Alice Love v. Dade County School Board Petition for Writ of Certiorari

    IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 77-1196

THOMASVILLE BRANCH OF THE NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT 

OF COLORED PEOPLE, et al.,
Appellants,

versus

THOMAS COUNTY, GEORGIA, et al.. 
Appellees.

BRIEF OF APPELLANTS

DAVID F. WALBERT 
3100 Peachtree Summit 
Atlanta, Georgia 30308
HERBERT E. PHIPPS 
P.O. Drawer 3468 
Albany, Georgia 31706

ATTORNEYS FOR APPELLANTS



UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-1196

THOMASVILLE BRANCH OF THE NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT 

OF COLORED PEOPLE, et al.,

CERTIFICATE PURSUANT TO LOCAL RULE 13(a)

The undersigned counsel of record certifies that the 
following individuals or entities have an interest in this 
case: Thomasville N.A.A.C.P., Elijah Hill, Jr., Rev. I. L.
Mullins, William A. Morris, Curtis Thomas, Thomas County, 
Georgia, Theron 0. Davis, Lowell Clark, James Hay, F. V. 
Hancock, Edward A. Mitchell, H. Rodney Bannister, Mac L. 
Parrish, W. Gerald Tuck, Leon Hurst, and Billy Carter. All 
of the parties named were plaintiffs or defendants in the 
original complaint. The last two named individuals have 
taken office as Thomas County Commissioners since the trial 
of this case.

Appellants

versus

THOMAS COUNTY, GEORGIA, et al.

Appellees.

DAVID F . WALBERT 
Attorney for Appellants



REQUEST FOR ORAL ARGUMENT

Plaintiffs request that oral argument in this case be 

granted. The action of the District Court was contrary to 

law, and the case is of public importance to all residents 

of Thomas County, Georgia. Moreover, the issues presented 
in this case are common to a substantial amount of litigation 

in the Fifth Circuit, and those issues are of sufficient im­

portance to warrant this Court's considered treatment.

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TABLE OF CONTENTS

QUESTIONS PRESENTED ON APPEAL..............................i v

TABLE OF AUTHORITIES......................................  V

STATEMENT OF THE CASE . . . . . . . . .  ...................  1

SUMMARY OF THE ARGUMENT................. .. ...............  5
ARGUMENT

I. THE DISTRICT COURT ERRED IN REQUIRING 
PLAINTIFFS TO PROVE THAT A DISCRIMIN­
ATORY PURPOSE OR MOTIVE UNDERLAY THE 
CREATION OF THOMAS COUNTY'S ELECTION
SYSTEM. ........................ .....................7

A. The Washington v. Davis "Purpose and 
Intent" Standard Is Irrelevant In Dilu­
tion Cases Under The Fourteenth and
Fifteenth Amendments. . . .  ............. . . .  7

B. Discriminatory Purpose and Motive Need 
Not Be Shown In An Action Under 42 U.S.C.
§§1971 (a) (1) or 1973...........................  15

II. PLAINTIFFS ARE ENTITLED TO AN ORDER 
INSTITUTING THE REAPPORTIONMENT PLAN
PRESENTED IN THE DISTRICT COURT.................... 19

A. The White v. Regester Test Was Satisfied
In This Case..........  19

B. Further Proceedings In The District
Court Are Unnecessary. . . . . . . . . . . . .  47

III. PLAINTIFFS ARE ENTITLED TO AN AWARD OF 
ATTORNEYS' FEES, AND THE DISTRICT COURT 
ERRED IN FAILING TO GRANT PLAINTIFFS'
MOTION TO AMEND THEIR COMPLAINT TO SET 
FORTH 42 U.S.C. §1973 1(e) AS A BASIS
FOR A FEE AWARD. . ........... .....................51

CONCLUSION .................     .54

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IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 77-1196

THOMASVILLE BRANCH OF THE NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT 

OF COLORED PEOPLE, et al.,
Appellants,

versus

THOMAS COUNTY, GEORGIA, et al., 

Appellees.

BRIEF OF APPELLANTS

QUESTIONS PRESENTED ON APPEAL

I. WHETHER THE DISTRICT COURT ERRED IN REQUIRING PLAINTIFFS 
TO PROVE THAT A DISCRIMINATORY PURPOSE OR MOTIVE UNDER­
LAID THE CREATION OF THOMAS COUNTY'S ELECTION SYSTEM.

II. WHETHER PLAINTIFFS ARE ENTITLED TO AN ORDER INSTITUTING 
THE REAPPORTIONMENT PLAN PRESENTED IN THE DISTRICT COURT

III. WHETHER PLAINTIFFS ARE ENTITLED TO AN AWARD OF ATTORNEYS 
FEES, AND WHETHER THE DISTRICT COURT ERRED IN FAILING TO 
GRANT PLAINTIFFS' MOTION TO AMEND THEIR COMPLAINT TO SET 
FORTH 42 U.S.C. SECTION 1973 L(e) AS A BASIS FOR A FEE 
AWARD.

-iv-



TABLE OP AUTHORITIES

Allen v. State Bd. of Elections,
393 uTs. Z44'"'(1969) .........................................  33

Alyeska Pipeline Co. v. Wilderness Society,
421 U.S. 240 (1975) ............... 7 ~ 7 T ...............51
Arlington Heights v. MHDC,
45 U.S.L.W. 4073 (U.S. Jan. 11, 1977) .................... 9,16

Burns v. Richardson, 384 U.S. 73 (1966) .................  13

Chapman v. King, 154 F.2d 460 (5th Cir. 1 9 4 6 ) ............. 22

Dallas County v, Reese, 421 U.S. 477 (1975) . . . . . .  .35,37
Dunn v. Blumstein, 405 U.S. 330 (1972).....................  12
Dusch v. Davis, 387 U.S. 112 (1967) ........................  13

East v. Romine, Inc., 518 F .2d 332 (5th Cir. 1975). . . . .  47
Fortson v. Dorsey, 379 U.S. 433 (1965) .................. 12-13

Graves v. Barnes, 378 F.Supp 640 (W.D.Tex. 1974)..........  24

Gremillion v. Rinaudo, 325 F.Supp. 375 (E.D.La. 1971) . . .  19
Griggs v. Duke Power Co., 401 U.S. 424 (1971)............. 16

Guinn v. United States, 238 U.S. 347 (1915).............14,21
Hill y. Stone, 421 U.S. 289 (1975) .......... ............  12

Johnson v. Georgia Highway Express,
488 F.2d 714 (5th Cir. 1974) ..............................  53

Lane v. Wilson, 307 U.S. 268 (1939)........ ..............  14

Local 189, Papermakers v. United States,
416 F . 2d 980 (5th Cir. 1969) ............................  16-17
Lucas v. Forty-Fourth General Assembly,
377 U.S. 713 (1964)........ ......................... .. 12

CASES:

-v-



McGill v. Gadsden County, 535 F.2d 277 (5th Cir. 1976) . . 15

Miller v. Amusement Enterprises, Inc.,
426 F . 2d 534 (5th Cir. 1970) . .“ . ........................ 54
Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1 9 7 6 ) ..........  15

0 ‘Brien v. Skinner, 414 U.S. 524 (1974)...................  11
Paige v. Gray, 538 F.2d 1109 (5th Cir. 1976) . 13,15,37,48,49
Pitts v. Busbee, 395 F.Supp 35 (N.D.Ga. 1975)............. 31

Ratliff v. Beale, 74 Miss. 247 (1896).....................  21
Reynolds v. Sims, 377 U.S. 533 (1964).......... 9,10,12,13,18

Rodriquez v. East Texas Motor Freight,
505 F . 2d 40 (5th Cir. 1974) .......... ................... 44

Smith v. Allwright, 321 U.S. 649 (1944)...................  29
South Carolina v. Katzenbach, 383 U.S. 301 (1966). . . .15,17

Terry v. Adams, 345 U.S. 641 (1953) ........................  29

Toney v. White, 476 F.2d 203, modified,
en banc, 488 F.2d 310 (5th Cir. 1973) ............. 18,19,48

Turner v. McKeithen, 490 F.2d 191 (5th Cir. 1973) . . . . .  29 

United Jewish Organizations v. Carey,
45 U.S.L.W. 4221 (U.S. March 1, 1977). .................. 9,17
United States v. Cohan, 358 F.Supp 1217 (S.D.Ga. 1973) . . 48

United States v. Garner, 349 F.Supp 1054 (N.D.Ga. 1972) . 48

Wade v. Mississippi Cooperative,
528 F . 2d 508 (5th Cir. 1 9 7 6 ) .............................. 47
Wallace v. House, 538 F.2d 1138 (5th Cir. 1976),
515 F . 2d 619, modified................................49,52

Washington v. Davis, 426 U.S. 229 (1976).............passim
Wesberry v. Sanders, 376 U.S. 1 (1964)  ....... 11,12

Whitcomb v. Chavis, 403 U.S. 124 (1971)...................  13

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

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) ,
affirmed, 424 U.S. 636 (1976) ......................... passim

STATUTES
42 U.S.C. § 1971 .. ....................................... 15-19

42 U.S.C. § 1973 .. ................................... 15-19,51

42 U.S.C. § 1988 .. .........................................  53

42 U.S.C. §2000e-5 (g) ................. ............ .. 16

CONGRESSIONAL REPORTS:
S. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976)...........  53

H. Rep. No. 94-1558, 94th Cong., 2d Sess. (1976)...........  53

-vii-



STATEMENT OF THE CASE

Plaintiffs filed this action in the District Court in 

August, 1975, challenging the legality of the method of 

electing county commissioners in Thomas County, Georgia. 

Plaintiffs asserted that the election system used was dis­

criminatory, and that it was unconstitutional under the 

Fourteenth and Fifteenth Amendments. Plaintiffs also based 

their claims on various statutory provisions of the civil 
rights acts. By way of substantive relief, plaintiffs re­
quested that the District Court enjoin all further at-large 

election of county commissioners. Plaintiffs requested an 
order reapportioning the county into separate and distinct 

districts and providing that candidates would be elected 

solely by the voters of the particular district in which they 

ran.
Both plaintiffs and defendants filed interrogatories. 

Defendants objected to all of the interrogatories served, by 

plaintiffs, and plaintiffs moved to compel answers to these 
interrogatories on the grounds that their objections were 

insufficient. The District Court refused to grant plaintiffs' 

motion.
Both plaintiffs and defendants took extensive depositions 

of the opposite parties. Subsequent to those depositions, 

plaintiffs moved for a preliminary and permanent injunction

-1-



and for summary judgment on all their claims. In addition to 

the deposition testimony, plaintiffs filed extensive docu­

mentary evidence and affidavits supporting their motion.

