fifth defenses raised by defend- 

ants reflect this policy of comity and federalism; oT as in 

Mayor of Philadelphia, "[tlhere are...delicate issues of 
  

federal~state relationships underlying this case'. 415 U.S. 

at 615. The federalism problem is made most acute by the 

fact that, if this Court were to impose single-member dis- 

tricts, in all probability the Court would have to order 

that the very form of government be changed, from a commis- 

sion form to another and different form, such as mayor/council. 

B. Necessity for Change in Form of City Government if 
  

  Single-Member Districts Ordered. As enacted in 1911, as 

already noted, the Commissioners of the City of Mobile appor- 

tioned among themselves the duties of City government. In 

1965, Act 823 was passed, providing that Commissioners be 

elected to specific posts for specific jobs. 

As previously discussed, since plaintiffs have not pre- 

vailed under either Zimmer alone or Zimmer as modified by 

Washington, it is not necessary that a Three-Judge District   

Court be convened to consider the validity of Act 823. 

Whether or not Act 823 is valid under §5, the Procrustean 

imposition of single~-member districting, as already noted, 

would bring on absurd and unconstitutional results caused 

  

3lrechnically, these federal/state relations cases do 
not involved the''political question' doctrine, because that 
doctrine concerns relations between co-ordinate branches of 

the federal government. Jackson, The Political Question Doc- 
trine: Where Does It Stand After Powell v. McCormack, O'Brien 
v. Brown, and Gilligan v. Morgan? 44 U,COL.L.REV. 477,508-510 Twa 

  

  

  

(1973), 

 



“35 

  

by the fact that city commissioners, unlike aldermen or 

councilmen, each perform different administrative functions. 

In order to avoid such an anomaly attendant on the imposition 

of single-member districting upon the commission form of gov- 

ernment, the Court would have to change the form of the City 

government. The problem is fraught with difficulty, and 

would clearly militate against the imposition of single- 

member districting as a remedy even assuming that plaintiffs 

had prevailed on the merits. 

C. "Swing Vote". Testimony in this case will show 
  

that blacks in Mobile not infrequently comprise a "swing" 

vote able to decide close elections to a degree significantly 

beyond their percentage in the population. While the actual 

effect is local in nature, it is a phenomenon which is not 

uncommon in multi-member district situations. E.g.,Lipscomb 
  

v. Wise, 399 F.Supp. 732, 793(N.D. Tex. 1975) (multi-member 

election permitted Mexican/Americans ''as a group to operate 

in a 'swing-vote' manner and give them opportunity they 

might not otherwisehave had"). As one legal CommenEatoY 

has written: 

A group of voters that influences many 

legislators in a small way is not in- 

herently less desirable than a group 

that has a large impact on one legisla- 

tor. Indeed, when other voters in a 

district in which the blacks constitute 

a minority are in a state of political 

equilibrium, it may be that the black 

group will wield political clout dis- 
proportionately large for its numbers. 

Carpeneti, Legislative Apportionment: Multi-Member Districts 
  

and Fair Representation, 120 U.PA.L.REV, 666,692-93(1972). 
  

The swing vote factor is entitled to evidentiary weight in 

support of multi-member districting. 

 



  

«35~ 

D. Banzhaf Theory. Defendants also expect to offer 
  

proof upon the statistical propriety of the Banzhaf theory, 

explained fully in Whitcomb v. Chavis, 403 U.S. 124, 145 n. 
  

  

23(1971) ; Banzhaf, One Man, ? Votes: Mathematical Analysis 

of Voting Power and Effective Representation, 36 GEO. WASH. 
  

L.REV. 808(1968); Banzhaf, Multi-member Electoral Districts-- 
  

Do They Violate the '"One Man, One Vote'' Principle, 75 YALE 
  

L.J. 1309(1966). The thrust of the theory is that if votin 

power is defined as the chance that a voter will be able to 

cast a decisive vote, then individual voters in multi-member 

districts have more voting power than do individual voters 

in single-member districts. The theory is purely a statis- 

tical one, necessarily severed from the hard facts of poli- 

tical life, and is separate and distinct from the issue 

respecting the black vote as a swing vote, supra, which is 

factually based upon the Mobile political experience. The 

Supreme Court in Chavis declined to base its decision on the 

Banzhaf theory, noting that it was ''theoretical', 403 U.S. 

at 145, but did not deny that the theory was entitled to 

some (if not decisive) evidentiary weight. The theory is 

entitled to be accorded some evidentiary weight in favor of 

the retention of multi-member districting in the City of 

Mobile. 

E. City-wide Perspective. Evidence to be adduced by 
  

defendants will suggest that the City of Mobile has a legit- 

imate governmental interest in having commissioners with a 

city-wide, non-parochial view of city affairs. The evidence 

will further suggest that such a city-wide perspective would 

be in significant measure lost with the imposition of single- 

 



  

“37 

member districting. The city-wide perspective has been found 

to be a legitimate governmental interest by both courts and 

commentators, In Lipscomb v. Wise, the District Court found 
  

a "legitimate governmental interest" in having some city 

council members with a "city-wide view on those matters which 

concern the city as a whole", 399 F.Supp. at 795, and suggested 

correctly that [bl]udget and services certainly do not stop at 

district boundaries'. Id, at n.15. One commentator has 

similarly written that: 

The district wide perspective and alle- 
giance which result from representatives 
being elected at-large, and which enhance 
their ability to deal with district wide 

problems, would seem more useful in a 
public body with responsibility only for 

the district than in a statewide legislature. 

Note, 87 HARV.L.REV, 1851, 1857 (1974). 

The desire of the City for a city-wide geographic per- 

spective is a factor entitled to some evidentiary weight 

in this case in favor of the present form of government. 

F. Increased Polarization and Possible "Minority 
  

Freeze-out'' Under Single-Member Plan. Defendants expect to 
  

adduce testimony showing that if a single-member plan of 

city government representaticn were adopted, the degree of 

racial /political polarization would in all likelihood at 

least stay at the same level, and perhaps increase, with the 

result that the white majority in the City would likely be 

able to elect a majority of the Commission. That, along with 

the fact that a single '"black' Commissioner and each "white" 

Commissioner would in a single~member situation probably 

espouse narrow, parochial views of principal interest to 

constituents of their single, racially homogeneous districts, 

 



® ~35- ® 

  

would cause highly visible clashes in city government which, 

inevitably, would be seen as principally racial in nature. 

The probable result would be a virtual freeze-out of the 

single black Commissioner and his constituents. The same 

problem was found by the Court in Lipscomb:   

The Court is particularly concerned with 

the prospect of district sectionalism 

which usually occurs in an exclusive 

single~-member district plan. The Court 

is convinced that no matter how many 

single-member districts are drawn in 
Dallas, black voters in all probability 

would never elect more than 25% of city 
council so long as the present pattern of 

voting exists. With all single~-member dis- 
tricts and the present voting pattern, it 
would be possible for a majority of council 

to "freeze out" this 25% and for all practi- 
cal purposes ignore minority interests. 

399 F.Supp. at 795, n.1l6 (emphasis in original). The sig- 

nificant possibility of such a minority freeze-out is en- 

titled to evidentiary weight against a single-member districting 

plan. pe 

G. Single-Member Districting and New Constitutional 
  

Problems. Single-member districting would import into Mobile 
  

city government two new and different constitutional problems 

which the City has so far been able to avoid: reapportion- 

ment and gerrymandering. 

1. Reapportionment. One very significant factor 
  

in favor of multi-member districting is that, with the ex- 

ception pro tanto presented by the Banzhaf theory, multi- 
  

member districting without a residence requirement presents 

perfect numerical apportionment. Regardless of where a 

voter lives, his vote will exactly equal every other vote, 

even up to the end of each decade when post-census population 

shifts have malapportioned most single-member districts. 

 



«3485 

  

Because of the notorious unwillingness of governmental bodies 

32 there is in Alabama and elsewhere to apportion themselves, 

a significant chance that a United States District Court 

would ultimately be called upon to reapportion the City. 

The possibility or even likelihond of that decennial neces- 

sity certainly should give pause when considering whether to 

impose single-member districting as a constitutional require- 

ment. That possibility is properly to be considered when 

determining the propriety of single-member relief. 

2. Gerrymandering. A multi-member district does 
  

not and cannot present the problem of gerrymandering of in- 

ternall> district lines. The imposition by this Court of 

single-member districting would for the first time in many 

‘decades introduce into Mobile the problem of gerrymandering. 

Whether dttmarely brought into Federal Court as a constitu- 

tional matter or not, see Wright v. Rockefeller, 376 U.S. 
  

52(1964), the problem would be a significant one. And it 

is entertwined with the problem of reapportionment, since 

the difficulty of political line drawing after each decennial 

census inevitably suggests inaction by incumbent officeholders. 

The related problems of reapportionment and gerry- 

: mandering have so far not been imported into the City of 

Mobile. The imposition of single~-member districting by 

this Court would do so for the first time in recent history. 

  

32 : 
For the record of Alabama in that respect, see Stewart, 

Reapportionment With Census Districts: The Alabama Case, 24 
ALA. L.REV., 693, 694 n.56(1972). | 
  

It is of course always possible for any city to attempt 

to draw its perimeter so as to include or exclude certain per- 

sons, see Gomillion v. Lightfoot, 364 U.S. 399(19560), but a 
  

multi-member district by definition has no internal district 
lines, 

 



  

fi (= 

That is a factor of evidentiary weight tending against the 

imposition of single-member districting. 

H. Flexibility of Federal Equitable Relief. Even if 
  

the plaintiffs were to have made out a claim for equitable 

relief, that would not necessarily entitle them to a change 

in the form of government, or to the imposition by this 

Court of single-member districts. Chavis makes clear that 

the Court, upon finding for plaintiffs in a case of this 

nature, ought to attempt if possible to remedy the wrong 

by action less drastic than the wholesale imposition of 

single-member districting: 

[I]t is not at all clear that the remedy 
is a single-member district system with 

its lines carefully drawn to ensure rep- 

resentation to sizeable racial, ethnic, 

economic or religious groups and with 

its own capacity for overrepresenting 
parties and interests and even for per- 
mitting a minority of the voters to con- 

trol the legislature and government of a 

state... 

Even if the District Court was correct 

in finding unconstitutional discrimination 

against...[plaintiffs,] it did not explain 

why it was constitutionally compelled to 

disestablish the entire county district and 

to intrude upon state policy any more than 

necessary to ensure representation of ghetto 

interests. The Court entered judgment with- 

out expressly putting aside on supportable 

grounds the...possiblity that the Fourteenth 

Amendment could be satisfied by a simple re- 

quirement that some of the at-large candidates 

each year must reside in the ghetto. 

Whitcomb v. Chavis, 403 U.S. 124, 160(1971). 
  

Certainly, even if plaintiffs prevail in the in- 

stant case, relief on less-than-a wholesale scale would 

accord with the precepts of equity, encompassing '[f]lexi- 

bility rather than rigidity". Hecht v. Bowles, 321 U.S. 
  

