Brief of Defendants-Appellants

    81C NED COPY 

76-4210 
United States Court of Appeals 

FOR THE FIFTH CIRCUIT 

  

  

  

No. 76-4210 

  

WILEY L. BOLDEN, ET AL, 

Plaintiffs-Appellees, 

versus 

CITY OF MOBILE, ET AL. 

Defendants-Appellants. 
  

Appeal from the United States District Court for the 

Southern District of Alabama 

  

BRIEF OF DEFENDANTS-APPELLANTS 

CITY OF MOBILE, ALABAMA, ET AL. 
  

OF COUNSEL: 

Hand, Arendall, Bedsole, C. B. Arendall, Jr. 

Greaves & Johnston William C. Tidwell, III 

Post Office Box 123 Travis M. Bedsole, Jr. 

Mobile, Alabama 36601 Post Office Box 123 

Mobile, Alabama 36601 

Legal Department of the Fred G. Collins, City Attorney 

City of Mobile City Hall 

Mobile, Alabama 36602 Mobile, Alabama 36602 

Rhyne and Rhyne Charles S. Rhyne 

400 Hill Building William S. Rhyne 

Washington, D. C. 20006 Donald A. Carr 

Martin W. Matzen 

400 Hill Building 
Washington, D. C. 20006 

  

  

SCOFIELDS’ QUALITY PRINTERS, P. 0. BOX 563096, N. O., LA. 70153 - 504/822-1611  



  

 
 

 
 

 



  
  

  

   
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 76-4210 
  

WILEY L. BOLDEN, ET AL. 

Plaintiffs- Appellees, 

versus 

CITY OF MOBILE, ET AL. 

Defendants-Appellants. 

  

CERTIFICATE REQUIRED BY FIFTH CIRCUIT 

LOCAL RULE 13(a) 

The undersigned, counsel of record for Defendants- 

Appellants, certifies that the following listed parties 

have an interest in the outcome of this case. These 

representations are made in order that Judges of this 

Court may evaluate possible disqualification or 

recusal pursuant to Local Rule 13(a). 

The City of Mobile, Alabama 

Gary A. Greenough, Commissioner 

Robert B. Doyle, Jr., Commissioner 

io
 

2 
D0

 

Lambert C. Mims, Commissioner 

C. B. Arendall, Jr. % 

Attorney of Record for 

Defendants-Appellants 

    



    

ii 

REQUEST FOR ORAL ARGUMENT 

The District Court ordered the City of Mobile to 

change from the Commission government under 

which it has operated for 66 years to a mayor-council 

government because at-large election of City Com- 

missioners allegedly dilutes the voting power of 

blacks. The order changing the form of a local govern- 

ment goes beyond the issues heretofore presented in 

voter dilution cases! and has serious implications for 

all governmental units in the United States, including 
Council-Manager as well as Commission systems, 

which are premised on at-large elections. These im- 

portant constitutional issues of voting, Federalism, 

and the right of the people to choose the form of their 

local government require oral argument for their 

proper resolution. 

  

1 To the knowledge of counsel for the City of Mobile, Blacks Unit- 
ed for Lasting Leadership, Inc. v. City of Shreveport, No. 76-3619, 
now pending before this court, is the only other voter dilution case 
to order a city to change its form of government. 

   



iii 

TABLE OF CONTENTS 

Pa 

CERTIFICATE OF COUNSEL, LOCALRULE F 

1302). 530m bode pois Sitios ane Sitio ts SAehie I riaet Bs Btdfll Hits 44 ns win i 

REQUEST FOR ORAL ARGUMENT .............. ii 

BP ABLE OF AUTHORITIES es trirnrriney ix 

STATEMENT.OP THRE. ISSURS. ...ci cnicssndses coros 1 

STATEMENT OF THE CASE =... . 10 (ih. 0. 2 

PROCEEDINGS AND DISPOSITION 

BELOW i. sa, desi ante ee snes 2 

STATEMENT OF PACTS ... cern issss erin 3 

A. MOBILE’'SFORMOF GOVERNMENT 

WAS ADOPTED IN 1911 WITH A 

RACIALLY NEUTRAL, GOOD 

GOVERNMENT PURPOSE ne iv: concn 4 

B. MOBILE'S ELECTORAL SYSTEM 

PROVIDES EQUAL ACCESS FOR 

ALL PERSONS TO THE POLITICAL 

PROCESS, BLACKS PARTICIPATE 

ACTIVELY AND EXERCISE 

SIGNIFICANT. VOTING POWER .......... 8 

1. There are No Barriers To Black 

PartiCIDAION. fh reise io sidobininapcss + nv o's 8 

2. All Candidates Seek The Support 

Of Black Voters Because Black 

Votes Are Clearly Essential To 

VICIOTY. ih. os i LS th), ous 8 

3. Racial Polarization In Mobile 

City Commission Elections Is 

Diminishing. .... aad Silas, vos 10  



  

  
    

iv 

TABLE OF CONTENTS (Continued) 

The Only Blacks Who Have Run 

For The City Commission Have 

Failed To Gain Significant Black 

SUPP i itt Basa ides 2 bs 

C. MOBILE'S COMMISSIONERS ARE 

EQUALLY RESPONSIVE TO BLACK 

AND WHITE CITIZENS 

1 The Undisputed Facts Of The 

Accessibility Of Mobile’s Com- 

missioners To All Citizens. ....... 

There Is No Intentional Dis- 

crimination In Mobile City Ser- 

vices, Employment Or Ap- 

POIMINERLS er ios vier reve + norerrsrcr wiisnews 

Plaintiffs’ Evidence That Mobile 

Commissioners Elected At-Large 

Represent All Citizens Fairly. .... 

SUMMARY OF ARGUMENT 

ARGUMENT 

I. MOBILE'S COMMISSION FORM OF 

GOVERNMENT CLEARLY PASSES 

CONSTITUTIONAL MUSTER, ............ 18 

A. Atlssue Here Is The Validity Of A 

Form Of Government And Not 

Merely The Manner Of Its Elec- 

x Fy + RRR A a Ra A RL ete i BE 

1. At-large elections are a 

rational and legally indispen- 

sable feature of the Commis- 

sion form of government. ..... 

eo © 0 6 0 0 0 0 0 0 0 0 oo 

© 6 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 

© ® © 6 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 8 0 0 0 8 0 

Page 

THR 

Mey I 

iis 18 

wire v0 

   



Vv 

TABLE OF CONTENTS (Continued) 

This Court must decide 

whether proper application of 

Zimmer principles required 

the Court below to dis- 

establish a form of govern- 

ment adopted without racial 

purpose 66 years ago. ......... 

B. Racially Discriminatory Purpose 

Is An Essential Element Of Equal 

Protection Violation Which Plain- 

tiffs Failed To Prove. 

1 In no case has this Court in- 

validated an electoral system 

of such long standing as 

Mobile’s without a showing of 

discriminatory purpose — the 

Zimmer line of cases is fully 

consistent with Supreme 

Court decisions requiring that 

purposebe sShown.& ...¢..cvu 0. 

The District Court erred in 

reading the element of racial 

purpose out of Zimmer. ....... 

C. The City Government Of Mobile 

In Fact Fully Satisfies The 

Zimmer Test — Its Electoral 

Process Is Equally Open To 

Blacks And Whites. 

1. The Constitution neither 

creates nor protects any right 

to proportional representa- 

Page 

a] 

cise)  



    

vi 

TABLE OF CONTENTS (Continued) 

tion in any racial, ethnic or 

other interest group. ...::s:v: ev... 33 

2. Therebeingno barrier toblack 

participation in Mobile 

political life, the District 

Court erred in equating black 

“discouragement” with denial 

Of ACCESS... civvviir mini Pirates vives 35 

a. The District Court correct- 

ly found ‘‘no formal 

prohibitions’ against 

blacks in Mobile's slating 

process, but erred in 

permitting Plaintiffs to 

bootstrap a denial of 

access from unjustified 

black ‘‘discouragement” 

over a black candidate’s 

Chance of VICIOTY, vo ..co0cv0esa 36 

b. Black voters in Mobile 

have significant and un- 

fettered electoral power. 

The Court erred in finding 

that racially polarized 

voting precludes effective 

black participation... .'.......... 40 

c. The District Court erred in 

allowing Mobile’s share of 

the onus of past dis- 

crimination to blur its 

analysis of the presently 

open electoral system. ......... 43 

   



  

11. 

ITI. 

vii 

TABLE OF CONTENTS (Continued) 

d. Mobile’s city ‘com- 

missioners are equally 

accessible and responsive 

to all citizens. !.2. 5A... 

THE DISTRICT COURT ERRED IN 

DISREGARDING THE STRONG 

GOVERNMENTAL INTEREST 

BEHIND MOBILE'S CHOICE OF 

COMMISSION GOVERNMENT — AN 

ERROR THAT WILL IMPACT THE 

THOUSANDS OF LOCAL 

GOVERNMENTS NATIONWIDE 

THAT EMPLOY THE COMMISSION 

FORM AND THE COUNCIL- 

MANAGER FORM .......-..000n 

A. Zimmer Like Other Equal Protec- 

tion Cases, Required That Due 

Weight Be Given To Substantial 

Governmental Interests Not 

Rooted In Racial Discrimination. 

B. Mobile’s Policy In Favor Of Its At- 

Large City Commission Is Not At 

All ‘“‘Tenuous.” Indeed, That 

Policy Is Shared By Many Local 

Governments Throughout The 

Nation. © 5 nv Pr ie TP eu 

THE DISTRICT COURT’S DECISION 

AND ORDER WILL ACTUALLY DIS- 

SERVE THE POLICIES OF IN- 

TROBATION ....oisivasanivinrsaess 

Page 

Foe ny 48 

Cold o0  



    

viii 

TABLE OF CONTENTS (Continued) 

Page 

A. Single Member Districts Will 

Only Serve To Foster Balkanized 

Enclaves And Racially Polarized 

Government Which Will Actually 

Reduce Both The Political Effec- 

tiveness of Blacks And The Ef- 

ficiency Of City Government. ......... 54 

B. Single Member Districting To Ac- 

complish Representation By Race 

Will Serve An Impermissible 

Constitutional Purpose By 

Perpetuating De Jure Mobile's 

Existing De Facto Pattern Of 

Residentially Segregated 

Enclaves. i... ii imnaihilblb. 59 

IV. THE ORDERS APPEALED FROM 

ARE JUDICIAL LEGISLATION 

VIOLATING THE FEDERALISM 

PRINCIPLES AND TENTH AMEND- 

MENT OF THE CONSTITUTION OF 

THE UNITED, STATES ui. tustc same aves va 61 

CONCLUSION: of oi oe tidit ies Fs soda sre vs nese 64 

CERTIFICATE OR SERVICE M2 its... 66 

APPENDIXCA (50 cicero sain sa is abe nritld o ou 1a 

   



ix 

TABLE OF AUTHORITIES 

Cases: Page 

Abate v. Mundt, 403 U.S. 182 (1971) ....crrccscrs si 49 

Akins v. Texas, 325. U.S. 398-(1945) ../i...50: 4 duis 26 

Anderson v. Martin, 375 U.S. 399 (1965) .......... 56 

Avery v. Midland County, 390 U.S. 474 (1968) .23,49,62 

Baker v. Carr, 389U.S. 186: (1982) +... 2. 450% NN 63 

Beal v. Lindsay, 468 F.2d 287 (2d Cir. 1972) . ...... 61 

Beer v. United States, 425 U.S. 130 (1976) ....... 4,33 

Blacks United for Lasting Leadership, Inc. v. 

City of Shreveport, 71 F.R.D. 623 (W.D. La. 

1976), appeal pending, No.76-3619 (5th Cir.) ..... 23 

Bradas v. Rapides Parish Police Jury, 508 

F.2d 1100 (6th Cir. 1973) ...... 1,18,23,28,35,37,44,49 

Chapman v. Meier, 420 U.S. 1 (1975) ........... 22,55 

City of Richmond v. United States, 422 U.S. 

BOR (ITD) esti nn Si Anghtis nine 26,50 

Connor v. Johnson, 402 U.S. 690 (1971) ........ 19,22 

Dallas County v. Reese, 421 U.S. 477 (1975) ....... 34 

Dove v. Moore, 539 F.2d 1152 (8th Cir. 1976) ...... o8 

Dusch v.1)avis, 3871.8. 113 (1967) .« vec s sis ow t+ 3.000 34 

Fortson v. Dorsey, 379 U.S. 433 (19658) ... ec ce. a. 55 

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ...... 31 

Graves v. Barnes, 343 F. Supp. 704 (W.D. Tex. 

1972), aff'd sub nom. White v. Regester, 412 

UL, 80 755 (1973) xv0 0 1000 ete min 00 yao ais whosnguanin #ogoss sisi A BS 34  



  

  

  

xX 

TABLE OF AUTHORITIES (Continued) 

Page 
Hawkins v. Town of Shaw, 437 F.2d 1286 (5th 

Cir. 1971), aff'd on rehearing en banc, 461 

F.2d 1171: (1972)... 0 an Ne SE 25,46,61 

James v. Wallace, 533 F.2d 963 (5th Cir. 1976) ..... 46 

Jolly v. United States, 488 F.2d 35 (5th Cir. 

R74) ods ireninis AE PE Ph SEY ee ae vin vopanitle 3 

Keyes v. School District No. 1, 413 U.S. 189 

LAD73Y re iirian ive i sds heh A als ale va ens 26 

Lipscomb v. Wise, 399 F. Supp. 782 (N.D. Tex. 

105) RE TEX 55,61 

McGill v. Gadsden County Commission, 535 

¥.24 277 (bth. Cir. 1976) :...... 1,18,19,22.23 28,35,37, 

43,44,49 

Milliken v. Bradley, 418 U.S. 717 (1974) .......... 61 

National League of Cities v. Usery, 426 U.S. 

833, 96'S, CL. 2465'(19768) '.... oN AA 62,64 

Nevett v Sides, 533 F.2d 1361 (5th Cir. 

1978), trons ahset sod tors ps a i as 1,18,34,38,65 

Oregon v. Mitchell, 400 U.S. 112 (1970) ........... 62 

Paige v. Gray, 538 F.2d 1108 (5th Cir. 1976) . ...... 31 

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

Cir: A975). ... AGE, J ELE 0 sd BG Sis ull ov ous 20 

San Antonio School District v. Rodriguez, 411 

U.S. 1 C1073) p cimgernsrtions dont wht in entes' fot bogies wor oi pst 64 

Taylor v. McKeithen, 499 F.2d 893 (5th Cir. 

1075) ccviciasionenuniusancnesoinsnes spionahs S00 J) 59 

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

1973) .....:.. Ee ee see isi ln ie sie wa hws 20,34,35,36 

   



x1 

TABLE OF AUTHORITIES (Continued) 

Page 

United Jewish Organizations of 

Williamsburgh, Inc. v.Carey, U.S. 

45 U.S.L.W. 4221 (U.S. March 1, 1977) .1,18,24,29,31, 

33,34,38,60 

United States v. Board of School Com- 

missioners of Indianapolis, 541 F.2d 1211 

  

(7th "Cir."1976), vacated ..._ U.S. __._.., 45 

U.8i1.W. 3508 (U.S.Jan, 25, 1077).cocensnsvmsnesse 26 

Village of Arlington Heights v. Metropolitan 

Housing Development Corp., — U.S. : 

07 S..C1.-555 (1977) coins ivinis = sieisiosinonsas 1,18,24,30,31,50 

Vollin v. Kimbel, 519 F.2d 790 (4th Cir. 1975) ..... 34 

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

vacated 425 U.S. 947 (1978)... .s. aise 20,27,34,45 

Washington v. Davis, 426 U.S. 229 (1976) ..1,18,24,29, 

30,31,46,65 

Whitcomb v. Chavis, 403 U.S. 124 (1971) .. 4,19,23,24, 

28,33,49,53,63 

White v. Regester, 412 U.S. 755 (1973) ...... 19,23,30, 

35,43 

Wilson v. Vahue, 403 F. Supp. 58 (N.D. Tex. 