Judge J. Robert Elliott refused to grant the relief requested 

by plairtiffs. The court took this action without a hearing 

and without findings of fact or conclusions of law.

In the absence of a preliminary injunction, Thomas County 

primary and general elections were conducted in August and 

November, 1976, on an at-large basis pursuant to the statutes 

challenged by plaintiffs. A final hearing on the merits was 
held on December 1, 1976, and plaintiffs introduced further 
live testimony. For the most part, however, the evidence in 

this case has been introduced through depositons , affidavits, 

authenticated documents, and various stipulations. The de­

fendants presented no live testimony at the December 1, 1976, 

hearing. By agreement, specific additional documentary evi­

dence was introduced subsequent to that hearing.

On December 29, 1976, Judge Elliott issued an opinion and 

order dismissing plaintiffs complaint. The Court ruled that 
plaintiffs' challenge to the election system in Thomas County 

was deficient, as a matter of law, because no evidence was 

introduced by the plaintiffs explicitly showing that the legisla­
ture created the Thomas County Commission in 1898 with the 

express motivation of discriminating against Black voters.
(App. 56-61.) Final judgment was filed conforming to that 

opinion and order on January 4, 1977. Plaintiffs filed a 

notice of appeal on January 7, 1977.

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The facts presented in the trial court conclusively show 

that the election system used in Thomas County is discriminatory. 

Plaintiffs showed that they are denied equal access to the 

political system under the at-large election system used in 

Thomas County to elect county commissioners. In particular, 
plaintiffs have shown that the state has had an extreme history 

of discrimination against Blacks, and that this discrimination 

has directly affected the right to vote. Discrimination in 
registration in Thomas County has been extensive over the years, 

and it has not abated entirely to this day. Past election 

evidence was introduced to show that Black candidates are 

effectively precluded from the system. Evidence of racist 

campaign tactics was introduced. Plaintiffs also testified 
that they have not had the luxury of voting for White candidates 

who might be sympathetic to Black issues, such that their 

voting for a White is usually just the choice of the "lesser 
of two evils".

The election system in Thomas County contains certain 

discriminatory election features in addition to the at-large 
requirement. These features are the "place requirement", a 

majority vote requirement, and the fact that candidates must 

run in a large geographic area. Plaintiffs also introduced 

prior actions taken by the Department of Justice, pursuant to 
Section 5 of the Voting Rights Act of 1965, concerning the 

School Board of the City of Thomasville. Members of that 

board are elected from the city at-large, and the General 

Assembly attempted to add majority vote and numbered post 

requirements in addition. The Justice Department refused to
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allow those amendments, and plaintiffs contend that the Depart­

ment's actions are relevant evidence of the discriminatory 

effect of the county's at-large system in the present case.

Plaintiffs also introduced much evidence in establishing 

that the county commission has been, and continues to be, un­

responsive to the interest of Black residents. The commission 

currently maintains discriminatroy hiring policies, it has 
appointed virtually no Blacks to various boards and offices 
over the years, and the road paving decisions by the county 

have been overtly discriminatory. The county maintained its 

facilities on a segregated basis until prohibited by the 
Civil Rights Act several years ago. Other local government 

bodies in Thomas County have been equally racist in their 

actions. The school systems were not desegregated until the 

first part of this decade. One rural school was sold to a 

group of Whites for a nominal sum during desegregation to be 

used as a private institution. The Housing Authorities 

in the county are still segregated by race.

Virtually all of plaintiffs' evidence stands uncontra­

dicted by the defendants. At the hearing, defendants did intro­
duce certain historical evidence indicating the substance of 

the business conducted by the county commission in the latter 
part of the 19th century, when the laws at issue in this case 

were first enacted. However, defendants introduced no evidence 

indicating the motives or intentions of the legislators in 
creating an at-large system of elections. No specific evidence 

of their intentions has been found by either plaintiffs or 

defendants.
-4-



SUMMARY OF ARGUMENT

The District Court dismissed plaintiffs' complaint on 
the basis of Washington v. Davis, 426 U.S. 229 (1976). The 

at-large system by which Thomas County Commissioners are 

elected has been in effect since 1898. The court concluded 

that, as a matter of law, it is plaintiffs' burden to show 

that the "authors [of the legislation] were motivated by 

racial considerations." (App.57 .) Since no direct evidence 

was introduced by either party concerning the motives of the 

legislators in 1898, the court concluded that plaintiffs had 

failed to meet their burden.

Plaintiffs contend that the District Court erred in re­

quiring a showing of discriminatory motive. The controlling 

cases on this issue are White v. Regester, 412 U.S. 755 (1973) 
and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en 
banc). Those cases clearly establish that no showing of pur­
pose or intentional discrimination is required in the kind of 

dilution case plaintiffs are presenting here.

Washington v. Davis does not affect the prior dilution 
decisions. Washington involved a completely different kind 

of discrimination claim. In that case Black applicants 
challenged the constitutionality of a verbal test used by a 

police department in selecting employees. All Black appli­

cants and all White applicants were treated identically if 
they performed the same on the various tests. The same

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reasoning does not apply in Thomas County. Plaintiffs have 

conclusively shown that a Black person's vote is only worth 

some small fraction of a White person's vote in Thomas 

County. This is a case where Blacks and Whites are treated 

differently under a statutory scheme, and race is the sole 

basis of distinction. Washington v. Davis did not involve 

discrimination of this sort.

Plaintiffs' position is consistent with many prior Supreme 

Court decisions and with the decisions of this Court. Since 

the Washington v. Davis case was decided, this Court has re­

affirmed the principle that an "effect test" controls in dilu­
tion cases. See, e.g., Paige v, Gray, 538 F.2d 1109 (5th Cir. 

1976). Once access to the political system is denied, the 
election system cannot be sustained.

Plaintiffs also contend that no remand for further pro­

ceedings is necessary here, and that this Court should order 

relief at this time. The evidence of discrimination and dilu­

tion is overwhelming in this case, and it is almost entirely 

uncontradicted. Since the question of "access to the political 
system" is an "ultimate" issue of fact, this Court has the 

same authority to determine that issue as does the District 

Court. East v. Rornine, Inc., 518 F.2d 332, 338-39 (5th Cir. 
1975). And since most of the evidence in this case has been 

presented by depositions, documents, affidavits and stipula­

tions, this is not a case requiring deference to the observa­
tions of the trial judge.

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I. THE DISTRICT COURT ERRED IN REQUIRING 
PLAINTIFFS TO PROVE THAT A DISCRIMIN­
ATORY PURPOSE OR MOTIVE UNDERLAY THE 
CREATION OF THOMAS COUNTY'S ELECTION 
SYSTEM.

A. The Washington v. Davis "Purpose and Intent" Standard 
Is Irrelevant In Dilution Cases Under The Fourteenth 
And Fifteenth Amendments.

Plaintiffs produced voluminous evidence in the Lower Court 

that, under the at-large system in Thomas County, Black voters 

were denied equal access to the political system. Although 

most of this evidence was entirely undisputed, Judge Elliott 

nevertheless rejected plaintiffs' claim on the basis of 

Washington v. Davis, 426 U.S. 229 (1976). He concluded that 

plaintiffs must show not only dilution, but that "a discrimin­
atory purpose prompted the establishment of the election system 

under attack." (App.60 ). Because plaintiffs introduced no 

evidence of the motives of the 19th century legislators involved, 

the Court dismissed the complaint.
Plaintiffs contend that Washington v. Davis is entirely 

irrelevant in the kind of dilution case presented here. Plain 

logic dictates this result, and plaintiffs' position is supported 

by many past decisions of this Court and the Supreme Court.

In Washington v. Davis, Black applicants challenged the 

constitutionality of a verbal skills test used by the Washington, 

D. C. Police Department in selecting applicants for employment. 

The sole evidence presented by the plaintiffs was that, of the 
Blacks and Whites who took the test, the White applicants passed 
at a higher rate. The Supreme Court held that the test was 

job-related because police officers needed verbal skills and

-7-



that, absent a greater showing of discrimination, plaintiffs' 

constitutional attack was insufficient.

The essential distinction between Washing ton and the pre­

sent dilution case is clear. In Washington, ail Black appli­

cants and all White applicants were treated identically. Ary 
two individuals were subjected to the same evaluation procedures 
and tests, and one person had exactly the same chance of employ­

ment as another if their scores were the same. A Black applicant 

was treated no differently than a White applicant if the Black's 

performance on "Test 21" was the same as the White's.
The same reasoning does not apply in Thomas County, however. 

In Thomas County elections, plaintiffs have proved that a Black 

person's vote is only worth some small fraction of a White 

person's vote. When a Black person's vote is cast in Thomas 

County, it does not carry the same significance because of the 
at-large system of election. Indeed, once dilution has been 

proved under White v. Regester, 412 U.S. 755 (1973), and 
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), 
it necessarily follows that the plaintiffs' votes are worth 
less than those of their White counterparts. The essence of 
a dilution case is that "an apportionment scheme operates to 

minimize or cancel out the voting strength of racial or poli­
tical elements of the voting population." 485 F.2d at 1300.

Thus, because dilution has been shown in Thomas County, 

plaintiffs have proved that their votes are treated differently 
than the votes of Whites, and this difference is explainable 

solely on the basis of race. This is the controlling factor



that makes Washington v. Davis completely inapplicable. In
Washington, similarly situated Blacks and Whites were treated 

identically. In the present case, similarly situated Blacks 

and Whites are treated completely differently, and there is 

no need to reach the "purposeful discrimination" test created 

in Washington. Indeed, although the Washington opinion did not 

mention any dilution cases, it clearly contemplated a strictly 

"effect" test when a statute treats Blacks differently than 

Whites and race is the only differentiating criterion. "A 

statute, otherwise neutral on its face, must not be applied 

so as invidiously to discriminate on the basis of race."

426 U.S. at 241.
Washington v. Davis and its progeny hold that, under most 

circumstances, "official action will not be held unconstitutional 

solely because it results in a racially disproportionate impact." 
Arlington Heights v . Metropolitan Bousing Development Corp., 45 

U.S.L.W. 4073, 4077 (U.S. Jan. 11, 1977). But neither Washington 

v. Davis nor any other case has ever upheld a statutory scheme 
that treats Blacks differently than Whites and race, is the only 

basis of distinction.
Plaintiffs’ position is commanded not only by logic, but 

by many election cases decided by this Court and the Supreme 

Court. From Reynolds v. Sims, 377 U.S. 533 (1964), to the 

High Court's most recent election case, United Jewish Organiza­
tions v. Carey, 45 U.S.L.W. 4221 (U.S. March 1, 1977), the 

Supreme Court has never required any showing of intentional 

discrimination in order to prove unconstitutionality where

-9-



Blacks have shown differential treatment. The Court's

position was clearly stated in the Reynolds case. The votes 

of one group cannot be overweighted, even when the suspect 

ground of race is not the distinguishing factor, because 

"the achieving of fair and effective representation for all 

citizens is . . . the basic aim of legislative apportionment."