321, 329~30(1944). Judge Johnson, for example, in an 

 



eT 

  

analogous but pre-Washington case, upon finding for plain- 
  

tiffs, merely ordered periodic reports to be made upon the 

issues of trial (street paving, ete), upon the ground that 

the City was making good-faith efforts and "the applicable 

legal standards are heavily weighted in favor of the consid- 

eration of past events'. Yelverton v. Driggers, 370 F.Supp. 
  

at 619. In sum, single-member districting is not necessarily 

the proper equitable remedy even if a constitutional vio- 

lation exists. 

VII. AVAILABLE POLITICAL REMEDY 
  

While the availability of a political remedy for plain- 

tiffs' alleged wrongs by no means mandates abstention, iL is 

certainly worth consideration for whatever significance it 

may have, 

A. Legislative Remedy. The form of city government 
  

presently obtaining in Mobile was, of course, passed by the 

Alabama Legislature in 1911. The evidence in this case 

will show that under the prevailing custom in the Legisla- 

ture called "legislative courtesy', that body will enact 

virtually any local government provision agreed upon by the 

local delegation. 

The Alabama Legislature is elected under a court- 

ordered plan approved by the Supreme Court, from single- 

member districts of near-perfect numerical apportionment. 

Several of the members of the Mobile legislative delegation 

are black and, plaintiffs would no doubt admit, represent 

  

345ims v. Amos, 336 F.Supp. 924(M.D. Ala. 1972) (3-judge 
  

court), aff ¢,..-409 1,8. 942(1973). 

 



  

2li2 « 

any 'particularized interests' of Mobile blacks in that 

body. In the course of the never-ending process of munici- 

pal government experimentation in Alabama and elsewhere, it 

does not seem inappropriate to suggest that ''relief' from a 

legislatively-imposed government may well be available to 

35 
plaintiffs and their class from the legislature. 

B. Abandonment. There is also available to the citi- 
  

zenry of Mobile a state procedure styled "abandonment', 

pursuant to which the voters can abandon the commission form 

of government and return to the aldermanic system obtaining 

prior to the adoption of the commission form of government. 

ALA.CODE tit. 37, §120 et.seq. That abandonment may be 

initiated by signatures of only three percent of the regis- 

tered voters of the City. Id. at § 120. It may be noted 

that the aldermanic form of government obtaining in Mobile 

prior to 1911 had a residence requirement for councilmen, 

so that a return to this form of government would provide 

the very relief (residence requirement) the imposition of 

which the Chavis Court said should be considered as quite 

possibly the appropriate form of relief if plaintiff pre- 

vails in a case of this nature. 403 U.S. at 160. Certainly 

the availability of this political relief to plaintiff under 

state law, while not determining the result here, should be 

of evidentiary weight in this case. 

  

35 * - * 

The legislature, for example, recently provided for 

the City of Monteomery (which voted acceptance) a Mayor / 
hi J FZ 

Council form of government to replace its commission form. 
oS 

Ala. Acts No. 618(1973). See also Robinson v. Pottinger, 512 
  

F.2d 775 (5th Cir.1973) (validity of that statute under state 

law) . 

 



53 

  

- / : y Ao Ty / 
ra # / ’ 

a "i EIT TI 
  

C. B. ARENDALL, JR.7 
30th Floor, First National Bank Bldg. 
Mobile, Alabama 36602 

Attorney for Defendants 

OF COUNSEL: 

HAND, ARENDALL, BEDSOLE, 

CREAVES & JOHNSTON 

  

AM Merged § 01.6. 
S. R, Cian 
City Hall 
Mobile, Alabama 36602 

Attorney for Defendants 

OF COUNSEL: 

LE-AL DEPARTMENT OF THE 

CITY OF MOBILE 

CERTIFICATE OF SERVICE 
  

I do hereby certify that I have on this Cae of 

Joly , 1976, served a copy of the foregoing brief on 
F4 
§ 
  

cottadl for all parties to this proceeding, by mailing a copy 

of the same by United States mail, properly addressed and 

first class postage prepaid. 

  

 



  

APPENDIX A: 
  

CITY OF MOBILE GOVERNANCE 
  

[contains basic organizational statutes only] 

1. 1814 [At-large]: Seven Commissioners were 

elected at-large for the town of Mobile; they elected a 

President from their number. Act of Legislature of the 

Territory of Mississippi, January 23, 1814. (Source: 

Toulmin's Digest p.780). 

2. 1819 [At-large]: City of Mobile was incorpor- 

ated, governed by a Mayor and six aldermen to be elected 

at-large annually. Ala. Act No. (1819) (passed December 

17, 1819). (Source: Toulmin's Digest, p.784) (Alabama 

became a state in 1819). 

3. 1825 [neither at-large nor single-member dis- 

tricts]: A Mayor and six aldermen were to be elected at- 

large, after which they were to divide the City into three 

or more wards, from each of which two or more aldermen would 

be elected, not to exceed a total of nine aldermen. Ala. 

Acts No, (1826) (passed January 9, 1826). 

4. 1833 [no change]: The Legislature provided for 

election of commissioners whose only duty it would be to 

divide the City into wards. No change was otherwise made 

in the form of government. Ala. Acts No. 68 (1833). 

5. 1840: The change made in 1840 cannot be located. 

Apparently a form of government identical to the 1844 stat- 

utory form was adopted. 

6. 1844 [mixed plan]: This statute consolidated a 

number of prior statutes. It provided that the City would 

 



  

be governed by a Mayor and seven-member Common Council, to 

be elected at-large, with a provision that one Common Council- 

man reside in (but not be elected from) each ward. There was 

also a Board of Aldermen, to consist of three members elected 

by the voters of each ward, or, a total of twenty-one alder- 

men. Ala. Acts No. (1844) (January 15, 1844). [Source: 

CODE OF MOBILE (1858)]. | 

7. 1866 [mixed]: The number of wards was increased 

from seven to eight, but the form of government was not 

changed, Ala, Acts No. (1866). 

8. 1868 [At-large]: This statute provided that the 

Governor was to appoint a Mayor, twenty-four aldermen, and 

eight Common Councilmen until their successors were elected. 

The statute did not limit appointments to geographic areas 

and was therefore apparently an at-large form. Ala. Acts 

So. © CWssAY. (p.4Y, 

9. 1868 [At-large]: This repealed the earlier 1868 

act. It provided that the Governor was to appoint twenty- 

four aldermen and eight common councilmen who would then 

assemble in convention and elect the Mayor. The statute 

explicitly provided that "under this act the Governor may 

appoint any inhabitant of the City of Mobile, without refer- 

ence to the ward in which he may reside." Ala. Acts No. 71 

(1868). 

10. 1870 [At-large]: This statute repealed the former 

act, declaring the former offices vacant. It provided that 

the Governor would appoint the Mayor, twenty-four aldermen, 

and eicht members of the Common Council, and also provided 
2 

that the Governor might appoint these officials without 

 



  

~1ii- 

reference to which ward the appointee resided in. Ala. Acts 

No. 97(1870). 

11. 1871 [no change]: This repealed section 3 of the 

1868 act, which appears to have been already repealed in any 

event. Ala. Acts No. 148 (1871). 

12, 1874 [At-large]: This statute provided that all 

of the City officials would be elected at-large, with a re- 

quirement that the aldermen and common councilmen must be 

residents of the wards for which[but not by which] they were 

elected. Ala. Acts No. 365 (1874). 

13. 1879 [At-large]: This statute abolished the City 

of Mobile, and provided that the Governor, with the advice 

and consent of the Senate, would appoint three commissioners 

to liquidate the City. Ala. Acts No. 307 (1879). The sor 

session of the Legislature [Ala. Acts No. 308 (1879)] incor- 

porated the "port of Mobile". The Port of Mobile was to be 

governed by eight commissioners elected at-large, one for 

each ward who must reside in that ward. The Commission 

would then elect a President. 

14. 1886 [At-large]: This statute, re-establishing 

Mobile as a city, provided a Mayor, a Board of Aldermen, and 

a Board of Councilmen, all of whom were elected at-large, 

[Id. at §12}, although one councilman had to reside in, but 

not be elected by, each ward. The Mayor, Board of Aldermen, 

and Board of Councilmen met together as "The Mayor and General 

Council", in which legislative power was vested. Ala. Acts 

No. 152 (1866). 

15. 1897 [At-largel: No change significant to this 

case; same form of government was retained. Ala. Acts No. 

214 (1897). 

 



  

-iv~ 

16. 1901 [At-large]: No change significant to this 

case; same form of government was retained. Ala. Acts No. 

1039 1/2 (1901). 

17. 1911 [At-large]: The Commission form of govern- 

ment was established in 1911, the at-large feature of which 

has been continually in effect. Ala. Acts No. 281 (1911). 

18. 1940 [specific duties]: This amendment provided 

that a Mayor would be elected specifically to that position, 

and a division of the administrative tasks was made by 

statute between the two associate commissioners, one of 

whom was assigned by the majority of them to each set of 

tasks, ALA.CODE, tit. 37, 895 (1940), 

19. 1945 [numbered posts, no apportionment]: In 1945, 

the apportionment of administrative tasks by statute was re-~ 

pealed, but numbered posts were initiated. Ala. Acts No. 

294 (1945), | 

20,195 [ specific duties]: Specific duties were 

  

assigned to specific commission posts, and a system of 

rotation of the mayoralty was established. Ala. Acts No. 

823 (1963). 

 



  

FILED IN CLERY'S OFFICE w 

STRICT OF ALABA 
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF 

. NORTHERN DISTRICT OF ALABAMA 

Southern Division JUN 11 1976 

VANDEGRIFT, CLERK 
AMES E. 

s TRICT COURT, " UNITED STATES DIS 

BY: 

REVEREND CHARLES H. NEVETT, -. 

: Plaintiff, 

) 

) 

~~, aL Yen, 0A 73. P=-520<8 

) 

LAWRENCE G. SIDES, et al., ) 

Defendants. ) 

. : 4 o MemorANDUM OF OPINION     

This court, under the mandate received June 10, 1976, 1s to 

Yeconsider its earlier decision in the light of the principles 

stated in the opinion of the Court of Appeals. Due to imminent 

deadlines for conplianie with election law procedures, oral 3 

argument was, with consent of the parties, immediately scheduled. 

© 

This memorandum supplements (and, to the extent inconsistent, 

supersedes) the earlier findings and conclusions of the court, 

o> 

The first task is to make specific findings with respect 

to the four principal factors outlined in Zimmer v. HceKedlfhen, 

485 F.2d 1297, 1305 (CA5 1973), as the criteria for determining 

"dilution®. 

{1) The plaintiffs, blacks residing in the City of 
Fairfield, have not demonstrated any lack of access to the 

brocess of siating candidates for clty elections; for in 
Fairfield there has been no such slating. Perhaps nor 
to the point, the evidence has not shown that blacks in 

recent years have been denied access to participation in 

any ‘parts or phases'of the election processes in Fairfield, 

€.8., Quallfying as candidates, campaigning, voting. 