1978) ia hams SAGAN BRR Gh sme. 27,58 

Wright v. Rockefeller, 376 U.S. 52 (1964) ..26,31,55,58 

Young v. American Mini Theatres, Inc., ___ 

U.S. » I0S, C1. 240° (A076) ~.- . . i. see 62 

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 

1973) (en banc), aff’d sub nom. East Carroll 

Parish School Board v. Marshall, 424 U.S. 

B38 (1978)... 3,17,19,20,23,32,33,34,43 

   



    

xii 

TABLE OF AUTHORITIES (Continued) 

Page 
Constitution and Statutes: 8 

Ala. ActS NO, 281 (1011): oc in eivie fon sms ubisishy medete os 6 

Housing and Community Development Act of 

1974, 42 U.S.C. 859301 ef seq...  covdaRed SA 61 

U.S. Constitution 

ANMCIVUIMNOBN RAV srs 2.0 t.0is50 2.5 oto hes tensiriss 2e 3a 1,23,58 

AMENOMENL XV au. co vinci totes Ageless wines + spas 2,58 

AMENAMENT X virins vias « susie + mae witne drersasis wir <3 ws das 2 

Voting Rights Act, §5, 42 U.S.C. §1973c ........ 24,26 

Miscellaneous: 

E. Bradford, Commission Government in 

American Cities: (3911) J... 5 0. Gali. uu 6,52 

A. Bromage, Introduction to Municipal 

Government and Administration (1957) ........ 52 

D. Cambell, J. Feagin, Black Politics in the 

South: A Descriptive Analysis, 37 Journal 

Of: POLUICS 1120 (1975) 1 15.000 sie coi o saniie 0 abeasrsss wink 39 

Carpeneti, Legislative Apportionment: Mul- 

timember Districts and Fair Representa- 

tion, 120 U.Pa.L.Rev. 666 (1972) .............. 24,57 

S. Carmichael, C. Hamilton, “The Search for 

New Forms,” in Power and the Black Com- 

munity (S. Fisher.ed. 1070) ...cvnvunvonsnssomnns 52 

L. Cole, Electing Blacks To Municipal Office, 

Urban Affairs Quarterly 17 (September, 

BOTAN oo cine sins sna tans EAE BTR SUT 4 gba 4 48 0 4 40 

F. Donnelly, “Securing Efficient Administra- 

tion under the Commission Plan,” Annals 

of the American Academy of Political and 

Social Science 218(1912) ....................... 54 

   



xiii 

TABLE OF AUTHORITIES (Continued) 

Page 

The 50 States and Their Local Governments 

(J. Fesler-ed: 1987) '..c... occas codvvidsd sa dvb, o1 

C. Gilbert, Community Power Structure 

(1972) a Rea VA SRR 53 

International City Management Ass'n, The 

Municipal Yearbook (1976, 1972) ...:...cs.r avs 53 

Jewell, Local Systems of Representation: 

Political Consequences and Judicial 

Choices, 36 Geo. Wash. L.. Rev. 790 (1968) ... 56,63 

R. Lineberry, E. Fowler, Reformism and 

Public Policies in American Cities, 61 Am. 

Political Science Rev. 701°(1971) ............ 51,53 

C. McCandless, Urban Government and 

POLICES (1070) cides isssisesinsmsnnsons is 5,52,57 

MacKenzie, Free Elections (1958) ................ 56 

Note, 81 Harv. 1... Rev. 1851 (1974) ................ 55 

Note, Ghetto Voting and At-Large Elections: 

A Subtle Infringement Upon Minority 

Rights, 59 Geo. L. Rev. 989 (1970) {wn ull. 56 

J. Rehfuss, Are At-Large Elections Best for 

Council Manager Cities?, 61 National Civic 

Review B86 (1072) oo. ce vr iir iris tine tithes mgr dries 52 

B. Rustin, “From Protest to Politics: The 

Future of the Civil Rights Movement,” 

reprinted in Black Protest Thought in the 

Twentieth Century (A. Meier ed. 1971) ......... 43 

U.S. Bureau of the Census, Governing Boards 

of County Governments: 1973 (1974) ............ 53  



    
  

Xiv 

TABLE OF AUTHORITIES (Continued) 

Woodruff, City Government by Commission 

KAO11Y ovis «orvims mn nnsitiniv ities io ha ReiDRn ols dh in PEWS + Eo) 51 

Wright v. Rockefeller and Legislative Ger- 

rymanders: The Desegregation Decisions 

Plus a Problem of Proof, 72 Yale L.J. 1041 

BLOB DY reisninele srs nccatahin + Aatadotat Sa # EAE S Shh 93S 489 80 2 2 of 56 

 



UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 76-4210 
  

WILEY L. BOLDEN, ET AL, 

Plaintiffs- Appellees, 

versus 

CITY OF MOBILE, ET AL, 

Defendants-Appellants. 

  

Appeal from the United States District Court for the 

Southern District of Alabama 
  

BRIEF OF DEFENDANTS-APPELLANTS 

CITY OF MOBILE, ALABAMA, ET AL. 
  

   





STATEMENT OF ISSUES PRESENTED ON REVIEW 

1. Whether the District Court erred in holding that a 

showing of impermissible racial purpose was con- 

stitutionally unnecessary to Plaintiffs-Appellees’ 

claim that Mobile’s 66 year old city Commission 

form of government and at-large electoral system 

is violative of the Fourteenth Amendment, in light 

of the decisions of the United States Supreme 

Court in Washington v. Davis, 426 U.S. 229 (1976); 

Village of Arlington Heights v. Metropolitan 

Housing Corp., "U.S. _; 975. Ct 555 (1977); 

and United Jewish Organizations v. Carey, ___ 

U.S. , 45 U.S.L.W. 4221 (1977) and the decisions 

of this Court in Bradas v. Rapides Parish Police 

Jury, 508 F.2d 1109 (5th Cir. 1975); Nevett v. Sides, 

533 F.2d 1361 (5th Cir. 1976); and McGill v. Gadsden 

County Commission, 535 F.2d 277 (5th Cir. 1976). 

  

Whether the District Court erred in holding that 

racially polarized voting denied blacks access to 

the political process, where Plaintiffs-Appellees’ 

own evidence established that blacks participate 

actively and powerfully in Mobile politics, both in 

elections and in administration by elected of- 

ficials, where the only black candidates to run for 

the City Commission have been outpolled by their 

opponents even among black voters, and in light of 

the decision of the Supreme Court in United Jewish 

Organizations, 45 U.S.L.W. at 4227, that racially 

polarized voting is not of independent Con- 

stitutional significance. 

Whether the District Court erred in holding that 

the Federal Constitution requires that Mobile’s 

   



  

  
  

      

2 

electoral system be so arranged as to guarantee 

blacks the ability to elect black candidates as 

members of the City’s governing Board. 

4. Whether the District Court had power under our 

Federalism system and Tenth Amendment of the 

United States Constitution to enter orders 

legislating a new form of government for Mobile 

which provides blacks a ‘quota’ or proportional 

representation in Mobile’s governing board 

according to their population in Mobile. 

STATEMENT OF THE CASE 

Proceedings And Disposition Below 

Plaintiffs on behalf of all black citizens of the City of 

Mobile filed suit against the City and its three Com- 

missioners alleging that at-large election of City 

Commissioners unconstitutionally dilutes their 

voting strength in violation of the first, thirteenth, 

fourteenth, and fifteenth amendments, the Voting 

Rights Act of 1965, 42 U.S.C. §1973 et seq., and the Civil 

Rights Act of 1871, 42 U.S.C. §1983. R. 1, 548.2 They 

alleged jurisdiction under 28 U.S.C. §1331 and §1343. R. 

1. The district court found that a claim upon which 

relief could be granted had been stated against the 

Commissioners under 42 U.S.C. §1983 and against both 

the Commissioners and the City on claims grounded 

on the Voting Rights Act with jurisdiction over such 
  

2 Appellants have elected to defer filing of the Appendix. The 
original pages of the record on appeal will be citedas R. __. The 
first page of the transcript (numbered “1” by the court reporter) 
has been numbered page “621” of the record by the district clerk, 
but the subsequent pages of the transcript have not been numbered 
by the clerk. For clarity, the original pages of the transcript, as 
numbered by the court reporter, will be cited as Tr. __. 

 



3 

claims existing under 28 U.S.C. §1343(3) and (4). R. 

549. 

After trial the District Court issued an opinion pur- 

portedly relying on the criteria set forth in Zimmer v. 

McKeithen, 485 F.2d 1297 (5th Cir. 1973) and holding 

that at-large election of City Commissioners un- 

constitutionally dilutes black voting strength.¢ Con- 

cluding that district residence requirements and dis- 

trict election of City Commissioners would be “im- 

provident and unsound,” the Court ordered relief 

abolishing the Commission government and sub- 

stituting a mayor-council government with council 

members elected from single-member districts.5 

Statement Of Facts 

The District Court granted Plaintiffs’ prayer that 

Mobile’s Commission form of government be replac- 

ed by a Mayor-Council government elected from nine 

single-member districts. 

This case did not involve any reapportionment or 

other voting change® under the Voting Rights Act, 42 

U.S.C. §1973, but was a challenge to the status quo of an 

at-large Commission form of government in opera- 
  

3 The District Court also saidit had jurisdiction over the asserted 
claims under 28 U.S.C. §2201, the declaratory judgment section. R. 
549. This statement is erroneous since §2201 is not a jurisdictional 
statute. Jolly v. United States, 488 F.2d 35 (5th Cir. 1974) (per 
curiam). 

4 District Court Opinion and Order entered October 21, 1976. R. 
548-603. The District Court opinion is reported at 423 F. Supp. 384 
(S.D. Ala. 1976). 

5 The District Court’s 59 page remedial order was entered on 
March 9, 1977. Defendants, as a matter of caution, filed a notice of 
appeal from that order on March 18, 1977. 

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



  

T
i
 
i
 

a
 

  

  

  
  

tion for 66 years. The evidence showed that the City’s 

form of government was adopted for no racial purpose 

but to wipe out ward parochialism and corruption, 

that there are no barriers to participation by blacks in 

the political process and that blacks do in fact par- 

ticipate actively and influentially. The District Court 

based its order upon a putative constitutional right in 

blacks to elect blacks to the City governing body. 

Finding that the Mobile electoral system was not so 

arranged as to guarantee such a result, the Court 

ordered the adoption of a plan embodying propor- 

tional representation by race, there being 67,356 

blacks and 122,670 whites in the City. 

The Supreme Court in Beer v. United States, 425 U.S. 

130, 136n.8 (1976) expressed its position on the ques- 

tion presented here: 

“This Court has, of course, rejected the proposition 

that members of a minority group have a federal 

right to be represented in legislative bodies in 

proportion to their numbers in the general popula- 

tion. See Whitcomb v. Chavis, 403 U.S. 125, 149.” 

A. 

Mobile’s Form Of Government Was Adopted In 

1911 With A Racially Neutral, Good Government 

Purpose 

Mobile’s Commission-type municipal government 

was established”in 1911 by Alabama Act No.281 (1911) 
  

7 In 1963 and again in 1973, the people of Mobile rejected 
proposals to change from the commission form to a mayor-council 
government. (R. 435) 

   



5 

p. 330. Under this form of government, three Com- 

missioners are elected to specific positions. Each 

Commissioner engages in specific administrative 

tasks involving certain City Departments (Public 

Works and Services, Public Safety, and Finance) plac- 

ed under his control. The Mayoralty, a largely 

ceremonial post, is rotated among the Com- 

missioners. All Commissioners are elected at-large. 

The Commission form of government was first 

created in Galveston, Texas, in 1900. Within twenty 

years it had spread rapidly to approximately 500 

Cities and other local governments in the North as 

well as the South. It isnow employed by approximate- 

ly 540 local governments across the nation.8 Commis- 

sion government is founded upon two fundamental 

principles. First, its structure is designed to foster 

corporate management-type efficiency of operation 

through the creation of clear lines of known public 

responsibility for specific aspects of the 

government's affairs. Woodruff, City Government by 

Commission 29 (1911). Second, every voter is to be a 

constituent of each Commissioner, thus alleviating 

the “ward-heeling” and “logrolling’ that characteriz- 

ed the aldermanic or councilmanic systems in the ear- 

ly 1900’s. As one political scientist of the time stated: 

“...[U]nder the ward system of representation, the 

ward receives attention, not in proportion to its 
  

8 Political scientists attribute the relative decline in adoptions 
by governments of the Commission form to the rise of Council- 
Manager government, which is founded upon the same essential 
premises and which also rests upon at-large voting to assure that 
officials maintain a City-wide perspective. McCandless, Urban 
Government And Politics 168 (1970). Some 2000 local governments 
employ Council Manager government. 

  

     



  

    

a
T
 

  

S
T
 
S
I
   

  

6 

needs, but to the ability of its representatives to 

“trade” and arrange ‘““‘deals’” with fellow members. 

The pernicious system of logrolling results. 

‘To secure one more arc light in my ward, it was 

necessary to agree to vote for one more arc in each of 

the other seven wards; said a former councilman; 

‘the City installed and paid foreight arc lamps when 

only one was needed! So with sewer extensions, 

street paving and grading and water mains. Nearly 

every City under the aldermanic system offers 

flagrant examples of the vicious method of ‘part 

representation.’ The Commission form changes this 

to representation of the City as a whole.” Bradford, 

Commission Government in American Cities 165 

(1911). 

The District Court concluded that at-large elections 

are inherently necessary (423 F. Supp. at 387) to the 

Commission form of government, and that even the 

imposition of ward residence requirements for the 

Commissioners would be unconstitutional. The Dis- 

trict Court reasoned that the accountability of a City 

Commissioner who has command of a particular func- 

tion and jurisdiction over the entire city may not be 

limited to only a portion of the electorate (423 F. Supp. 

at 402 n.19). 

At the time Alabama Act No. 281 was passed, blacks 

in Alabama did not have effective use of the franchise. 

There was no racially discriminatory purpose to Act 

No. 281. 

Undisputed testimony adduced at trial established 

the purpose of instituting the Commission form of 

government in Mobile in 1911: 

   



Q Now, I will ask you whether or not a study of the 

newspaper articles of that time and the quotations of 

the comments made by persons such as Mayor Pat J. 

Lyons demonstrates that the change of the City 

Commission form was sold on the basis of business 

and other considerations completely unrelated to 

race? 

A Iwouldagreethatthe basic approach inthe cam- 

paign to change the form of government of the City 

of Mobile would be an appeal to what would be called 

progressive economic motivation, the idea of mov- 

ing to a more business like form of government. 

Q And this movement, in Mobile, had its counter 
part all over the United States, at that time, did it 

not? 

A And before that time. 

Q In areas where there were no blacks or substan- 

tially none? 

Yes. That would be true. 

Des Moines, that is one? 

Yes. 

Dayton, that is another? 

Yes. 

And it was not, in these other places, either, 

motivated by racial considerations, was it? 

A No. 

(Testimony of Plaintiffs’ expert witness McLaurin, 

July 12, 1976, Tr. 36-37). 

  

O
P
 
O
P
O
»
 

  
The District Court held that a finding of “initial dis- 

criminatory purpose” (423 F. Supp. at 398) was un- 

necessary in the determination of whether Mobile's 

form of government and electoral system are un- 

constitutional. 

   



    

a
   

  
  

B. 

Mobile’s Electoral System Provides Equal Access 

For All Persons To The Political Process, Blacks 

Participate Actively And Exercise Significant 
Voting Power 

1. There are No Barriers To Black Participation. 

It is undisputed that every phase of the processes of 

registration, voting, qualification and candidacy for 

the Mobile City Commission is as open to blacks as to 

whites. 

