Opposition to Motion to Affirm

    IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1977 

  

No. 77-1844 

CITY OF MOBILE, ALABAMA, et al, 

Appellants, 

V. 

WILEY L. BOLDEN, et al, 

Appellees. 

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

OPPOSITION TO MOTION TO AFFIRM 

Of Counsel: C. B. ARENDALL, JR. 

Hand, Arendall, Bedsole, WILLIAM C. TIDWELL, III 

Greaves & Johnston TRAVIS M. BEDSOLE, JR. 

Post Office Box 123 Post Office Box 123 

Mobile, Alabama 36601 Mobile, Alabama 36601 

Legal Department of the FRED G. COLLINS 

City of Mobile City Attorney, City Hall 

Mobile, Alabama 36602 Mobile, Alabama 36602 

1000 Connecticut Avenue, N.W. WILLIAM S. RHYNE 

Suite 800 DONALD A. CARR 

Washington, D.C. 20036 MARTIN W. MATZEN 
1000 Connecticut Avenue, N.W. 

Suite 800 

Washington, D.C. 20036 

Counsel for Appellants 
  

   



    

 



IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1977 

  

No. 77-1844 

CITY OF MOBILE, ALABAMA, et al, 

Appellants, 

WILEY L. BOLDEN, et al, 

Appellees. 

  

ON APPEAL FROM THE UNITED STATES 

COURT OF APPEALS FOR THE FIFTH CIRCUIT 

  

OPPOSITION TO MOTION TO AFFIRM 

As Appellants’ Jurisdictional Statement points out, this 

case is the first to come before this Court in which an entire 

form of local government, not merely the manner of its 

election, has been struck down by the Federal Courts under 

the constitutional rubric of “dilution” of black votes. Itis also 

the first case to require this Court to decide whether 

“relevant constitutional distinctions may be drawn in this 

[dilution] area between a state legislature and a municipal 

government.” Wise v. Lipscomb, U.S. , 46 
U.S.L.W. 4777, 4780 (June 22, 1978) (separate opinion). 

This aspect of Lipscomb was not addressed in Appellees’ 

     



  

  
2 

Motion to Affirm (August 3, 1978). This Court cannot 

dispose of this case properly without evaluating the distinc- 

tion between state governments and local governments, 

adumbrated in Lipscomb. 

The dilution rule made applicable to state legislative 

elections by White v. Regester, 412 U.S. 755, should not be 
carelessly transplanted into the local government context. 

There are a host of salient differences and reasons militating 

more greatly in favor of municipal at-large electoral systems, 

several of which are highlighted in this litigation. 

The essence of a state legislature is the representation of 

geographically narrow constituencies in the formulation of 

broad, statewide policy. See United Jewish Organizations 

of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 166. The 

generality of the policy declaration, and the absence of a 

need for implementation by the legislature, make the state 

legislature perfectly adapted to continual reapportionment 

and coalition politics. Intervention by Federal Courts to 
rearrange the constituencies of the individual members of the 

legislative collective, when the Constitution requires, causes 

no undue dislocation in the duties or operation of the 

legislative institution. 

This is not always the case, however, with the local 

governments which implement the broad statewide policy. It 

is especially not the case where the Federal Court’s remedy 

changes not only constituency but the very form of the local 

government, as does the remedy in this case. 

Fundamentally, the central purpose served by at-large 

elections is more important to local governing boards than to 

state legislatures. Thus, it has been observed: 

“[ T]he purposes served by multimember districts are 
less apparent in Regester than in Zimmer.* The 

In Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), 
aff'd sub. nom. East Carroll Parish School Board v. Marshall, 424 

(continued) 

   



3 

districtwide perspective and allegiance which result 
from representatives being elected at-large, and which 
enhance their ability to deal with districtwide 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). 

It is consistent with this analysis that use of multimember 

districts in state legislative apportionment has long been on 

the decline.? Silva, Compared Values Of The Single- And 

The Multi-Member Legislative District, 17 West. Polit. Q. 
504-505 (1964); Dixon & Hatheway, The Seminal Issue In 

State Constitutional Revision: Reapportionment Method 

And Standards, 10 Wm. & Mary L. Rev. 888, 903 (1969). 

With respect to city government, exactly the opposite is true. 

The proportion of cities using at-large elections has grown 

markedly since the turn of the century and from 53 percent in 

1940 to 62 percent in the middle 1960’s to more than 67 
percent in 1972. Jewell, Local Systems of Representation: 

(footnote continued from preceding page) 

U.S. 636, the Fifth Circuit extrapolated from Regester and extended the 
dilution rule to local governments. This Court affirmed “without 
approval of the constitutional views” enunciated by the Fifth Circuit. 
424 U.S. at 638. : 

The autonomy of most local governments being limited by State law, 
councils and commissions often must seek approval of their decisions in 
the State legislatures. The City of Mobile, for example, does not have 

home rule under Alabama law. The District Court below took notice of 
the local legislation procedures employed in the Alabama legislature, 
which consists of a 35 single-member districted Senate and a 105 single- 

member districted House. 
Thus, in a real sense, policy for the City of Mobile is made by a 

combination of the best of both patterns: single-member districts for the 
supervisory State legislature, and commission form, necessarily at-large, 

for the city government. 
In this way, the distinctions perceived in. Lipscomb, supra, can 

coexist.  



