Supplemental Brief of Plaintiffs-Appellees with Cover Letter

    CRAWFORD, BLACKSHER, FIGURES & BROWN 

ATTORNEYS AT LAW 

  

1407 DAVIS AVENUE 

MOBILE, ALABAMA 36603 

VERNON Z. CRAWFORD TELEPHONE 432-1691 

JAMES U. BLACKSHER AREA CODE {[205) {2 
MICHAEL A. FIGURES 

W. CLINTON BROWN, JR. 

GREGORY B. STEIN 

LARRY T. MENEFEE 

July 5, 1977 

Mr. Edward W. Wadsworth, Clerk 
U.S. Court of Appeals, FPifth Circuit 
Room 102 - 600 Camp Street 
U.S. Court of Appeals Courthouse 
New Orleans, Louisiana 70130 

Re: Bolden, el al. v. City of Mobile, et al. 
Appeal Nos. 76-4210 and 77-2042   

Dear Mr. Wadsworth: 

Please file the enclosed original and three (3) copies of > 
the Supplemental Briefs of Plaintiffs-Appellees in the 
subject appeals. 

Sincerely, 

CRAWFORD, BLACKSHER, FIGURES & BROWN 

Origins sigued by Ju. gr. 
J. U. Blacksher 

JUB:bsm 

Enclosures 

cc: All Counsel 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NOS. 76-4210 & 77-2042 

  

WILEY L. BOLDEN, et al., 

Plaintiffs-Appellees, 

VS. 

CITY OF MOBILE, et al., 

Defendants-Appellants. 

As Bn, — 
  

On Appeal From The United States District Court 
Southern District of Alabama, Southern Division 

  

SUPPLEMENTAL BRIEF 
  

JAMES U. BLACKSHER 
LARRY T. MENEFEE 
CRAWFORD, BLACKSHER,FIGURES & BROWN 
1407 DAVIS AVENUE 
MOBILE, AL 365603 

EDWARD STILL 
601 TITLE BUILDING 
BIRMINGHAM, AL 35203 

JACK GREENBERG 
ERIC SCHNAPPER 

10 COLUMBUS CIRCLE 
NEW YORK. MN. VY. 10019 

Attorneys for Plaintiffs-Appellees 

 



iN THE 

UNITED STATES COURT OF APPEALS 

POR. THE PIFTH CIRCUAT 

NOS. 76-4210 & 77-2042 

WILEY 1.. BOLDEN, er al. 

Plaintiffs-Appellees, 

¥S. 

CITY OF MOBILE, et al., 

Defendants-Appellants. 

POST-ARGUMENT 
SUPPLEMENTAL BRIEF OF PLAINTIFFS-APPELLEES 

WILEY L. BOLDEN, ET AL. 
SR   

Plaintiffs-Appellees herein submit their supplemental 

brief, pursuant to the Court's instructions at oral argument 

on June 13, 1977, commenting on the effect on this appeal 

of Kirksey v. Board of Supervisors of Hinds County, F.2d 
    

(53th Civ., May 31, 1977)(en banc), and David v. Garrison, 
  

F.28 {5th Civ., June 10, 1977). 

 



  

SUMMARY 

The en banc opinion of this Court in Kirksey establishes 

principles which remove all doubt that the district court's 

judgment striking down at-large elections in Mobile should be 

affirmed. Virtually every contention made by the appellant 

Mobile City Commissioners is squarely repudiated by Kirksey, 

including their primary argument that Washington wv. Davis, 
  

426 1.8,:229, 26 S.Cr. 2040, 48 L.5d4.24:597 (19768), and Village 

of Arlington Heights v. Metropolitan Housing Development Corp., 
  

3.8. .,187 3.0. 555, 50 1..%d.24 430 (1377), prohibit Finding 

unconstitutional dilution of black voting strength unless the 

mul timember election scheme was created with racially 

discriminatory intent. Rather, Kirksey provides, regardless of 

the Legislature's motives, the State violated the fourteenth 

and fifteenth amendments in 1911 when it adopted an apportionment 

plan for Mobile that perpetuated and failed to ameliorate then 

existent purposeful exclusion of blacks from the political process, 

which had been accomplished in 1901. Defendants could not show 

substantial evidence that this intentional discrimination 

against black citizens has no remaining residual effects. To 

the contrary, the great preponderance of evidence showed, and 

the district judge found, that black Mobilians do not today 

enjoy equal access to the political process. | 

Kirksey also rejects the City Commissioners' contention 

that the district court should have preserved the at-large 

commission form of government in deference to substantial 

local governmental interests. The en banc decision reaffirms 

Ve 

 



  

the rule of this Court and the Supreme Court that the more 

fundamental rights of citizens to a full and effective vote 

outweigh such concerns. 