377 U.S. at 565-66. "Simply stated, an individual's right 
to vote for state legislators is unconstitutionally impaired 

when its weight is in a substantial fashion diluted when 

compared with votes of citizens living in other parts of the 
state." Id. at 568. Of course, the decision in Reynolds 

rested in large part on the peculiarly important nature of 

the right to vote, a right jealously guarded by the courts 
and subject to abridgement only under the most compelling 

circumstances.
No right is more precious in a free country 

than that of having a voice in the election of 
those who make the laws under which, as good citizens, 
we must live. Other rights, even the most basic, 
are illusory if the right to vote is undermined.
Our Constitution leaves no room for classification of 
people in a way that unnecessarily abridges this right.
Id. at 560.

The Reynolds decision did not look to any alleged "purpose" 
of discrimination or to the motives of the legislature. Indeed, 
since the apportionment statutes in Reynolds stemmed from 1901 
and since the character of the state of Alabama had changed 

so drastically during the intervening 60 years, the legislators 

of that era could not have conceived of the effects their ac­

tion could have produced in a later, urbanizing society. The 
absence of a discriminatory purpose was of no consequence to 

the Supreme Court. Id. at 567.
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The Supreme Court's logic has been equally clear in any 

number of other reapportionment cases, including the early 

Georgia decision in Wesberry v. Sanders, 376 U.S. 1 (1964).
It would be extraordinary to suggest that 

in such statewide [congressional] elections the 
votes of inhabitants of some parts of a State, 
for example, Georgia's thinly populated Ninth 
District, could be weighted at two or three times 
the value of the votes of people in more populous 
parts of the State, for example, the Fifth District 
around Atlanta. . . . .  We do not believe that the 
Framers of the Constitution intended to permit the 
same vote-diluting discrimination to be accomplished 
through the device of districts containing widely 
varied numbers of inhabitants. To say that a vote 
is worth more in one district than in another would 
not only run counter to our fundamental ideas of 
democratic government, it would cast aside the 
principle of a House of Representatives elected 
"by the People," a principle tenaciously fought 
for and established at the constitutional conven­
tion. Id. at 8.

The Court's reasoning is clear. Where a statute operates to 

give differential weight to different people's votes, the 
Constitution is violated without any further inquiry. And 

where race is the basis of the distinction, of course, the 
constitutional test is necessarily even more stringent.

The Supreme Court’s indifference to motive and purpose 

in voting cases is proved again, outside the reapportionment 

context, in O'Brien v. Skinner, 414 U.S. 524 (1974). The 
Court there enjoined use of a provision governing absentee 

balloting that, in its effect, distinguished between two 

groups of pre-trial detainees. Those incarcerated in their 
own county could not vote by absentee ballot, while prisoners 

incarcerated outside their home county were eligible to use 
absentee ballots. Although no claim of purposeful discrimina-

-11-



tion against out-of-county detainees could have been seriously 

raised, the court proceeded to invalidate the restriction solely 
because of its effect.

Even more recently, the Supreme Court has reaffirmed its 

long standing rule that classifications and differential treat­

ment among voters "must meet a stringent test of justification." 
Hill v. Stone, 421 U.S. 289, 298 (1975). This "stringent test" 

demands that the state prove a compelling interest to support 
the discriminatory treatment. Id. at 301. See also Dunn v. 

Blumstein, 405 U.S. 330, 337 (1972) . And again, since the pre­

sent case involves racial discrimination, the constitutional 
demand for equality is at its highest level.

The Supreme Court's many opinions concerning racial dilu­

tion in election cases reaffirms the position of Reynolds and 
Wesberry, that discriminatory effect alone is sufficient to 

invalidate the offensive statutory scheme. The first case in 
the Supreme Court attacking multi-member districts subsequent 

t° Reynolds -̂ was Fortson v. Dorsey, 379 U.S. 433 (1965).

Although rejecting plaintiff's claim because of a lack of 

evidence, Fortson recognized the standard that was expanded 
later in White v. Regester and Zimmer v. McKeithen:

In a companion case to Reynolds, the court declined to 
hold multi-member districts unconstitutional per se. 
Lucas v. Forty-Fourth General Assembly of Colorado, 377 
U.S. 713 (1964).

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It might well be that, designedly or other­
wise , a mutli-member constituency apportionment 
scheme, under the circumstances of a particular 
case, would operate to minimize or cancel out the 
voting strength of racial or political elements 
of the voting population. 379 U.S. at 439.

The same standard was reaffirmed in Burns v. Richardson, 384 

U.S. 73, 88 (1966), Dusch v. Davis, 387 U.S. 112 (1967), and 

Whitcomb v. Chavis, 403 U.S. 124, 143-44 (1971), all cases 

lost for lack of proof of dilution. Then, in White v. Regester, 

the court upheld a dilution claim, again applying the basic 

standard enunciated first in Fortson. The plaintiffs' burden 

is to show that they "had less opportunity than did other re­

sidents in the district to 'participate in the political processes 
and to elect legislators of their choice." 4l2 U.S. at 766.

The importance of the White decision for the present case, 

of course, is the total absence of any requirement of proving 
motive, intent or purpose. Indeed, as in Reynolds v. Sims, 

proof of motive and purpose probably could not be found since 

the offending provision dated back decades. The Texas counties 

involved in White had used at-large voting since at least 1914, 

Paige v. Gray, 538 F.2d 1109, 1111 (5th Cir. 1976), a time 
when Blacks were disfranchised through much cruder methods than 

at-large and multi-member districts. Since Blacks were generally 

not able to vote at all, there would have been some difficulty 

in concluding that the multi-member districts in White were 
created with a discriminatory purpose in mind. Nevertheless, 

the Supreme Court was not detered by the absence of discrimina­
tory purpose or intent. The trial court's decision in the 

instant appeal is flatly contrary to the holding in White.

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The facts of White well illustrate the absurd results that

would follow if defendants' view of the law here were correct. 

First, since most local charters date back decades or more, 

purpose and intent would be illusive or utterly impossible to 

establish. Second, the rights of both Black and White citizens 

would be dependent upon the unrelated actions of legislators 
who have long passed away. To effectively immunize jurisdic­

tions, such as Thomas County, that have long had at-large elec­

tion would produce a kind of bizarre "grandfathering" no less 

foolish and discriminatory than the schemes struck down in 

Guinn v. United States, 238 U.S. 347.(1915), and Lane v. Wilson, 

307 U.S. 268 (1939). Third, it would be entirely irrational to 

allow one jurisdiction to prevail in a dilution case because 

there is proof of "purpose", where Blacks in the next county 

are subject to identical discrimination but have no "purpose" 
or "motive" evidence.

These very undesirable possibilities are precluded by 

the Supreme Court's decision in White v. Regester, which 

adopts an effect test. The Fifth Circuit, too, has repeatedly 
affirmed the effect test, both before and after the Washington 
v. Davis decision. Paige v. Gray, supra, involved a 1947 

charter amendment in Albany, Georgia, which switched the city 
from ward to at-large elections. This court refused to re­

quire a showing of purpose or motive and remanded instead for 

an evaluation under Zimmer's effect test. 538 F.2d at 1110.

This Circuit has also reaffirmed Zimmer's effect test in at 
least two other cases decided after Washington v. Davis.

-14-



McGill v. Gadsden County Commission, 535 F.2d 277 (5th Cir.

1976); Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976). Paige, 

McGill and Nevett should absolutely control the present case.

There is no room whatsoever for the position taken by 

the District Court here. Whatever the eventual scope of 

Washington v. Davis, its purpose and intent requirement have 
no role in dilution cases.

B . Discriminatory Purpose and Motive need not be shown in
an Action under 42 U.S.C. §§1971(a) (1) or 1973.

The equal protection clause of the Fourteenth Amendment 

prohibits the states from denying "any person within [their] 

jurisdiction the equal protection of the laws." The Fifteenth 

Amendment provides that the "right of citizens of the United 

States to vote shall not be denied or abridged . . . on account 
of race." While plaintiffs have clearly shown that these pro­
visions prohibit discriminatory at-large systems, regardless of 

purpose or intent, the same result could be reached on a statu­

tory basis. In addition to their constitutional claims, plain­
tiffs have plead and relied on 42 U.S.C. §§1971(a)(1) and 1973. 

(App.l-7). Plantiffs are entitled to prevail on the basis of 
these laws independent of any constitutional basis for relief.

Even if the Fourteenth or Fifteenth Amendments required a 

showing of purposeful discrimination, it is indisputable that 

Congress has the power to provide, by legislation, greater 

protection than exists by the force of the Constitution itself. 

South Carolina v. Katzenbach, 383 U.S. 301 (1966). In parti-

-15-



cular, it is clear that Congress has the power to omit any re­

quirement of "purposeful discrimination" from the civil rights 

acts. Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971); 

Arlington Heights v. Metropolitan Housing Development Corp.,

45 U.S.L.W. at 4078-79. Sections 1971(a)(1) and 1973 have that 

very effect, for neither requires proof of purpose or intent.

Section 1971(a) (1) provides that citizens "shall be en­

titled and allowed to vote . . . without distinction of race."

Section 1973 states that, "No voting qualification or prerequisite 

to voting, or standard, practice, or procedure shall be imposed 

or applied by any State . . .  to deny or abridge the right . . . 

to vote on account of race or color." Under the rule of construc­

tion the Supreme Court historically has applied to Congress' 
civil rights acts, which is a rule of liberal and expansive 

interpretation, no showing of purpose should be required under 
either of these laws. The language of these statutes is much 

more "effect oriented", for example, than is section 706(g) 
of the Civil Rights Act of 1964, 42 U.S.C. §2000e-5(g).

