Statement of Anita S. Hodgkiss Before the North Carolina Senate and House Congressional Redistricting Committees

    t

F

uNiTPO. STATES v. DALLAS COUNTY COM'N
' I Ctteu739F2d t5z) (19t4) '

n

1529

mistaken identity. ,Flight from policd un- pending cases and where nd manifest injus-

der these circumstancei supports a strong iice would occur from applying amended

inf"""n"" of guilt; the majority apparently provision to case and where defendant

do not agree. county comrpission did not request addi-

Insum,thejurorshadplentyofevidencetionalhearingafteramendmentbutinstead
onwhichtoconvictPal.Sali,Nunezandfiledproposedfindingsoffactandconclu.
Guerrero. Their convictions should be af- sions of law under new standard of amend-

firmed. ed provision' amendment would be applied'

Voting Rights Act of 1965, SS 2, 2(a, b), as

Amm-,,.o a-eried,lz u.s.c.e. ss t9?8, 19?3(a, b).
\ i +-raa;r^rr\,1/ 2. B;*1iens @12

In application of Voting Rights Act

uNrrED srArESorAmerica,''J";fi",:JTl,f;"1:"1iJ,XT:H:'J'.[il
Plaintiff-Appellant' to vote on account of race, nine factors

v' referred to by Senate report' which it con-

DALLAS COUNTY COMMISSION, et sidered "typical" and which are to be

al.'Defendants.Appellees.weighedundertotality.of.circumstancesap.
No. g2-2862. proach' are,not deemed by the court to be

exclusive. Voting Rights Act of 1965, S 2,

United States Court of Appeals, as amended, 42 U.S.C.A. S 19?3.

Eleventh circuit' 
3. 6oun1is5 @38

Aug. 27, 1984. Eri66nsg @14

Opinion on Denlal of Rehearing Eristence of voter apathy is not matter
Oct. 22, 1984. for judicial notice, and district court's find-

Government brought action against [?"*":::"h'"r-i:,.il*|offfi,,:t"'*::
county officers challenging county's at- therefore to be discounted was unsup-

BLT*"Jfffi';JiliT#l;#B::,:'3':; 
p;'T,1 lr-:l*:::.3'o *"' in error' in

Alabama, william Brevard Hand, chief county commission vote dilution case' vot-

Judge, entered extensive findings of fact ing Rights Act of 1965' ss 2' 2(a' b)' as

and eoncrusions or raw, 548 F.Supp 8?5, i}ii.tiS.^1'r';i;! i;,,li 
1e?3' 1e?3 (a' b);

and the Government appealed. The Court

of Appeals, Godbold, Chief Judge, held 4' gottnlis5 G=38

that: 
'it) the Districi Court was clearly In suit under Voting Rights Act, inter

erroneous on two of six principal factors to alia, record failed to support district court's

be considered, i'e', polarized voting and conclusion that campaigns of blacks as can-

structure of the election system; (2) on didates of fringe parties and against coun-

remand the District court was to reconsid- ty commission incumbents helped explain

er factor of lingering effects of past dis- polarized voting, otherwise to be con-

crimination; and (3) District Court erred in side.ed as factor in application of Voting
finding that enactment of Alabama statute Rights Act proviqion prohibiting any prac-

was motivated by Democrats' desire to re- tice imposed in manner resulting in denial

gain power. of right to vote on account of race. Voting

Affirmed in part; vacated in part; re- Rights Act of 1965, Es 2,Z(a,b\, as amend-

versed in part and remanded. ed, 42 U.S.C.A. SS 19?3' 19?3(a' b).

l. Elections @=12 5' Counties <;-38

where nothing in statute or legislative In suit under voLing Rights Act' inter

history indicated thaiamended proiision of alia, trial c.ur'l-'s conclusion that require-

voting Rights Act was not to apply to mcnt ol nl;:itrlrl\' in prirnar''' }'r''rs signifi-



r530'

cance of Democratic primaiy for county
commission combined to weigh "in favor of
a finding of dilution on this criterion" was
correct, but court's determination that
there was no anti-single shot provision and
that the requirement that a candidate run
for a specific post was neutral was clearly
erroneous, in that the requirement that
candidates run for numbered posts has po-
tential effects that are equally adverse.
Voting Rights Act of 1965, SS 2, 2(a, b), as
amended, 42 U.S.C.A. 55 19?3, 19?3(a, b).