-« 

(2) It has not been demonstrated that there has been 

unresponsiveness?” by city officials to the "particularized 

needs’ of blacks. This dis not, of courss, merely a question 

Of whether the city officials have listened to, and given 
: some. answer to, the special requests ol the black citizens 

. of ‘theicity, Noriis it a question of whether those officials 

have always complied with those requests. Rather, the 
standard involves an inquiry into whether the officials 

have reacted to those needs with sympathy and concern--such 
28 vould ho expoeied of persons holding a public trust for 

 



  

: all the citizenry of a community, who are ultimately account- 

able to all the voters at the next election. Vhile the 

evidence has shown that blacks have fared less well durlng : 

an all-white city administration than during a racially- 

mixed administration or than under the laws of chance, it has 

. not established "unresponsiveness" under this standard. In 

this respect, it should be noted that the inquiry is directed 

to "unresponsiveness", referring to a state, conditlon or 

quality of being unresponsive, and is not established by 

isolated acts of being unresponsive. 

  

(3) Under state law, cities of the size of Fairfield 

are permitted to divide the city into wards and to decide 

upon the number of such wards.. If more than seven wards are 

created, then each ward, by vote of the ward, will elect 2 

single member to the city council (with the president of the 

council, and perhaps other members being elected from the 

city at-large). If less than eight wards are Se then 

21] members of the council will be elected by at-la 

vote, with two members being resident of each ward. “In view 

of this optional dichotomy, it cannot be sald that there is 

a state policy favoring at-large or multi-member districvus 

for city council in preference to single-member ward-elected 

districts. (Proof that there is no such state policy should 

suffice to establish that any such state policy is “tenuous” * S
o
u
’
 

(4) The plaintiffs have not proved that past dis- 
-erimination precludes the effective participation by blacks 

in the election system. The discrimination made known tO 

the court pre-dated the elections in 1968, in which six of 
the 13 persons elected to the council were black. The { 

to elect any blacks to hiv thirteen member council in 1 

was not the result of past discrimination, but rather © 

consequence of (a) a AEA fo turn-out. 2 ‘higher perce 

of black voters than of .white voters, (b) bloc voting, and 

(c) at-large voting for numbered places. 

Next, the court is to make specific findings on the "enhancing p 

factors" outlined in Zimmer v. Ke iZh en, 4upra, 485 F.24 at 1305. 

(1) Since the past 
at large, the election 4i 

at least in a relative se 

it can be : 

elections have been from the city 

trict must be considered Ylarge®, 
se. The district is as large as 

(2) There 1s a Befonity vote requirement. Where, 
: “however, as. in the -1972 election, there are but two pecple 

running for virtually a1 positions, a majority vote require- 
ment is Tor practical purposes no different from a plurality 

vote requirement. 

(3) There is no anti- single ‘shot voting provision since 

candidates run for numbercd positions. The numbered position 
approach does have some of the same consequences however as an 

anti-single shot, multi-member race; because a cohesive 

minority 1s unable to concentrate its votes on a single can- 
didate. The numbered position approach does, however, ell- 
minate the problem caused when a minority group is unable to 

field enough candidates in antl-single shot , multi-member 
races. 

! nN
 { 

Av EP 

 



. 

wh 

r p 5 

  

(4) There 1s a provision, a requirement, that the 

at-large candldates for the city council (excepting the 

position of President) be residents of particular geogra- 

phical subdistricts. 

When this court cleaves its earlier decision, 1t 4ld so 

an the bellef that Ei Tuk ion” was established upon proof that 

(2) in a hm where blacks constituted a majority OF the voters 

in some of the districts but slightly less than 50% of the voters 

for the clty as a whole, (b) where voting rather strictly followed 

racial lines, (c) a "winner-take-all" election system by at-large 

voting for numbered places resulted in practice (da) in an all- 

white governing body, (e) whose declsions, though without indication 

of fraud or bad faith, quite understandably tended to reflect their 

own perspectives and the attitudes of those who elected them, to 

the relative detriment of the black minority, (f) including such 

matters as appointments to dbher Lenk and SuShlen Of the city. 

The court was of the view that such evidence demonstrated that the 
\ 

black plaintiffs "had less opportunity than did other residen cr
 

in 

the district to participate in the political processes and to elect 

legislators of thelr choice." White v. Regesten, 212 U.S. 7585, 

766 (1973). The court thought that the factors outlined in Zimmer 

vere $0 De taken as indicia of--but not necessarily the determinants 

of--"dilution". : : ne : 

The court now understands that its approach was in error and 

that "dilution" is to be defined as the "aggregate" of the factors 

outlined In Zimmer, bearing in mind that "all of these factors 

need not be proved in order to obitain relief." 485 ¥.2d4 at 1305. 

It appears that only one of the four primary factors--number (3)-- 

has been established by plaintiffs. Factors (1) and (4) have 

clearly not been proved. The evidence respecting factor (2) is 

nixed, but, using what the court believes to be the appropriate 

meaning of "unresponsiveness", thls factor has likewlse not been 

proved to the court's reasonable satisfaction. Ca 

 



  

Even when "enhanced" by two or possibly three of the Yaxtral 

factors, proof of factor.{(3) is insufficient “in the aggregate” 

under these criteria to establish a case-of “dilution.” According- 

. . ly, the court finds and concludes that there has not been proved an 

impermissible dilution of black votes under the existing Falrfleld 

system. It may be noted that there has been no evidence that the 

claimed "dilution" was the pesult of any invidious discriminatory 

purpose. Cf. Washington v. Davis, U.S. _ , 4h 1,.W. 4789 (June 

75.1576), | 

Judgment in favor of the defendants will be entered by © 

- 

separate order. 

=~ 
this the [/[ ~~ day of June, 1576. 

  

Lam 0 
  

i
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: 1 / 

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FILED IN CLERX’S OFFICE 

: MNORTHERN DISTRICT OF ALABAMA 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ALABAMA 

Southern Division UN 11 1976 

"REVEREND CHARLES H. NEVETT, ) JAMES E. VANDEGRIFT, CLERK 
UNITED STATES DISTRICT COURT 

ae Pleinbifs,: } py; 

-VS.- be -') No. CA 73~FP~529~8 

5 ) 

LAWRENCE. G. SIDES, et al., ) 

Defendants.) . : 

{y] 

ORDER 

Upon the findings and conclusions contained in the Memoran- 

dum of Opinion filed concurrently herewith (supplementing and 

superseding those previously dictated into the racord), it is 

hereby ORDERED that this cause be dismissed, ‘with prejudice, 

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costs taxed against the plainti 

( This the 7/4 doy of dune, 1575. 

ns 
United States District Fugen 

  

  

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NEVETT v. SIDES 4231 

Reverend Charles H. NEVETT et al., In- 

dividually, and on behalf of all others 
similarly situated, Plaintiffs-Appellees 
Cross Appellants, 

VY. 

Lawrence G. SIDES, Individually, and in 
his capacity as Mayor of Fairfield, Al- 

abama, et al, Defendants-Appellants 

Cross Appellees. 

No. 75-1864. 

United States Court of Appeals, 
Fifth Circuit. 

June 8, 1976. 

Black citizens brought action alleg- 
ing that state statute governing munici- 
pal elections in particular city operated 
to unconstitutionally dilute voting pow- 
er. The United States District Court for 
the Northern District of Alabama, at 

Birmingham, Sam C. Pointer, Jr., J., en- 

tered judgment from which all parties 
appealed. The Court of Appeals, Rives, 
Circuit Judge, held that to hold merely 
that an at-large election plan uninten- 
tionally “simply does act to inhibit and 
has inhibited voting strength” of blacks 
and that “in practice it has worked that 
way” is not enough; before court can 
devise a remedial plan, it must first have 
found a constitutional violation on the 
basis of findings of fact fitting the prop- 
er standards; and that if district court 

on remand properly found unconstitu- 
tional dilution, it should reconsider its 

addition of one at-large member to an 
otherwise single-member district plan, 

and should reconsider its denial of attor- 
ney’s fees to plaintiffs. 

Vacated and remanded. 

1. Constitutional Law &=215.3 

To hold merely that an at-large elec- 
tion plan unintentionally “simply does 
act to inhibit and has inhibited voting 
strength” of blacks and that “in practice 
it has worked that way” is not enough; 
before court can devise a remedial plan, 
it must first have found a constitutional 
violation on the basis of findings of fact 
fitting the proper standards. Voting 
Rights Act of 1965, § 2 et seq., 42 U.S. 
C.A. § 1973 et seq. 

2. Constitutional Law <=225.3(1) 

A successful constitutional attack on 
an at-large voting plan must be based on 
findings in a particular case that the 
plan in fact operates impermissibly to 
dilute a voting strength of an identifia- 
ble element of the voting population. 

3. Municipal Corporations <=80 

Unless the criteria developed by the 
Court of Appeals point in the aggregate 

-to dilution of the voting strength of an 
identifiable element of the voting popu- 
lation, i. e., if the criteria “don’t really 
help,” then plaintiffs have not met their 
burden in attack on at-large voting plan, 
and the cause must fail. 

4. Constitutional Law <=215.3 

Even where there is evidence of ra- 
cial bloc voting, the Constitution does 
not require that elections be arranged so 
that black voters elect at least some can- 
didates of their own choice regardless of 
their percentage turnout. 

5. Constitutional Law ¢=225.3(1) 

If district court properly finds con- 
stitutional dilution of voting strength of 
an identifiable element of voting popula- 
tion by at-large voting plan, it should 
reconsider its addition of one at-large 
member to an otherwise single-member 
district plan proposed by plaintiffs and 
adopted by the court. 

Synopses, Syllabi and Key Number Classification 
COPYRIGHT © 1976, by WEST PUBLISHING CO. 

The Synopses, Syllabi and Key Number Classifi- 

cation constitute no part of the opinion of the court. INDEXED 

  

  
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6. Federal 

2743 
If district court properly finds un- 

constitutional dilution of voting strength 
of an identifiable element of voting pop- 
ulation by at-large election plan, it 
should reconsider denial of attorney’s 
fees to plaintiffs in light of Voting 
Rights Act Amendments of 1975, and if 
fees are awarded on remand to the dis- 
trict court, they should be for all services 
of plaintiffs’ attorney, including his serv- 
ices on initial appeal. Voting Rights Act 
of 1965, § 14(e) as amended 42 U.S.C.A. 
§ 19731(e); 42 U.S.C.A. § 1983. 

Civil Procedure &=2731.6, 

Appeals from the United States Dis- 
trict Court for the Northern District of 
Alabama. 

I. Ala.Code tit. 37, § 426 (Supp.1973): 

“Election of president of council and alder 
men.—In cities having a population of 
twelve thousand or more, there shall be 
elected at each general municipal election 
the following officers, who shall compose 
the city council for such cities, and who 
shall hold office for four years and until 
their successors are elected and qualified, 
and who shall exercise the legislative func- 
tions of city government and any other pow- 
ers and duties which are or may be vested 
by law in the city council or its members: A 
president of the city council, and in cities 
having seven wards or less, two aldermen 
from each ward, to be elected by the quali- 
fied voters of the several wards voting sepa- 
rately in every ward: except in cities of less 
than twenty thousand population, in which 
two aldermen from each ward shall be elect- 
ed by the electors of the city at large; in 
cities having more than seven wards, one 
alderman from each ward, and a sufficient 
number of aldermen from the city at large to 
make the total number of aldermen fourteen 
exclusive of the president of the council; 
and in cities having fifty thousand popula- 
tion or more the city council may create not 
exceeding twenty wards. The president of 
the council shall have the right to vote on all 
questions the same as any other member of 
the council Provided however, that the City 
council of any city having a population of 

  

NEVETT v. SIDES 

Before RIVES, GOLDBERG and GER 
Circuit Judges. 