This is not a case where, despite the lack of formal 

prohibitions on registration or voting, minorities are 

effectively excluded by white-dominated slating 

organizations. There are no such slating 

organizations in Mobile. Nor is this a case where a 

political party structure fails to solicit minority par- 

ticipation, and where that party’s nomination is tan- 

tamount to election. Mobile’s City Commission elec- 

tions are conducted on a non-partisan basis. 

The District Court found that “blacks register and 

vote without hindrance,” and that there are no 

“prohibitions against blacks seeking office in 

Mobile.” (423 F. Supp. at 387). 

2. All Candidates Seek The Support Of Black Voters 

Because Black Votes Are Clearly Essential To Vic- 

tory. 

It is undisputed that this is not a case in which 

minority voters are ignored as inconsequential, or in 

which a candidate may be elected without minority 

support. 

 



The testimony of every witness, Plaintiffs’ as well as 

Defendants’, is replete with evidence that every can- 

didate for the Mobile City Commission actively seeks 

black votes. (Tr. 264, 320-22, 412, 539-40, 752, 824, 927, 

1141). 

Plaintiffs’ witness Rev. Hope, the leader of the Non- 

Partisan Voters League (NPVL) which is the principal 

black political organization® in the City of Mobile, 

testified as follows (Tr. 413-14): 

Q Isn’t it a fact, Reverend Hope, in the course of 

your connection with the league, its endorsement 

has been actively sought by candidates over the 

years that you have been connected with it? 

A Yes, sir. Definitely so. I explained that to start 

with. 

Q And wasn’tthat trueinthelast City Commission 

race in 1973? 

A Yes, sir. 

Q Every candidate in the race sought your 

endorsement, didn’t they? 

A: Yes, sir. 

* * * * * 

Q Let me ask you this. Didn’t the black vote in 

effect put Gary Greenough [one of three current 

Mobile City Commissioners elected in 1973] in of- 

fice? 

A I wouldn’t say the black vote alone, sir. 
  

9 The NPVL was formed in 1963 as the “underground” local arm 
of the NAACP, after the local branch was enjoined from political 
activity in Mobile for failure to surrender its membership list. The 
NPVL is still a separate branch of the NAACP. (Testimony of 
Plaintiff Wiley Bolden, July 12, 1976, Tr. 208). 

  

  

   



    

10 

THE COURT: 

Was it the difference? 

A 1 believe so. 

THE COURT: 

All right. 

The current Mayor, Lambert C. Mims, was re-elected 

in 1969 and 1973 to the Commission! with the endorse- 

ment of the Non-Partisan Voters League. 

It was also undisputed that City Commissioner 

Joseph Langan was elected and re-elected from 1953 

through 1969 with vital support from black voters. (Tr. 

292-295). The testimony further established that Mr. 

Langan’s defeat in 1969 was attributable to a loss of 

support from black voters. (Tr. 295, 304). 

3. Racial Polarization In Mobile City Commission 

Elections Is Diminishing. 

Expert testimony adduced at trial showed that the 

black versus white, schismatic voting trends of the 

1960s have been significantly reduced and that the 

trend is towards “a situation in which race will not be a 

major political issue.” (Tr. 1136). There is presently 

more difference in voting patterns between blacks of 

different economic levels than between whites and 

blacks of similar economic levels. (Tr. 1135). 

Plaintiff Wiley Bolden testified (Tr. 214-15) that: 

Q In your opinion, it is proper to characterize the 
  

10 The other current City Commissioner, Robert B. Doyle, Jr., 
was unopposed in the 1973 election. 

   



11 

black voters of the City of Mobile as now con- 

stituting a block vote? 

A "No, sir. 

THE COURT: 

He is not suggesting coercion. What he wants to 

know, is do the black voters usually vote for the 

same candidate? 

A No, sir. 

The testimony showed that the political reality in 

Mobile now is that “a candidate who would raise the 

racial issue in a City Commission election would cost 

himself as many votes as he would gain, if not more.” 

(Tr 1177). 

4. The Only Blacks Who Have Run For The City Com- 

mission Have Failed To Gain Significant Black 

Support. 

Plaintiffs’ expert testified that racially polarized 

voting in City Commission contests was not 

diminishing, explaining that statistical regression 

analysis showed a high degree of correlation between 

voters’ race and the votes they cast. Dr. Schlicting 

testified that the votes for three black candidates for 

City Commissioner in the 1973 election showed a par- 

ticularly high correlation with race. (Tr. 173-75).11 

  

11 The only other evidence of recent polarization of voting 
patterns (423 F. Supp. at 388) pertained to elections to the Mobile 
County Commission and the Mobile County School Board, which 
the evidence showed to involve a “different kind of constituency” 

(Tr. 312) and different issues. (Tr. 602, 1170-72). The District Court 
consolidated final argument in this case with argument in Plain- 
tiffs’ action challenging the constitutionality of at-large elections 
to the County Commission and County School Board. (Tr. 1414). 

   



  

  

  

  

12 

Other of Plaintiffs’ witnesses (Tr. 246-47, 365, 384, 

507, 566) testified that their objection to Mobile’s form 

of government was that because of such polarization it 

is “futile” for blacks to run in a city-wide election. 

It is undisputed that none of the three black can- 

didates in 1973 (who were the only blacks ever to run 

for the City Commission) carried the black census 

wards. (Tr. 175). Black voters supported white can- 

didates over those of their own race. (Tr. 1128). 

The District Court adopted the view (423 F'. Supp. at 

389) that itis impossible for black candidates to win at- 

large elections unless there is a black voting popula- 

tion majority. The District Court ignored evidence of 

the success of black candidates in at-large elections 

in, for example, Birmingham, Alabama (Tr. 739-40), 

and many other places across the nation. 

The District Court found (423 F. Supp. at 399) that the 

undisputed evidence of the absence of barriers to black 

registration, voting, or candidacy, and the undisputed 

evidence of active black participation and electoral 

power were irrelevant, because due to polarized 

voting prospective black candidates “shy away’ from 

running in City at-large elections. The record with 

respect to the electoral success in other predominant- 

ly white cities of black candidates who have not 

“shy[ed] away’ from at-large contests is set forth at 

pp. 39-40, infra. 

   



13 

C. 

Mobile’s Commissioners Are Equally Responsive 

To Black And White Citizens 

1. The Undisputed Facts Of The Accessibility Of 

Mobile’s Commissioners To All Citizens. 

Plaintiffs’ witnesses, testifying to alleged 

“unresponsiveness” of the Mobile City government, 

all testified that on numerous occasions they had 

taken problems large and small directly to the highest 

level of the City government, where they were af- 

forded hearings. 

Plaintiffs’ witness Seals, a black, testified that he 

had met with all three Commissioners at least four 

times, and had no difficulty obtaining a hearing. On 

one occasion, he requested additional street lighting 

for his area, and got it. On one occasion, he requested 

relief in connection with sewers, and got it. On another 

occasion, he requested sidewalks, and they were con- 

structed (Tr. 433-34). 

Plaintiffs’ witnesses Wyatt and Smith, also black, 

testified that they had been to City Hall where they had 

direct access to and met with all three Commissioners. 

(Tr. 572-73, 583). 

Plaintiffs’ witness Randolph, a black, testified that 

he had known Commissioners Mims and Doyle “for 

years” (Tr. 622, 624-25) and also Commissioner 

Greenough, and had ready access to them. Randolph 

sought street paving for one of Mobile’s black com- 

munities, and got it. He asked for better street lighting, 

and got it. (Tr. 621-22).  



  

  

  

  

  

14 

2. There Is No Intentional Discrimination In Mobile 

City Services, Employment Or Appointments. 

It was undisputed at the trial that certain problems 

exist regarding city services, but that those problems 

affect white as well as black citizens of Mobile. (Tr. 

436-37, 875, 893-94). Much of the new paving in the 

newer, and predominately white, areas of the city has 

been done by private developers without the use of 

public funds. Indeed, most of the paving done by the 

City of Mobile, as opposed to private developers, is in 

black areas. (See Defendants’ Exhibits 60-A, 60-B, 60- 

E). It was undisputed that any disparity is not pur- 

poseful, based on race, and that the cost of paving non- 

thoroughfare streets is assessed to abutting property 

owners and such assessments have not been paid by 

some black neighborhoods. (Tr. 644-648, 886-88). 

The City is spending millions of dollars in a long- 

term program to correct tremendous drainage 

problems affecting low-lying inexpensive housing 

which is principally black-occupied. (Tr. 872-73, 876- 

82). The District Court’s opinion stated (423 F'. Supp. at 

391) that all emergency drainage projects were in 

white areas. The evidence (Tr. 1253-54, 1260, 1278, 1280- 

81) showed that in fact many emergency projects 

benefitted black areas. 

Mobile has made substantial efforts in housing code 

enforcement. In one black neighborhood where only 

18.5% of the homes were rated standard in 1966, four 

times that many were standard by 1975. (Tr. 1357-63). 

Public employment statistics showed that 26.8% of 

the city work force is black,!? and that many black City 
  

12 Thirty-five percent (35.48%) of Mobile’s population is black. 

   



15 

employees are in lower paying jobs. It was undisputed 

that no black employee receives less pay than a white 

for the same position, and that any disparity is not 

purposeful. (Tr. 813-14). Skilled blacks are in such de- 

mand in private industry that few seek employment 

with the lower-paying City. (Tr. 912-13, 995-96). By 

State law Mobile may only hire employees from lists 

prepared by the County Personnel Board, which is not 

subject to City control. (Tr. 828). A Bill to change this 

procedure has been introduced in the State legislature. 

(Tr. 938). 

Uncontroverted statistics showed that whereas 7 of 

179 (3.8%) prior appointments to City boards and com- 

mittees were to blacks, total membership has now 

been brought to 46 of 366 (12.5%). (Tr. 831). Many of the 

positions require both certain qualifications and 

nomination by certain non-governmental groups. (Tr. 

835, 840-41, 864, 912-14, 918-20). Plaintiffs did not ad- 

duce any evidence that qualified, nominated blacks 

were purposefully refused appointment by the City. 

Plaintiffs asserted and the District Court found (423 

F. Supp. at 392) that generally unequal treatment was 

exemplified by an inordinately slow City reaction to 

an instance of alleged police brutality against a black. 

It was undisputed that an investigation was com- 

menced the day after notice of the alleged incident, and 

the officers allegedly involved were suspended four 

days later (Tr. 795, 799, 821). The District Court 

thought that unresponsiveness was also indicated by 

the fact that the City Commission had not adopted an- 

tidiscrimination ordinances duplicating Federal 

laws, by the fact that the Commissioners had not 

spoken out against cross burnings reported to have 

  
  

    

  

 



  

  

  
  

  

16 

occurred outside the City, and by a single purported 

exception to a generally evenhanded!? park and 

recreation program. 423 F. Supp. at 392. 

3. Plaintiffs’ Evidence That Mobile Commissioners 

Elected At-Large Represent All Citizens Fairly. 

After cross examination elicited the testimony of 

Rev. Hope that every City Commission candidate ac- 

tively solicited the support of black voters, and that 

the NPVL had “notable success” in electing can- 

didates that it supported (Tr. 413), the following 

questions (Tr. 417-18) were put to Rev. Hope on re- 

direct: 

Q Reverend Hope, in answering [counsel for 

Mobile] questions, did you mean to say that every 

candidate that the Non-Partisan Voters League has 

endorsed has turned out to represent the interests of 

the black community fairly? 

A In recent years they have. 

Q How recent do you mean when you say recent 

years? 

A In thislastelection and maybe the election prior. 

I think, in my opinion, they have done a very good 

job in carrying out their obligations toward trying 

to be fair to all people. 

Q Is that your opinion or the opinion of the entire 

League? 

A Yes, thatistheopinion —thatiswhatlamtrying 

to speak for. They feel that the candidates they have 

elected in recent years have done a very good job 

along that line. 
  

13 The evidence showed that black areas receive more than their 
share of city-provided recreation services, whether viewed on the 
basis of numbers of facilities, personnel employed, or payroll ex- 
penditures. (Tr. 1371-80). 

   



17 

The District Court held (423 F. Supp. at 400) the per- 

formance of the City government with respect to ser- 

vices, employment and appointments to be 

“unresponsive.” The District Court concluded (423 

F. Supp. at 401-402) that Mobile’s long-standing 

choice of the Commission form of government merely 

indicated that Plaintiffs did not prevail on the “no 

tenuous State policy” aspect of the “aggregate of fac- 

tors” showing required by Zimmer v. McKeithen, 485 

F.2d 1297 (5th Cir. 1973), and that Mobile's policy 

choice was outweighed by a requirement to guarantee 

blacks ‘“‘a realistic opportunity to elect blacks to the 

City governing body.” (423 F. Supp. at 403). 

SUMMARY OF ARGUMENT 

The unprecedented decision of the District Court 

completely disestablishes Mobile’s Commission form 

of government.That form of government is of sixty- 

six years standing, and serves numerous important 

and legitimate policy choices. That form of govern- 

ment was adopted with no racial purposes whatever. 

The District Court erroneously held these factors to be 

irrelevant. 

The evidence showed that there are no impediments 

to participation by blacks in the political processes of 

Mobile, and that blacks are actively and powerfully in- 

volved. The District Court, however, reached the un- 

supportable conclusion that local governments must 

"be so arranged as to ensure that blacks can elect 

blacks and made a wholly unfounded assumption that 

black candidates cannot win in the at-large elections 

which are legally indispensable to Commission 

government. In many cities in the South as well as in 

the North, where blacks are a minority of the voting 

   



  

  
  

18 

population, black candidates have won at-large elec- 

tions. There is no reason to presume that black can- 

didates cannot win such elections in Mobile. The only 

black candidates to run for the Mobile City Commis- 

sion have been outpolled by their opponents even 

among black voters. 

The United States Supreme Court has in 

Washington v. Davis, 426 U.S. 229 (1976); Village of 

Arlington Heights v. Metropolitan Housing Develop- 

ment Corp., U.S. ____, 97 S. Ct. 555 (1977); United 

Jewish Organizations v. Carey, —___ U.S. , 45 

U.S.L.W. 4221 (1977) has made it clear beyond mistake 

that the racial purpose absent here is an essential ele- 

ment of the Fourteenth Amendment violation the Dis- 

trict Court purported to find. The Supreme Court has 

also rejected any notion that racial or ethnic groups 

have a Federal constitutional right to elect their 

members to office. Fifth Circuit decisions in other con- 

stitutional voting cases are completely in accord with 

these principles. Bradas v. Rapides Parish Police 

Jury, 508 F.2d 1109 (5th Cir. 1975); McGill v. Gadsden 

County Commission, 535 F.2d 277 (5th Cir. 1976); 

Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976). The Dis- 

trict Court’s opinion and orders, which would require 

the invalidation of all Commission and Council- 

Manager governments similarly premised on at-large 

elections, amount to Federal judicial legislation 

flagrantly violative of the Federalism principles and 

the Tenth Amendment to the Constitution of the Unit- 

ed States, and must be reversed by this Court. 

  

ARGUMENT 

I. Mobile’s Commission Form Of Government 

Clearly Passes Constitutional Muster. 

   



19 

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

(en banc), affirmed sub. nom. East Carroll Parish 

School Board v. Marshall, 424 U.S. 636 (1976), this 

Court dealt with an action challenging an at-large 

electoral system on the basis that the system denied 

blacks access to the political process in violation of 

the Equal Protection Clause of the Fourteenth Amend- 

ment. Drawing upon the decisions in Whitcomb v. 

Chavis, 403 U.S. 124 (1971) and White v. Regester, 412 

U.S. 755 (1973), this Court set forth a “panoply of fac- 

tors” upon which proof of such an Equal Protection 

claim might be founded. 485 F.2d at 1305. Applying 

these factors to the facts of Zimmer, this Court con- 

cluded that plaintiff-intervenor had met his burden of 

proof, and reversed its earlier panel decision. 485 F.2d 

at 1307, 1308. 