The trial court's opinion sub judice has none of the   

deficiencies criticized by the panel majority in David wv.   

  Garrison, and though David seems to set up a stricter burden 

of proof than this Court has previously required of dilution 

case plaintiffs, the record in this appeal clearly satisfies 

it. 

Nevertheless, we respectfully submit that the evidentiary 

standards used in David are in irreconcilable conflict with 

those announced in Kirksey and that this panel is bound to 

follow the en banc decision. Indeed, it may well be that 

David has been overruled by Kirksey. Although the former 

decision was handed down ten days after Kirksey, the opinion 

cites the petition for rehearing in Kirksey as still pending. 

Thus the David panel apparently did not have the benefit of 

the en banc decision when it wrote its opinion. 

 



  

I. 

KIRKSEY FULLY AFFIRMS THE LEGAL STANDARDS 
AND CONCLUSIONS ADOPTED BY THE DISTRICT 
JUDGE HERE 
  

The central defense of the City Commissioners during trial 

and in this appeal is the legal contention that the ''race- 

proof" circumstances surrounding the adoption of Mobile's 

at-large elected commission government in 1911, in light of 

Washington v. Davis, save the system from equal protection 
  

attacks. The district court's rationale for rejecting 

Defendants' theory is virtually identical to this Court's en 

banc teachings in Kirksey. And, without question, the 

Commissioners failed to meet the evidentiary burden required 

by Kirksey to avoid the conclusion of unconstitutional dilution. 

A. Kirksey approves the district court's 
reconciliation of dilution caselaw with 

Washington v. Davis. 
  

In his opinion, the district judge noted Washington v. 
  

Davis's proviso that a neutral statute may not be applied so 

as invidiously to discriminate and concluded: 

To hold that the 1911 facially neutral 
statute would defeat rectifying the invidious 
discrimination on the basis of race which 
the evidence has shown in this case would 
Fly in the face of this principle. 

423 F.Supp. at 398. The discrimination referred to by the 

court is the protracted State scheme of black disenfranchise- 

ment that extended from 1901 to 1965, id. at 397, and the still 

 



  

continuing nonresponsiveness of local officials to blacks’ 

interests, id. at 400. This reasoning exactly coincides with 

the rule articulated in Kirksey: 

Where a plan, though itself racially 
neutral, carries forward intentional 
and purposeful discriminatory denial 
of access that is already in effect, 
it is not constitutional... Ils benign 
nature cannot insulate the redistricting 
government entity from the existent taint. 

Op. at 15~16. $ 

The en banc opinion makes it explicitly clear that, while 

the apportionment plan before it is court-ordered, Op. at 1 
2 

the constitutional principles it enunciates "have equal   

application" to legislatively adopted schemes, Op. at 8. The 

court carefully divided its discussion into separate sections, 

Sections I, II and III dealing with "The law of unconstitutional 

reapportionment" and its application to Hinds County, and 

Section IV confronting the '"mon-constitutional grounds' governing 

the Court of Appeals’ supervision of court-ordered plans. In 

so doing, Kirksey acknowledges that "a court-ordered 

reapportionment plan is held to higher standards than a legislative 

  

i 
In Kirksey the redistricting plan was found to be racially 

neutral. Here, however, the trial court did not entirely endorse 
the neutrality of the 1911 statute, saying there could be little 
doubt that the Legislature then was aware of the dilution caused 
by at-large elections and would have employed them specifically 
to diminish blacks' voting strength had they not already been 
barred from the ballot. 423 F.Supp. at 397. Furthermore, said 
the court, racial considerations had prevented the modern 
legislators from changing the existing system to provide blacks 
equal access to the election process. 1d. 

 



  

plan. A legislative plan need only meet constitutional 

standards." Op. at 26. Accordingly, the constitutional 

standards approved in Sections I, II and III are squarely 

applicable to the instant appeal. 