6. Elections c-l2
Existence of residency requirement for

voting does not alone provide probative evi-
dence on question of dilution when eleetion
structure, through another mechanism
such as numbered posts, already provides
for separation of one contest into several
contests. Voting Rights Act of 1965, SS 2,
2(a, b), as amended, 42 U.S.C.A. SS 19?3,
1973(a, b).

7. Ceunties @38
In suit under Voting RighLs Act, inter

alia, district court's finding that size and
, population of Dallas County, Alabama,

were not unusually large and court's con-
clusion that such criterion was neutral
were eorrect. Voting Rights Act of 1965,
SS 2, 2(a, b), as amended, 42 U.S.C.A.
55 1973, 1973(a, b).

8. Counties c>38

Considering all subsidiary factors to-
gether, district court in suit under Voting
Rights Act, inter alia, erred in finding that
combination of majority requirement in pri-
mary for county commission, significance
of Democratic primary and use of num-
bered posts did not operate to cancel voting
strength of minorities. Voting Rights Act
of 1965, S5 2, 2(a, b), as amended, 42 U.S.
C.A. SS 1973, 1973(a, b).

9. Federal Courts e=937
In suit under Voting Rights Act, inter

alia, given significance of factors of polar-
ized voting and structure of election sys-
tem under Act provision prohibiting any
practice irr,uosed in manner which results
in deni:ri ,,1 right to vote on account of
race, ('riun c,f Appeals on finding that dis-
trict <.r,,:. ilid erred in its findings and

739 FEDEBAL REPORTER, 2d SERIDS

f:
verse and r€mand for further considera-
tion. Voting Rights Aet of 1965, 5S .2, ?,(a,

b), as amended, 42 U.S.C.A. SS l9?8,
1973(a, b).

10. Counties e,38
In suit under Voting Rights Aet, inter

alia, distriet eourt correctly recognized that
Dallas County, Alabama, has made sub-
stantial progress in integrating its schools,
but once lower socioeconomic status of
blacks was shown, there was no need to
show causal link of sueh lower status on
political participation. Voting Rights Act
of 1965, SS 2, 2(a, b), as amended, 42 U.S.
C.A. SS 1973, 1973(a, b).

ll. Federal Courts @858, 944
In suit under Voting Rights Aet, trial

court's finding that Dallas County, Ala-
bama, had several influential black political
leaders was not clearly erroneous, but it
was not apparent to Court of Appeals from
the record why existence of black political
leaders tended to show that effects of past
discrimination had dissipated, and district
court on remand was to further consider
such subissue. Voting Rights Act of 1965,
SS 2, 2(a, b), as amended, 42 U.S.C.A.
SS 1973, 1973(a, b).

12. Elections @t2
It cannot be reasonably expected that

voting registration percentages will mirror
voting age percentages, and some deviation
between the two must be acceptable, and
difference of 57,. is not significant in deter-
mining issue of racial discrimination in elec-
tions. Voting Rights Act of 1965, SS 2,
2(a, b), as amended, 42 U.S.C.A. 5S 1973,
1973(a, b).

13. Elections 612
In the determination of issue as to

racial discrimination in elections, combina-
tion of somewhat lower registration rates
and lower turnout rates on the part of
blacks may show that effects of past dis-
crimination still linger, and significance of
such combination is factor to be considered.
Voting Rights Act of 1965, SS 2,2(a,b), as
amended, 42 U.S.C.A. SS 1973, 1973(a, b).

14. Counties @=38

In suit under Voting Rights Act. irrtr,,
alia, in view of evidence of practices of tl',

h
tt
th
to
er
hi
bI:

er
ss
ss

l5

tre
sir;

fur
der

int
dis
ss
ss

t6.

t

cor
wo
dis,
Act
bla
Dal
terr
Vot
amr

17.

pea

lenl
dist
10(r

Cir.