Section 706(g) requires a finding, in an employment discri­
mination case, "that the respondent has intentionally engaged 

in or is intentionally engaging in an unlawful employment 

practice." Nevertheless, the courts have uniformly interpreted 
this provision as requiring no more than the occurrence of 

discrimination as a matter of fact, regardless of motive.
Griggs v. Duke Power Co., supra. The requirement of intent 

has been narrowly construed to provide employers with a 

defense in the event of accidental or inadvertent discrimina­
tion, but nothing more. Local 189, Papermakers v. United

-16-



States, 416 F .2d 980, 996 (5th Cir. 1969), cert, denied, 397

U.S. 919 (1970). Given such a liberal construction of a 

provision like 706(g), proof of the kind of discrimination 

present in a dilution case must satisfy sections 1971(a) (1) 

and 1973. There is no basis for engrafting a burdensome 

requirement of proving invidious racial motivations as well.

That section 1973 imposes a simple effect test is 

especially evident from the legislative origin of that 

statute. Section 1973 was enacted as section 2 of the 
Voting Rights Act of 1965. The purpose of that Act was to 
arrest the pervasive racial discrimination that had dominated 
voting in the South since Reconstruction. The prohibitions 

of the Constitution and other statutes had proved far too 

weak, and Congress concluded that strong new powers were 

necessary to create an effective remedy. South Carolina v. 

Katzenbach, supra.
It is undisputed that the Voting Rights Act generally, 

and section 5 in particular, 42 U.S.C. §1973c, prohibit 
practices whenever their effect is discriminatory. Intent 

is not a required element of proof. United Jewish Organiza­
tions v. Carey, 45 U.S.L.W. at 4225. Yet the general "coverage 

clause" of both sections 2 and 5 are the same. They both 
regulate any "voting qualification or prerequisite to voting, 

or standard, practice, or procedure." The language is 
identical in both sections, and there is no reason to imply 
that Congress intended their substantive coverage to be 

different. The rules of construction alone, such as the

-17-



requirement of construing statutes in pari materia, demand 

that the two sections be read to have the: same meaning since 

their origin and language are the same.

Section 1973 provides that no device "shall be imposed 

or applied" to deny or abridge the right to vote on account of 

race. This language clearly points to an effect test. More­

over, a different reading would produce strange and undesir­

able results. Since section 5 covers only post-1965 amend­

ments, a different interpretation of section 2 would produce 
completely different substantive standards for laws enacted 

before and after that date. Identical laws in similar communities 
would be treated differently in the courts where one was older 

than the other. Anomalies of that sort should be avoided in 

any area of the law, but they would be especially intolerable 

here because the public's right to vote is involved, and that 

right must be treated more judiciously than all others. In­

deed, to apply different substantive standards in adjacent 

counties would fly in the face of years of reapportionment 
decisions which rest entirely on the obligation of the courts 
to insure that voters in all areas are treated alike. Reynolds 
v. Sims, supra.

This Court has come to the same conclusion. In Toney v. 

White, 476 F.2d 203 (5th Cir. 1973), plaintiffs challenged 

discriminatory election practices on both statutory and consti­
tutional grounds. The court held that any intent to discriminate 
was irrelevant:

The Civil Rights Act of 1870, as amended, 42 U.S.C.
§1971 (a) forbids any distinctions based on race in

18-



the voting process. And Section 2 of the Voting 
Rights Act of 1965, 42 U.S.C. &1973, prohibits im­
position of any practice or procedure which has 
the effect of denying or abridging the right of 
any citizen to vote on account of race or color.
Id. at 207.

This reasoning, of course, was subsequently affirmed by the 

Fifth Circuit en banc, 488 F.2d 310 (5th Cir. 1973), and only 
one judge, Judge Gee, expressed any reservation about the 

adoption of a pure effect test. 488 F .2d at 316-17. Judge 

Gee's concurence makes it absolutely clear that the en banc 

decision of the court was based on the conclusion that effect 

alone was sufficient to prove voting discrimination. Id. See 
also Gremillion v. Rinaudo, 325 F.Supp. 375, 377 (E.D. La. 1971).

Thus, whatever the effect of Washington v. Davis on consti­

tutional litigation, it is always within the power of Congress 

to enact more powerful legislation, legislation independent of 
motive. That has occurred here, and these statutes provide an 

independent basis for reversing the District Court.

II. PLAINTIFFS ARE ENTITLED TO AN ORDER 
INSTITUTING THE REAPPORTIONMENT PLAN 
PRESENTED IN THE DISTRICT COURT.

A. The White v. Regester Test Was Satisfied In This Case.
Under the White v. Regester decision, at-large elections 

are unconstitutional where Blacks have not had an equal chance 

to participate in the political process and elect representa­
tives of their choice. Based on the standards set forth in 

the White case, and elaborated in subsequent Fifth Circuit

-19-



decisions, there can be no question but that the Thomas County 

election system is discriminatory. Black citizens of Thomas 

County have never had equal access to the political system, 
they continue to be denied equal access, and they will be 

denied access until a reapportionment plan is instituted by 

court order. The evidence of dilution is voluminous and, 

for the most part, completely undisputed.

1. Historical state discrimination affecting the right 

to vote. The history of Georgia's efforts to negate the poli­

tical power of Blacks is well known. The State and its poli­

tical subdivisions have used both legal devices and extralegal 

actions to accomplish this goal. Following the first election 
during Reconstruction where Blacks were allowed to vote in 

Georgia, April 20, 1868, twenty-eight Blacks were elected to 

the Georgia General Assembly. But on September 3rd, the 
House of Representatives adopted a resolution expelling 

twenty-five Black members on the theory that they were not 
privileged to hold office in the State. R. Wardlaw, Negro 

Suffrage In Georgia, 1867-1930, 33 Bull. Univ. Ga. No. 22 at 

7 (1932). Some of these individuals were ultimately seated 

when the legislature met on January 10, 1870, pursuant to a 
general reorganization. Disfranchisement began promptly, 

however, and by 1972 only four Black representatives were 

elected, and no Black senators. Id. at 33. The election of 
a Democrat to the governorship of Georgia in 1872 signaled 

the decline of Reconstruction and the beginning of the end of 

Black political power in Georgia. See Atlanta Constitution, 

October 13, 1872.
-20-



Various legal schemes were enacted early on in an effort 

to circumvent the Fourteenth and Fifteenth Amendments. For 

example, on February 24, 1873, the Georgia General Assembly 

passed an act to increase residency requirements in the counties 

from 30 days to six months. Because of slavery few Blacks 

were land owners, and Blacks inevitably tended to be more 

mobile for that reason. The increased residency requirement 

had a clearly racial purpose and effect. R. Wardlaw, supra, 

at 37.
Georgia also adopted the "Mississippi solution" at its 

1908 State Constitutional Convention. The Mississippi 

solution was to disfranchise voters for various reasons, 

that, although neutral on their face, had a strong racial 

effect. Both the purpose and effect of this approach was 
described by the Mississippi Supreme Court in Ratliff v.

Beale, 74 Miss. 247, 266-67, 20 So. 865, 868 (1896). Indeed, 

the 1908 Constitutional provision was blatantly discriminatory 
on its face, since it contained grandfather clauses similar 

in effect to those struck down in Guinn v. United States, 

supra. For those who could not satisfy the grandfather 

provisions, qualification was possible if they were "of good 

character" and could "understand the duties and obligations 
of citizenship". Another provision established the literacy 
test barrier. Both of these, of course, were administered 

discriminatorily by hostile White registrars. Finally, 

subdivision 5 of the 1908 Act required ownership of sub­
stantial land as a condition for voting. Given their dis­

-21-



advantaged economic position, few Blacks could qualify under 

that provision. R. Wardlaw, supra at 62-63.

The most powerful method of legal discrimination, of 

course, was the White primary. This was in effect everywhere 

in the State by rule of the democratic party, and it excluded 
all Blacks from any meaningful participation in the political 

process. The White primary in Georgia was not struck down 

by the courts, until 1946. Chapman v. King, 134 F.2d 460 
(5th Cir.), cert, denied, 327 U.S. 800 (1946).

With the outlawing of the White primary, the State again 

turned its attention to the literacy test as the means of 

discrimination. The legislature enacted a law in 1949 re­

quiring re-registration of all voters, and the registrants 

were required to read and write or to answer ten of thirty 

different questions. Ga. L. 1949, at 1204-27. Because the 

re-registration requirement was also burdensome to many 

Whites, a new act was passed in 1950 grandfathering in those 
persons who had already registered before the White primary 

was struck down. Ga. L. 1950, at 126-31. The Registration 
Act of 1958 was eventually passed with strict new require­
ments for those who could not read and write. Illiterates 

were required to answer 20 of 30 questions, some of which 

were sufficiently difficult to avoid even well-educated people. 
See generally, Brend & Holland, Recent Restrictions Upon Negro 

Suffrage: The Case of Georgia, 21 J. Politics 487 (1959).

The use of literacy tests, with their discriminatory pur­
pose and effect, was not suspended in Georgia until passage of 

the Voting Rights Act of 1965.
-22-



2. Registration Discrimination in Thomas County. Ac- 

cording to the records of the Secretary of State, these various 

devises were very effective in Thomas County. Although the 

total population of the county was about 40% Black, only 15.8% 

of the county's registered voters were Black in 1958. (PI.

Ex. 5.) This past history of discrimination, of course, is 

entitled to substantial weight even if the discriminatory 

practices have been discontinued. Zimmer v. McKeithen, 485 

F.2d at 1307. But in Thomas County and in Georgia generally, 

discriminatory practices have by no means been discontinued. 

There are still statewide legal barriers, one of which is 

the State's prohibition on house-to-house voter registration. 
Georgia only allows registration by the Registrar, or by a 

Deputy Registrar, at a fixed physical location. Ga. Code 
§34-610(a). This seriously impedes registration drives, and 

it is especially inhibiting for the many poor, rural Blacks 

without transportation. (App. 20, 45 ). Not a single one

of the county commissioners could testify to any effort that 
they had ever made to increase voter registration in the 

county. Indeed, they were completely unconcerned and un­

interested in the voter registration problem. (See, e.g., 

Hancock Depo. at 16-17; Parrish Depo. at 19; Clark Depo. at 

19-21; Hay Depo. at 31-32.) Neither the commissioners nor 

the other county officials could testify to a commitment to 

aggressive voter registration, and they felt registration 
was adequately taken care of by the League of Women Voters.

(See generally, Vann Depo.) But a representative from the 
League testified that their efforts were minimal and that

23-



they never reached a large segment of the Thomas County community. 

In particular, "we have had relatively little effect on rural 

registration in the county. . . . and many rural Blacks, many

of whom may never have been registered in their lives, are also 

untouched by our work." (App.45 .} The present restrictions 

on voter registration in Thomas County are particularly 

persuasive when compared to much milder evidence deemed 

relevant by other courts. See, e.g., Graves v. Barnes, 378 

F.Supp. 640, 656-57 (W.D. Tex. 1974) (3 Judge Court), remanded
for mootness, 422 U.S. 935 (1975).