The district judge reached his legal conclusions by the 

same route followed by the en banc Kirksey Court: he relied   

on Washington's reminder that invidious purpose "may often be   

inferred from the totality of the relevant facts," 423 F.Supp. 

at 396, noted that Washington failed "to expressly overrule or 2 P Y 
  

comment on White, [Reese v. Dallas County], Chapman, Zimmer, 
    

Turner, Fortson, Reynolds or Whitcomb," id. at 398, and therefore 
    

refused to conclude that Washington v. Davis had suddenly replaced 
  

- -5a- 

 



  

the existing judicial standards for scrutinizing facially 

neutral multimember systems that dilute minorities' votes 

with a new requirement that initial discriminatory purpose 

be shown, id. Kirksey uses essentially the same analysis to 

hold that, "while Washington v. Davis and Arlington Heights 
  

  

sharpen the emphasis on purpose and intent," they do not 

modify the dual modes of unconstitutionality firmly established 

in the voting rights caselaw of the Supreme Court and the Fifth 

Circuit: (1) a facially neutral election system purposefully 

created to exclude blacks or (2) a racially innocent system 

that nevertheless perpetuates existent purposeful discrimination 

against black voters. Op. at 18. 

The district court cited the fundamental importance that 

the Supreme Court has placed on each citizen's "inalienable 

right to full and effective participation in the political 

processes," 423 F.Supp. at 398, quoting Reynolds v. Sims, 377 
  

U.S. 533, 565 (1964), making it unconstitutional to infrirge 

precious voting rights either by express racial classifications, 

by racial gerrymanders, or by schemes that operate to dilute 

the "quality" of representation for minorities, 423 F.Supp. at 

399. Compare Kirksey, supra, Op. at 5-6, 19. When social and 
  

political realities dilute the effectiveness of blacks' votes, 

a "litany of past history” of official racial discrimination 

can satisfy the purpose and intent requirement of Arlington   

Heights, Kirksey, supra, Op. at 10. Kirksey plainly approves 
  

the district court's holding that an aggregate of circumstances 

 



  

similar to those cited in White v. Regester, 412 U.S. 755 
  

(1373), and Zimmer v. McReithen, 485 F.24 1297 (5th Cir. 1973)   

(en banc), aff'd sub nom. East Carroll Parish School Bd. v. 
  
  

Marshall, 424 U.S. 636 (1978), make out a violation of both 
  

the fourteenth and fifteenth amendments . 2 Op. at 9: 423 F.Supp. 

at 335. 

B. The burden of rebuttal placed on defendants 
by Kirksey provides an additional reason for 
affirming the judgment below. 

According to the en banc Kirksey opinion, where the State   

has in the past intentionally excluded blacks from the electoral 

process, officials defending apportionment plans that would 

otherwise perpetuate such past discrimination must come forward 

with substantial evidence that its residual effects are 

dissipated and that black voters now have equal access to the 

political process. Op. at 11-12. In the instant case blacks 

were disenfranchised at the time Mobile's at-large Commission 

was adopted, and purposeful discrimination against blacks 

seeking to vote is admitted to have persisted until 1965. 

A.295-98. The defendant Commissioners' primary argument for 

  

2 
The trial court also found a cause of action available 

based on Section 2 of the Voting Rights Act of 1965, 42 1.58.C; 
§1973, and Plaintiffs urge affirmance of this holding as well. 
See Appellees’ Brief, pp. 44-50. 

 



  

present equality of access is squarely rejected by Kirksey, 

which says mere reliance on blacks' unimpeded right to vote 

and run for election is not enough. Op. at 8 n.10. Compare 

Appellants' Brief, pp. 8, 35. Defendants offered no affirmative 

evidence to rebut the extensive proof that the political 

choices and interests of black Mobilians are consistently 

overwhelmed by the bloc-voting white majority, responding to 

sometimes openly racist campaign appeals. 

Indeed, the record in this appeal far outstrips the 

evidence in Kirksey, which this Court thought to contain 

"almost every significant factor indicative of denial of 

access to the political process.” Op. at 10. All ten of the 

indicia recounted in the en banc opinion, pp. 9-10, are present 

here: (1) no blacks ever elected in city-wide or county-wide 

races; (2) poll taxes and literacy tests; (3) segregation 

principles adopted by political parties; (4) property ownership 

requirement to run for office (City Commission qualifying 

fee struck down by federal court order; see 423 F.Supp. at 387 

nn. 3); (5) disproportionate education, employment, income 

level and living conditions between whites and blacks; (6) bloc 

voting (only alleged in Kirksey, but exhaustively proved in 

the instant case); (7) majority vote requirement; (8) no 

single-shot voting (place requirement); (9) systematic 

exclusion of blacks from juries; and (10) dual school system. 