18.

alia
evel
ont
sion
witl
tion
roac
$' :
l- :conr lir :r: i.cr such factors would re-

,..#



t'

.a

uxhno srATEs v. DALL/\s'cour'*ry coM'I!'
, tl&r.7t9Frd t5, (tr}ta)

board of registrars of Dallas County, Ala' 19. Counties F38
bema. i.e., limited hours, failure to go to In suit under Voting Rights Act, inter
t11e bgats to the district voters and refusal alia, district court's finding that Dallas

to appoint deputy rnegistrars, district eourt Crcunty, Alabama, commission waa nespon'

erred in not concluding that such practices sive to needs of blacks was not clearly

hindered access to political process by etToneous. Voting Rights Act of 1965,

blacks and continued effects of past dis- 55 2, 2(a, b), as amended, 42 U.S.C.A.

crimination. voting Rights Aet of 1965, s5 1973, 1973(a, b); Ala.code 1975, S 16-8-

55 2, 2(a, b), 4, 5, as amended, 42 U.S.C.A. 1.

SS l9?3, 19?3(a, b), 19?3b, 1973c. 26. 6ounliss G=38

15. Counties e38
Although appointment of deputy regis-

trars by Dallas County, Alabama, commis-

sion was discretionary, fact that board re-

fused to appoint such deputies was evi-

dence, in suit under Voting Rights Act,
inter alia, of failure to act to overcome past

discrimination. Voting Rights Act of 1965,

55 2, 2(a, b), as amended, 42 U'S.C.A.
SS 1973, 1973(a, b).

,a. Co,rnliss @38

That no white groups slated countY

commission candidates was faetor which
would support finding of no dilution, but
district court in suit under Voting Rights
Act, inter alia, correctly found that no

blacks had been elected in modern times in
Dallas County, Alabama, and that such de-

termination supports finding of dilution.
Voting Rights Act of 1965, SS 2,2(a, b), as

amended, 42 U.S.C.A. SS 1973, i973(a, b).

lZ. Federal geup15 @70b

Absent complete record, Court of Ap-
peals could not adequately review chal-

lenged findings and was required to affirm
distriet court on issue. F.R.A.P.Rule
10(bX1), 28 U.S.C.A.; U.S.CI. of App. 11th

Cir.Rule 1 (aX1), 28 U.S.C.A.

18. Counties e38
In suit under Voting Rights Act, inter

alia, district court correctly concluded that
even had it found that blacks tended to live
on unpaved and fringed roads, such conclu-

sion would not show unresponsiveness
without other evidence showing discrinrina-

tiorr b\- county commission in providing
r,xd services. Voting Rights Aet of 1965.

i t i(a, b), as amended, 42 L'.S.C.A

5-i llr?i. 1973(a, b).

{

lffir

In suit under Voting Rights Act, inter
alia, district court correctly determined
that there was firm and long-standing state
policy favoring at-large election of Dallas
County, Alabama, board of education as

well as boards of the other 34 counties
covered by Alabama statute, and court also

correctly concluded that although there
was long-standing policy favoring at-large
elections of county commission of Dallas
County, policy statewide was neutral. Vot-
ing Rights Act of 1965, SS 2, 2(a, b\, as

amended, 42 U.S.C.A. SS 1973, 19?3(a, b);

Ala.Code 1975, 5 16-8-1.

21. Counties @38

In suit under Voting Rights Act, dis-

trict court eorrectly determined that there
was no property requirement for candi-

dates for board of education or commission
and that such factor supported finding of
no dilution, that Dallas County, Alabama,
had been designated for use of federal
registrars and that such factor weighed in
favor of dilution and that there was no

evidence of disqualification of black candi-

dates and that such subissue supported
finding of no dilution. Voting Rights Act
of 1965, SS 2, 2(a, b), as amended, 42 U.S.

C.A. SS 1973, 1973(a, b).