The Supreme Court affirmed “without approval of 

the constitutional views’ expressed by the Zimmer 

court. East Carroll, supra, 424 U.S. at 638. The 

Supreme Court viewed the case as one involving not 

the constitutionality vel non of multimember district- 

ing allegedly denying minority access to the political 

process, but rather the issue of how malapportion- 

ment should be corrected by the federal courts under 

Connor v. Johnson, 402 U.S. 690 (1971). Yet Zimmer 

remains the controlling precedent of this Circuit. E.g., 

McGill v. Gadsden County Commission, 535 F.2d 277, 

280 n.6 (5th Cir. 1976). 

Appellant City has no quarrel with the holding of 

Zimmer, which on its facts was well-grounded upon 

the teachings of both Whitcomb and White, supra. But 

on any proper application of Zimmer, Mobile’s form of 

government and electoral system clearly pass con- 

stitutional muster. 

  

 



  

  

  

  

20 

A. At Issue Here Is The Validity Of A Form Of 

Government And Not Merely The Manner Of 

Its Election. 

Zimmer, as the Supreme Court emphasized in East 

Carroll, supra, was in fact a reapportionment case. 

The governmental units there involved could func- 

tion, and in fact had functioned for years, with elec- 

tions by district rather than at-large. 485 F.2d at 1301. 

Indeed, there had been a “firmly entrenched state 

policy against at-large elections” for such units until 

1967. 485 F.2d at 1307. No change in the form or func- 

tion of these units was therefore necessitated by re- 

quiring their election by single-member wards or dis- 

tricts. This is equally true in every other case of this 

genre decided by this Court. E.g., Turner v. McKeithen, 

490 F.2d 191, 192 (1973) (Parish Police Jury, mixed 

multi-member, single-member ward plan); 

Wallace v. House, 515 F.2d 619, 622 (5th Cir. 1975), 

vacated 425 U.S. 947 (1976) (Board of Aldermen, entire- 

ly at-large plan susceptible to districting); Perry v. 

City of Opelousas, 515 F.2d 639, 640 (5th Cir. 1975) 

(Board of Aldermen, entirely at-large plan with ward 

residency requirement). 

In contrast to all prior cases before this Court, 

Mobile’s at-large electoral system is an integral and 

essential part of its Commission form of government. 

1. At-large elections are a rational and 

legally indispensable feature of the Com- 

mission form of government. 

Mobile’s Commission Government was adopted in 

1911 within the context of the progressive reform 

movement which prompted many other 

municipalities throughout the Nation to do likewise. 

   



21 

(Tr. 24-25). As the testimony of Plaintiffs’ historian 

and other witnesses clearly demonstrates, Mobilians, 

like citizens of other cities swept by the reform move- 

ment, sought a city government both more efficient 

and business-like, and less susceptible to ward 

parochialism and corruption than the aldermanic or 

councilmanic forms. (Tr. 24-25, 36-37). 

The very structure of Commission government con- 

stitutionally admits of but one form of electoral 

system — at-large elections. Because each Com- 

missioner administers a separate department with 

city-wide functions — here Public Works and Ser- 

vices, Public Safety, and Finance (423 F. Supp. at 386) 

— each Commissioner must be dependent upon the en- 

tire electorate of the City for his election. As the Dis- 

trict Court here recognized, election of officials with 

specific city-wide responsibilities from geographic 

districts would clearly be not only “improvident and 

unsound” but unconstitutional. (423 F. Supp. at 387, 

402 n. 19). 

2. This Court must decide whether proper 

application of Zimmer principles re- 

quired the Court below to disestablish a 

form of government adopted without 

racial purpose 66 years ago. 

For over 65 years, Mobile has operated under a 

“facially neutral” form of government (423 F. Supp. at 

398), which was adopted without racial purpose, as 

testimony of Plaintiffs’ own historian and others 

clearly demonstrates. (Tr. 24-25, 36-37). Indeed, as the 

District Court found, the Alabama legislature in 1911 

was acting in a ‘“‘race-proof situation” in adopting  



    

22 

Mobile’s form of government. (423 F. Supp. at 397). As 

in McGQGill v. Gadsden County Commission, 535 F.2d 

277, 281 (5th Cir. 1976), 

“This policy could not have had racist underpin- 

nings because other, less subtle state mechanisms 

has already disenfranchised almost all black voters 
2 

Thus, the policies behind Mobile’s Commission 

Government are not rooted in racial discrimination, 

but in the reform movement for more effective and 

businesslike government. Here, unlike Zimmer and 

Turner, the electoral system was clearly not “conceiv- 

ed as a tool of racial discrimination.” Wallace v. 

House, supra, 515 F.2d at 633. Nor is there the “ap- 

parent absence of any rational state or local policy in 

support of the all at-large system” present in Zimmer 

and Turner. Id., 515 F.2d at 631-32. Indeed, given both 

the substantial need for city-wide perspective and the 

constitutional necessity for at-large election of the 

City Commissioners, this is the case contemplated in 

Zimmer where 

“significant interests [are] advanced by the use of 

[at-large elections] and the use of single member 

districts would jeopardize constitutional re- 

quirements.” 485 F.2d at 1308.14 

  

14 A district court could therefore employ at-large elections and 
be fully justified in departing from the Federal judicial preference 
for single-member districting enunciated in Connor v. Johnson, 
supra. Id. Because such considerations would support a judicial 
choice of at-large elections, they clearly support the legislative 
choice made by the citizens of Mobile and the Alabama legislature 
in 1911. See Chapman v. Meier, 420 U.S. 1, 18-19, 20 n. 14 (1975). 

   



23 

Mobile and Shreveport!5 are the first instances in 

which Zimmer has been applied to strike down the 

vital legislative choice of a city’s form of government. 

Here, the District Court’s wooden application of the 

factors enumerated in Zimmer led it to a result untrue 

both to the holding of Zimmer and to the teachings of 

the Supreme Court in Whitcomb and White. The Con- 

stitution, and still less Zimmer, 

“does not require that a uniform straitjacket bind 

citizens in devising mechanisms of local govern- 

ment suitable for local needs and efficient in solv- 

ing local problems.” Avery v. Midland County, 390 

U.S. 474, 485 (1968). 

B. Racially Discriminatory Purpose Is An Es- 

sential Element Of Equal Protection Viola- 

tion Which Plaintiffs Failed To Prove. 

Claims like those of Plaintiffs below that at-large 

electoral systems ‘are being used invidiously to 

cancel outor minimize the voting strength of minority 

groups’ are actions for relief under the Equal Protec- 

tion Clause of the Fourteenth Amendment. White, 

supra, 412 U.S. at 765. Although at-large elections 

have the potential for submergence of minority in- 

terests, they are not unconstitutional per se. Whit- 

comb, supra, 403 U.S. at 159-160. Even where at-large 

elections in fact “diminish to some extent” black 

voting power, such racially disproportionate impact 

does not by itself constitute an unconstitutional denial 

of access to the political process. Bradas v. Rapides 

Parish Police Jury, supra, 508 F.2d at 1113; McGill v. 

Gadsden County Commission, supra, 535 F.2d at 281. 
  

15 Blacks United for Lasting Leadership, Inc. v. City of 
Shreveport, 71 F.R.D. 623 (W.D. La. 1976), appeal pending, No. 76- 

3619 5th Cir.  



    

24 

“Where racial intent is not shown, blacks are not suf- 

fering because they are black,” but simply because 

they, like many other interest groups, constitute a 

minority of voters. Carpeneti, Legislative Apportion- 

ment: Multimember Districts and Fair Representa- 

tion, 120 U.Pa.L.Rev. 666, 698 (1972); see Whitcomb, 

supra, at 154-155. 

At-large electoral systems are not, therefore, 

rendered unconstitutional simply because they may 

make it more difficult for a black minority to elect 

black representatives. “Under the Fourteenth Amend- 

ment the question is whether the [electoral] plan 

represents purposeful discrimination ....” United 

Jewish Organizations of Williamsburgh, Inc. v. Carey, 

a ULB a d5 U.S. LW, 4991. 4931 (U.S. 3/1/77) 

(Stewart, J., concurring), citing Washington v. Davis, 

426 U.S. 229 (1976).16 In Davis, the Supreme Court 

“made it clear that official action will not be held un- 

constitutional solely because it results in a racially 

disproportionate impact. * * * Proof of racially dis- 

criminatory intent or purpose is required to show a 

violation of the Equal Protection Clause.” Village of 

Arlington Heights v. Metropolitan Housing 

Development Corp.; ——-U.8S......97 8, Ct. 555, 583 

(1977). 

  

16 In United Jewish Organizations, the Court upheld a New York 
legislative districting plan in which the State had “deliberately 
used race in a purposeful manner” to comply with §5 of the Voting 
Rights Act, 42 U.S.C. §1973c. 45 U.S.L.W. at 4227. Though the plan 
disadvantaged a white community of Hasidic Jews, the Court 
found no evidence of invidiously discriminatory intent with 
respect to “whites or any other race.” Id., see also 45 U.S.L.W. at 
4231 (Stewart, J., concurring). 

   



25 

While Davis involved the validity of a test used to 

screen applicants for public employment, the decision 

clearly demonstrates that proof of invidious intent or 

purpose is a universal requirement for success of any 

action challenging facially neutral official action. The 

Davis Courtexpressly disapproved along list of cases 

which had “rested on or expressed the view that proof 

of discriminatory racial purpose is unnecessary in 

making out an equal protection violation...” 426 U.S. 

at 244 n.12. The cases disapproved dealt not only with 

public employment, but extended to other contexts in- 

cluding urban renewal, zoning, public housing, and 

municipal services.” 

Following Davis, the Court in Arlington Heights 

upheld a local zoning decision which precluded 

building of a low-cost housing development despite 

the discriminatory “ultimate effect” of the zoning. The 

Seventh Circuit had found the Village to be “ex- 

ploiting” the existing high degree of residential 

segregation, and had ruled that the zoning decision 

was unsupported by any compelling interest suf- 

ficient to justify its discriminatory effects. 97 S.Ct. at 

560. The Supreme Court reversed, because failure to 

prove that discriminatory purpose was a motivating 

factor in the Village’s decision “ends the con- 

stitutional inquiry.” Id. at 566. That the ultimate effect 

of the decision was “discriminatory” was “without in- 

dependent constitutional significance.” Id. 

As the Court noted in Arlington Heights, 

“the holding in Davis reaffirmed a principle well es- 
  

17 Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 1971), af- 
firmed on rehearing en banc, 461 F.2d 1171 (1972).  



  

  

  
  

26 

tablished in a variety of contexts. E.g., Keyes v. 

School District No. 1, 413 U.S. 189, 208 (1973) 

(schools); Wright v. Rockefeller, 376 U.S. 52, 56-57 

(1964) (election districting); Akins v. Texas, 325 U.S. 

398, 403-404 (1945) (jury selection).” 97 S.Ct. at 563. 

That this principle is not limited to these contexts is 

further emphasized by the action of the Supreme 

Court in vacating United States v. Board of School 

Commissioners of Indianapolis, 541 F.2d 1211 (7th Cir. 

1976), in light of Davis and Arlington Heights. 45 

U.S.L.W. 3508 (U.S. Jan. 25, 1977). A consolidated, 

county-wide government called Uni-Gov had replaced 

the separate municipal government of Indianapolis 

and other governmental units in Marion County, In- 

diana. 541 F.2d at 1212. The Indianapolis cases in- 

volved the effects of Uni-Gov upon segregation in 

schools and public housing, and the underlying issue 

of black voting rights vis a vis school boards which 

had not been consolidated within Uni-Gov.18 

The Seventh Circuit found that Uni-Gov was “a 

neutral piece of legislation on its face with its main 

purpose to efficiently restructure civil government” 

but that its failure to consolidate education along with 

other public functions produced a substantial 

segregative impact. 541 F.2d at 1220. Failing to find the 

compelling state interest it thought required in the 

face of racially disproportionate impact, the Court 

concluded that an interdistrict remedy ignoring Uni- 

Gov’s school boundaries was appropriate. The dissent 
  

18 That form of government and electoral issues were present is 
clear from the fact that Uni-Gov would have required clearance 
under §5 of the Voting Rights Act, 42 U.S.C. §1973c, if Indiana were 
subject to the Act. See City of Richmond v. United States, 422 U.S. 
358 (1975) (annexation). 

   



27 

noted that discriminatory purpose, an “essential ele- 

ment of any equal protection violation,” was missing. 

541 F.2d at 1225 (Tone, J.). The recent action of the 

Supreme Court proves the dissent correct. 45 U.S.L.W. 

at 3508. 

1. In no case has this Court invalidated an 

electoral system of such long standing as 

Mobile’s without a showing of dis- 

criminatory purpose — the Zimmer line 

of cases is fully consistent with Supreme 

Court decisions requiring that purpose 

be shown. 

The holdings of this Court have uniformly com- 

ported with this rule that racially discriminatory pur- 

pose is essential to proof that facially neutral state ac- 

tion violates the Equal Protection Clause. Zimmer in- 

volved a recent change in electoral system which, as 

in Turner, appeared to have been “conceived as a tool 

of racial discrimination.” Wallace v. House, supra, 515 

F.2d at 633. In Zimmer, 

“a long-standing policy of single-member district 

voting was changed to an at-large system, clearly in 

response to increased black voting strength in the 

1960’s.” Wilson v. Vahue, 403 F. Supp. 58, 66 (N.D. 

Tex., 1975). 

Indeed, it is clear in Zimmer that the local governmen- 

tal interest was ‘“‘tenuous’ primarily because it was 

“rooted in racial discrimination.” 485 F.2d 1305-06. 

In Turner, this Court dealt with restructuring an 

electoral system which had been stipulated un- 

constitutional for one-man, one-vote deviations as 

great as 37%. 490 F.2d at 192 n.3. Under that mixed 

single, multi-member system, ‘“[n]ot surprisingly, 

   



  
  

28 

both of the major concentrations of black population 

were formerly enveloped in multi-member districts.” 

490 F.2d at 195 n.19. Black voters had long been fenced 

out of the candidate slating process by the locally 

dominant political party, an “old weapon in the 

arsenal of [purposeful] voter discrimination . ..” 490 

F.2d at 195. The Police Jury offered no “persuasive 

justification” whatsoever for its proposed multi- 

member plan, which would have clearly perpetuated 

the exclusion of blacks already accomplished under 

its old electoral scheme. 490 F.2d at 196 n.23. 

By way of contrast, in Bradas v. Rapides Parish 

Police Jury, this Court vacated a judgment striking 

down a mixed single, multi-member districting plan 

under which no black officer had ever been elected to 

the 18-member police jury despite a 28% black popula- 

tion. 508 F.2d at 1110-11. Plaintiffs there had failed to 

meet their burden of proof under Zimmer in several 

respects, among them failure to show governmental 

policy “rooted in racial discrimination.” Id. at 1112. 

Although the combination of two key wards into a 

multi-member district electing 10 of the 18 officers had 

“diminished to some extent” black voting power, this 

Court concluded that the evidence failed to 

demonstrate that this districting plan was ‘“’conceived 

or operated as [a] purposeful device[] to further racial 

or economic discrimination.’ ”’ Id. at 1113, citing Whit- 

comb, supra, 403 U.S. at 149. 

And in McGill v. Gadsden County Commission, this 

Court dealt with an all at-large electoral system serv- 

ing a Florida county with registered voting popula- 

tion almost 50% black. 535 F.2d at 278. Yet no blacks 

   



29 

had ever been elected, even though they had “run 

regularly since the middle 1960’s.” Id. at 280. Present 

there was a strong state policy favoring at-large elec- 

tions, in effect since 1900, a policy which 

“could not have had racist underpinnings because 

other, less subtle state mechanisms had already dis- 

enfranchised almost all black voters by the turn of 

the century.” Id. at 281. 