  

  4 

Political Consequences And Judicial Choices, 36 Geo. 
Wash. L. Rev. 790, 799 (1968); International City Man- 

agement Association, Municipal Year Book Table 3/15 

(1972). 

Much of the impetus of this trend is undoubtedly provided 

by adoptions of the two reform models of local government: 

the commission form and its successor, council-manager. 

Aside from the shared premise of at-large elections, the 

common ground of these two forms is non-partisan elections? 

— another extremely important distinction from the state 
legislative circumstance confronting the Court in Regester. 

Where parties determine who may run for office, there is a 

potential for the exclusion of minority-supported candidates 

from the ballot which cancels out or minimizes minority 

voting strength. 

That potential for exclusion is removed where elections 

are truly non-partisan and where no other white-dominated 
interest groups control the slating process. While there are 

some only nominally non-partisan cities where candidates 

are nevertheless supported by political parties or by various 

influential groups, it is most common for a “free for all” 

pattern to prevail, in which neither parties nor slates of 

candidates are important. C. Adrian & C. Press, Governing 
Urban America 99-100 (4th Ed. 1972); R. Lineberry & L 

Sharkansky, Urban Politics and Public Policy 88 (1971). 
In Mobile, parties play no role, and there is but one 

important slating organization — a black group which 

endorsed each of the winners in the last contested city 

elections. (J.S. 10-12). In such a situation, it is an absolute 

’The great majority (76 per cent) of city governments in the country are 
non-partisan. Only the mayor-council form, decreed by the District 
Court below, shows a substantial percentage (36 per cent) of partisan 
electoral systems. International City Management Association, 

Municipal Year Book 69 (1976). 

   



5 

imperative that, as Appellees concede, all “candidates 

actively seek black votes as well as white votes. . .”” (Motion 

to Affirm at 6). 
Political scientists concur that the most outstanding 

feature of the commission form is the dual role of the 

commissioners — each of them serves individually as the 
head of an executive department while collectively they 

serve as the policy-making council for the city. In other 

words, unlike the various mayor-council structures and 

unlike any state governmental scheme, there is no separation 

of powers. 

The theory, and in Mobile, the practice? of this is that the 

real implementer of policy is directly and immediately 

accessible to citizens with input or complaints about the 

performance of city government. There are no intermediate 

steps. The legislator is not compelled to do extensive 

casework to locate and persuade the responsible ad- 

ministrator of the value of his constituent’s message. 

Whereas in a state legislature single-member districts may 

be necessary to make constituencies small enough so that all 

the casework can be done, the very structure of Mobile’s 

government is designed to address that need. 

The council-manager form is based on an almost anti- 

thetical idea of complete insulation of the manager from 

electoral politics. Appellants do not argue that one or the 

other is best for all times and all communities, only that each 

serves important policy considerations and has charac- 

teristics quite distinct from the state legislative scenario. 

Both reform models depend on at-large elections, which 

“The testimony of Plaintiffs’ own witnesses established that one or 
more Commissioners were personally available to hear black citizens’ 

needs and grievances, and that this access had tangible impact on city 

government performance. (Tr. 433-34, 572-73, 583, 621-25).  



    

6 

under the law of this case (a rule purportedly derived from the 

principles set down in Regester) are unconstitutional in any 

city where racially polarized voting is found from an abstruse 

statistical demonstation and blacks are not numerous enough 

to elect blacks to office. 

Probable jurisdiction should be noted. 

Respectfully submitted, 

C. B. ARENDALL, JR. 

WILLIAM C. TIDWELL, III 

TRAVIS M. BEDSOLE, JR. 

Post Office Box 123 

Mobile, Alabama 36601 

FRED G. COLLINS 

City Attorney 
City Hall 

Mobile, Alabama 36602 

CHARLES S. RHYNE 
WILLIAM S. RHYNE 

Of Connsel DONALD A. CARR 
MARTIN W. MATZEN 

Hand, Arendall, Bedsole, 1000 Connecticut Avenue, N.W. 
Greaves & Johnston Suite 800 

Post Office Box 123 Washington, D.C. 20036 
Mobile, Alabama 36601 

Legal Department of the 

City of Mobile 

Mobile, Alabama 36602 

Counsel for Appellants 

Rhyne & Rhyne 

1000 Connecticut Avenue, N. W. 

Suite 800 

Washington, D. C. 20036