RIVES, Circuit Judge: 
Three black citizens who presently re. 

side in Fairfield, Alabama, brought this 
action on behalf of themselves and all other black citizens residing in Fairfield. 
The defendants are the City of Fairfield. a municipal corporation, the Mayor of 
Fairfield, the members of the Fairfield City Council, the City Clerk, and the 
State Attorney General. The plaintiffs 
charge that, as applied, the state statyte 
which governs municipal elections ip Fairfield! operates to unconstitutionally 
dilute voting power. 

After answers of the defendants, and 
further refinement of the issues by the 

twelve thousand or more may by ordinance 
or resolution, if adopted by two-thirds vote 
of the city council more than six months 
prior to any general municipal election, pro- 
vide that the city council of said city shall 
consist of five aldermen to be elected from 
the city at large. And provided further, that 
the city council of any city having a popula- 
tion of more than thirty thousand, according 
to the last or any subsequent federal decen- 
nial census, or according to any census of 
such city made pursuant to article 3 of chap- 
ter 10 of this title, or Act No. 845 of the Acts 

   

  
de 

ti 

a 

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ordinance or resolution adopted by two- 
thirds vote of the city council, at least six 
months prior to a general municipal election, 
provide that the city council shall consist of 
a president and five aldermen. If such an 
ordinance or resolution is adopted one alder- 
man shall reside in each of the respective 
wards of the city, the president and all the 
aldermen shall be ele 
the city at large, and t 
only in case of a tie.” (emphasis added) 
The complaint seeking declaratory and in- 
junctive relief was filed May 30, 1973. 
Without dispute, the population of Fairfield 
is between 12,000 and 20,000. For purposes 
of conducting municipal elections, the City is 
divided into six wards, each containing an 
approximately equal number of voters. Two 

  

y the voters of 

   

    

  

   



  

  

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pre-trial order, voluminous evidence was 
introduced. The evidence consisted of 
documents, testimony from witnesses, 
and interrogatories and answers thereto 

by the parties. After each of the two 
hearings was conducted, the district 
court dictated into the record the court’s 

findings of fact and conclusions of law. 

On February 20, 1975, after the con- 

clusion of the first hearing, the district 
court “Ordered and Adjudged that par- 
ties present a plan to the Court, by May 
1, 1975, consistent with the Court’s di- 
rections as dictated in the Court’s find- 
ings of fact and conclusions of law.” 

   

Pursuant to that order, six different 

plans were presented, four by the plain- 

tiffs and two by the defendants. The 

second hearing was on those plans, and 
the hearing concluded May 24, 1975. On 

June 6, 1975, the fistrie court entered 

its final judgment ¢ 

It. is ORDERED, ADJUDGED and 

DECREED as follows: 

fr... ¥ ct * 
s follows: 

1. The defendants’ motion for recon- 
Lal of the court’s order of Feb- 
ruary 20, 1975, requiring modification 
of the existing system of election of 
members o the City Council of the 
City of Fairfield, is hereby denied. 

2. Subject to possible modification 
under 3 conditions set forth in para- 
graph 3 below, the City of Fairfield, 
Alabama, beginning with the City 
Council elections of August, 1976, shall 
institute the following system of selec- 
tion of a nine-member City Council to 

replace the system currently in effect 

council members residing in each ward are 

elected at-large by the voters. The Mayor of 

Fairfield whose duties and functions are out- 

lined by state law, is also elected by the 

voters of the City as a whole. In addition, 

there is a president of the city council elect- 

  

NEVETT wv. 

  

SIDES 4233 

pursuant to Title 
bama Code: 

37, § 426 of the Ala- 

(a) Eight members of the council 
shall be elected from single member 
districts whose boundaries shall fol- 
low the outline of districts sub- 

mitted by the plaintiffs in their plan 
for eight districts, each member to 
be elected solely by the voters of his 

or her respective district. 

(b) A city council president, having 
the powers and duties specified by 
the laws of the State of Alabama, 
shall be elected at large by the vot- 
ers of the City of Fairfield 

3. In the event there is conducted an 
official special census of the City of 

Fairfield, the City Council may within 
two months after the completion of 
the special census, but not later than 
May 1, 1976, request modification of 
the system of election set forth above, 
in which event the parties may submit 
to the court new proposals for the se- 
Yr Ad aww at Dye rere Fai mes gal ; i VE 
lection © embers of the city council 

+ 
ju i 

  

ele 

at aay rd from districts apportioned according to 
the results of the special census. 

4. There 
lay, this ju 

ing no just reason for de- 

ent shall constitute a 
   

final judgment in this case, though the 
court retains jurisdiction of the case 

for the limited purpose of possible fu- 
ture reconsideration of this judgment 
under the conditions specified above. 

5. Costs are hereby taxed against the 
defendants. Plaintiff's motion for 

award of attorney’s fees is denied. 

Done this the 6th day of June, 1975. 

ed by the City voters at-large. The legisla- 

tive Powers ang i 

vested in 

   
      

   

unctions are 

1 has a total 

s, the twelve 

rearing council piv 

of the City Coun 

      

  

       



    

4234 

Sam C. Pointer, Jr. 
UNITED STATES 

DISTRICT JUDGE 

The defendants filed a notice of appeal 
from each of the orders and judgments; 
the first entered on February 20, 1975, 
and the second on June 6, 1975. The 

plaintiffs moved for reconsideration of 
the district court’s denial of their motion 
for award of attorney’s fees, and on 
June 20, 1975, the district court refused 

to reconsider and again denied plaintiffs’ 
motion for attorney’s fees. The plain- 
tiffs filed notices of appeal from the or- 
der of June 9, 1975, and from the order 

of June 20, 1975. 

The relevant fact findings were either 

  

intermingled with or preceded Judge 
Pointer’s conclusions of law. None of 

the findings of fact, considered separate- 
ly from the intermingled conclusions of 
law, can be set aside as clearly errone- 

52(a) F.R.Civ.P. We attach 
this opinion the findings of fact and 

conclusions of law made a or 4 the hear- 
ing which concluded February 20, 1975, 
as Appendix A, and those which conclud- 
ed after the hearing of May 24, 1975, as 
Ap B. 

ous. Rule 

The appeals and cross appeals of the 
parties cat for this court’s disposi- 
tion the following issues: (1) Did the 
district court err in deciding that the 
Fairfield City Council was malapportion- 

ed? (2) Did the district court err in re- 
jecting the two plans presented by the 
defendants or in accepting one of the 
plans presented by the plaintiffs? (3) 
Did the district one 
at-large member to the intiffs’ sug- 

gested single-member plan? (4) Did the 
district court err in refusing to grant 
plaintiffs an award of 

pl 

court err "in adding 

pla 
9 

5 
we 

attorney’s fees? 

but without approval of 

views expressed by the 

School 

2. Affirmed 

the constitutional 

2arish Court of Appeals” East Carroll I 

NEVETT v. SIDES 

We vacate the judgments and remand 

the case for further proceedings not in. 

consistent with this opinion as more spe. 
cifically outlined in the concluding pars. 
graph. jis 

In Zimmer v. McKeithen, 485 F 94 
1297 (5th Cir. 1973) (en banc)? after 
recognizing that multi-member district 

ing schemes are not per se Beans 

tional, id. at 1304, we stated t hat 

there is no claim of a racially 

gerrymander, plaintiff has the burden of 
proving that a plan operates to 
the voting strength of racial elements ip 

the population in order to establish the 

existence of a constitutionally impermis- 
sible redistricting plan, and we outlined 
the factors that prove dilution: 

when 

Rotini 

xi 
aiute 

[Where a minority can Somaptaaie a 

lack of access to the process of sl 
candidates, 
legislato 
ests, 

the preference 
at-large districting, or that the exist- 
ence of past « jsorimination in al 
precludes the effective participation in 

ystem, a 

Such proof, 

Fy
 

7”
 

the unresponsiv €ness o 

rs to their particularized inter- 
a tenuous state policy 

for multi-me 

underl ny 

mber Or 

  

Pp 
gL 

1 
i 

    

  

Strong case 18 

1S enh al unced by a 

  

vote vouiile ements, 
i majority 

   shot voting provisions and 

oi provision for at 

ites running from part 1551511 

3 +4 - " N m fo *» 7 3 Ai. listricts. The fact of di 

1 - -large can- 
teria 
Ictiiial rE=- 

L 

graphical sub 

iIstencs an aggregate of these fac- 
ele] < 

forg.: Co os TAH 
need not be proved 
relief. 

Id. at 1305. See also Wallace 

515 I'.2d 619, 623 (bth Cir. 1975) vacates 

) ] and remanded or 

  

v. Marshall, = 1.8, 98 §.Ct. 1083, 4 

L.Ed.2d 296 (1976) 

      

   

   



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U.S. ———, 96 S.Ct. 1721, 48 L.Ed.2d — 
(1976) (per curiam). As indicated in Ap- 
pendices A and B to this opinion the 
district court made several findings of 
fact ® and then treated each of the stan- 
dards prescribed in Zimmer, finding that 
the political process is relatively open 
now, though not in the past? 

Having dutifully followed Zimmer, the 
trial court concluded as follows: 

“The Court finally ends up with the 
proposition that the various standards 

and indicia that have been prescribed 
by the appellate courts are not helpful 

.one way or the other in this case. 

And it ends up with this Court having 
to decide under the basic standards, 

does the present system, regardless of 
purpose, operate to minimize or cancel 
the voting strength of the blacks in 
the City of Fairfield. After belabor- 
ing, as 1 feel I must under these deci- 

sions with the principles that are in- 
volved and finding that they don’t re- 
ally help, I come to that question, 
which 1s the one I started off with, 

and I rule in favor of the plaintiffs. 

I believe that this plan [though not 
by Fairfield’s Setant PE ER Ty 
ply does operate to inhibit and has in- 
hibited the voting strength. 15 . 

It is possible and has been that at 

3. The court determined that blacks represen 

489, of the population in Fairfield and have at 

least 509; of the registered voters—while the 

figures show that blacks have 500 fewer regis- 

tered voters, the lower court found that since 

federal registrars registered 585 voters under 

the Voting Rights Act, most of those presuma- 

bly black, blacks have at least as many, if not 

more, registered voters now; that blacks had 

won six of the thirteen council positions in 

1968, which was the first time, with one ex- 

ception, that any black had wom a position on 

the council; that no blacks won in 1972, but 

that if blacks had voted in the same percent- 

age as whites, they would have elected nine 

council members (assuming bloc voting); and o/h» 

      

NEVETT v. 