22. Constitutional Law @215.3

To prove claim of racial discrimination
in voting, under Fourteenth Amendment,
plaintiff must show discriminatory intent in
enactment or maintenance of statute. Vot-
ing Rights Act of i965, 55 2, 2(a, b), as

anrended, 42 U.S.C.A. SS 1973, 1973(a' b);

.{ir.Code 1975, S 1G8-1.

l.'. ('ounties G-3tt

lr, suit under Voting Rights Act and
i :; r-rtentli . Anicndment, district court's



I

1632 ?39 FEDERAL REPOITER" Zd SERIES

finding as a fact that adoption of the.at-

lrrge system was motivated "by one hu-

man desire as old as the hills", i'e', that
group which was out of power wanted to

get back in power, was clearly erroneous'

in vjew of tcstimony of expert as to reason

for statutory enactment-

24. Conetitutional Law @215.3

Elections G=I2

In suit under Voting Rights Act and

Fourteenth Amendment, plaintiff to estab-

lish violation of Fourteenth Amendment

need not prove that racial discrimination

was dominant or primary motive, but only

that it was a motive. Voting Rights Act of

1965,5S 2,2(a,b), as amended,42 U'S'C'A'

SS 19?3, 19?3(a, b); U'S.C.A' Const'Amend'

14.

William Bradford Reynolds, Asst' Attv'
Gen., Jessica Silver, Irving Gornstein, Civil

Rights Div., U.S. Dept. of Justiee, Wash-

ington, D.C., for plaintiff-appellant'

Joe T. Pilcher, Jr., Selma, Ala', for Dallas

cry. Bd. of Educ., et al.

Cartledge W. Blackwell, Jr., Selma, Ala',

for Dallas CtY., et al.

Appeal from the United States District
Court for the Southern District of Ala-

bama.

Before GODBOLD, Chief Judge, RO-

NEY and KRAVITCH, Circuit Judges'

GODBOLD, Chief Judge:

This is a vote dilution case' It involves

chailenges to the at-large systems used to

elect the Dallas County [Alabama] Commis-

l. The Board of Fiucation moved to dismiss the- 
u.iio., because the government had not joined

,t"..ro* and indispensable parties to the ac'

iion ". 
t.q"it.d by Fed.R'Civ'P' l9' The Board

asserted that the governor, state attorney gener-

al, secretary of itate of Alabama, and every

-".U.. ofi board of education elected under

S 16-8-l was a necessary and indispensible p-ar-

i, because the government sought to have the

i"tat" ,,"t.rt" declared unlaw{ul l Rec' at 3l-32'
The governmenl answered the Board's motion

by explaining that

[d]efendant is incorrect in its assertion that
;piai ntiff has challenged the uncon-stitut ionali'
ty Iti.] of this stare'wide act" (Defcndartt's

I
sion and ttrd Daltas County Board of Edu'

cation. Plaintiff sued both the Dallas

County Commission and the Board of Edu-

cation under the Fourteenth antl Fifteenth

Amendments; the Civil Rights Act of 1870,

as amended, 42 U.S.C. 5 f971(aXl) (19?6);

and S 2 of the Voting Rights Act of 1965,

as amended, 42 U.S.C. S 1983 (West Supp'

1984).

The case has a complicated history in the

district court because of intervening

changes in the law. The government

brought suit in 1978, and the case was

originally tried in 1979 and 1980 under the

then-prevailing standards of the Fifth Cir-

euit as set forth in Neuett a. Sid'es, 571

F.2d 209 (Sth Cir.19?8\, cert' denied, 446

u.s. 951, 100 s.ct. 2916, 64 L.Ed.2d 807

(1980), Kirlesey a. Board of Supervisors,

554 F.2d 139 (sth Cir') (en banc), cert' de-

nied, 434 U.S. 968, 98 S.Ct' 512,54 L'Ed'2d

454 (1977) and Zimmer a. McKeithen, 485

F.2d 129? (5th Cir.19?3) (en banc), affd on

other ground.s sub nom East Carroll Par-

ish Sih.ool Board u. Morshall, 424 U'S'

636, 96 S.Ct. 1083, 47 L.Ed.zd 296 (19?6)'