The difficulty in registering is compounded by the county's 
biennial purge of people who have not voted recently. This 

too is dictated by a State law of general application, and little 

justification. Ga. Code §34-620. Purging particularly increases 

the burden on poor rural Blacks who have a difficult time re­

registering. And since Blacks often do not vote in the 

absence of a Black candidate in a particular election —  

because White candidates are simply so unresponsive that one 
is little more preferable than the other to the Black voter -- 

many Blacks are purged soon after registering. (App. 20.)

In addition to these legal barriers to voter participation, 
there has been outright intimidation and the threat of violence, 

even since passage of the Voting Rights Act of 1965. In 1968, 
one Black man "had gone into the Barwick area with some other 
people to get a busload of residents of the Barwick area and 

bring them to Thomasville to register them. [They] were driven 

off by armed Whites who physically threatened [them]." (App.

19 .) This man and his companions returned to the Barwick area

-24-



later on with their own weapons, but when they arrived, "only 

one person of the original group of Blacks who were to register 

still had the courage to come forward and go to Thomasville." 

(App. 19 - 20.) Physical intimidation has been combined with 

economic sanctions. "Not many years ago it was common, if a 

Black in a rural part of the county registered to vote, for 

him to be thrown off his landlord's property." (App. 19)

The sum effect of these factors is easily predictable.

Only about 4,023 Blacks are registered to vote in Thomas County 

out of a total of 14,977 registered voters, which amounts to 
26.9%. (App. 29, 43, 47.) This figure compares to the total 

Black population, according to the 1970 census, of 39.7%. (PI. 

Ex. 18.) Of course, this Court has already concluded that low 
registration among Blacks is deemed evidence of the continuing 

effects of past discrimination and a lack of equal access to 
the political system. 485 F.2d at 1306. In addition to this 

presumption, the evidence presented by plaintiffs clearly 

shows that the present system still remains actively discri­

minatory. Indeed, at no time have defendants offered any con- 
trary explanation for the differential registration rates.

2. At trial, plaintiff intended to present further testimony 
of the continuing effect of past discrimination. The 
testimony was to show the high degree of alienation that 
some Blacks in Thomas County still feel because of the 
past and present discrimination, which leaves them dis­
inclined to register. This testimony was to be presented 
through a Black man who had recently worked in a registra­
tion drive. He was going to testify to statements by 
Black residents that indicated their present state of 
mind. The trial court erroneously ruled this evidence 
of the state of mind inadmissible hearsay. Fed. R. Evid. 
803(3). The trial court even refused to allow counsel to 
make the required offer of proof. (T. 75.)



3. Past elections. Thomas County provides what some

political scientists have termed the "traditional southern 

rural model" of elections. The campaign is largely word of 

mouth, issues are usually unimportant, and winning is generally 

based on personalities and long-standing personal preferences 

towards friends. (Hancock Depo. at 9-11; Clark Depo. at 15-18; 
Parrish Depo. at 4-6; Hay Depo. 5-6). The racial effect of 

such election patterns is overwhelming for Black people.

Since the county was segregated by law until recently,

Blacks and Whites rarely intermingled and there was no 
opportunity for Whites to know Blacks. Indeed, since school 

desegration occurred in Thomas County only a few years ago 

(App.26 ), there is still no one who has grown up entirely 

in an integrated school system in Thomas County. Moreover, 

segregation in all aspects of social and private life re­

mains to this day. (App. 18-19 )- Given the present segrega­
tion and the fact that elections turn on personal friendship 

and contacts, the Black minority cannot possibly command 
equal political access in an at-large election.

The problem of segregation, of course, goes much deeper 
than this. Since the effect of segregation is to create and 
re-enforce racist attitudes, Black candidates cannot hope to 

obtain many White votes even when they are more qualified 

than their White opponents. Dramatic proof of the racist atti­
tudes of many Thomas County voters can be seen in the election 
returns from J. B. Stoner's 1974 statewide race. Stoner ran 

for Lieutenant Governor on a promise to "take the fear of

-26-



black savages out of White people, and put it back into the 

blacks, where it belongs." (PI. Ex. 47.) These racist posi­

tions allowed him to run either first or second in nearly 

every Thomas County precinct, outside the City of Thomasville, 
in a field of ten candidates. Even in the predominantly White 

precincts in and around Thomasville, Stoner received a substantial 
vote. (PI. Ex. 16.)

Racial attitudes in the county have other inhibitory 
election consequences. For one thing, no White has ever 

run who has supported positions that were generally satisfactory 

to the Black community. When Blacks do choose between White 

candidates, they are simply voting for the "lesser of two 

evils". (App.20 .) Racial attitudes preclude the possibility 
of effective Black/White coalitions, and Black candidates cannot 

even campaign in some areas of the county without fear of bodily 
harm. (Thomas Depo. at 36-37.) The substantial vote for 
Stoner clearly shows that the fear of Black candidates to 
campaign in certain areas is justified.

One of the White defendants here was relatively candid 
about the racial attitudes than preclude effective Black 

political action. Commissioner Tuck testified that in Thomas 
County:

There's some people thats been hell bent against 
Negroes; why, I don't know. I never studied the 
research on that particular program. But you can 
mention the name, even if you was going to loan him 
money, they just . . . some people get jittery. They
are just disturbed in that way. (Tuck Depo. at 12.)

Tuck also testified to the obvious fact that the problem is one

of indoctrination and socialization from generation to generation.

27-



"Now where they don't take their offsprings and indoctrinate 

them against the coloreds, then you will be able to infiltrate 

without any problem." Id.

Election results in Thomas County and in Thomasville 
confirm these facts. Because of racial bloc voting, no Black 

has ever won a county commission race or any other elected 

county office. Nor has a Black ever been the nominee of a 

political party for any such office. A total of two Blacks 

have run for the county commission, and one other Black has 
run for the office of Justice of the Peace. (App. 21.) In 
the races for county commission, the precinct returns show 

clear racial bloc voting since the vote received by Black 

candidates correlates in each precinct to. the percentage of 
registered Black voters. In those precincts with few Blacks, 

the Black candidates received virtually no votes. (PI. Ex. 1; 
App. 29, 43, 47.)

Both of the Black candidates for county commission were 

defeated in the democratic primary and never reached the 

general election. Georgia law requires primaries of this 

sort for county office, and the exact kind of slating shown 

in White v. Regester does not occur here. Ga. Code §34- 

1001. However, the discriminatory effect is no different 
here because control over the primaries rests in the hands 
of the White majority that plaintiffs have shown will not 

vote for Black candidates. Indeed, the difference between 

Thomas County and the Texas counties parallels the distinction 
between the traditional White primary and Texas' Jaybird

28-



primary. Compare Terry v . Adams, 345 U.S. 461 (1953) with

Smith v. Allwright, 321 U.S. 649 (1944). And the Supremo 

Court held, in those cases, that the distinct ion was one 

without legal significance. The crucial fact is whether the 
State allows a nomination process that discriminates against 
Black voters.

Defendants have suggested that plaintiffs' case is weakened 
because relatively few Blacks have run for county office. But 

this court has held that the absence of elected Black officials 

is the key element of proof, even where no Blacks have ever 

run. E.g., Turner v. McKeithen, 490 F.2d 191, 195 n. 15 

(5th Cir. 1973) . Indeed, the absence of Black candidates, 

like the absence of Black registered voters, is simply proof 

of the continuing effects of past discrimination. See 

Zimmer v. McKeithen, 485 F. 2d at 1306. More importantly, 

many Blacks have run for office in the City of Thomasville, 
and those elections are very relevant proof in the present 

case. Since Blacks comprise a greater percentage of the 
registered voters in the city than in the county at-large 

(App. 29, 43, 47 ) , the failure to elect Blacks to city 

offices is compelling evidence of the impossibility of 
winning a countywide race.

In city races, Blacks have run for office (school board, 
city commission, or both) in every election since 1965. A total 

of twelve Blacks ran between 1965 and 1973, and none were suc­

cessful. (App. 21 ? PI. Ex. 2). In 1975, the first Black was 

elected to a Thomasville office when William A. Morris won

-29 -



a seat on the city school board. His election is further 

evidence that the Thomas County system is discriminatory, 

because Mr. Morris was elected under a system which no 

longer requires either a majority vote or numbered posts.
(App. 26-27)

Finally, the evidence is undisputed that Blacks have not 
run more often for county office because they know full well 

that the chance of success for a Black candidate is extremely 

low, or nonexistent, in comparison with the chance of success 
of a White opponent. (App.22 ; Mullins Depo. at 20). Thus, 
the at-large system acts as a strong and active deterent to 
Black participation in the political system.

4. Other discriminatory election features. In addition 
to the at-large voting requirement, there are other requirements 

in Thomas County that dilute the voting strength of Blacks.

These should be considered by the Court as further evidence 

of the overall discriminatory effect of the county election 

system. Zimmer v. McKeithen, 485 F.2d at 1305; Turner v. 

McKeithen, 490 F.2d at 196. These requirements are the 

majority vote rule and what is effectively a numbered-post 

system. Majority vote is required by state law, Ga. Code 

§34-1513, and many cases have recognized the discriminatory 
effect of this requirement when added to an at-large election 
system. E.g., White v. Regester, 412 U.S. at 766. A 

numbered-post system is also discriminatory because it 

requires all Black candidates to run "head on head" against

30-



White opponents. E.g., White v. Regester, 412 U.S. at 766; 

Pitts v. Busbee, 395 F.Supp. 35, 40 (N.P. G.i. 1975), vacated

on other grounds, 536 F .2d 56 {5th Cir. 197b).

5- State policy. The Fifth Circuit has stated that a 
strong state policy in favor of at-large elections may weigh 

in favor of the constitutionality of systems. 485 F.2d at 

1305. Although that logic may well be undercut by subsequent 

Supreme Court decisions and by this Court's decision in Wallace 

v. House, 538 F.2d 1138, 1140 (5th Cir. 1976), state policy is 

not a factor in this case in any event. In Georgia, there is 

no policy favoring at-large elections in local government. 

County commissions are established by local legislation; 

there is no general statewide law that in any way pertains 

to the issue of at-large versus district elections. Thus, 

historical state policy provides the defendants with no 

supportive evidence here. See also, Pitts v. Busbee, 395 
F.Supp. at 39.