And there was much additional evidence relied on by the district 

 



  

court to conclude Mobile's at-large elections are unconstitutional: 

close analysis of the candidacies of over a dozen blacks and 

blac k-supported whites from 1962 to 1974, including the racist 

campaign tactics that ensured their defeat; the testimony of 

an expert historian, an expert statistician, two expert political 

scientists and a dozen local politicians; computer analyses 

of most City and County election returns since 1962; and 

extensive documentary and testimonial evidence of employment 

discrimination against blacks by the City, underrepresentation 

of blacks on appointed boards and committees, laggard attention 

to the drainage problems in black residential areas, racial 

discrimination in paving and resurfacing streets and sidewalks, 

and official insensitivity to special black community concerns 

like police brutality, cross-burning and fair housing. 

In every respect, then, the Kirksey decision compels 

affirmance of the district court's finding of unconstitutional 

dilution. Moreover, the en banc opinion reemphasizes the 

bankruptcy of the defendants' familiar complaint that federal 

courts should not disturb state and local governmental 

structures just because they are instruments for denying black 

citizens equal protection of the law. 

It is clear, however, that the mere 
fact that an apportionment plan may 
satisfy some legitimate governmental 
goals does not automatically immunize 
it from constitutional attack on the 
ground that it has offended more 
fundamental criteria. 

 



  

Op. at 25, quoting Robinson v. Commissioners Court, 505 F.2d 
  

674, 680 {5th Cir. 1974). 

IY. 

THE OPINION AND JUDGMENT REVIEWED IN THIS 
APPEAL ARE UNASSAILABLE EVEN WITH THE MORE 
ONEROUS STANDARDS OF DAVID wv. GARRISON, 
WHICH CONFLICT WITH THOSE ESTABLISHED BY 
THE EN BANC COURT IN KIRKSEY. 

  

The majority opinion of the panel in David v. Garrison 
  

candidly concedes it is breaking new ground and that "'[t]he 

court is trying to find its way in this developing area of 

law." Slip Op. at 3706. It is clear that the panel engaged 

the developing vote dilution principles without the assistance 

of the May 31, 1977, en banc decision in Kirksey v. Board of 
  

Supervisor of Hinds County, which is cited as still under 
  

submission. Slip Op. at 3705. Plaintiffs-Appellees 

respectfully submit that, in remanding the trial court findings 

for further consideration, David relies on a novel legal 

approach to the problem of dilutive multimember districts that 

is fundamentally at odds with the en banc Kirksey decision. 
  

A petition for rehearing and suggestion of rehearing en banc 

  

was filed by the black plaintiffs in David on or about June 

23, 1977, seeking reconciliation of the panel decision with 

Kirksey. In the instant appeal, the Court is bound to follow 

the en banc opinion to the extent it conflicts with David v.   

Garrison.   

<=10- 

 



  

Indeed there is a basic divergence of philosophy between 

these two most recent precedents. Both reaffirm the duty of 

federal courts to enjoin the maintenance of apportionment 

schemes that unconstitutionally minimize minority electoral 

power. But whereas Kirksey finds reason enough in recently 

abated official discrimination against blacks to require the 

State to bear the burden of justifying neutral plans that 

perpetuate blacks' disadvantaged position, David presumes that 

plaintiffs have a heavy burden of proving that prior purposeful 

devices to restrict black voters still are causally linked to 

their present inferior status. David views the single-member 

3 and calls for upsetting district remedy with a jaundiced eye 

legislatively prescribed multimember plans only if the proof 

of State complicity in dilution meets a high evidentiary 

standard of certainty. Slip Op. at 3704, 3706. 

David v. Garrison cannot be squared with Kirksey when it 
  

places the burden on plaintiffs to prove that undisputedly 

inferior living conditions, municipal services and city 

4 
employment ~ weighing on blacks are the fault of governmental 

  

But see Connor v. Finch, 45 U.S.L..W. 4523, 4530 (May 31,1977). 
  