Nor was the maintenance of this policy apparently 

tainted by the “extensive” subsequent history of 

racial discrimination in the county. In the absence of 

“tenuous” state policy and other Zimmer factors in- 

cluding proof that such past discrimination presently 

precluded blacks from the political process, this Court 

affirmed judgment upholding the at-large electoral 

system. Id. 

In sum, the recent decisions of this Court clearly 

show the necessary sensitivity to racially invidious 

purpose as an essential element of its Equal Protec- 

tion analysis consistent with the constitutional prin- 

ciples recently reaffirmed in Washington v. Davis. 

Whether such purpose or intent be found in a 

“tenuous” governmental policy rooted in racial dis- 

crimination, in a candidate-slating process from 

which blacks are fenced out by white-dominated 

slating organization, or in one or more of the generic 

factors set forth in Arlington Heights,!® this Court 
  

19 The Supreme Court there identified several possible sources 
of evidence for the proof of racial purpose: (1) disproportionate im- 
pact so “stark” as to be “unexplainable on grounds other than 
race’; (2) general historical background of the action; (3) specific 
events antecedent to the action; (4) departures from normal 
procedures; and (5) contemporary statements of decisionmakers. 
97 S.Ct. at 564-565. See United Jewish Organizations, supra, 45 
U.S.L.W. at 4231 (Stewart, J. concurring).  



  

  

    

30 

must continue to treat such “dilution” cases as this 

like any Equal Protection challenge to facially neutral 

governmental action. 

2. The District Court erred in reading the 

element of racial purpose out of Zimmer. 

The District Court erroneously viewed the Equal 

Protection requirement of invidious racial purpose 

recently reaffirmed in Washington v. Davis, supra, as 

a “threshold question” which would “preclude an 

application of the factors determinative of voter dilu- 

tion as set forth in White, supra, and Zimmer. . .” (423 

F. Supp. at 394). Primarily because of the “factual con- 

text” of Davis, the District Court concluded that Davis 

“did not overrule” earlier “dilution” cases or establish 

a “new” purpose test. (423 F. Supp. at 398). Thus, the 

Court thought, Davis simply did not apply in Equal 

Protection contexts other than those cited in that deci- 

sion. 

Indeed, Davis did not establish a “new” test, but 

merely ‘reaffirmed a principle well established” 

wherever facially neutral government actions are 

challenged under Equal Protection for their dis- 

proportionate racial impact. Arlington Heights, 

supra, 97 S.Ct. at 563. Nor does Davis overrule cases 

like White and Zimmer and “preclude” the sensitive 

factual analysis these cases require. Quite to the con- 

trary, it is precisely such a “sensitive inquiry into 

such circumstantial and direct evidence of intent” that 

proper application of the Zimmer factors requires. Id. 

at 564. But unless a Court’s evaluation of these factors 

leads it to the conclusion that invidious racial purpose 

   



31 

or intent has been proved, the case remains one sole- 

ly of racially disproportionate impact, which under 

Davis may not be the “sole touchstone” of an Equal 

Protection violation. Davis, supra, 426 U.S. at 242. 

The District Court erroneously regarded “dilution” 

cases like this one as a genus apart from other voting 

cases like Wright v. Rockefeller, 376 U.S. 52 (1964) and 

Gomillion v. Lightfoot, 364 U.S. 339 (1960), both cited 

with approval in Arlington Heights, supra, 97 S.Ct. at 

563-64. (See 423 F.Supp. at 395). But the principles of 

White and Zimmer are equally applicable to such 

cases involving alleged racial gerrymandering and 

redistricting problems in general. Paige v. Gray, 538 

F.2d 1108, 1110 (5th Cir. 1976); see United Jewish 

Organizations, supra, 45 U.S.L.W. at 4231 (Stewart, J., 

concurring). Gomaillion, for example, is simply a case 

where the “stark” pattern, “unexplainable on grounds 

other than race,” makes the evidentiary inquiry into 

racial purpose “relatively easy.” Arlington Heights, 

supra, 97 S.Ct. at 564. 

There can be no meaningful distinction for Equal 

Protection purposes between challenges to district- 

ing and challenges to at-large electoral systems 

which by definition do not district at all. The District 

Court erred in holding that the teachings of Davis did 

not here require proof of racial purpose, and in 

reading this elementout of Zimmer and other holdings 

of this Court. 

C. The City Government Of Mobile In Fact Fully 

Satisfies The Zimmer Test — Its Electoral 

Process Is Equally Open To Blacks and 
Whites.  



    

32 

The ultimate question under Zimmer is whether 

Mobile’s Commission Government operates in- 

‘vidiously to deny black Mobilians access to the City’s 

political process. In White v. Regester, the Supreme 

Court sustained such a claim for the first time, upon 

findings that Texas’ electoral system “effectively ex- 

cluded” Dallas County blacks and “effectively remov- 

ed” Bexar County Mexican-Americans from the 

political process. Thus, “access to the political 

process’ is the “barometer of dilution of minority 

voting strength.” Zimmer, supra, 485 F.2d at 1303. 

In Zimmer, this Court drew upon the teachings of 

Whitcomb and White to set forth a “panoply of factors” 

upon which proof of such denial of access may be 

founded. Primary factors entail proof of 

“[1] a lack of access to the process of slating can- 

didates, [2] the unresponsiveness of legislators to 

their particularized interests, [3] a tenuous state 

policy underlying the preference for multi-member 

or at-large districting, or [4] that the existence of 

past discrimination in general precludes the effec- 

tive participation in the election system ...” 485 

F.2d at 1305 (footnote omitted). 

Such proof may be “enhanced” by the showing of 

“[1] the existence of large districts, [2] majority vote 

requirements, [3] anti-single shot voting provisions 

and [4] the lack of provision for at-large candidates 

running from particular geographical sub- 

districts.” Id. 

   



33 

Conversely, Whitcomb v. Chavis requires judgment 

upholding an electoral system 

“[w]here it is apparent that a minority is afforded 

the opportunity to participate in the slating of can- 

didates to represent its area, that the represen- 

tatives slated and elected provide representation 

responsive to the minority’s needs, and that the use 

of a multi-member districting scheme is rooted in a 

strong state policy divorced from the maintenance 

of racial discrimination ...” Zimmer, 485 F.2d at 

1305. 

As the following analysis shows, the District Court 

erred in its application of the Zimmer factors to the 

particular facts of this case. The form of government 

and attendant electoral system under which the City of 

Mobile has functioned for over 65 years clearly must 

be upheld under this Court’s reading of Whitcomb. 

1. The Constitution neither creates nor 

protects any right to proportional 

representation in any racial, ethnic or 

other interest group. 

The Supreme Court has repeatedly “rejected the 

proposition that members of a minority group have a 

federal right to be represented in legislative bodies in 

proportion to their number in the general population.” 

Beer v. United States, 425 U.S. 130, 136 n.8 (1976), citing 

Whitcomb.?0 As a consequence, no minority group is 
  

20 In United Jewish Organizations, supra, three members of the 
Court joined in the view that, even absent the statutory mandate of 
the Voting Rights Act, a State under certain circumstances might 
constitutionally decide to switch from multi-member to single-  



   

      

34 

“entitled to an apportionment structure designed to 

maximize its political advantage,” Turner, supra, 490 

F.2d at 197, or to an electoral system ‘“‘so arranged that 

[minority] voters elect at least some candidates of 

their choice. . .” even where voting is racially polariz- 

ed. Nevett v. Sides, supra, 533 F.2d at 1365. Accord, 

United Jewish Organizations, supra, 45 U.S.L.W. at 

4227. The courts have implicitly rejected the proposi- 

tion that “a white official represents his race and not 

the electorate as a whole and cannot represent black 

citizens.” Vollin v. Kimbel, 519 F.2d 790, 791 (4th Cir. 

1975) (emphasis original), citing Dallas County v. 

Reese, 421 U.S. 477 (1975) and Dusch v. Davis, 387 U.S. 

112 (1967). 

Thus, it is clearly “not enough to prove a mere dis- 

parity between the number of minority residents and 

the number of minority representatives.” Zimmer, 

supra, 485 F.2d at 1305. As in Graves v. Barnes, 343 

F. Supp. 704 (W.D. Tex. 1972), affirmed sub nom. White 

v. Regester, supra, plaintiffs must prove that 

“the multi-member districts could not be tolerated, 

for they operated to exclude substantial racial 

minorities not only from political victory but even 

from political consideration.” Wallace v. House, 

supra, 515 F.2d at 629. 

In its desire to “provide blacks a realistic opportuni- 

ty to elect blacks” (423 F. Supp. at 403) the District 
  

member districting in order to afford minorities an opportunity to 
achieve roughly proportional representation. 45 U.S.L.W. at 4227. 
They do not, however, suggest that such an electoral change would 
be required by the Constitution, even where racial bloc voting 
makes it “unlikely that any candidate will be elected who is a 
member of the race that is in the minority in that district.” Id. 

 



35 

Court disestablished Mobile's form of government on 

a claim no more substantial than Whitcomb’s “mere 

euphemism for defeat at the polls.” 403 U.S. at 153. 

2. Therebeing no barrierto black participa- 

tion in Mobile political life, the District 

Court erred in equating black 

“discouragement” with denial of access. 

Access to the process of slating candidates, which 

may be “the most important stage of the political 

process,” is a primary factor for analysis under 

Zimmer. Turner, supra, 490 F.2d at 195. In Turner, for 

example, the partisan electoral system was 

dominated by one political party which sought black 

support only after the actual candidate selection had 

already occurred and the “possibility for meaningful 

influence [was] significantly diminished.” Id. This, 

the Court noted, was an “old weapon in the arsenal of 

voter discrimination.” Id. Indeed, it was the same 

“weapon” which had been employed in Dallas County, 

Texas, to exclude blacks from the Democratic primary 

process. White, supra, 412 U.S. at 766-767. 

In contrast, this Court upheld the electoral system in 

Bradas v. Rapides Parish Police Jury, supra, where 

black plaintiffs proved no difficulty “in registering to 

vote, in choosing the political party they desire to sup- 

port, in meaningfully participating in party ac- 

tivities, in qualifying as candidates for a desired of- 

fice, [or] in participating in the candidate selection 

process ...” 508 F.2d at 1112. Similarly, in McGill v. 

Gadsden County Commission, supra, this Court af- 

firmed judgment upholding an all at-large electoral 

system in which candidates of the Democratic Party  



  
  

36 

were chosen by, and endorsed after, an open primary 

election. 525 F.2d at 280. There, as in Bradas, this Court 

found “no substantial evidence” that blacks were 

prevented from registering, choosing their party, and 

participating fully in the party’s nominating process. 

Id. at 281. 

The slating process in Mobile is at least as open to 

blacks as were those in Bradas and McGill. 

a. The District Court correctly found 

“no formal prohibitions” against 

blacks in Mobile's slating process, 

but erred in permitting Plaintiffs to 

bootstrap a denial of access from un- 

justified black ‘discouragement’ 

over a black candidate’s chance of 

victory. 

As the District Court found, the candidate slating 

process of Mobile is, on its face, open to all: 

“There are no formal prohibitions against blacks 

seeking office in Mobile. Since the Voting Rights 

Act of 1965, blacks register and vote without hin- 

drance. The election of the city commissioners is 

non-partisan, i.e., there is no preceding party 

primary and the candidates do not ordinarily run 

under party labels.” 423 F. Supp. at 387 (footnote 

omitted). 

In Mobile, “any person interested running for the posi- 

tion of city commissioner is able to do so.” (423 

F. Supp. at 399). 

   



37 

Beneath this “first blush” neutrality of Mobile's 

electoral custom (Id.), the District Court found that 

“one indication that local political processes are not 

equally open is the fact that no black has ever been 

elected to the at-large City Commission.” (423 

F. Supp. at 387-88). Still, no black had ever been 

elected in Bradas or McGQGill, and the local black pop- 

ulation in those cases was greater than the 35.4% in 

Mobile. McGill, supra, 535 F.2d at 278 (59% black); 

Bradas, supra, 508 F.2d at 1110 (district electing 10 of 

18 officials, 37% black). The insignificance of this is 

apparent in light of the undisputed facts that, in 

Mobile: (1) only 3 black candidates had ever run for 

Commissioner; and (2) these candidates “were young, 

inexperienced, and mounted extremely limited cam- 

paigns’ (423 F. Supp. at 388), and were therefore of 

such limited appeal even to black voters that they 

failed even to carry the black census wards. (Tr. 175). 

The District Court, however, accepted Plaintiffs’ 

bootstrap argument that the failure of prospective 

black candidates even to try the political process itself 

takes on constitutional significance. Thus, the Court 

found, there exists in Mobile “a pattern of racially 

polarized voting” which “discourage[s] black citizens 

from seeking office or being elected.” (423 F. Supp. at 

389). 

But no constitutional principle legitimizes equating 

such black “discouragement” with a denial of access 

to the political process. The Constitution guarantees 

no right of proportional representation, and therefore 

warrants no such expectation on the part of black 

Mobilians. Even if racially polarized voting were a 

political fact of life in Mobile, it would not render an 

 



  

38 

otherwise neutral electoral system constitutionally 

infirm: 

“Where it occurs, voting for or against a candidate 

because of his race is an unfortunate practice. But it 

is not rare; and in any district where it regularly 

happens, it is unlikely that any candidate will be 

elected who is a member of the race that is in the 

minority in that district. However disagreeable this 

result may be, there is no authority for the proposi- 

tion that the candidates who are found racially un- 

acceptable by the majority and the minority voters 

supporting those candidates, have had their 

Fourteenth or Fifteenth Amendment rights in- 

fringed by this process. Their position is similar to 

that of the Democratic or Republican minority that 

| is submerged year after year by the adherents to the 

majority party who tend to vote a straight party 

line.” United Jewish Organizations, supra, 45 

U.S.L.W. at 4227 (emphasis added). 

Accord, Nevett v. Sides, supra, 533 F.2d at 1365. 

If electoral systems need not be arranged to allow 

blacks “to elect at least some candidates regardless of 

| their percentage turnout,” Nevett v. Sides, supra, 533 

F.2d at 1365, surely Mobile’s form of government is not 

to be disestablished for failure of blacks to mount can- 

didates politically viable even with black voters. 

Moreover, the District Court was simply wrong in 

| its assumption that blacks cannot win at-large elec- 

tions unless “they constitute a majority or near ma-   
   



39 

jority.” (423 F. Supp. at 389).21 The District Court ig- 

nored the testimony of Plaintiffs’ witness Roberts, an 

Alabama State Senator, that in Birmingham, which is 

“most comparable with Mobile,” (Tr. 738), black can- 

didates had won two at-large seats on the City Council. 

A recent study of southern politics shows how wrong 

the District Court’s assumption was. D. Cambell, J. 

Feagin, Black Politics in the South: A Descriptive 

Analysis, 37 Journal of Politics 129, 143-44 (1975). This 

study found that 37 of the South’s 46 largest cities 

employed solely at-large elections, and black officials 

had been elected in 18. Id. at 145. The study suggested 

that election by wards “facilitates” the election of 

blacks, but that: 

“blacks have also been moderately successful in at- 

large elections for council positions. This success 

suggests that blacks have been able to organize to 

maximize their voting strength in all types of 

cities.” Id. 

Another study has squarely concluded that those 

who theorize that black candidates can only win in 

single-member district elections have been proven by 

empirical data to be in error: 

“Recent successes of blacks in citywide, non- 

partisan elections where the black electorate is a 
  

21 Able black candidates are being elected in at-large elections 
across the country, regardless of the percentage black voting pop- 
ulation. Black mayors have recently been elected in cities where 
blacks are in the minority, as, for example, in Detroit, Michigan 
(39.4%), Newark, New Jersey (48.6%), East Orange, New Jersey 
(47.0%), Berkeley, California (20.2%), Richmond, California 
(31.5%), Los Angeles, California (18.0%), Atlanta, Georgia (47.3%), 
and Raleigh, North Carolina (21.3%). National Roster of Black 
Elected Officials, Joint Center for Political Studies (1974).  