3

Six of the geographical residency districts in Thomas 
County have one commissioner each, so each of these operates 
exactly like a numbered-post system. The Thomasville 
district has two commissioners but they run in alternate 
elections, so these seats are also like numbered posts. 
Finally, there are two representatives from the Boston- 
Metcalf area, but by tradition and electoral practice 
these two seats have always been split, one for Boston 
and one for Metcalf. (Parrish Depo. at 17-18). Thus, 
all eight commission seats operate like a numbered-post 
system.

-31-



6. Department of Justice findings under Section 5. As
pointed out above, William Morris is the first Black elected 

to a Thomasville or Thomas County office, and he was elected 

to the city school board. Prior to the effective date of 

section 5 of the Voting Rights Act of 1965, 42 U.S.C. §1973c, 

members of the Thomasville City School Board were elected without 
either numbered posts or a majority vote requirement. The 

candidates would simply run and the top vote receivers were 
the winners.

The General Assembly attempted to change this system in 
1968 to require that a candidate run for a specific numbered 

post and to require that he or she receive a majority vote 

in order to win. Ga. L. 1968, Act 765. When this Act was 
finally submitted to the Attorney General under section 5, 

he entered an objection because of the discriminatory effect 
of the numbered-post and majority-vote features. This 

objection was entered on August 24, 1972. The General 

Assembly attempted a similar change in the school board in 

the 1973 session. Ga. L. 1973, Act 418. This Act was also 
objected to, by letter dated August 27, 1973. (App. 35-39)

This administrative finding by the United States Attorney 
General provides further evidence of discrimination in the 

present case. If a numbered—post, majority—vote system is 

discriminatory in the City of Thomasville, a similar at-large 
system in the entire county is necessarily even more discri­

minatory because of the lower level of Black voter registration

-32-



in the rural areas and because of the greater levels of segrega­

tion and racist attitudes that persist in those areas. And of 

course, the at-large feature itself is far more discriminatory 

in its effect than the numbered-post or majority-vote require­

ments objected to by the Department of Justice. It is the 

at-large system which places political control in the White 

majority. The numbered post and majority vote requirements

are merely additional devices that further shore up dis-
4crimination under the at-large system.

Moreover, it is important to consider the fact that the 

numbered-post, majority-vote system for a school board election 

was used illegally until 1975. Section 5 prohibits the enforce­
ment of any voting change absent prior approval. Allen v. State 

Board of Elections, 393 U.S. 544 (1969). Nevertheless, the 

school board elections were conducted under the illegal system 

in both 1969 and 1971. (PI. Ex. 2.) The discriminatory effect 

of using the illegal system is apparent from the 1969 school 

board returns. Elijah Hill, Jr. was the leading candidate in 

the general election for the Board of Education, Post 1, but 

he was subsequently defeated in the run-off. (PI. Ex. 2.) Mr. 

Hill would thus have been elected in 1969, and he would have 

been the first Black elected to office of any sort in that 

County, had the school board election been conducted in con­
formity with the requirements of the Voting Rights Act.

4. The relative degree of discrimination under the county
system is also enhanced by the much greater geographical 
area the candidates must campaign in compared to Thomasville 
City elections. Zimmer v. McKeithen, 485 F.2d at 1305.

-33-



While the City school board is a distinct entity from 

the County Commission, this recent example of Illegal and dis­

criminatory elections in the County is certainly relevant 
evidence of voting discrimination in the present case.

7. Racial Campaign Tactics. A number of related decisions, 
including White v. Regester, indicate that evidence of racial 

campaign tactics provides indirect evidence by which the 

Court can infer that the effect of an at-large system is 

discriminatory. Because of the overwhelming direct evidence 

of discrimination under the at-large system, plaintiffs doubt 

that there should be much significance placed on racial cam­

paign tactics in this case. Nevertheless, since other decisions 

do rely on such evidence, counsel will point to some of the 

evidence in the record here that pertains to this aspect of proof.

In the past in Thomas County, local elections had overtly 

racial appeals to White voters. (App. 28 ) More importantly, 

even to the present day, the evidence reveals that there has 
been no instance of a White candidate "ever taking a pro­

integration stand or favoring the Black position in any [contro­

versial] issues involving race." (App.20) The fact that a 
White candidate could not openly embrace Black support and 

Black positions, of course, is just as much evidence of unequal 

political access as would be directly racial overtures during a 
campaign.

As late as 1974 J. B. Stoner ran a purely racist campaign 

for Lieutenant Governor. He ran State-wide and in Thomas 

County both. Stoner ran racist advertisements in the media

-34



and distributed materials in Thomas County (App. 25.)

8. Discriminatory district alignments. In addition to 

challenging the Thomas County election system because it is an 

at-large system, count two of plaintiffs' complaint alleges that 

the district lines are drawn in a way that violates the 

Fourteenth and Fifteenth Amendments. The Supreme Court has 

recognized that residential requirements can be established in 

an at-large election system in such a way that a segment of 
the electorate might be subjected to "invidious discrimination." 

Dallas County v. Reese, 421 U.S. 477 (1975). Invidious discri­

mination of that sort is present here.

The number of registered voters, by race, in each district, 

were obtained and introduced into evidence. (App.29, 43, 47)

The election district boundaries correspond precisely to the 

county commission residency districts, except that certain 

residency districts represent the sum of more than one election 

district. Thus, it was possible to determine the number of 

registered voters, by race, for each commission residency district, 
and those figures are as follows:^

REGISTERED VOTERS
COMMISSION DISTRICT White Black

Thomasville Division 6,524 3,394
Boston 873 222
Metcalf 161 24
Coolidge-Merrillville-Ellabelle 775 152
Ochlocknee 514 69
Pavo-Ways-Barwick 797 102
Meigs 480 60

^The Thomasville Division is a total of the East Side
Balfour, Jerger, Harper and Outside Thomasville election
districts.

-35-



This district breakdown shows that very few registered 

Black voters live in the rural election districts. In three 

of the six rural districts, there are fewer than 70 registered 

Blacks. In two of the others, there are just over 100. Only 

in the Boston district are there over 200.

The significance of these figures is obvious. Since there 
are so few potential Black candidates living in these districts, 

it is relatively certainly that Whites will rarely be opposed by 

Blacks and that Whites will win these posts. That, of course, 

is precisely what has happened, ahd it is completely supported 

by defendant's own testimony. Several of the commissioners 

testified to the obvious fact that a fair degree of independence, 
financial and otherwise, is necessary in order to serve as an 

effective commissioner because the job pays virtually nothing 

and requires a good deal of time. Black candidates must also 

be independent of the control of White employers if they are 

to be able to enter the political arena unrestricted. The 

defendants also testified that they could think of few, if any, 

Blacks in their election district who had the requisite time 

and independence to be able to serve as commissioner, at least 
without making undue personal sacrifices. (Davis depo. at 118; 
Bannister depo. at 14-16; Parrish depo. at 18-19)

Thus, the system as presently apportioned gives Blacks a 

reasonable opportunity to field candidates in only a small 
fraction of the districts. Black candidates are largely restricted 

to the Thomasville division, which contains eighty-four per­

cent (84%) of the Black voters in the County, but only two

-36-



of the eight county commissioners. As a practical matter, Blacks 

tend to be precluded from six of eight, or sevenly-f iv< • percent 

(75%) of the districts, even before the other mechanisms of 
dilution take effect.

An apportionment structure that operates this way clearly 

provides additional evidence of discrimination and dilution 

under plaintiffs' White v. Regester claim. Plaintiffs have also 

asserted throughout this case that this apportionment structure 

constitutes "invidious discrimination" in its own right because 
it is drawn in such a way that Black candidates have realistic 
access to disproportionately few elections sposts in tne County

Dallas County v. Reese, supra. This constitutional theory provides 
an alternative ground for reversing the judgment of the District 
Court and invalidating the election system in Thomas County.

The relief would be the same under this theory, reappor­

tionment into equally populated districts where the candidates 

run only within their district. This would be required because 
of the "rule of preference" that applies in all reappor­

tionment cases, regardless of whether racial discrimination has 

been proven, for single-member districts. East Carroll Parrish 

v. Marshall, 424 U.S. 636 (1976); Paige v. Gray, 538 F.2d 1108, 
1111-13 (5th Cir. 1976).

9. General Discrimination and Segregation. Thomas County 
has a history of thorough segregation in its schools, in the 

courthouse, in public businesses and in social and priviate 
life as well. Many of the technical barriers to segregation

37-



have been formally eliminated because of the civil rights laws, 

but much still remains as a matter of fact. (App. 18-19)

This is further evidence of the present lack of access 

to the political system. 485 F.2d at 1306.

Plaintiffs have pointed out the importance of continuing 

segregation in private and social life in Thomas County.

Because elections depend upon personal contacts and friendships, 

the Black minority in the County will necessarily remain at 

a disadvantage as long as at-large elections are maintained 
in the segregated environment that exists.

This environment of segregation, of course, is intimately 

connected to the past discrimination and segregation that has 
been imposed by the State and the various agencies of local 

government. Even to this day, for example, the public housing 

authorities in Thomas County are nearly as segregated as they 

were when Brown v. Board of Education was decided by the 

Supreme Court in 1954. (PI. Ex. 14) Similarly, present housing 

segregation is closely related to the County's history of 

school segregation. Both Black and White parents naturally 

located near their respective schools, and this inevitably 

created and reinforced segregated housing patterns. These are 
simply some of the examples of the connection between present 

racial attitudes and segregation and past discrimination by 
local government.

-38-



Turner v. McKeithen, 490 F.2d at 195- Moreover, unresponsiveness 

is really just an indirect method of proving that the political 

system does not afford Blacks equal access. It is evidence that 

the Black electorate cannot extract from the candidates commit­

ments in proportion to the number of Blacks in the County. Such 

indirect evidence of non-access is hardly necessary here because 

the plaintiffs have proved unequal access by overwhelming 

direct evidence. Nevertheless, plaintiffs have also produced 

clear and uncontradicted evidence of unresponsiveness in this 
case.

(1) Possibly the most glaring fact of unresponsiveness 
is the attitude of every single defendant in this case. With 
the end of the Civil War, Blacks in Thomas County were neces­

sarily propertyless and poor. One hundred years later, Blacks 

in Thomas County are still far from attaining equality with 

their White counterparts. The extensive Census information 

produced in this case by plaintiffs shows that Blacks suffer 

deprivations across the social and economic scale. (PI. Exs.