/ 
Making voting rights plaintiffs prove how many ''qualified" 

black persons had applied for municipal job classifications in 
which blacks are grossly underrepresented is a tougher burden 
of proof than is even required in Title VII cases. International 
Brotherhood of Teamsters v. United States, 45 U.S.L.W. 4506,4510 
(May 31, 1977). 

    

  

11% 

 



  

officials, even in the face of historical discrimination 

against blacks. David, supra, Slip Op. at 3708-09. Referring 
  

aggrieved black citizens to federal fair employment laws 

rather than providing the remedial opportunities of equal 

political access is a direct affront to the contrary teaching 

of Kirksey. Compare David, supra, Slip Op. at 3708, with 
  

Kirksey, supra, Op. at 13. David cites with approval the   

suggestion in McGill v. Gadsden County Commission, 535 F.2d 
  

277. (3th Cir. 1976), that plans adopted when blacks could not 

vote must be racially neutral, Slip Op. at 3709, whereas 

Kirksey holds that such a plan is unconstitutional if it tends 

to perpetuate the prior intentional exclusion. The conclusion 

in David that past racial discrimination was not proved 

responsible for the continued absence of black elected officials 

because blacks were not afraid to register and vote, squarely 

conflicts with Kirksey's holding that defendants must prove 

the contrary proposition. Compare David, supra, Slip Op. at 
  

3709, with Kirksey, supra, Op. at 14. 
  

But measured even by the more difficult tests set up in 

David v. Garrison, the opinion of the district judge in the   

instant case stands up. To begin with, Mobile is not nearly 

as small a multimember district as Lufkin, Texas, a factor that 

apparently keyed the especially close scrutiny the panel gave 

the evidence in David. Slip Op. at 3707. In Mobile the court 

received considerable, unrebutted testimony about the special 

problems blacks must overcome to wage successful city-wide 

-12- 

 



  

campaigns, and its conclusion that blacks lack equal practical 

access to candidate slating was based on this and other factors 

of discouragement. 423 F.Supp. at 388-89. Its finding of 

nonresponsiveness is thoroughly explicated and founded on 

substantial evidence. The unequal provision of municipal 

services was both observed by the court personally and measured 

by documents taken from city records. Id. at 389-92. The 

court's reference to municipal employment discrimination was 

buttressed by two prior judicial determinations. Id. at 389. 

The residual effects of historical racism on the political 

system were shown by hard evidence of polarized voting and 

racist literature and were attested to by both politicians 

and expert political scientists. The district court pointed 

to the stark residential segregation along racial lines and 

the persistent margin by which the black registration rate 

lags that of the whites. 423 F.Supp. at 386. Without repeating 

at length matters previously briefed, suffice to say that 

no serious contention could be made here that the district 

court should have made "more explicit and concrete findings." 

David, supra, Slip Op. at 3709. 
  

-13- 

 



  

CONCLUSION 
  

Kirksey v. Hinds County controls this appeal and commands 
  

that the district court be affirmed. 

Respectfully submitted this 5th day of July, 1977. 

/ y 

sy of [fp brbice. 
37 LL i 
T/ARRY T. MENEFEE 
CRAWFORD, BLACKSHER, FIGURES & BROWN 
1407 DAVIS AVENUE 
MOBILE, ALABAMA 36603 

  

EDWARD STILL, ESQUIRE 
601 TITLE BUILDING 
BIRMINGHAM, ALABAMA 35203 

JACK GREENBERG, ESQUIRE 
ERIC SCHNAPPER, ESQUIRE 
SUITE 2030 
10 COLUMBUS CIRCLE 
NFW YORK, NH. .Y. 10019 

Attorneys for Plaintiffs-Appellees 

CERTIFICATE OF SERVICE 
  

I do hereby certify that on this the 5th day of July, 1977, 
I served a copy of the foregoing SUPPLEMENTAL BRIEF upon counsel 
of record, C. 8S. Arendall, Fsquire, P.0. Box 123, Mobile, AL 36601, 
Fred G. Collins, Esquire, City Hall, Mobile, AL 36601 and Charles 
S. Rhyne, Esquire, 400 Hill Building, Washington, D. C. 20006, 
by depositing same in United States Mail, postage prepaid. 

2 A x 
{fetomey for Plaintiffs-Appellees 
  

Wy TAN