Later, before the case was decided, the

Supreme Court decided Mobile a' Bolden,

446 U.S. 55, i00 s.ct. 1490, 64 L.Ed.zd 4?

(1980), a case that "completely changed the

mode of assessing the legality of electoral

schemes alleged to discriminate against a

class of citizens." Jones u. City of Lub'

bock, 640 F.2d 777, 777 (lLh Cir'198i) (Unit

A) (Goldberg, J., concurring), modified 682

f.Za SOa (1982). The government had chal-

lenged Ala.Code S 16-8-1 (1975), the sec-

tion- under which the Board of Education

was elected, only as applied and not on its

face,r so the court held the government

Brief, at 3). This lawsuit challenges the a!
large method by u'hich the Dallas County

Coirmission and Board of Educatign are

elected. This lawsuit does nol challenge the

method of election of such bodies in any

oitt.. 
"o""ty 

in the state' Although the Dallas

County Boird of Education is elected pursu-

anl to the same statute that sets forth- the^

election provisions for othcr countl boards of

.Ju.ulion lhroughout Alabama' this lau'suit

.t utt.'r-rg". ,,n11' t-he eleclion strtlclurc in Dal-

las Cotrr,l'. Alabama
ld. al 4611 (l()r)tnolc omitlc(l )

Afle;- in, l losc of platntril ' t r irit t'' t lir'

IJoartl ol I .'r,..r1tt-,lr ttlovcti !.'. i; 1;"'lri itri''

would not be
/of discrimina

eection 16-8
government
criminatory i

Ala.Acts 82
the County

After the
before the
amended sec
to overrule.
Cong., 2d S
U.S.Code Cr

[hereinafter
Under subse
determining
subsection (z

that the "1

nomination <

open to part
A violation i
tality of Cirr

which mem
elected to o

When sec'

mission did r

dence be tak
posed findir
law direeted
2. The cour

sive findingr
It found tha
en vote dilul
Education o

government
Amended

dismissal u
270. This
Supreme C<

briefs from
the district
Board fron:

lTlhe Dal
the Court
continuec
pending <

things, I
Governm,
lations ol
trial orde
dcI attacl
r, , thal
il :';pl1ci

.--.-ird.r|*-



:'.

would not be permitted to presen{ evidence
of discriminatory intent in the enactment of
section 1G€-1. The court did allow the
government to introduce evidence of dis-

criminatory intent in the enactment of 1901

Ala.Acts 328(6), the section under which
the County Commission is elected.

After the evidenee was concluded but
before the case was decided, Congress
amended section 2 of the Voting Rights Act
to overrule Bolden. S.Rep. No. 417, 97th
Cong., 2d Sess. 1ts16, reprinted in 1982
U.S.Code Cong. & Ad.News 177, 192-93

[hereinafter cited as 1982 Senate Report].
Under subsection (b) the central inquiry in
determining if there has been a violation of
subsection (a) is whether it has been shown
that the "political processes leading to
nomination or election . . . are not equally
open to participation" by a protected class.
A violation is established based on the "to-
tality of c\reumstance," and the extent to
which members of the class have been

elected to office is relevant.
When section 2 was amended the Com-

mission did not request that additional evi-

dence be taken. The parties submitted pro-

posed findings of fact and conclusions of
law directed to the standard of new section

2. The court subsequently entered exten-

sive findings of fact and conclusions of law.
It found that the government had not prov-

en vote dilution against either the Board of
Education or the City Commission. The
government appealed.

Amended section 2 now reads:

dismissal under Fed.R.Civ.P. 41(b). 2 Rec. at

270. This motion was still pending when the
Supreme Court decided Bolden. After receiving
briefs from the parties on the impact of Bolden
the district court on July 31, l98l dismissed the
Board from the suit.

[T]he Dallas County School Board persuaded
the Court that its arguments in regard to the
continued prescnce of that defendanl in the
pending case was improper for, among other
things, the evidence introduced by the
Government in its case in chief and the stipu-
lations of the parties as reflected in the pre-
trial order, demonstrated that the statule un-
der attack \tr'as a statute of state-wide applica-
tion, that thc attack on the statute u'as only as
it applied to Dallas County and that the stat-
ute itself had not resulted in discrimination as

a wholc, but on the contrary, blacks have

,.