  

SIDES 4235 

some particular election that could be 
reversed, but in practice it has worke 
that way, and as I view what the Su- 

preme Court has said, that means the 
system 1s due to be changed. is 

  

[1-6] While we sympathize with the 

trial court’s dilemma in light of its in- 
conclusive findings, we cannot affirm 
the ultimate conclusion of a dilution 
without findings of fact to fit proper 
standards. To hold merely that the plan 
unintentionally “simply does act to inhib- 
t and has inhibited voting strength” and 
that “in practice it has worked that 
way” is not enough. Before a court can 
devise a remedial plan, it must first have 
found a constitutional violation. As the 
Supreme Court said in Dallas County v. 
Reese, 421 U.S. 471, 95 S.Ct. 1708, 1708, 
44 1.Ed.2d 312, 315 (1975): 

[A] successful attack raising such a 
constitutional question must be based 
on findings in a particular case he at a 
plan in fact operates impermissibly to 

dilute the voting strength of an Sent 
fiable element of the voting popula- 
tion 

Such findings must be based on the cri- 

teria that the Zimmer and Wallace 

courts dist rom White v. Regester 

  

LS f 

412 11.8. 765-767, 93 S.Ct. 2332 

72 that there has been substantial bloc voting. 

The foregoing is paraphrased from the Ap- 
kl 

pendices. 

   

   
   

4. The court said: sible for blacks to 

prevail under the existing system. But 

that has not bee 

tion.”; the 

that there has! ) 

past, but that parently there has been none 

in recent years; that the political process has 

been far more resp 

the city council, but not totally unresponsive 

when blacks were not represented. The fore- 

going is paraphrased from the Appendices. 

it with one excep- 

court further concluded 

racial discrimination in the 

onsive when blacks were on o
 

  

   

  

  

  

   

     



    

423 

2339-2340, 37 L.Ed.2d 
(1973) and in accordance with all later 
cases. Unless those criteria in the 
aggregate point to dilution, i e, if the 
criteria “don’t really help”, then plain- 
tiffs have not met their burden, and 

their cause must fail. Specifically, the 
trial court’s findings may be read as in- 
dicating that elections must be somehow 
so arranged—at any rate where there is 
evidence of racial bloc voting-—-that 
black voters elect at least some candi- 

. dates of their choice regardless of their 
percentage turnout. This is not what 
the constitution requires. Therefore, we 

remand to the district court to reconsider 
its findings according to the indicia of 
dilution stated in Zimmer and other 
cases and to redetermine the ultimate 
question of dilution vel non in light of 
its conclusions with respect to these cri- 
teria? If fees are awarded by the dis- 
trict court on remand they should be for 
all of the services of plaintiffs’ attorney, 
including his services on the present ap- 

314, 324-325 

Costs of appeal are taxed against the 
defendants-appellants. The mandate of 

5. If the district court on remand properly finds 

unconstitutional dilution, then the district 

court should reconsider its addition of one at- 

larce member to an otherwise single-member 

district plan in light of the intervening Su- 

preme Court decision in East Carroll Parish 

School Bd. v. Marshall, —— U.S. ——, 96 S.Ct. 

1083, 47 L.Ed.2d 296 (1976) (per curiam), aff’g 

Zimmer v. McKeithen, 485 F.2d 1297 (1973) 

(en banc), which reaffirmed the rule that when 

district courts must fashion a reapportionment 

plan to replace state legislation found constitu- 

tionally infirm, it should adopt a single-mem- 

ber-district arrangement unless there are “spe- 

cial circumstances.” Id. — U.S. at ——, 96 

S.Ct. at 1085, at 299. See also Wallace v. 

House, U.S. == 96 S.Ct, 1721, 47 

L.Ed.2d 296, 44 U.S.L.W. 3607 (1976) (granting 

certiorari from our decision, 515 F.2d 619 (5th 

Cir. 1975) which fashioned a “mixed” plan 

with one of five aldermen elected at-large) va- 

NEVETT v. SIDES 

this court shall issue forthwith. pw 
A.P. Rule 41(a). 5 

VACATED AND REMANDED. 

APPENDIX A 

THE COURT: 

The Court at this time will enter find, = 

ings of fact and conclusions of law based 

on the evidence that has been presented 

in this case. 

This evidence consists of testimoae 

from witnesses, interrogatories and ag SAA ET 

swers thereto filed by the parties, ard 

certain documentary evidence in addi 

tion. 

The case is brought into court under 
the provision of Title 28 for jurisdict 
al purposes, and Title 42, Section 193% 
for purposes of the cause of action. ’ 
charge essentially is that the defendants, 
acting under color of law, have deprived 
or are depriving certain citizens, namely 
the plaintiffs, or rights and privileges 
inder the Constitution of the Unite 
States. There is no doubt but that 

defendants in 

        

what they are doing 

cating the judgment, and remanding for re 

sideration in light of East Carroll; 

United States, — U.S. ——, —— = ——, 

L.Ed.2d 2986, 639-40 (1976). 

tion, the lower court should also reconsider 5 

lenial of attorney’s fees in light of section #& 

of the Voting Rights Act amendments of I 

P.L. 94-73, which adds a new section l4{(&} 18 

Voting Rights Act, 42 U.S.C. § 1973I(e) 124 

gives the district court discretion to autho: 

recovery of attorney's fees by prevailing 

in any action to enforce voting rights cr 

by the fourteenth and fifteenth amendmen: 

For the statute’s application to reapporucs 

ment suits under 42 U.S.C. § 1983 (1970), 

121 Cong.Rec. 4735 (daily ed. 2 

   

  

os 

If it finds dis 

  

      

   

    

June. 2, 

(remarks of Congressman Drinan); id. at iat 

(remarks of Congressman Edwards): S.Re3 

No0.94-295, 94th Cong. 

U.S.Code Cong. & 

1st Sess. 40 (1933 

Admin. News. 1975, p. ¢¢5 

         



  

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APPENDIX A—Continued 
and about the election process are acting 
under color of law. Indeed they are act- 
ing as directed by state law, and they do 
not deny that. 

The City of Fairfield is a municipal 

corporation which falls in the classifica- 
tion of between twelve thousand and 
twenty thousand population. Its legisla- 
tive powers and functions are vested by 
law in a city council. The city council 

has plenary power over a variety of ac- 
tivities, including the raising and spend- 
ing of funds generally, the passage and 

enactment of ordinance, including im- 

provement ordinances, the awarding of 
or approval of certain contracts for im- 
provement, the appointment of a number 

of boards and agencies of the city, and 
indeed the selection of certain persons to 
simply be employees of the city on sub- 
mission or of recommendation from the 
Personnel Board of Jefferson County. 
Under the state law which goes back to 
1909, the city of the size of Fairfield is 
directed to elect its councilmen or per- 
haps the terminology would be council 
persons which I will reject insofar as this 
opinion is concerned—to elect those by 
voting at large 

Depending upon the number of coun- 
cilmen to he elected, the law permits or 
directs that they have residency require- 
ments according to wards that are 
drawn up or that they be elected at 
large without regard to particular resi- 
dences within the city. Fairfield within 
the statute has elected to have six 
wards, and under this provision of law 
this means that there are two council- 
men to be elected with respect to each of 
the six wards, though they are elected 
by the city as a whole. In addition, 
there is a president of the council ele cted 
by the city at large without regard to 

within the city. And there is a 
mayor whose duties and functions of 

residency 

NEVETT v. SIDES 4237 

course are outlined in state law. Some 
of the remarks I made about the powers 
and functions of the city council are, of 

course, subject to certain companion 

rights and duties that are given to the 
mayor by state la WwW 

The City of Fairfield is not that dif- 
ferent from many other cities in the 
State of Alabama, at least in the sense 

that until quite recently blacks were not 
elected to public office within that city 
and shared very little of the decision- 
making processes of the city. Apparent- 
ly until 1964 there were no blacks ap- 

pointed to the city boards and agencies 
of Fairfield, but there have since that 
time been appointments of black men 

and women to various ali of lead- 
ership within the city. Until 1968 no 

hioek, howerey) had been elected to a 

   

ge 
Fairfield. 

  

In 1967 bl 

office, one 

being for the 

ard to resic dency, 

f president of the 
city council, and the other six running 

  

for ward positions. All six of those who 

ran for ward it] re elected by 
the voters at | The council 
then from 1963 into 1972 was comprised 

1. Els Ea 200 
ana six ble 1eKs. 

    

In 1972 there were again blacks and 
whites quali 

  

ing to run for office for 
the city off A larger number of 
blacks qualified than had in 1968. Few- 

er whites, 1 bel lified to run in 
1972, no doubt as at least in part the 
consequence of i 
tize or split the whit 

   
(1114 

   

  

geil 
. : +h 1 and I think 

perhaps only in one instance was there a 
vote for a n from a ward in 

which there was more than one white in 

  

1 

] rioinal race nl fam a hlaclk the original race and facing a black. In 
the ’72 election 

elected. And since 

1 }- r 
the blacks were 

then we have a 

  

situation that there is a city council of 

    

               



  
   

4238 

APPENDIX A—Continued 
thirteen whites and no blacks 

white mayor. 
and a 

The thing that may make the case a 
little but unusual is the relatively high 
proportion of blacks with respect to pop- 
ulation in the city. In the 1950 or 1960 
census, perhaps both, blacks constituted 
a majority by a very slim margin of the 
population of the City of Fairfield. In 
the 1970 census, black constituted ap- 
proximately 48 percent of the population 
of the City of Fairfield. Well, the Court 
does not have information as to the per- 
centage of registered voters which were 
black back in the 1950’s or even earlier. 

The Court has been provided by evi- 
dence with information about the num- 
ber of blacks or percentages of blacks on 
the registration lists in the City of Fair- 
field for the past seven years or so. It 
appears that at least by 1968 there were 
or there was as high a percentage of 
blacks who were registered as voters 
within the City of Fairfield as there was 

‘of whites. Indeed the evidence present- 
ed by the Do indicated that blacks 
in the year 1968 constituted a higher 
percentage of registered voters within 
the City of Fairfield than they did a 
percentage of population within the City 
of Fairfield. This assumes for the type 
of calculation that the population ratio 
in ’68 was approximately that which was 
reflected in the census information of 
1970, and also assumes that of the 883 

persons who were enrolled under the 
Federal Registration Voters Procedure, 
virtually all of those were black. The 
registration of blacks as voters has con- 
tinued to be relatively high, at least, or I 

should say, relatively at the same rate as 
the registration of whites in comparison 
with population. I should again empha- 
size this is only speaking to what the 
situation has been over the last seven 
years. The Court is not If 

  < 

blinding itself 
fe 

NEVETT v. SIDES 

to the likelihood that fifteen yenrq .. 
or at some point blacks were qualifie Ph 
vote at a much lower percentage th. 
were whites. And indeed there has pe 
evidence of that presented. 