20-39) This difference can be explained solely by slavery and 

the continuing discrimination that has existed since that time. 
Yet defendants expressed complete indifference to these obvious 
needs and interests of the Black community. Indeed, some of 

the defendants professed ignorance of the relative deprivations 

faced by Black citizens of the County. (Bannister depo. at 19) 

Although defendants have suggested that they have no power 
to alleviate any of the difficulties that may exist for Blacks,

-39-



The record in this case is replete with other examples 

of discrimination in the County that supplement the general 

testimony concerning present day segreation. Among these 

is the sale of a public school to a group of Whites, at 

a nominal sum, to be used as a private school when integration 

was finally required a few years ago. (Davis depo. at 128-33). 

Public housing was actively segregated in the County, as evidenced 

by the testimony of one of the defendants who also serves as 
the Housing Authority Commissioner in the City of Boston. The 

projects maintain their racial identity to this day. When 
questioned whether there was only one housing project in Boston, 

Defendant Hancock testified, "No. We have two; a White and a 

Colored." (Hancock depo. at 18.) Defendant Tuck testified to 

the strong resistance of Whites to the appointment of a Black 

to the very important area planning and development commission. 

Only with hard persuasion by him and another member of the APDC, 

plus an order from the authorities in Atlanta, did a Black 

get appointed to that position. (Tuck depo. at 7-8). Also,

Ku Klux Klan activity persisted until fairly recently, when 

their activities were replaced by the actions of "White 

citizens' councils." (App.19).
10. Responsiveness. The only remaining area of proof 

is whether the county commission has been responsive to Black 
interests. Zimmer v. McKeithen, 485 F.2d at 1305-07. Of course, 

this Court has recognized that proof of unresponsiveness is not 

a necessary element of plaintiffs' case, in part because it is 
often difficult to present relevant evidence. Id. at 1306-07.

-40-



the evidence is to the contrary. First, as the political 

leaders of the county, they should have been working 

to minimize discrimination and racist attitudes. The contrary 

is true. No effort has ever been made by the county commis­

sioners , for example, to encourage equal opportunity hiring 

by county government, an area which is particularly within 

their responsibility. In the recent push to provide a publicly 
supported junior college in the county, which would admittedly 

be of particularly great interest and benefit to the Black 
community (Hay depo. at 14-15, 24), the county commissioners 

were generally opposed to the idea because it would increase 

the property owners' tax burden. (Bannister depo. at 10-12; 

Parrish depo at 23-24). Of course, as the Census exhibits 

show, the property owners who would have been paying for the 

college are overwhelmingly White. Even the commissioners who 
supported the junior college merely pushed to submit the idea 

to a referendum (Mitchell depo. at 10-11), but that just left 

the fate of the college in the hands of the same White majority 
that has shown little sympathy for any program of predominant 
benefit to the Black community.

The County also could have made efforts to seek federal 

assistance to alleviate the economic problems that affect 

Black citizens. Over the years, however, the county has taken 

virtually no action in this direction. For example, a county 

housing authority was not established until federal funds 
were no longer available. (Davis depo. at 32-35) The few 

federal grants applied for by the county have had little

-41-



or no relevance to the lives of the many poor Blacks living there. 
(Jones depo., April 29, 1976). Indeed, the county commission has 

been so unresponsive that Black residents have tried to do the 

county's work for it and arrange federal grants for the area on 

their own. These efforts, too, have been stimied by unresponsive 
officials.(App, 30-32; PI. Ex. 7, 8)

(2) Unresponsiveness is also shown by the simple fact that 

county facilities were maintained on a segregated basis until 

recently. The courthouse sign for the "Colored Restroom" was 

not even removed until 1968. (App.18)

(3) The appointments made by the county commissioners to 

various boards and offices have been grossly discriminatory.

Over the past ten years, the evidence shows that a total of 61 

people were either appointed by the county commission, or 

recommended by the county for appointment by another authority.
And it is undisputed that there are Blacks in Thomas County 

that are qualified for any job or position in the County.

(Hancock depo. at 23-25) The names of appointees were gotten 

through personal contacts, and this procedure naturally produced 
a predominantly White group given the segregation in the county.

Of these 61 people only six were Black (Jones depo. at 20-21, 

35-36), and of these six, three were appointed to the newly 

created county housing authority which never, functioned for 

lack of funds. (Davis depo. at 32-35). Of the remaining three 
Black appointees, two were from the very same family (the 
Mclvers) .

-42-



One of the most important appointments made by the 

commission in recent years has been the appointment of a 

successor to a vacant seat on the commission. Defendant Hancock 

was appointed to this position. Notwithstanding the historical 

exclusion of Blacks from public office and the obvious need for 

Black representation, the commission chose a White to fill the 

unexpired term. There is no issue here of the "qualifications" 
for the position. Defendant Hancock himself admits that he was 

completely uninterested in politics, that he had no idea how 

his name could have come up, and that he had no qualifications 

that any other citizen would not have had. (Hancock depo. 3-5) 
Hancock was subsequently reelected in 1972. (Id. at 6).

(4) Employment discrimination is equally serious. Of the 

iOl people whose salaries are paid in whole or in part by the
5

County, only twenty are Black. Everyone in a position to hire, 
fire or promote is White. Blacks occupy the lowest jobs. Of 

the twenty Blacks employed, five are maids or janitors, and no 

White works as a maid or janitor. (Fielding and Jones depo. 

at 6 20). There is no set procedure for hiring and deciding job 

qualifications; everything is done on a subjective basis. Most 
hiring is by word-of-mouth when openings occur; only rarely is 

a job advertised. (Id. at 37-63). The county commissioners 
have never taken any steps to encourage equal opportunity in 
the hiring process. (id. at 79)

. ^These figures exclude all elected officials and the five 
White court reporters, who are paid by the piece.

-43 -



In the rare case where a Black was hired into a traditionally 

White job, he was approved only after special scrutiny. Defendant 

Davis testified that the commissioners do not personally review 

the choice of deputies by the county sheriff. (Davis depo. at 

40ff) But when the first (and only) Black was hired as a deputy, 

the commission specifically discussed whether hiring a Black was 

appropriate. (Pis. Ex. 6) Thus, special burdensome procedures 

were expressly used in hiring this Black person into a position 

of responsibility.
The evidence of employment practices in Thomas County, 

established from defendants1 own testimony and admissions, 
clearly amounts to an overwhelming Title VII case. Rodriquez v. 

East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974)
A typical example of the closed, subjective, and discrimina­

tory hiring practices occurred during the summer of 1974 in the 

county tax office. At least a dozen assistants were hired that 
summer, and they were all White. No qualifications were 
required for the work they performed.(T.80-81) In another 

example, a Black man applied to work in the tax appraiser's 

office, which historically has been all White, and he was told 
that he would have to own real property in the county to obtain 

a job. (T.90) No such qualification exists in fact. (T.84). This 

man happened to be very well educated for the appraiser job 

he was seeking, since he had a Master's degree and only a high 

school ducation was required.(T.89-90) Again, the continuing 
effects of segregation are evident in the testimony



of the chief tax appraiser who was responsible for hiring. 

Although he testified that he advertised a position in the 

Times Enterprise, a White-owned county newspaper, he did not 

place a similar ad in the county's Black newspaper. He was 

not even aware that such a paper existed. (T.88-89)

(5) There are instances in the County where roads 

are paved in a discriminatory fashion. In some cases, roads 

are paved right past the last White residence, and then they 

turn to dirt where Black residents live. In other cases 

where the county had to pave a route between two locations 
the commissioners opted to pave the road on which Whites pre­
dominated rather than a similar or better route where Blacks 

were living. No explanation for these actions exists other 
than race. (App.23 )

11. Defendants' Evidence. Defendants have produced little 
evidence here, but what they have produced is exceptionally 

beneficial to plaintiffs' case. Defendants established at the 

hearing that some Blacks had been elected to the Thomas County 
Democratic Executive Committee.(T.111-12) However, these 

individuals were elected under a ward election system, and 

that system in turn is required under the affirmative action 

demands of the National Democratic Party. By stipulation,

State and National Democratic Party documents were submitted

~4 5“



to the Court as supplementary evidence after the hearing. 

Ironically, defendants have proven the very point of the 
case with their evidence, that ward elections in Thomas County 

will elect at least some Blacks, while at-large elections will 

elect none. It was an oversight by plaintiffs' counsel that 

plaintiffs did not introduce this very testimony. Indeed, it 

is probably not seriously disputed here that at-large elections 

in the county greatly impede, or preclude, the election of 

a Black candidate. Counsel for defendants admitted in his 

opening statement that, "possibly the Blacks cannot elect 

a Black. " ( T. 17) .

Virtually no evidence was produced by defendants that 

could be construed to indicate that Blacks have equal 
access to the political system in Thomas County. During the 

depositions of the named plaintiffs, counsel sought to prove 

that these particular individuals had not been precluded from 
voting and that they personally had not been discriminated 

against in applying for any county job. That, however, is not 
the test of "access of the political system." To prove dilution, 

it is certainly not necessary that all Black persons in the

^Authenticated copies of the Charter of the Democratic 
Party of the United States, the Charter of the Democratic 
Party of Georgia, and the By-laws of the Democratic Party of 
Georgia are attached to a letter to the Clerk from counsel 
dated December 10, 1976. However, although exhibit stickers 
were affixed to these documents, they were never numbered by 
the Clerk. The Nationally imposed affirmative action require­
ment is codified in the State Party's By-laws in Article IX,
1(11, which sets out the requirement for district based election 
of the members of the Party's county executive committee.

-46-



county be unable to vote, nor that all Black persons be refused 

county employment on racial grounds.

In addition to this testimony, counsel introduced an af­

fidavit of each of the county commissioners stating that Blacks 

had equal access to the political system and that the commis­

sioners had not been unresponsive. Of course, such general 

denials have no significance in light of the detailed deposi­

tions of defendants and the great amount of particularized 

and unrebutted evidence to the contrary produced by plaintiffs. 

See, e.g., Wade v. Mississippi Cooperative, 528 F.2d 508, 517 

(5th Cir. 1976)
B . Further Proceedings In The District Court Are Unnecessary.

At-large elections are unconstitutional where Blacks have 

not had an equal chance to participate in the political process 
and elect representatives of their choice. Whether Blacks have 
had equal access in Thomas County is an "ultimate".issue of 

fact and, as such, this Court must evaluate that question in­

dependent of any decision by the trial court, without regard 

to the clearly erroneous standard. East v. Romine, Inc., 518 

F.2d 332, 338-39 (5th Cir. 1975). For that reason and because 

there is more than enough uncontested evidence in the record 
to uphold plaintiffs' White v. Regester claim, plaintiffs contend 

this Court should enter judgment now on their dilution claims, 

rather than remanding for any further findings of fact or con­

clusions of law by Judge Elliott. That course is especially 

proper here since the vast majority of evidence was presented 

through depositions, affidavits, and documents, and the trial

-47-



court is in no better position to evaluate that evidence than
• • 7is this Court.