  
  

  

40 

minority, confound traditional expectations. Such 

occasions, according to the literature, ought to be 

rare. Only in partisan elections, with ward repre- 

sentation and a majority black electorate, would 

blacks likely gain office. ... Yet since 1967 in most 

major cities where blacks became mayors, the sys- 

tem was nonpartisan, the electoral majority white. 

oid RR 

Our data make evident that at-large or citywide 

voting has not precluded the election of blacks. . .. 

[The assumption must be questioned that blacks 

will rarely be elected unless they constitute ‘at least 

fifty percent of the electorate’ ... [Wilson, “The 

Negro in American Politics,” reprinted in Davis 

(ed.), The American Negro Reference Book 444 Pren- 

tice Hall 1967]. Thus neither at-large representa- 

tion, nonpartisan elections, nor forms of govern- 

ment are rigid determinants of black electoral 

opportunity.” Cole, Electing Blacks to Municipal 

Office, Urban Affairs Quarterly, September 1974, at 

17, 24 (emphasis added). 

b. Black voters in Mobile have signifi- 

cant and unfettered electoral power. 

The Courterred in finding that racial- 

ly polarized voting precludes effec- 

tive black participation. 

The District Court felt that the existence of racially 

polarized voting in Mobile was a matter of “common 

knowledge,” and that Plaintiffs’ statistical evidence 

was merely in support of the “recognized facts.” (Tr. 

142, 149). The District Court failed to see that the 

evidence actually contradicted its preconceived view 

   



41 

that racially polarized voting precludes effective 

black voting participation in Mobile elections. 

Plaintiffs’ statistical evidence consisted of cor- 

relations obtained between the percentage of blacks in 

a given census ward and the percentage of votes re- 

ceived in that ward by candidates. (Tr. 102). Their 

technique of regression analysis could not establish a 

causal relationship, but merely tested “for an in- 

fluence at work.” (Tr. 107-108). And Plaintiffs’ 

analysis was blind to such “influences” as the can- 

didates’ positions on the issues, experience, in- 

cumbency and time in office, conduct in office, and all 

other variables other than race and income. (Tr. 180). 

Obviously, this statistical evidence must be “looked at 

with our own human intelligence to determine 

whether or not it means anything.” (Tr. 490). 

For example, in the most recent City Commission 

elections held in 1973, the only correlations 

suggestive of a racial influence on voting were those 

for three “young, inexperienced” black candidates. 

(423 F. Supp. at 388). Standing alone, these statistics 

would strongly suggest that race had played a key role 

in their defeat. Yet these candidates failed to get ap- 

preciable support even from black voters. (Tr. 175). 

Obviously, black citizens were not solely interested in 

electing blacks, but rather in electing the candidates 

they perceived to be most qualified, just as have both 

blacks and whites in the many white-majority cities 

where black candidates have been elected because of 

their abilities. 

The City’s most recent electoral experience thus 

bears out the testimony of Plaintiff Bolden, who was  



  

  

42 

unwilling to characterize black Mobilians as a “block 

vote’ or even as a group of persons who “usually vote 

for the same candidate.” (Tr. 214-215). It also supports 

expert testimony of Dr. Voyles that racial polariza- 

tion has significantly subsided in Mobile. (Tr. 1136). 

Even Plaintiffs’ expert Dr. Cotrell thought it “difficult 

to determine fully” that polarized voting existed in re- 

cent elections. (Tr. 513). 

Despite the obvious limitations of Plaintiffs’ 

statistical evidence, the District Court’s opinion 

reflects no proper assessment of the critical evidence 

showing meaningful participation by blacks in 

Mobile politics. 

Even in the 1960’s the experience of former Com- 

missioner Langan shows that black political par- 

ticipation and support have proved to be essential to 

electoral success in Mobile. Langan, a man identified 

“with attempting to meet the particularized needs of 

black people,” served as Commissioner from 1953 to 

1969 with the continuing support of black voters. (423 

F. Supp. at 388). The Court ascribes his defeat to white 

“backlash.” (Id.) But the uncontradicted testimony of 

both Dr. Voyles and Langan himself, shows that he 

was able to hold office so long as he continued to 

receive substantial black support at the polls. (Tr. 304, 

481). He was defeated in 1969 only when deprived of 

black support by a general boycott of those elections 

urged by militant blacks. (Tr. 304). 

Black voting power is an equally potent force today. 

Candidates actively seek black support; and indeed, 

Commissioner Greenough was elected in 1973 on the 

   



43 

margin of the black “swing” vote.?2 Both he and Mayor 

Mims won with the endorsement of the black Non- 

Partisan Voters League. (Statement, supra, pp. 9-10). 

No mention of these facts is to be found in the Court’s 

opinion. 

The District Court’s narrow focus on the absence of 

black Commissioners precluded its finding what the 

record plainly shows: Black Mobilians are not only 

“afforded the opportunity to participate” in City 

politics, Zimmer, supra, 485 F.2d at 1305, but are in fact 

electing “legislators of their choice.” White, supra, 412 

U.S. at 766. 

c. The District Court erred in allowing 

Mobile’s share of the onus of past dis- 

crimination to blur its analysis of the 

presently open electoral system. 

Mobile indeed has a significant past history of offi- 

cial discrimination, a fact which can neither be justi- 

fied nor excused. In this respect, Mobile’s history is 

that of southern cities generally. But the inquiry here 

must be whether the effect of such past discrimina- 

tion is to preclude effective black participation today. 

McGill v. Gadsden County Commission, supra, 535 

F.2d at 281. The District Court so held (423 F. Supp. at 

401), but its opinion discloses no substantial evidence 

as a basis for such a conclusion. 

  

22 The power of black voters to provide the swing vote affords a 
valuable opportunity for practicing the politics of racial coalition 
rather than racial separation. See B. Rustin, “From Protest to 
Politics: The Future of the Civil Rights Movement,” reprinted in 
Black Protest Thought in the Twentieth Century, pp. 455-46 (A. 
Meier, ed. 1971).  



  

  

44 

This Court has clearly required a showing that the 

“debilitating effects” of past discrimination persistin 

touching the very exercise of the right to vote. Thus, in 

Bradas, supra, this Court looked for evidence of such 

effects in a 

“relatively large discrepancy between the size of the 

black population and the number of registered black 

voters, . .. or between the number of blacks regis- 

tered to vote in federal elections and the number of 

blacks registered to vote in state elections ...” 508 

F.2d at 1112-13, citing Zimmer and Turner respec- 

tively.23 

And in McGQill, supra, this Court found a 9% discrepan- 

cy between black population and registration insuf- 

ficient to support a finding below that past dis- 

crimination operated to preclude black access to the 

political process. 535 F.2d at 281. 

Here, the District Court expresses no such basis for 

its conclusion. Though its language is as of the pres- 

ent, its focus is on the past. (423 F. Supp. at 393, 401). 

The Court nowhere explains what present effects, 

“debilitating” or otherwise, persist from the “pur- 

poseful excesses of the past.” (Id. at 401). But itis clear, 

as in Bradas and McGQGill, that black Mobilians are 

presently free to register, vote, and become candidates 

without any hindrance whatsoever. (423 F. Supp. at 

387, 393, 399). 

  

23 This second measure would be inapplicable in Mobile, where 
it was never necessary to send federal registrars to enable blacks 
to register. (423 F. Supp. at 393 n.8). 

   



45 

Neither the District Court’s decision nor the record 

below supports the existence in Mobile of presently 

“debilitating effects’ of past discrimination touching 

the right of blacks to vote and participate fully in City 

elections. Unless past discrimination standing alone 

is a sufficient basis for overturning a form of govern- 

ment and electoral system where no discrimination 

now exists, that conclusion cannot stand. 

d. Mobile’s City Commissioners are 

equally accessible and responsive to 

all citizens. 

Unresponsiveness of elected officials to the par- 

ticularized needs of the minority is, under Zimmer, 

one factor suggesting that the minority has been de- 

nied effective access to the political process. 485 F.2d 

at 1305. The record here, however, reveals not a 

“history of studied neglect” or a “shameful failure of 

representation,” Wallace, supra, 515 F.2d at 631, but 

positive evidence of accessibility and respon- 

siveness unparalleled in any earlier case before this 

Court. 

The remarkable access of black citizens to each of 

the City Commissioners is apparent in the testimony 

of Plaintiffs’ own witnesses. In the uniform ex- 

perience of these witnesses, one or more Com- 

missioners was personally available to hear black 

needs or grievances. (Statement, see supra, p. 13). 

And, more often than not, this access produced 

positive tangible results — street lighting, paving, 

sewers and sidewalks. (Id.) The District Court 

erroneously failed to consider such positive evidence 

of accessibility and responsive action. (See 423 

F. Supp. at 389-92, 400).  



  

E
E
 

2
 

T
T
R
 

P
T
S
,
 

46 

The area of municipal functions is one in which dis- 

parities are the rule rather than the exception. Dis- 

parity is the “necessary result” of inescapable social, 

economic, and geographical factors; but so long as 

such disparities do not result from invidious racial 

purpose, they are not unlawful. Town of Shaw, supra, 

461 F.2d at 1180-81 (Roney, J., dissenting); Washing- 

ton v. Davis, supra, 426 U.S. at 244. The District Court 

here without evidentiary justification in this record 

“cast these disparities into a racial mold.” Hawkins v. 

Town of Shaw, supra, 461 F.2d at 1184 (Clark, J., dis- 

senting). 

The District Court drew into its discussion of 

responsiveness the racial imbalance of the City’s 

work force and its boards and commissions, which is 

entirely explained (Statement, supra, pp. 14-15) by fac- 

tors wholly apart from purposeful racial discrimina- 

tion.24 The District Court’s finding of unresponsive- 

ness to black concerns ultimately rests, however, 

upon an at most marginal disparity (Statement, supra, 

p. 14) in paved streets, upon an observation that one of 
  

24 This Court has recognized that charges of discrimination are 
not meaningfully supported by bare statistical proof that such dis- 
cretionary appointments have not been made in proportion to the 
number of blacks in the general population. James v. Wallace, 533 
F.2d 963, 967 (5th Cir. 1976). Plaintiffs below showed neither any 
specific act of discrimination nor what proportion of blacks in fact 
possessed the requisite qualifications for appointment. As the 
District Court noted, several boards require “special skills” which 
“National census figures” show to be less often possessed by 
blacks. (423 F. Supp. at 390). Indeed, the record shows that 16 of the 
29 active boards (or 55%) have some statutory or other restriction 
or qualification on membership. (Tr. 831-869) Of the active boards 
which are all white in composition, 77% are in some manner so 
restricted in membership. Absent evidence that some blacks were 
in fact available for such appointments, there can be no fair basis 
for concluding that City officials have exercised their discretion in 
a manner unresponsive to the black electorate. See James v. 
Wallace, supra, 533 F.2d at 964 n.2. 

   



47 

the City’s 79 neighborhoods needs better sidewalks 

(423 F. Supp. at 391), upon one purported exception to 

Mobile’s generally “evenhanded” park and recrea- 

tion program (Id. at 392), upon the so-called tardiness 

of an investigation of alleged police brutality that 

commenced the day after the incident in question (Id.), 

and upon the Commissioners’ failure to speak out 

against reported cross burnings (Id.) which the rec- 

ord shows to have occurred only outside the City. 

Undoubtedly, the citizens of Mobile, black and white 

alike, experience occasional dissatisfaction with 

municipal performance, and may at times feel that the 

City is not adequately responsive to their particular 

needs. Black Mobilians may indeed be more affected 

by certain of the City’s continuing problems such as 

drainage and street maintenance.?5 But the record 

clearly shows that the City’s elected officials are act- 

ing to address these needs in a non-discriminatory 

fashion responsive to the interests of the entire elec- 

torate. (Statement, supra, p. 16). 

Particularly in view of Plaintiffs’ own testimony 

(Statement, supra, p. 16) that in recent years the Com- 

mission has “done a very good job in carrying out 

their obligations toward trying to be fair to all peo- 

ple,” the District Court’s conclusion that these 

isolated disparities require the scrapping of Mobile's 

form of government is unsupportable. 

II. The District Court Erred In Disregarding The 

Strong Governmental Interest Behind Mobile’s 
  

25 And thus Mobile's black citizens will be disproportionately 
benefited by the millions of dollars Mobile is committed to spend to 
implement its master drainage plans. (Statement, supra, p. 14).  



    

48 

Choice Of Commission Government — An Error 

That Will Impact The Thousands Of Local 

Governments Nationwide That Employ The 

Commission Form And The Council-Manager 

Form 

The District Court plainly thought that Zimmer's 

“tenuous state policy” was a one-way plaintiff’s factor 

— if proved, it could buttress plaintiffs’ case, but if 

compellingly disproved, it need not be weighed 

against other evidence in the Court’s Equal Protection 

analysis. The Court found that the “manifest policy” 

of Mobile favored the at-large electoral system in- 

tegral to the City’s very form of government. (423 

F. Supp. at 393). Yet the Court’s opinion clearly 

demonstrates not a commendable avoidance of 

simplistic “score-keeping”’, but a real failure to weigh 

Mobile's strong governmental interests in its Zimmer 

analysis. (423 F. Supp. at 402). 

A. Zimmer Like Other Equal Protection Cases, 

Required That Due Weight Be Given To Sub- 

stantial Governmental Interests Not Rooted 

In Racial Discrimination. 

In Zimmer, this Court dealt with a factual situation 

in which “tenuous state policy’ clearly took on a dou- 

ble meaning. First, the timing and nature of the elec- 

toral change there made it apparent that at-large elec- 

tions were rooted in racial purposes. 485 F.2d at 1307. 

Second, tenuousness lay in the very fact of change, in- 

volving a departure from the “firmly entrenched state 

policy against at-large elections” and the single- 

member districting under which those local 

governments had operated. Id. In Zimmer, therefore, 

the governmental policy was clearly entitled to no 

   



49 

defensive weight. Still, the Court did recognize 

“strong state policy” as an important factor under 

Whitcomb v. Chavis, 485 F.2d at 1305. And in subse- 

quent cases, this Court has upheld at-large electoral 

systems where no showing of “tenuous” underlying 

policy had been made below. Bradas v. Rapides Parish 

Police Jury, supra, 508 F.2d at 1112; McGill v. Gadsden 

County Commission, supra, 535 F.2d at 280-81. 

The recognized needs of local government dictate 

such an approach. Thus, in assessing the constitu- 

tionality of local apportionment plans under the one- 

man, one-vote standard, the Supreme Court upheld a 

plan involving greater than de minimis population 

deviations where there was no built-in bias tending to 

favor any particular area or interest and the long- 

standing governmental structure allowed close 

cooperation between the towns and county in provid- 

ing overlapping public services. Abate v. Mundt, 403 

U.S. 182, 186-187 (1971). The Court observed the “viable 

local governments may need considerable flexibility 

in municipal arrangements” in order to meet local 

needs. 403 U.S. at 185. This observation applies with 

equal force to judicial scrutiny of a facially neutral 

electoral system integral to the form of local govern- 

ment, as in Mobile. 

The Supreme Court has not held that local 

governments must district, but only that if they do, 

such districts must not contain ‘substantially une- 

qual population.” Avery v. Midland County, supra, 

390 U.S. at 485-486. In evaluating constitutional 

challenges to at-large electoral systems, any court 

which fails to weigh the legitimate governmental in- 

terests served by such an electoral system neces-  



  

  

  

50 

sarily places local governments in precisely the 

“uniform straitjacket’ disavowed in Avery. 390 U.S. at 

485. 