The voting in the 1968 and 1970 al 
tions has been presented to Court by : 
series of exhibits. The Court has sub 
jected those to some scrutiny and studs 
It particularly has made comparisons he 
tween the votes received by various eas. 
didates in various wards and the DOD ie 
tion within those wards, and particular 
the racial composition of the ; 
within those wards. The statistics make 
clear what has been implicit in the testi 

  

Citizens 

mony, namely, that in the years loss 
and 1972, race has been a major factor 
in aT ng the way people voted 
within the City of Fairfield at city e 
tions. And there is a very 
correlation between in effect the race of 
voters and the persons for whom those 
votes were cast or 

these past two elections. 

   very 

Le Fav 1S have been cast 

The Court has also 
determine for purposes of 

population is, and the racial 

) 
hiv A 
Cli 

what the s 

composition is in the various wards {4 

based on 1970 census. 

As pointed out by the plaintiffs in the 
presentation, there are difficulties be 

cause there are 
cross ward lines, 

wards, namely, 

fact that there are census blocks 
ward 

has dore is to take the minimum popula- 
tion figures, that is, those 
are totally within a 

used that as a starting point, als 
determin i 

turn he 

are not covered by an allocation 
on hese wards totally or these 
totally within wards. I then have appr 

: 1 bl 
S1X census blocks tha 

but one of the 

vard 2 is affected by the 

and all 

1 $1 . a i \ 
lines. wnat the ( 

  

cross the 

blocks that 

particular ward, 

  

ig re ros 

ed the number of citizens 
1 " 2431 tna black citizens thal 

based 

  

, 
number of 

   

    

    

         



  

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APPENDIX A-—Continued 
tioned those so-called excess persons, ex- 
cess only from a statistical standpoint 
obviously, among the five wards where 
there are overlaps, that each of those 
five wards wards has a possible differ- 
ence between minimum and maximum 

I have done the same thing 
with respect to the number of blacks by 
wards. The figures I come out with are 
that Ward 1 has a projected population 
as of 1970 census of 1859 persons of 
whom 69.77 percent are black, namely, 
1297. Ward No. 2 has 1912 persons pop- 

ulation in 1970, of whom 88.39 percent or 
1690 are black. Ward No. 3 has 1365 
persons of whom 52.75 percent or 720 

are black. Ward No. 4 has 2590 persons 
population of whom 59.27 percent or 

1535 are black. Ward 5 has 3501 persons 
in- the 1970 population of whom 47.84 
percent or 1675 are black. And ward 
Number 6 has 3142 persons of the 1970 
population of which 0.10 or 3 persons are 

population. 

The deviation in population between 
the several wards is to be done by com- 

the optimum of what the popula- 
tion of the wards would be if they were 
divided on a numerical basis and then 
seeing how each ward stands as a per- 

centage of that optimum. If that caleu- 
lation is done, it appears that Ward No. 
3 is only 56.99 percent of the optimum 
size, while ward No. 5 is 146.18 percent 

of optimum size, and ward No. 6 is 131.- 
19 percent of optimum size. This fur- 
ther means that there is a- maximum 
deviation by percentage point between 
the smallest and the largest of the wards 
of 89.19 percent. That also means that 
the treat ward by population size is 
2.56 times as large as the smallest. 

Hitt ino 
puiing 

  

I, after having made the calculations, 

I'm not sure that they are that signifi- 
cant in the total context of this case. If 

this were a case in which the residents 

NEVETT v. 

  

SIDES 4239 

of Ward 5 and Ward 6 were coming be- 

fore this Court saying that they were 
adversely affected or having their vote 
diluted by reason of the ward arrange- 
ments, os would have a much stronger 
case under Reese v. Dallas County, Ala- 

bama, on standards enunciated by the 

Fifth Circuit in December of last year in 
that case. That case really involved a 
situation where the identifiable group 
was totally confined within a single 
ward or division, and though it repre- 
sented approximately 50 percent of the 
vote in the population or total popula- 
tion, it could only elect 25 per cent of 
the representatives. In this case the 
identifiable groups that the Court is in 
essence being asked to look at are whites 
and blacks; and they are not confined to 

one or two wards, but indeed are spread 
throughout the wards, though of course 
rarying as I have indicated already in 
terms of the different wards. 

mi. 
10e 

White 

Court 
de gion or of 

>s Supreme Court in 

has indicated for this 

Jon of election by 

erates to dilute or 

    

cancel the voting stre avarth of a racial or 

political group, then under the Constitu- 
tion of the United States, Fourteenth 

Amendment, it is in doubt 

here have been a series 

throughout the cou niry and many in the 

So sathonstery United ¢ 

att er mpted in the 
xxrid 3 

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gk 

+
 

a jay
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dn
 

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a jo
 

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st two years to ot 

ement by the United 

The Fifth Cir- 

8 in" Zimmer v. 

St: tates Sails me Co urt 

cuit Court of Appea 

McKeithen, has given the standards for 
this Court to apply to the pronounce- 

ment of the Supreme Court. And this 

    

  

decision by the Fifth Circuit has in turn 
been applied to a situation for the City 
of Dothan, Alabama, in February of last 

year In the case 2) Yelverton v. Driggers 
[M.D.Ala.1974, 370 F.Supp. 612 

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4240 NEVETT v. SIDES 

APPENDIX A-—Continued 
The principal issue for the Court to 

decide is, does the plan, though required 
by the state legislature, does it operate 
to minimize or cancel the voting 
strength of blacks in the City of Fair- 
field. It is not for this purpose critical 
to say that it was intentionally designed 
for that purpose. Blacks who bring this 
suit need not prove that. The question 
is whether it operates to do that. The 
question is not whether some political 
group or scientist thinks that individual 
districts rather than at large multi-mem- 
bered districts are better and in part 
counsel for plaintiffs argument suggest- 
ed that approach. That is not enough, 
though certainly the Supreme Court has 
indicated that if a Court is to replace or 
order some new plan, then there must be 
unusual circumstances for not ordering 
one that is based upon individual single 
districts. 

Four standards or indicia have been 
set forth as guidelines, if you will, in 
making or assisting the Court in arriving 
at a decision. One is the question of 
whether the existing system has resulted 
in a lack of openness to the political 
process by the complaining group, here 
blacks in the City of Fairfield. The 

Court has heard mixed evidence on that 
point. It is clear that blacks have pre- 
vailed in six or seven races which they 
entered in 1968 under this very system. 
It also seems probably that had more 

blacks qualified for ward positions in 
1968, there would have been a majority 
of blacks elected to the city council. On 
the other hand, it is clear that with that 

one exception, all other election years 
under this system for variety of reasons 
has meant that blacks did not attain rep- 
resentation in the form of another black 
being elected to the city council. What 
the Court is left with then on this partic- 
ular point, and I so conclude, is that it is 

  

possible for blacks to prevail 
existing system. But it is alse tm 
that has not been the result 
exception. 

I should mention that Wit nese 

I Relp 

Wild 
+3, 

think, have heen quite candid, the 
that was asked, in saying that there oe 
no difficulty in qualifying to run # 
city council. It was essentially fm ai 
candidate’s standpoint a matter of mi 
ting out the vote, of getting r 10a § 

than the opponent or Opponents 
There is clear evidence that thers & 
polarization of votes by those whe 
vote in the City of Fairfield on ¢ 
tions. It is clear that enough [Opi 
not vote who were qualified to vy 
have elected nine out of twelve 
candidates in 1972 of their OWN rus 
black, if they could have been 
aged and helped or assisted to vote. 
also clear that there is some hesitanes i 
expressed by one of the witnesses, jres 
ficiently encouraging blacks to 
themselves in the electoral 
cause of some prior difficulty, particule 
ly in terms of difficulties of registra: 

' 
4 

3 

3 i 

5 

ery 

¥ 

" 

Suan, 

  

OCHRE 

  

- ay 

HA 

    

vole: 

The Court is given a second indicia 
factor for this Court to determine. 
1a 1 hictaryr ££ alie liar: RTT 18, tne history of radial discrimination 

1 . . . have already indicated that until 
there were no blacks on th 
boards of the city. The 
during 

e 

fact 

on the city council, of almost fifty 
cent there were a series of 
pointed to various boards and 
1 

Y 

Id of having blacks on 
council. It also makes some 

rendering of the prior situation in wh= 
anise TIRE 1% on Bayi? * a 

blacks essentially did not serve on 

boards. Only on one occasion 
been a black majority on any 
agency of the city, and that 

3 
2] 

  

a8 

68 to 72 when there were hist 

             



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NEVETT v. SIDES 4241 

APPENDIX A-—Continued 
the financing arrangement for a black or 
predominantly black college. It was sig- 
nificant to the Court that in describing 
the method for appointment or for re- 
placement of persons 4 terms ex- 
pired on various boards over the last sev- 
eral years, one of the witnesses identi- 
fied the positions being vacated and the 

questions of who would be reappointed 
in terms of there being a white vacancy 
or a black vacancy, indicating some con- 

scious characterization by city officials to 

the effect that boards would not become 
majority dominated by blacks, but only 
minority. There is little evidence that 
has been presented to this Court on as to 
history of racial discrimination, and little 
evidence presented by the defendants as 

to tack of racial discrimination. 

I suppose the Court is being baked to 
take judicial knowledge or notice of a lot 

of thing Certainly the Court isn’t 
blind to things that have happened: in 
Jefferson County or in Fairfield or in 

Alal yama. 1 do not think, however, that 

ppropriate to belabor 
notice in this area. It is certain- 

dence shows that 

—t
 questions” of 

Judicial 
ly true, and the evi 
there have been disparities in employ- 
ment of blacks within the City of Par: 
field, black policemen, black firemer 
blacks in civil service type jobs or classi- 

fied service, where only three out of 
some sixty are black. Only one on occa- 

Two out of some twenty police- 
men have hoon black, pny none of the 

{irc 1 have 
evidence i d 
Court’s t 
some discerim 

sions. 

een bla 

cmonstrates to the 

tha ther 2 

WA in times 

satisfaction 

ination 

past. Of course there 

the city has brought out about some of 

are problems that 

its ‘hiring policies, and many of them are 
E 1 pv very dependent upon what some other 

rent, namely, civil service, may do. 
4 

I; VR ghey oq ’ > 
Evidence 1ndaicated oniy in one instance 

has there been a black on the qualifica- 
tion list who has been passed over in 
recent years in favor of a white 

There is much of the evidence that has 
been focused here on whether or not 
Fairfield has been responsive to the 
needs of the black community. And I 
find it very difficult to deal with this 
subject matter, though the courts have 
sald to me, that is, the appellate courts 
have said, this is a key factor in deciding 
this kind of question. I think it is clear 
that blacks have gotten far more respon- 

siveness from city council when there 
were blacks on the city counsel. It’s also 

clear that when there were blacks on the 
city council, they were more effective in 
perhaps persuading whites to join them 
in getting blacks on other city boards. 
And that way there were blacks on other 

city boards, though in a minority such as 

wo out of five. They on occasions were 
successful in hay ving one whiz te join with 
them to cons on some 
particular issue or issues. 