This Court should also direct that the proposed election 

plan presented by plaintiffs be implemented upon remand, to­

gether with an order shortening the terms of the current county 

commissioners and providing for special elections at the earlie 

practicable time. The complaint in this case was filed on 

August 11, 1975. Since that time, both primary and general 

elections for several of the county commissioners have been 

held. Prior to those elections, plaintiffs moved for a preli­

minary and permanent injunction on the basis of their dilution 
claims. (App. 16 .) Without a hearing and without findings of 

fact or conclusions of law, Judge Elliott denied the requested 

preliminary injunction on July 27, 1976. (App. 48-49 .) Be­

cause plaintiffs have taken every possible step to secure 

enforcement of their constitutional and statutory rights, 

they are entitled to implementation of a reapportionment 

plan at the earliest possible time. E.g., Toney v. White,

488 F.2d 310 (5th Cir. 1973) (en banc); Paige v. Gray, 399 

F. Supp. 459, 466-67 (M.D. Ga. 1975), remanded on other 

grounds, 538 F.2d 1108 (5th Cir. 1976); United States v,

Cohan, 358 F.Supp. 1217, 1220 (S.D. Ga. 1973) (three-judge 
court); United States v. Garner, 349 F.Supp. 1054, 1056 
(N.D. Ga. 1972) (three-judge court).

Moreover, there is no need for any further hearing con­

cerning the details of an appropriate reapportionment order.
-J— ------------------------------------- •

The district court's denial of plaintiffs' motion for 
summary judgment, Rule 56, is subject to reversal, as well as 
the denial of the final injunctive and declaratory relief under 
Rules 52 and 65.

-48-



In the trial court, plaintiffs presented a reapportionment 

plan based on Census figures, personal knowledge, and prior 

experience in drafting reapportionment plans. (Pis. Exs. 

10-11) The population breakdown for the eight districts 

included in that plan are as follows:

District Total Pop. % Deviation Black Pop. % Black
1 4082 -5.5% 2721 66.7%
2 4441 2.8% 2590 58.3%
3 4329 0.0% 3268 75.5%
4 4101 -5.1% 6 25 15.2%
5 4178 -3.3% 495 11.8%
6 4552 5.4% 1459 32.1%
7 4441 2.8% 1106 24.9%
8 4438 2.7% 1469 33.1%

As the exhibits reflect, the district lines in the proposed plan 
were drawn primarily along Census lines. In the City of Thomas- 

ville, in fact, every district line follows Census lines.

(PI. Exs. 10, 11, 12 and 13) In the rural parts of the County, 
the districts deviate from Census lines in a few cases. This 

was done in order to: (1) more closely equalize population in
adjoining districts; (2) follow along natural boundaries where 

the Census lines failed to do so; or (3) provide a continuous 
line between two abutting election districts.

It is beyond dispute, of course, that any court-ordered 
reapportionment plan here must be based entirely on district 
elections. There should be no at-large seat whatsoever.

Wallace v. House, 538 F.2d 1138 (5th Cir. 1976); Paige v. Gray, 

538 F.2d 1108, 1111-12 (5th Cir. 1976) . No special circumstances 

have been shown that could permit the retention of any at- 

large seats under the standards set forth in the Paige and 
Wallace decisions.

-49-



The sole evidence of appropriate relief in this case was 

presented by plaintiffs, although defendants certainly had 

every opportunity to present their own proposed plan. Unless 

plaintiffs' proposed relief were manifestly improper on some 

ground, there would be no basis for deviating from this plan, 

and it would be an abuse of discretion to do so. There is no 

evidence in the record to support any other position. To 

allow a remand now for further hearings on relief would simply 

allow defendants' tactics to unjustifiably burden and delay 
the right to relief established by the county's Black voters.

There are other compelling reasons why the proposed plan 
should be implemented immediately. First, even if plaintiffs' 
plan is adopted by this Court, the General Assembly will always 

retain its power to modify the election districts, and the 

election system itself, in any nondiscriminatory way. Thus, 
this Court would not be imposing a particular permanent reap­

portionment plan on Thomas County. Because any court-ordered 

plan is an interim plan by nature (if only because of reappor­

tionment after the 1980 Census), the equities strongly favor 
the granting of prompt and sure relief now.

This Court must also consider the peculiar position of 

the defendants. Plaintiffs have shown that the election system 

is discriminatory and illegal, and that the eight defendants 

are not representative of the county's overall population.
They greatly over-represent the interests of the White residents. 

Thus, the Court is faced with a unique situation where the de­
fendants' position on issues of relief is entitled to far

-50-



less weight than is normally the case. In virtually all other 

litigation, the defendants at least are rightfully in their 

position of authority, even if they have acted wrongly, and 

their views on appropriate equitable relief are therefore 

entitled to certain weight. That is not true here. Defendant 

are the product of a discriminatory and illegal system, and 

this Court need not give them whatever deference and considera 

tion might otherwise be appropriate.

III. PLAINTIFFS ARE ENTITLED TO AN AWARD 
OF ATTORNEYS' FEES, AND THE DISTRICT 
COURT ERRED IN FAILING TO GRANT PLAIN­
TIFFS' MOTION TO AMEND THEIR COMPLAINT 
TO SET FORTH 42 U.S.C. §1973 1(e) AS A 
BASIS FOR A FEE AWARL.

Plaintiffs filed their complaint in this case subsequent 

to the Supreme Court's decision in Alyeska Pipeline Co. v. 

Wilderness Society, 421 U.S. 240 (1975). The complaint prayed 

for substantive declaratory and injunctive relief, and "such 

other additional relief as the interest of justice may require 
together with the costs and disbursements of this action."

(App. 7 .) By way of that general prayer, plaintiffs intended 
to seek attorneys’ fees.

On August 10, 1976, plaintiffs served a motion to amend 
their complaint to specifically assert section 207 of Pub. L. 
No. 94-73, 42 U.S.C. §1973 1(e), as a basis for an award of 
attorneys' fees. (App.52 .) That provision, which became

law August 6, 1975, provides authority in voting cases for "a 

reasonable attorney's fee as part of the costs." The District 

Court did not rule on plaintiffs' motion to amend. Plain-



tiffs' appeal from the court's failure to allow that motion, 

and they contend that they are entitled to an award of fees 

in this case.
The motion to amend should have been allowed pursuant to 

Fed. R. Civ. P. 15, which requires that leave to amend "be 
freely given when justice so requires." See, e .g ., Foman v ■ 

Davis, 371 U.S. 173 (1962). Moreover, this Court has recently 

held that'section 1973 1(e) applies to cases that were on 
appeal when the statute was enacted. Wallace v. House, 538 

F.2d at 1147-48. Wallace held that an attorney's fee provi­

sion should be applied to a pending case "unless doing so 

would result in manifest injustice or there is statutory 

direction or legislative history to the contrary." Id. at 

1148. The Court concluded that there was no contrary legi­

slative history and that traditional principles required a 

fee award there. The propriety of a fee award in the instant 

case is even greater than in Wallace. Wallace had already 
been decided once by the Fifth Circuit before the enactment 

of 1973 1(e). See Wallace v. House, 515 F.2d 619 (5th Cir.
1975). There is no such retroactivity problem here since 

the present' case was filed at nearly the same time as the 

enactment of the attorney's fee statute.
Another more recent act of Congress provides an alternative 

basis for the same conclusion. On October 19, 1976, the Civil 
Rights Attorney's Fees Awards Act became law. This legislation 

amended 42 U.S.C. §1988 to authorize an attorney's fee, as 

part of costs, in cases such as the present one that are brought



under 42 U.S.C. §1983. The legislative history of that Act 

expressly requires retroactive application to pending cases.

122 Cong. Rec. H12160-66 (1976). Moreover, as with other 

civil rights fee provisions, the courts' "discretion" in 

awarding fees is limited. Prevailing plaintiffs must receive 

fees, as a matter of course, "unless special circumstances 

would render such an award unjust." H.R. Rep. No. 94-1558,

94th Cong., 2nd Sess. at 6-7 (1976).

In regard to the particular issue of awarding fees against 

local government bodies, Congress emphasized the need to grant 

sufficiently large fees to encourage experienced counsel to 

undertake the litigation. The House Committee expressed con­
cern that inadequate fee awards "would further widen the gap 
between citizens and government officials and would exacerbate 

the inequality of litigating strength." Id. at 7.

Governmental entities and officials have substantial 
resources available to them through funds in the 
common treasury, including the taxes paid by the 
plaintiffs themselves. . . . The greater resources
available to governments provide an ample base from 
which fees can be awarded to the prevailing plain­
tiff in suits against officials or entities. Id.

The Senate Report expresses similar concerns. S .Rep. No. 94-

1011, 94th Cong., 2nd Sess., at 4-5 (1976).

Thus, it is clear that plaintiffs here are entitled to an
award of their costs of litigation and their attorneys’ fees.

The fee award must be adequate to ensure that counsel will be

remunerated according to their skill and the time involved.
Johnson v. Georgia Highway Express, 488 F .2d 714 (5th Cir.
1974). The hourly rate in voting cases is necessarily high

-53-



since only injunctive relief is sought. There is no common 

fund of damages recovered by the plaintiff which could provide 

another source of fê .s. In similar situations in the past, 

this Court has recognized that where injunctive relief alone 

is available in a civil rights case, "the statutory allowance 
of attorney fees [is] a vital part of the whole scheme" of 

substantive law and enforcement. Miller v. Amusement Enterprises 

Inc., 426 F .2d 534, 538 (5th Cir. 1970).

Appellants pray that this Court reverse the judgment of 
the District Court; find the Thomas County election system 

iliegal because it is discriminatory; direct that special 

elections be held at the earliest practicable time pursuant 

to the election plans presented by plaintiffs; and award 
plaintiffs costs and attorneys' fees.

CONCLUSION

Respectfully submitted

NEELY, NEELY & PLAYER

3100 Peachtree Summit 
Atlanta, Georgia 30308 
404/681-2600

DAVID F. WALBERT

KING, PHIPPS & ASSOCIATES

P. 0. Drawer 3468 
Albany, Georgia 31706



CERTIFICATE OF SERVICE

I HEREBY CERTIFYthat I have this day served two copies 

of the foregoing brief on Mr. A.J. Whitehurst, P.0. Drawer 

47, Thomasville, Georgia, 31792, counsel for defendants, 
by depositing same in the United States Mail, properly 

addressed and with adequate postage affixed.
Dated this 14th day of 1977.

David F . Walbert