U{rrED STATES v. DALII\$ COUNTY COM'N
Clrc u 739 F2d l5z, (t9el)

n

rffi3

Denial or abridgemeht of right to vote on
account of race or color through voting /
qualifications or prerequisites; establish'
ment'of violation

(a) No voting qualification or prerequi-
site to voting or standard, praetice, or
procedure shall be imposed or applied by
any State or political subdivision in a
manner which results in a denial or
abridgement of the right of any citizen of
the United States to vote on account of
race or color, or in contravention of the
guarantees set forth in section

l9?3b(0(2) of this title, as provided in

subsection (b) of this section.

(b) A violation of subsection (a) of this
section is established if, based on the
totality of circumstances, it is shown that
the political processes leading to nomina-
tion or election in the State or political
subdivision are not equally open to par-
ticipation by members of a class of citi-
zens protected by subsection (a) of this
section in that its members have less

opportunity than other members of the
electorate to participate in the political
process and to elect representatives of
their choice. The extent to which mem-
bers of a protected class have been elect-
ed to office in the State or political subdi-
vision is one circumstance which may be

considered: Prouided, That nothing in

this section establishes a right to have

members of a protected class elected in
numbers equal to their proportion in the
population.

been elected to a number of positions in vari-
ous counties and that the Government's effort
to single shot Dallas County u'ithout attacking
the whole structure u'as improper. The Court
does not limit its findings to what is recited
herein, but has directed that the school board
prepare and furnish to the Court a [sic] pro-
posed findirgs of fact and conclusions of lar,r'

at u,hich time this Court will again consider
the matter and enter its determinations thal
will be dispositive of the school board's liabili-
ty.

Id. at 356-57. The courl, however, did not enter
judgment for the Board of Education until Scp-
tember 3, 1982, rvhen it granted thc Board's
Rule 4l motion and determined that final judg
ment on the merits should be rendered in favor
of the School Board defendants and against lhc
plaintiff. 3 Rec. at 538-39.



- ,-

1534

I. CONSTITUTIONALITY OF
AMENDED SECTION 2

On appeal the C,ommission challenges the
constitutionality of amended section 2.
The Commission and the Board also assert
that vote dilution claims are not cognizable
under the Fifteenth Amendment or seetion
2 of the Voting Rights Act. These issues
have been decided adversely to the appel-
lants. U.S. a. Marengo County Commis-
sion, 731 F.2d 1546 (1lth Cir.1984).

tl] The Commission further contends
that amended section 2 should not apply to
this litigation because it would have intro-
duced additional evidence had it known that
the court would no longer require proof of
discriminatory intent. This argument is
unpersuasive. "[A] court is to apply the
law in effect at the time it renders its
decision, unless doing so would result in
manifest injustice or there is statutory di-
rection or legislative history to the contra-

ry." Bradle.y a. Richmond School Board,
416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40
L.Ed.zd 476 (19741. Neither the statute
nor the legislative history indicates that the
statute is not to apply to pending cases.
Marengo County, TSl F.2d at 1553. Also,
no manifest injustice will oceur from apply-
ing amended section 2 to this case. As
explained above, when the suit was origi-
nally tried the parties recognized that the
court should consider the Zimnter factors.
Bolden did not make these factors irrele-
vant; rather it provided they could be indic-
ative but not dispositive on the issue of
intent. Lodge a. Burton, 639 F.2d 1358,
1375 (sth Cir.1981) (Unit B), affd sub nont
Rogers u. Lodge, 458 U.S. 613, 102 S.Ct.
3272, 73 L.Ed.2d 1012 (1982). Under
amended section 2 a court should consider
the Zimmer factors. See 1982 Senate Re-
port at 28-29, reprinted in 1982 U.S.Code
Cong. & Ad.News at 20647. Consequent-
ly the factors relevant in considering a vote
dilution claim under amended section 2

were relevant in the period after Bolden
trut before the amendment. which is the
period during u'hich th,: Conrmission pre-
sr-.:r1,,rl its defr,nst. F ullir,:rrrort,. the Coni-
r'rli5sli)lt dirl rrot re(iut,s1 ,1,; llLlditional hear-
,: ! l.ii',f tir,, i. .; lltr,,it.(. as the

73e FEDERAL REPORTEB, 2d SERIES
,t

governrnent had done af.tor Bolden, bvt
instead filed its proposed findings of fact
and conclusions of law under the new gtan-
dard of amended section 2. Given the
ongoing relevance of the Zimmer factors
throughout the period of trial and the Com-
mission's willingness to submit proposed
findings and conclusions under the new
standard, we find no manifest injustice in
application -of amended section 2 to this
case. Cf. Marengo County, 731 F.2d at
1554 (finding no manifest injustice because
"the question is whether the present main-
tenance of that system meets the stan-
dards in effect now") (emphasis in origi-
nal).