Q C>
 

y—
 3 

~ @ — i Q be
t ? y, following this type of ap- 

proach, one can say that the lack of 

councilmen who are ba k certainly con- 
tributes to a lack of responsiveness to 

the needs of the blac vy community. But 

it 1s also true, and the evidence shows 

this, t hat blacks have not had the door 

tely Sloe in their faces insofar 
+h 

{ L 

complet 

as expressing their opinions at city coun- 

cil meetings, in seeking assistance, 

presentin g petiti ons, being heard, and on 
some being given 
amounts to private audioneey for the 

presentation of the ] 
the witnesses have not been 00 SR to 

1 1 
1 

 } Sc AAT OL at anys admit it, the Court has sensed that some 

en answers, 

oC casions 

    

of these requests have gott 

not to the same degree that the witness- 

es or that the black communities as a 

, but there has not been a whole wantec 

total responsiveness merely be- lack of 

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4242 NEVETT v. SIDES 

APPENDIX A—Continued 
cause there were no blacks on the city 
council. 

The state policy insofar as at large 
versus district voting is concerned is to 
this Court’s mind rather clear. There is 
a state policy, and has been for in excess 
of sixty years, against voting by smaller 
sub districts in those cities that were less 
than twenty thousand population. The 
policy seems clear to the Court that only 
if a city were larger than twenty thou- 
sand was there an opportunity to have 
district elections as such. What is not 
clear to the Court, and neither side has 

introduced evidence, is whether this ini- 

tial policy of the state legislature back in 
1909 was in any way grounded upon ra- 
cial consideration or not. Now other 
courts have found and taken judicial no- 
tice of the fact that the 1901 Constitu- 
tional Convention in the State of Ala- 

bama was almost prim: arity directed and 
related to questions of racial concern and 
of assuring or wh to insure that 

whites would be able to control the polit- 
ical processes in the state. Whether the 

Court can in any way assume that a 

1909 act passed by the legislature which 
is only eight years after a racially orient- 
ed Constitutional Convention has any re- 
lationship, I'm not sure. I think that a 
reasonable hypothesis is that this partic- 
ular matter dealing with at large elec- 
tions in cities of less than twenty thou- 
sand had no racial overtones, but there is 
no evidence really for the Court one way 
or the other. It would be pure guess- 
work as to what might have been the 
considerations for that passage. 

Finally, the Court has been told by a 

series of appellate decisions to look at a 

variety of additional factors such as the 
fact that people run for positions and 
hence there can be no single shot vote in 
a multi-member race that might be uti- 
lized by a minority to elect someone 

The Court finally ends up with 
proposition. that the various Standams, 

and indicia that have been presrib 
the appellate courts are not helpful 

way or the other in this case. And i 
ends up with this Court having to decide 
under the basic standards, does 1a 
present system, regardless of Purpose, 
operate to minimize or cancel t 
strength of the blacks in the ( : 
Fairfield. After helabering, as 1 feel} 

must under these decisions with the prin. 

ciples that are involved and finding thas 
they don’t really help, 1 come to ths: 
question, which is the one 1 started off 

with, and I rule in favor of the plain. 
ffs, 

wt Fe 
Ah 8% 

    

3%
 

I believe that this plan—and this is 
not that the City of Fairfield has inten 
tionally designed it; it came from the 
state legislature-—simply does operate 
inhibit and has inhibited the voting 
strength, which has been from 53 per 
cent to the present 48 per cent or 
in rate of 42 per cent, 
ly diminish that voting strength. It is 

possible and has been that at some par- 

ticular election that could be reversed, 
but in practice it has worked that way, 
and as I view what the Supreme Court 
has said, that means the system is due to 

be changed, is due to be changed giving 

the preference as the Supreme Court has 

directed to a Single member smaller dis 
trict which will be elected merely hy 8 is 
people of = particular district 
where the size of those particular 

tricts is consistent with the one-man-one- 
vote principle, which means pretty near- 

ly the same population in each of the 

districts. 

  

££ *¥ ty* 22 
LO eifectives 

  

{nere It is not clear to the Court that 

is a need for the Court to direct that 
there be thirteen or fourteen or six 

seven districts. I think the question 

how many wards would then be electing 

      

  

   



     i
g
s
”
 

APPENDIX A-—Continued 
groups is a matter to some degree of 
playing with what you have got, the size 
of areas and the population and configu- 
ration. Although the state statute com- 
prehends typically fourteen councilmen, 
it also comprehends, for example, a sys- 
tem of five councilmen in another way. 
And I'm not sure that in forms of for- 
mulating some plan to arry out the 
Court’s direction, the parties should nec- 
essarily be hound to fourteen districts. 

The question may arise as to whether 
there may be some councilmen elected 
by district, and then others elected at 
large. I would say that no more than 
one could be elected at large. Whether 
one can be elected at large or not is I 
think an open question, and I would be 
willing to see. I think that is the way 
we ought to handle it, depending on 
ii there is a request under a plan 
for there to be one such as council presi- 
dent to be elected at large. There hav e 
been some Hg re a variety of 
courts that have struck down a system, 
even where there are only two at large, 
and the rest are by smaller districts. 
The elections are due in August of 1976. 

There should be prese nted, I think, by 
the parties, and each party Ea ue as 

interest in this, a plan to accomplish 
direction of the Court. I would 

think that the plans should be presented 
by June 1st. I don’t want to put it off 
too long, but I think there should be 

¢quate amount of time to look at it 

YI }£ 

study it and perhaps to use the re- 
curces of different groups in the com- 
unity Ly as well as perhaps outside assist- 
¢. 1 think June 1st would be ade- 

‘uate and still leave plenty of time after 
for consideration and decision, if 

‘here is no agreement by the parties, 
I'still be able to have that in plenty of 

‘me prior August, 1976 election. to the 

NEVETT v. SIDE 

  

Perhaps there are questions by the 
parties that I should pause for. 

MR. BARNES: 

May it please the Court, the question 
naturally arises about questions on ap- 
peal from the Court’s decision today, and 
I'm in doubt whether this is a final judg- 
ment. 

THE COURT: 

This would not be a final decision. 
However, since that only deals with the 
next election, and does not in any way 
disenfranchise the present council, and 
there is nothing appealable immediately, 
it sought to ba appealable after a new 
plan is developed. For example, there 
could be an appeal from the Court’s re- 
quirement for a plan and for what the 
Court finally determines in direction of 
the plan, one appeal instead of two. We 
still have plenty of time, if we do it that 
way. It may be, since you mentioned it, 
we ought not to put it off until June 1st 
to present a plan. Would the parties 
feel that May 1st is adequate time in 
which to develop a plan consistent with 
the direction of the Court? 

Your Honor, we can have a plan ready 
fort the Court hy the first of May. 
THE COURT 

What will be the position of the de- 
fendants? 

MAYOR ¢ SIDI ES: 

1 think we can have it ready by May 
1st. 

THE COURT: 

Let’s push that date back then to May 
Ist as the time for submittir ng ne 
with suggested plan or plans. It’s possi 
ble there could be more than one that 
will be presented as an option. 

‘Ave there other questions by the par- 

  

     



              

4244 NEVETIT v. SIDES 

APPENDIX A—Continued 

MR. STILL: 

No, sir. 

THE COURT: 

Then the case will stand on this deci- 

sion, thoug h it does not constitute an 

appeal: wble judgment, that will have to 

await approval of a. plan so that tha 

will be appealable also. 

(Whereupon, proceedings were 

adjourned at 4:04 P.M., Febru- 

ary 20, 1975) 

END OF PROCEEDINGS 

APPENDIX B 

THE COURT: 

The Court will now indicate certain 

findings and conclusions. These are 

based upon the evidence that has been 

produced in this case today together 

with the plans that have been submitted 

and received by the Court from the par- 

ties prior to today. 

Additionally, the court, of course, has 

before it the matters that were produced 

and heard in evidence back in February, 

for what bearing such evidence may 

have on the adoption of an appropriate 

plan. 

The Court has already indicated that 

though it considered the matter close, it 

was adhering to its conclusion announced 

in February. Namely, that the existing 

plan for election of alderman unconstitu- 

tionally dilutes the voting rights of black 

citizens in the City of Fairfield. The 

Court in February indicated that there 

should, therefore, be presented appropri- 

ate plans to alter for future elections the 

election method for alderman for the 

City of Fairfield. It indic ated at that 

time that the basic approach should be 

through the creation of wards or election 

districts from which in the future per- 

sons would be elected solely by the vot- 
4 

ers residing in such districts. 

The Court in February indicated t 

in devising such district plans the pa 
should be aware that such "i 

would have to comply not merely with 

the problems of avoiding dilution of vot- 

ing rights by particular groups of citi- 

zens, but also avoiding running afoul of 

the so-called one man-one vote principles 

as announced and enforced by the Su- 

preme Court and other appellate courts. 

The Court has received six different 

plans, four by the plaintiffs and two by 

the defendants. The Court should adopt 

one of the plans proposed by the defend- 

ants, if possible. 

The Court finds that it is not possible 

to adopt either of the plans proposed at 

this point by the defendants. 

The Court’s. conclusion is that the 

plans as submitted run afoul of the one 

man-one vote requirement. The plans as 

submitted by the City Council—that 5 

the plan as submitted by the City Co 

cil utilizin the 1970 census Hourin ie 

      

and (b) those figures as adjusted by cer- 

tain proposed changes submitted here to- 

  

1 

day, nevertheless reflect that there is a 

deviation as 

points between the two districts as nav- 

ing the highest and lowest number of 

people in them, which insofar as the 1970 

census is concerned, reflects a vari ation 

of 62 percent. Even with credi 

justments suggested by the defendants 

2X (pressed in percentage 

  

SR 
iting atl 

=   
oflop 2 NOY OL xre 3 ex NL “NY 8 

reflect a 37 percent variance or span of 

deviation. 

Jl
 

The Mayor's plan, which has nol Deen 

  

   

elaborated upon in this 13 

morning is one that would ull [ive 

separate districts. It likewise has been 

evaluated in terms of the 1970 3 

and the 70 census as modified by ¢ in 

proposed adjustments. It wou 1d reflect 

viewed upon the 1970 census, 4 maxi- 

mum percentage deviation span of some 

    

 



     
      

          

APPENDIX B—Continued 
51 percent, or considering the proposed 

adjustments, a maximum deviation per- 

centage span of 27 percent. These per- 
centages are far beyond that which is 
acceptable under the one-man one-vote 

doctrine. At least that is so where there 

are not clear historical reasons for iden- 

tifying and eating the districts unique- 
ly, as might be the case for example, in 
recognizing that counties have certain 
unique qualities. These rather are sim- 
ply parts of cities which have no unique 
special governmental characteristics inso- 
far as wards are concerned. 

The fact that the deviation is unac- 
cepta ible 1s also supported by the facts 
that plaintiffs have indicated that that 

range of variation can be avoided by 
other configurations. 

The plaintiffs have come forward with 
four plans. The maximum variation un- 
der these four plans is less than three 
percent variation between the largest 
and smallest. That three percent is to 
be contrasted as to above twenty percent 
as reflected in the one plan submitted by 
the mayor, which has the least amount 
of deviation in any plan submitted by 
the defendants. 

= it is cert inly possible find ar- 
rangements that do not have the kind of 
variation as reflected in the defendants’ 
plans. 