Indeed, even if a local choice of at-large elections 

were shown to be “motivated in part by a racially dis- 

criminatory purpose’, this choice could be upheld on 

proof that the same decision “would have resulted” 

from other legitimate governmental concerns. 

Arlington Heights, supra, 97 S.Ct. at 566 n. 21; City of 

Richmond, supra, 422 U.S. at 373-374. 

Surely Mobile is no less entitled to a weighing of its 

substantial interests in maintaining a system of 

government both neutral on its face and adopted 

without racial purpose, which has served the City’s 

Citizens well for 66 years. 

B. Mobile’s Policy In Favor Of Its At-Large City 

Commission Is Not At All “Tenuous.” In- 

deed, That Policy Is Shared By Many Local 

Governments Throughout The Nation. 

The City’s Commission form of government was 

adopted in 1911 with the purpose of bringing more ef- 

ficient, business-like government to Mobile. (State- 

ment, See supra, pp. 6-7). The “manifest policy” of this 

City is not “tenuous” in any sense of the word, but is 

instead both rational and effective in practice. 

Commission government in general, and Mobile’s in 

particular, grew out of the progressive reform move- 

ment which began in the late nineteenth century. The 

Commission plan 

   



51 

“involves a small governing body ... possessing 

both individual and collective responsibility. As a 

group, the commissioners are a legislative body; as 

individuals, each is responsible for the administra- 

tion of a major city function, for example, public 

safety, parks and recreation, public works. Legisla- 

tion and administration are thus in the same hands.” 

The 50 States and Their Local Governments 475 (J. 

Fesler, ed., 1967) (“Fesler”). 

Such a government was viewed as a “simple, direct, 

business-like way” of administering municipal af- 

fairs. Woodruff, City Government by Commission 29 

(1911) (“Woodruff”). The record shows that this was 

the very basis upon which the citizens of Mobile 

adopted their Commission plan. (Tr. 36-37). 

The combination of legislative power with clearly 

defined administrative responsibility was thought to 

make commission government more responsive, in 

part because citizens would be able to gain direct 

access to the official responsible for the particular 

area of their concerns. Woodruff, supra, at 30-31, 38-39. 

In fact, Commission government has been ‘quite 

responsive to the popular will” generally. Fesler, 
supra, at 477-478. And at least one empirical study has 

concluded that citizens in fact have greater access to 

government decision makers in Commission cities. R. 

Lineberry, E. Fowler “Reformism and Public Policies 

in American Cities”, 61 Am. Political Science Rev. 701, 

716 (1971) (“Lineberry”). The record here clearly 

demonstrates that black Mobilians have enjoyed 

remarkable access to their Commissioners, and that 

such access has generally produced positive results. 

(See supra, p. 13).  



    

52 

At-large elections are an integral part of the Com- 

mission plan of government. E.g., E. Bradford, Com- 

mission Government in American Cities 162 (1911). 

Most council-manager governments, another in- 

creasingly popular product of the reform movement, 

also are predicated upon at-large elections because of 

the manager’s need for a city-wide rationalizing of 

policies. J. Rehfuss, Are At-Large Elections Best for 

Council Manager Cities?, 61 National Civic Review 

236 (1972) (“Rehfuss’’); A. Bromage, Introduction to 

Municipal Government and Administration 225 (1957) 

(“Bromage’’). Indeed, 

“Reform values seem to have permeated urban 

political attitudes and expectations. Ward or district 

elections are clearly on the decline in the United 

States.” Rehfuss, supra, at 236. 

See also, Bromage, supra, at 225. 

The respective merits of at-large versus ward elec- 

tions have been widely discussed, and there remains 

no consensus either of political theory or of empirical 

evidence.?6 C. McCandless, Urban Government and 

Politics 191-99 (1970). One empirical study has con- 

cluded that 

“[r]eformers have substantially fulfilled their goals 

of developing structures which lead to election of 

councilmen who think more of the community as a 
  

26 Even from a black perspective, 
“There is nothing sacred about the system of electing candidates 
to serve as alderman, councilmen, etc., by wards or districts. 
Geographical representation is not inherently right.” S. Car- 
michael, C. Hamilton, “The Search for New Forms,” in Power 
and the Black Community, 375, 382 (S. Fisher, ed., 1970). 

   



53 

whole and less of factional interest in making their 

decisions.” Lineberry, supra, at 701. 

Such a city-wide perspective should make conflicts 

“relatively easy to manage . . . because they will con- 

cern the merits of concrete issues, not generalized 

class antagonisms.” E. Banfield, J. Wilson, City 

Politics 334 (1965). A recent empirical study indeed 

shows that reform cities like Mobile tend to have less 

conflict or handle it better. C. Gilbert, Community 

Power Structure 13, 52 (1972). 

Pending resolution of this debate, “American cities 

have not been loathe to experiment with many types of 

representative democracy’ to find a form of govern- 

ment well suited to local needs and preferences. 

Bromage, supra, at 237. Of this Nation’s 18,500 

municipalities, approximately 3% presently have 

Commission governments.?” Indeed, over 67% of all 

city governments employ at-large elections;?® and 

some 41% of this country’s over 3,000 counties also 

elect officials at-large.?? 

Surely Zimmer, like Equal Protection cases 

generally, requires that the legitimate policies un- 

derlying such governments be weighed before any ul- 

timate constitutional conclusion be reached. The Dis- 

trict Court clearly failed todo so, and its application of 

Zimmer to the City of Mobile should not be allowed to 

stand. As in Whitcomb v. Chavis, supra, 403 U.S. at 157: 
  

27 The Municipal Year Book, International City Management 
Association, Tables 2 and 1/1 (1976). 

28 Derived from Table 3/15, The Municipal Year Book, Inter- 
national City Management Association (1972). 

29 Derived from Table 2, Governing Boards of County 
Governments: 1973, U.S. Bureau of the Census (1974).  



  

54 

“At the very least, affirmance of the District Court 

would spawn endless litigation concerning the [at- 

large electoral] systems now widely employed in 

this country.” 

III. The District Court’s Decision And Order Will 

Actually Disserve The Policies Of Integration 

The record clearly demonstrates that Mobile’s form 

of government is supported by sound policies which 

are in fact being served. In discarding these policies to 

ensure that “blacks have a realistic opportunity to 

elect blacks,” the District Court’s decision will actual- 

ly promote both racial polarization in City politics 

and perpetuate racial segregation in City housing. 

And these consequences are unmitigated by any real 

improvement in the effectiveness of black political 

participation. 

A. Single Member Districts Will Only Serve To 

Foster A Balkanized Enclave And Racially 

Polarized Government Which Will Actually 

Reduce Both The Political Effectiveness Of 

Blacks And The Efficiency Of City Govern- 

ment. 
At-large elections serve the central purpose of Com- 

mission government — that of providing officials 

responsive to the needs of the city as a whole, free of 

the divisive effects of district parochialism. F. 

Donnelly, “Securing Efficient Administration Under 

the Commission Plan”, Annals of the American 

Academy of Political and Social Science 218, 221 

(1912). The legitimacy of this interest has been widely 

   



95 

recognized. E.g., Fortson v. Dorsey, supra, 379 U.S. at 

438; Note, 81 Harv. L. Rev., supra, at 1857. Indeed, it 

was this very interest which the Supreme Court has 

suggested might justify the federal courts in imposing 

at-large districts by way of relief in apportionment 

cases. Chapman v. Meier, supra, 420 U.S. at 20 n.14. 

Only at the expense of this policy can Mobile be dis- 

tricted to guarantee the presence of blacks in some 

new governing body. To impose single-member 

districting upon Mobile will only subject the City to 

the “prospect of district sectionalism which usually 

occurs” in such a plan. Lipscomb v. Wise, supra, 399 

F. Supp. at 795 n.16. And to do so on a basis suggest- 

ing that color is a proper basis for political choice is to 

ensure an electorate forever divided along racial 

lines: 

“When racial or religious lines are drawn by the 

State, the multiracial, multireligious communities 

that our Constitution seeks to weld together as one 

become separatist; antagonisms that relate to a race 

or to religion rather than to political issues are 

generated; communities seek not the best represen- 

tative but the best racial or religious partisan.” 

Wright v. Rockefeller, 376 U.S. 52,67 (1964) (Douglas, 

J., dissenting). 

The District Court has injected the concept of 

representation by race into a government heretofore 

racially neutral. The Court’s action can only be 

perceived by Mobile's electorate as sanction for the 

view that no white can adequately represent blacks, 

and perhaps, vice versa. Just as clearly as labelling a  



  

| 

  

56 

candidate by race on the ballot, the Court has indicated 

“that a candidate’s race or color is an important — 

perhaps paramount — consideration in the citizen's 

choice.” Anderson v. Martin, 375 U.S. 399, 402 (1965). 

Institutionalizing such a view can only exacerbate 

racism and diminish the real political effectiveness of 

Mobile’s black minority. 

As this Court has recognized, the question of how 

minorities are best assured of meaningful political 

participation is highly problematic. Turner v. 

McKeithen, supra, 490 F.2d at 197 n.24.30 To assure 

election of blacks by creation of “safe” single-member 

districts is not necessarily to maximize black 

political effectiveness.3! Jewell, Local Systems of 

Representation: Political Consequences and Judicial 

Choices, 36 Geo. Wash. L.Rev. 790, 803 (1968). A black 

minority may 
  

30 “There is no agreement on whether the political interests of a 
minority group are best maximized by an overwhelming ma- 
jority in a single district, bare majorities in more than one dis- 
trict or a substantial proportion of the voters in a number of dis- 
tricts.” 

This last option is not meaningfully distinguishable from a situa- 
tion in which the minority constitutes a substantial proportion of 
the at-large electorate, as in Mobile. 

31 Indeed opponents of at-large elections have suggested that 
elections by single-member geographical districts may not ade- 
quately guarantee minority representation. Note, Ghetto Voting 
and At-Large Elections: A Subtle Infringement Upon Minority 
Rights, 59 Geo. L. Rev. 989, 1009-11 (1970). Institutionalized 
systems of proportional representation of interest groups (such as 
those formerly used in New York City and Cincinnati, Ohio) and 
enlargement of city councils “to the size of state legislatures” 
have been proposed as the ultimate solution. Id. Yet, 

“the most significant study and defense of electoral institutions 
which are designed to mute majoritarian influence can fairly be 
read to argue against racial constituencies inthe American con- 
text.” Wright v. Rockefeller and Legislative Gerrymanders: The 
Desegregation Decisions Plus a Problem of Proof, 72 Yale L.J. 
1041, 1050 n.49 (1963) (emphasis added), citing MacKenzie, Free 
Elections (1958). 

 



S7 

“have greater influence on a legislative delegation 

of a city council elected at-large than on one elected 

by districts. All the legislators or councilmen 

elected at-large would have Negro constituents; 

only a minority of those elected by districts would 

represent Negroes. Whether Negro voters could 

affect decisions more through greater influence on a 

few representatives or a smaller degree of influence 

on all representatives might be a difficult question 

for Negro leaders to answer. It would be an even 

more difficult decision for a court attempting to 

determine the constitutionality of at-large elec- 

tions.” Id. 

Thus, the reform model of political representation is 

“not inherently less desirable” from the standpoint of 

effective minority participation. Carpeneti, supra, 120 

U.Pa. L.Rev. at 692.32 

Several Courts have encountered situations in 

which at-large electoral systems might actually 

provide minority groups with more effective political 

participation than would be possible under single- 

member districting. Thus, in Lipscomb v. Wise, supra, 

the Court recognized that no single member district- 

ing plan could assure blacks more than 25% of seats on 
  

32 Indeed, a minority may “wield political clout dispropor- 
tionately large for its numbers.” Carpeneti, supra, 120 U.Pa. L.Rev. 
at 692-693. For example, in Mobile’s 1973 elections, blacks provid- 
ed the “swing” vote which elected Commissioner Greenough. 
(Statement, supra, pp. 9-10). And 

“There is also strong evidence to support the contention that a 
specific group may have its interest better represented in a 
legislative body by a representative who is not one of the group 
but who is sensitive to its needs than when the group is 
represented by one of its own members.” C. McCandless, Urban 
Government and Politics 199 (1970).  



  

58 

the Dallas City Council. 399 F. Supp. at 795n.16. Under 

such circumstances, “it would be possible for a [white] 

majority of [the city] council to ‘freeze out’ this 25% 

and for all practical purposes ignore minority in- 

terests.” Id. And in Wilson v. Vahue, supra, 403 

F. Supp. at 64, the Court noted testimony that under 

single-member districting, “the election can mor easi- 

ly take on racist overtones”, with the result that, 

“instead of having some degree of access to all com- 

missioners, there could possibly be a polarization of 

Anglos against the minorities and these minority 

groups might be effectively shut out altogether from 

access to a representative.” 

Similarly, in Dove v. Moore, 539 F.2d 1152 (8th Cir. 

1976), the Court noted that single-member districting 

would not necessarily enhance black political 

strength. Under such a plan, the white majority on the 

council 

“would have little political incentive to give con- 

sideration to black concerns. By contrast, under the 

present at-large system, every candidate has a 40 

percent black constituency which cannot be ignored 

with impunity.” 539 F.2d at 1155 n.4. 

The decision of the Court below not only heightens 

the racial partisanship which the Fourteenth and 

Fifteenth Amendments were designed to overcome, 

but produces a climate in which efficient and respon- 

sive government is unlikely to flourish. The creation 

of “[r]acial boroughs’ is “at war with democratic stan- 

dards.” Wright v. Rockefeller, supra, 376 U.S. at 62 

   



59 

(Douglas, Jr. dissenting). It cannot be accomplished 

“without increasing segregation and aggravating the 

polarization of the races in the community.” Taylor v. 

McKeithen, 499 F.2d at 911 (5th Cir. 1975).33 

The record below clearly shows that black 

Mobilians are free to participate in city politics, that 

their votes have real clout, and that the City’s elected 

officials do indeed respond to black needs. (Statement, 

supra, pp. 14-15). There is no reason to expect that dis- 

establishment of Mobile’s existing form of govern- 

ment will lead to a better result, and ample reason to 

expect the contrary. 

B. Single Member Districting To Accomplish 

Representation By Race Will Perpetuate De 

Jure Mobile’s Existing De Facto Pattern Of 

Residential Segregation. 
A high degree of residential segregation presently 

exists in Mobile. (423 F. Supp. at 386). This de facto 
pattern of segregated housing has “resulted in con- 

centration of black voting power.” (Id.) If the District 

Court’s premise of racially polarized voting is correct, 

it is upon this very ‘concentration’ that single- 

member districting will depend for its success in 

providing blacks “a realistic opportunity to elect 

blacks” to the City’s new governing body. (423 

F. Supp. at 403). 

Single-member districting may predictably 
  

33 There, the Fifth Circuit held that creation of “safe” black seats 
could only be accomplished at the expense of black voting power 
in other districts, thus allowing white officials in the latter dis- 
tricts to “ignore with impunity the special needs of blacks. . .”’ 499 
F.2d at 902.  



  

60 

produce black councilmen, but only so long as blacks 

remain residentially segregated. For this reason, 

districting itself will tend to perpetuate and amplify 

the City’s segregated housing pattern. Because the 

District Court has placed its imprimatur upon a 

system designed to assure that blacks are represented 

by blacks, black citizens who move to a predominant- 

ly white district, will be “diluting” their own votes. 

And any white voter encompassed within a black dis- 

trict must, of course, move out to assure himself of “a 

realistic opportunity to elect’ a white representative. 

This tendency of districting to exacerbate segrega- 

tion is not speculative, but quite real. For example, in 

Lipscomb v. Wise, supra, the Court expressed concern 

that the imposition of single-member districting, with 

its tendency to ‘amplify segregated housing 

patterns,” might inhibit the “assimilation” of black 

citizens in the City of Dallas. 399 F. Supp. at 793 n.12. 