The plaintiffs’ figures do not reflect 
changes since 1970 in population, If full 

credit be given to the evidence presented 
by the defendants today as to certain 
changes i population, it would indicate 
that there would be significant varia- 

n population under the plans sub- 

possible and proper in an appropriate 
case to consider changes in popiatien 

from a preceding census. 
such changes should only be consider ed 

. 
who 1 “7. eye SOO EO a y « > 3 where they are reasonably accurate and 

NY nes ] 
Neverthele 288, 

    

i 1 
mitted by the plaintiffs. I think it is 

] 
) i 

NEVETT v. SIDES 4245 

reliable in terms of indicating the 
present population or the population in 
some particular point in time. 

With all due respect for the witness, 
Mr. Ellison, I do not believe that the 
projections as to population changes 
from 1970 as suggested by his testimony 

are such as to be reasonably reliable 
There are simply too. many variables 
that have not been taken into account. 
Indeed, some matters that have been 
broug ght out suggest that there are infir- 
A by the approach developed by 
him in an attempt to find out what the 
present population is. 

As will be indicated in a few minutes, 
there may be a special census yet to be 
taken by the city. That special census 
may justify changes from any plan the 
Court, in effect, puts into effect now. 

I do not fault the defendants in any 
way for suggesting changes in popula-. > 

tion or for being unable to show results 
of a special census. I think all the par- 
ties were agreed, however, that it was 

desirable to go forward now with the 
adoption of some Trans plan so that 
that might be reviewed upon rp il, and 
that it was not wise to simply defer this 
type of proceeding until some fre after 
a special census might be obtained dur- 
ing the summer. 

{(ie8iras 

ec 

el 

I find that I cannot accept the plans 
suggested by the defendants. 

I turn my attention to whether the 
plans, one or more of them, by the plain- 
tiffs, should be at least tentatively man- 
dated by the Crint subject to San 
adjustments that I will talk about. 

I do find that these plans do meet the 
one-man one-vote test insofar as the 

1970 census is concerned. Though, it 

might turn out hat they would not, 

were a special census to be taken. 

  

  
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4246 
NEVETT v. SIDES 

APPENDIX B—Continued 

In looking at the several plans that 

the plaintiffs have suggested, the court 

has attempted to follow certain sugges- 

tions that, in effect, both sides seem to 

present. One is that the total voting 

members on the Council should be an 

odd number so as to minimize chances of 

ties. Another is that it is probably pre- 

ferable to have the number of districts 

of something less than ten, for example. 

Even though this would reduce the num- 

ber of Council members, this seems to 

me to be rather implicit in certain of the 

matters that the plaintiffs have suggest- 

ed as well as being implicit in what the 

defendants have suggested. 

The Court has been troubled in that it 

did not want to be involved in mandat- 

ing if it could be avoided, a significant 

reduction in the number of elected alder- 

men contrary to the wishes of the people 

of Fairfield. There is a Supreme Court 

decision involving changes or reappor- 

tionment of a state legislature in Minne- 

sota that, in effect, indicated drastic or 

significant reduction in size of an elected 

body should not be mandated by the 

court under the guise of reapportion- 

ment if there were other alternatives 

available, That was Minnesota State 

Senate versus Bean. 

In this particular case, however, the 

State law leaves open to the individual 

cities a fair amount of freedom in deter- 

mining the size of its city council. It. 

would appear that probably the State 

law is broad and flexible enough to per- 

mit a city to choose to have a city coun- 

cil composed of four, six, eight, nine, ten, 

eleven, twelve, thirteen, or fourteen 

members plus a council president. 

The city council and the mayor, by 

responding to the Court’s request for a 

plan here, by suggesting five or six dis- 

trict plans, have indicated, as I view it, 

to the Court, that if there is to be a 

district type election that they would 

prefer not to have, for example, twelve 

districts, even though they recognized, 

according to the council president, that it 

would be easy enough under their own 

plan to simply subdivide their six pro- 

posed districts, and to come up with a 

twelve district plan. They have chosen 

not to do so. So, I take it that there is 

no policy, from the standpoint of the 

defendants, to suggest that a large coun- 

cil, that is, something in excess of ten, be 

established through a large number of 

districts. 

Accordingly, I do not feel that the 

Court is restricted in this particular case 

from adopting or approving a plan with 

something less than twelve distriets, 

even though that would mean a reduc- 

tion in the total number of aldermen on 

the City Council. 1 take it that is, In 

effect, the preference if there is going to 

be a district plan, that there be some 

reduction. 

One of the principal problems is 

whether or not there should be any at 

large elections, that is, other than mayor. 

I believe ti g 

facts of this case, an at large election of 

a president of the City Council. Under 

Alabama law, the president of the city 

council does have some unique powers 

+1 

at there should be, given the 

  

   

and responsibilities different or in addi- 

tion to those possessed by the other 

council memoe 

powered, In effect, to act as mayor dur- 

  

rs. He is or she 1s em- 

» 

  ing the absence o1 disability of the may- 
., 4 

or. The provisions of Section 428 of Ti- 

tle 37 along with certain opinions of the 

Attorney General of the State of Ala- 

bama indicate the president of ti 

Co imei) h: a © rorial role i 

,OUnCil 18S a special role 

  

government. Of course, if to have such 

an at large election would result . i 

something tl 

dilution of the voting of a particular mi- 
wat would dilute or cause 

  

  

   



  

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NEVETT v. SIDES 4247 

APPENDIX B—Continued 
nority group that might be precluded, 
but if it can be done in such a way as to 

preserve an at large election of a presi- 
dent, I believe that is preferable given 
State policy consideration. 

I believe that the eight member plan 
as suggested by the plaintiff, coupled 
with the at large election of a president 
of the City Council is a very meaningful 

and satisfactory resolution of this situa- 
tion. The maximum deviation range ex- 
pressed in percentage points for the 

eight persons who would be elected to 
the council is only 1.89 percent, and the 
average percentage deviation is point 
fifty-eight of one percent. 

Assuming that the voters were, by and 
large, to follow racial lines in selecting 

aldermen it would in effect insure that 
of the total nine member council, that is, 

counting the president as a member of 
the council, it would in essence assure 

that whites would have at least three 

members on the total voting council and 
oO 

    

that blacks would have at least three 

voting members on the council. In ef- 

1 ‘ three additional membe rs would be 

LO» { de ee up tor go abs lepending 
i oO ’ oO 

voter turn out, interest and voter 

n If there were the same per- 

centage of whites and blacks registering 

to vote and then turning out to Vv 

a particular election, if they lowed 
voting racial patterns in how Ao voted, 

it would mean there would be five 
whites and five blacks elected, which is 

relatively A to the population 
lon within the city. If he 

whites, again assuming there were this 

racial pattern in voting, if Ce whites 

effect got out their vote in a particular 
election, then, presumably six 
seats on the council woul j

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whites. If the blacks, in effect, got. out 

their vote to a greate fogroa than the r | 
whites, the blacks could elect six out of 

nine seats. I don’t think it is required 
that the Court, and I would not do this, 

come up with some plan or the parties 
come up w ve a plan that would guaran- 
tee that whites or blacks have a certain 
number of seats. In selecting between 
several plans that are available, perhaps 

some credence should be given to the 
extent to which the expected voter par- 
ticipation might be generally reflective 
of the population characteristics. 

I think, then, and will so indicate by 
separate judgment that really just re- 
flects the ultimate conclusion, that for 

the next election there should be an 
eight member ward elected city council 
following the outlin e of those districts as 
contained in t he plaintiffs’ plan, together 
with an at large election of ‘a president 
of the oy council. 

however, should be 
modified, that is, the 

in jurisdiction if and as 
if there is a special 

the City Council 
should, or city government should have 
the opportunity to come in and request 
some modification from this plan based 

subject to 
Court should 

necessary So 

    

census undertake 

   
upon the results of such a special census. 

I would suggest hat I WwWoul SUP ETEST, that 

  

=d must take greater 
of the one-man one-vote princi- 

was true in the plans that the 
         

  

    esented to it prior to 
defendants. Further- 

hin 13 well to indicate that if 

pions that are su 

who are all white shows 
increase of white positions over 

that ir would be expected on a pure- 
1111 a 1m i 3a on 7 , ly popula basis, there may be some 

  

need to sort of justify that the plan they 

are coming up with is not in any way 
calculated or motivated in that Y> x 

a1 ain or ‘ rind : I am not saying that any such i in, for 

  

espect. 

example, would have to follow to any 

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4248 

mathematical degree the voter popula- 

tion figures. If, for example, only there 

were to be a special census and a plan 

suggested to the Court which would 

show that probably 72 percent of the 

Council members would be white where- 

as only 53 percent of the population was 

white, 1 think the Court would be at 

least somewhat skeptical and suspicious 

as to whether there was some other ar- 

rangement that would be a little bit 

more compatible with the legitimate vot- 

ing interest of the minority. I say that 

only by way of indicating a type of atti- 

tude and not by way of saying there is 

any requirement as to any particular 

plan or lack of it. 

So, the Court will enter a final judg- 

ment as indicated. Of course, that judg- 

ment will be subject to appeal. I take it 

there will be an appeal of it. Upon a 

resolution of an appeal, should there be 

an affirmance, in effect, the Court will 

have retained jurisdiction over the case 

so as to be able to give consideration to 

some other plan that might be developed 

out of information obtained from a spe- 

cial census. 

Do counsel have any questions as to 

the nature of the Court’s ruling? 

[No response.] 

THE COURT: 

The costs will be taxed against the 

defendants. 

No attorneys’ fees will be awarded 

pursuant to the Supreme Court’s decision 

of last week. 

MR. STILL: 

Your Honor, if I may make one state- 

ment on that. We would appreciate an 

opportunity to make a motion for attor- 

neys’ fees and present a brief as to why 

we believe the Wilderness Society versus 

Morton is inapplicable in the present sit- 

uation. 

NEVETT v. SIDES 

THE COURT: 

Well, I am going to take it that you 

have orally made a motion at this time 

to that effect. I find that there is no 

common trust fund produced by your ef- 

forts, that there is no recalcitrant atti- 

tude or punitive measure that is due to 

be taken against the defendants that 

might otherwise, perhaps, be a basis for 

attorney’s fees. That while there might 

be justification for a claim based on the 

private attorney general theory, that 

that has effectively been knocked out by 

the Supreme Court’s decision. 

MR. DAWSON: 

Your Honor, we might further ask 

that to be included in the cost to be 

taxed here would be a reasonable sum 

for the assistance provided to the Court 

in the drawings of these various plans. 

THE COURT: 

The questions of cost are dealt with 

separately and are not matters that af- 
i? rik sllant’ae re Jr fect appellant’s remedy. 

You may present in an application on 

the cost bill such matters. I would have 

to say that I will be very skeptical as to 

the allowability of any expenses. 

MR. BARNES: 

May I ask that if a census should show 

a substantial change that that might af- 

its of either party to ask for 

a change in the number of districts. 

‘HE COURT: 

Yes. 

in effect saying or approving at this 

point as being subject to modification, 

whether it is as to number of districts or 

size and location of them. 

  

I 1 wails ey 3. SRR EL 

I see the plan that the Court 1s 

Are there any other questions? 

[No response.] 

END OF PROCEEDING. 

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.