And in United Jewish Organizations, supra, the Chief 

Justice strongly criticized New York’s racial quota 

districting plan as a step backward from the American 

goal of a “truly homogeneous society.” 45 U.S.LL.W. at 

4233 (dissenting opinion). Such a plan, he reasoned, 

“tends to sustain the existence of ghettos by promot- 

ing the notion that political clout is to be gained or 

maintained by marshalling particularracial, ethnic 

or religious groups in enclaves. It suggests to the 

voter that only a candidate of the same race, religion 

or ethnic origins can properly represent that voter’s 

interests and that such candidate can be elected only 

from a district with a sufficient minority concentra- 

tion.” Id. 

   



61 

Segregated housing patterns lie at the root of such 

complex social problems as school desegregation. 

See, e.g., Milliken v. Bradley, 418 U.S. 717, 764 (1974) 

(White, J., dissenting). And it is just such residential 

segregation which injects the racial element, real or 

imagined, into the provision of municipal services. 

See, e.g., Hawkins v. Town of Shaw, supra, 437 F.2d at 
1287-88 (panel decision); Beal v. Lindsay, 468 F.2d 287, 

288 (2d Cir. 1972). To remedy the pervasive effects of 

residential segregation in our society, numerous 

federal programs have been implemented to eliminate 

artificial barriers to integrated housing, and to 

affirmatively promote a greater degree of racial 

homogeneity in residential patterns. E.g., Housing 

and Community Development Act of 1974, 42 U.S.C. 

§5301 et seq. 

In Mobile, as in Lipscomb v. Wise, supra, 399 

F. Supp. at 793 n.12, “[i]t would be indeed ironic if a 

remedy for [alleged] dilution of voting strength result- 

ed in a major impediment” to the ultimate breakdown 

of the City’s segregated housing patterns. 

IV. The Orders Appealed From Are Judicial Legisla- 

tion Violating The Principles Of Federalism And 

The Tenth Amendment Of The Constitution Of 

The United States 

For all the reasons set forth above, the District 

Court’s orders herein are erroneous and must be re- 

versed. But there is an overriding constitutional prin- 

ciple under our Federal system of government with 

which these legislative orders directly conflict and 

which requires that they be set aside under the Con- 

stitution of the United States.  



  

62 

The Federalism scheme of the Federal Constitution 

does not permit the Federal Government through its 

Legislative, Executive or Judicial divisions to 

prescribe the powers, forms, and integral functions of 

local government to the States. That power under 

Federalism and the Tenth Amendment is reserved to 

the States. In National League of Cities v. Usery, 426 

U.S. 833 (1976), for example, the Supreme Court held 

that Congress lacks constitutional power “to directly 

displace the States’ freedom to structure integral 

operations in areas of traditional governmental func- 

tions...” 426 U.S. at 852. 

The power of State and local governments to deter- 

mine for themselves how they shall be governed is 

clearly so protected from Federal incursion. For 

“No function is more essential to the separate and 

independent existence of the States and their 

governments than the power to determine within the 

limits of the Constitution. . . the nature of their own 

machinery for filling local public offices.” Oregon v. 

Mitchell, 400 U.S. 112, 125 (1970). 

The Equal Protection Clause “was never intended to 

destroy the States’ power to govern themselves” in 

this area. Id. at 126. Nor does it place State and local 

governments within a “uniform straitjacket” which 

precludes their choice of the form of government and 

electoral system thought to best suit local needs and 

preferences. Avery v. Midland County, supra, 390 U.S. 

at 485.34 
  

34 In Young v. American Mini Theatres, Inc, U.S. __, 96 
S.Ct. 2440 (1976), the Supreme Court rejected a constitutional 
challenge to a Detroit zoning ordinance, stating: 

“It is not our function to appraise the wisdom of [Detroit’s] deci- 

   



63 

Whitcomb v. Chavis, supra, 403 U.S. at 156-160, 

makes it quite clear that the Federal Judiciary does 

not sit as a body of political scientists weighing the ef- 

ficacy of varying theories of government or political 

representation. At the municipal level, 

“the question of districting has been at the heart of 

the controversies over the form of government to be 

adopted, and the advocates of at-large and single- 

member districting have articulated conflicting 

theories about the representative process.” Jewell, 

Local Systems of Representation: Political Con- 

sequences and Choices, supra, 36 Geo. Wash. L. Rev. 

at 804. 

Yet the District Court in the instant case was simply 

disposed “to choose among competing bases of repre- 

sentation — ultimately, really, among competing 

theories of political philosophy — in order to estab- 

lish an appropriate form of government...” Baker v. 

Carr, 369 U.S. 186, 300 (1962) (Frankfurter, J., dissen- 

ting). 

The District Court’s restructuring of Mobile’s entire 

form of government is by far the most flagrant Federal 

take-over in all history, a takeover of a function as- 

signed to the States by our Federal system under the 

Constitution of the United States. A look at the 59 

pages of “legislation” contained in that Court’s Order 

of March 9, 1977 — governing virtually every aspect of 

the City’s municipal life — confirms the truth of this. 

The Orders of the District Court speak for them- 
  

sion .... [T]he city’s interest in attempting to preserve the 
quality of urban life is one that must be accorded high respect. 
Moreover, the city must be allowed a reasonable opportunity to 
experiment with solutions to admittedly serious problems.” 96 
S. Ct. at 2453.  



  

64 

selves, and thus speaking, demonstrate their constitu- 

tional invalidity under the principles of Federalism 

recently reaffirmed in National League of Cities, 

supra. 

As the Supreme Court noted in San Antonio School 

District v. Rodriguez, 411 U.S. 1 (1973), where the 

constitutional challenge was to a system of public 

school financing used by Texas and most other States: 

“[E]very claim arising under the Equal Protection 

Clause has implications for the relationship 

between national and state power under our federal 

system.” 411 U.S. at 44. 

The Court upheld Texas’ plan, with the comment that 

“it would be difficult to imagine a case having a 

greater potential impact on our federal system than 

the one now before us...” Id. 

Given the great number of localities which, like 

Mobile, use at-large elections in their Commission 

governments, and the still greater number employing 

the council-manager form which is similarly premis- 

ed on such elections (see supra, pp. 52-53), the instant 

case is the “difficult-to-imagine” one which may have 

an impact upon our Federal system far greater than 

that faced in Rodriguez. 

CONCLUSION 

The holding of the District Court that the City’s 
Commission Government unconstitutionally denies 
black Mobilians access to the political process is 
wholly without a legal or factual foundation. This 

   



65 

Court in Nevett v. Sides, and the Supreme Court in 

United Jewish Organizations, have made it plain that 

even if voting in Mobile were racially polarized, such 

a voting pattern does not in itself infringe Plaintiffs’ 

constitutional rights. 

The District Court erred also in holding that no proof 

of discriminatory purpose or intent was necessary to 

invalidate the City’s facially neutral form of govern- 

ment. This view is flatly contradicted by the recent 

decisions of the Supreme Court in Washington v. 

Davis, Arlington Heights, and United Jewish Or- 

ganizations. The undisputed evidence below clearly 

demonstrates that the City’s government was adopt- 

ed with no such invidious intent or purpose. 

The holding of the District Court, and its two orders 

disestablishing Mobile’s Commission Government 

and instituting a new mayor-council plan, are uncon- 

stitutional judicial legislation and must be reversed. 

Respectfully submitted, 

C. B. Arendall, Jr. 

William C. Tidwell, III 

Travis M. Bedsole, Jr. 

Post Office Box 123 

Mobile, Alabama 36601 

Fred G. Collins, City Attorney 

City Hall 
Mobile, Alabama 36602 

Charles S. Rhyne 

William S. Rhyne 

Donald A. Carr 

Martin W. Matzen 

400 Hill Building 
Washington, D.C. 20006  



    
66 

CERTIFICATE OF SERVICE 

I certify that two copies of the foregoing brief have 

been served upon opposing counsel of record by plac- 

ing the same properly addressed in the United State 

Mail with adequate postage affixed thereto this yz z 

day of April, 1977. 

8 Mondo, BY : 
Of Counsel 

  

| 
| 

 



ia 

APPENDIX A 

A BRIEF HISTORY OF THE GOVERNMENT OF THE 

CITY OF MOBILE 

Here follows a brief review of the various forms of 

city government existing in Mobile since prior to 

statehood: 

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

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

President from their number. Act of Legislature of the 

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

Toulmin’s Digest, p. 780). 

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

porated, governed by a mayor and six aldermen to be 

elected at-large annually. Ala. Act. No. ____ (1819) 

(passed December 17, 1819). (Source: Toulmin’s 

Digest, p. 784) (Alabama became a state in 1819). 

3. 1826 [At-large election; officers to make 

modification]: A mayor and six aldermen were to be 

elected at-large. Upon election, one of their tasks was 

to be to divide the City into three or more multi- 

member districts; the plan was that after such a divi- 

sion two or more aldermen would be elected “from 

each of the said wards”. Thus, while the proposed 

changeover was away from citywide election at-large, 

the districts were not single-member districts. 

Since the Legislature repeated its line-drawing 

mandate seven years later, it is apparent that the 

wards were not in fact drawn, doubtless because of the  



  

| 

| 
| 

2a 

general difficulty inherent in drawing political sub- 

division lines. Ala. Acts No. ____ (1826) (p. 33). 

4. 1833 [No change]: The Legislature required 

the election of special Commissioners whose only 

function was the difficult one reflected in their oath of 

office: 

“That we will make a just and equal division of 

the City of Mobile, into four wards, . . . so help 

us God”. Ala. Acts No. 68 (1833). 

95. 1840 Neither plaintiffs nor defendants are able 

to locate this statute. 

6. 1844 [Hybrid plan]: This statute provided the 

basic form of city government which would obtain 

(with a short “Port of Mobile” hiatus period) until 1911, 

with various alterations from time to time. 

Under §6, the mayor and the “Common Councilmen” 

(seven in number) were elected at-large, citywide. One 

of the common councilmen was required to reside in 

each ward. There was also a board of aldermen, com- 

posed of persons elected from seven multi-member 

districts (wards) electing two aldermen each. 

Under §18 of the statute, the board of aldermen and 

the common councilmen could enact ordinances, in a 

bicameral fashion. However, the two bodies “in a con- 

vention” with the mayor also exercised executive 

functions, appointing and removing city employees, 

and exercising general control over the City (§§13 & 

15). 

   



3a 

6A. 1852 [Hybrid plan]: This statute raised the 

number of aldermen elected from each multi-member 

ward to three. Ala. Acts No. ___ (1852). 

7. 1866 [Hybrid plan]: No significant change 

was made from 1852, except that (a) the three alder- 

men from each ward were elected for staggered terms, 

and (b) the number of wards was raised from seven to 

eight. Ala. Acts No. ____ (1866) (Feb. 2, 1856). 

8. 1868 [July 18, 1868] [At-large]: The Legisla- 

ture found that the municipal offices “have become va- 

cant by reason of the expiration of their terms of office, 

as military appointments under the Reconstruction 

Acts of Congress’, and empowered the Governor to fill 

the vacancies by appointment. 

The statute also repealed §6 of the 1866 Act, which 

had provided that the aldermen be elected by ‘the 

citizens of their respective wards’. The intent of the 

Legislature, in abolishing election of aldermen from 

multi-member wards, was obviously that both the 

aldermen and the councilmen be elected citywide in 

the next election (which seems to have never been held 

because of the change later that year). 

Since the Legislature did not repeal §5 of the 1866 

Act, the proviso therein was left standing that “one of 

the said common councilmen shall reside in each of 

the several wards’. Despite the July 1868 repealer of 

the provision for election of aldermen by “the citizens 

of their respective wards”, the July 1868 Legislature 

left standing (as a part of §5 of the 1866 Act) a provi- 

sion, now clearly to be read in the light of citywide 

aldermanic elections, that the board of aldermen  



  

4a 

consisted “of three aldermen for each ward” 

(emphasis added) (§5, 1866 Act). In July 1868, then, the 

Alabama Legislature evidently viewed election “for” 

a ward as a residence requirement, else they would 

have in July 1868 repealed that portion of §5 of the 1866 

Act when they repealed the other provision which had 

formerly mandated election from or by rather than for 

a particular ward. Ala. Acts No. ____ (1868) (p. 4). 

9. 1868 [December, 1868] [no change]: This stat- 

ute vacated the earlier 1868 appointments, providing 

that the Governor could appoint an alderman or 

councilman “without reference to the ward in which 

he may reside”. The at-large election of both alder- 

men and councilmen, with a residence requirement, 

remained unchanged. Ala. Acts No. 71 (1868). 

10. 1870 [At-large]: This statute substantially 

repealed the former act, declaring the former offices 

vacant. It provided that the Governor would appoint 

the mayor, twenty-four aldermen, and eight members 

of the common council, and also provided that the 

Governor might appoint these officials without ref- 

erence to which ward the appointee resided in. The 

councilmen and aldermen were apparently still to be 

elected at-large, with a residence requirement, under 

the 1868 modification of the 1866 Act. Ala. Acts No. 97 

(1870). 

11. 1871 [No significant change]: Ala. Act No. 

148 (1871). 

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

the aldermen, mayor, members of the common council 

(and also treasurer, auditor, and collector of taxes) 

   



Sa 

“shall be elected by the qualified voters of the City of 

Mobile”, and further provided that “the aldermen and 

members of the common council must be residents of 

the ward for which they are respectively elected’. 

Since both the council members and the aldermen un- 

der the 1874 statute are elected “for” wards, if the plan 

is single-member in nature, it must necessarily be 

single-member in toto, not just in part, since the “for” 

covers both council members and aldermen. 

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

City of Mobile, and provided that the Governor, with 

the advice and consent of the Senate, would appoint 

three commissioners to liquidate the City. Ala. Acts 

No. 307 (1879). The same session of the Legislature 

[Ala. Acts No. 308 (1879)] incorporated the “Port of 

Mobile”. The Port of Mobile was to be governed by 

eight commissioners elected at-large, one for each 

ward who must reside in that ward. The Commission 

would then elect a President. 

14. 1886 [At-large]: In 1886, the City was re- 

established, with (again), a mayor, a Board of Alder- 

men, and a Board of Councilmen. It is quite clear that 

this 1886 city government form was an at-large, city- 

wide election with aresidencerequirement. Section 12 

of the statute provides clearly that ‘“[s]aid mayor and 

each of said aldermen and councilmen shall be elect- 

ed by the qualified votes [sic: voters] of all the wards in 

the City of Mobile, voting in the wards of their respec- 

tive residence”. There was also a residence require- 

ment for councilmen in §12 of the statute, which is 

clearly what the Legislature had in mind earlier in the 

statute when it stated that one councilman would be 

elected “for each ward in the City”. Section 4 of the Act,  



  

6a 

of course, also provided explicitly that the aldermen 

are elected at-large. Ala. Acts No. 152 (1886). 

15. 1897 [At-large]: No change significant to 

this case; same form of government was retained. Ala. 

Acts No. 214 (1897). 

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

this case; same form of government was retained. Ala. 

Acts No. 1039 1/2 (1901). 

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

government was established in 1911, the at-large 

feature of which has been continually in effect. Ala. 

Acts No. 281 (1911). 

18. 1940 [Specific duties]: This amendment 

provided that a mayor would be elected specifically to 

that position, and a division of the administrative 

tasks was made by statute between the two associated 

commissioners, one of whom was assigned by the ma- 

jority of them to each set of tasks. ALA. CODE tit. 27, 

§95 (1940). 

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

1945, the apportionment of administrative tasks by 

statute was repealed, but numbered posts were initiat- 

ed. Ala. Acts No. 294 (1945). 

20. 1965 [Specific duties]: Specific duties were 

assigned to specific commission posts, and a system 

of rotation of the mayoralty was established. Ala. Acts 

No. 823 (1965). 

   





  

 
 

 



  
 
 

  

C
R
A
 

t
t