II. APPLICATION OF SECTION 2

This court explained in Marengo County
[t]he language and history of the statute
make clear several points. First, dis-
criminatory intent need not be shown to
establish a violation. Second, at-large
elections are not prohibited per se, nor
does a lack of proportional representa-
tion automatically require a finding of a
violation. At the same time, however,
the absence of minority elected officials
may be considered an indicium of viola-
tion, and an at-large system will violate
the statute f it results in a denial of
equal participation. Congress noted that
some at-large systems diluted black
votes, and would be vulnerable under the
amended statute. 1982 Senate Report at
6. Third, section 2 focuses not on wheth-
er minority groups receive adequate pub-
lic services but on whether minorities
have an equal right to participate in the
election process^ See id. at 36.

731 F.2d at 1564-65 (emphasis in original
and footnotes omitted).

I2l We have pointed out, and rtorrngo
Countg recognized, that a section 2 case
requires examining the totality of the cir-
cumstances. The Senate Report refers to
nine faetors that it considers "typical,"
u'hich are to tre u,.,ished under the totality
Of CirCUtfist:-rncr,: t.; ,,t'rraCh: :

1. tht,t,xter,'
disct'iniirr:rt i,, r

iinl history of offici;,1
r,., stat€, 6. polit rr.:,

' - -.--..&*.

auMiv
memh
ter, to
the der

2.r
electio
sion is

3.t
politica
large e

quirem
or otht
that rn

discrim
group;

4.il
cess, w
ty grou
process

5.fl
the min
eal sub
erimina
employr
their at
the poli

6.w
been ch
cial app

7. t)
the min
public o

Addit,
have ha,

tiffs' er
are:

t8.l \
lack of
elected

3. While tI
to be con,
stances" a
consider r

criminatio
effects fro
and emplc
der of thir
faclors.

4. Both thr
mission's ,

ized vcr rni
candit,ate:
pcrl, det.



---
I

\
h

a- UNITED STATES v. DALLAS COUMY COM'N rtss
. *' Cltc 1a739F-td tszP (t|&r)

suMivision that toucf,ed the righ,t of the needs of the members of the minority

members of the minority group to regis- group'

ter,tovote,orotherwisetoparticipateintg.]whether.thepolicyunderlyingth.e
the democratic process; state or political subdivision's use of such

2.theextenttowhichvotinginthevotingqualifieation,prerequisitetovot.
elections of the state or political subdivi- ing' or standard' practice or procedure is

sion is racially polarized; ,-tenuous'
s. the extent to *ii.r, tlre state 31 i333 i,:lHr:?ffi:L%?i,;T:::;St*

political subdivision has used. unusually (-footnotes omitted).
large eleetion distriets, majority vote re-

quirements, antlsingle shot provisions, 
-.All 

nine factors listed in the Senate Re-

or other voting p"""ti."."o, ;;;;; port appear in this case' we have con-

that may enr,ince ;:":r*'i',"ff;";;; :'ffi".| :};f J[:;,,,T:;S|* :]lli]:
discrimination against the mlnortty racial polarization In voting and the struc-
group; ture of the eleetion system. This conclu-

4. if there is a candidate slating pro- sion requires that the cise be reversed and

cess, whether the members of the minori- remanded. With respeet to a third factor,
ty group have been denied access to that the existeuce of past discrimination and its
process; limiting effects, we find that some of the

b. the extent to which members of district court's subsidiary findings are cor-

the minority group in the state or politi- rect and others erroneous' we express no

eal subdivision bear the effects of dis- view of the merits of this factor and direct

crimination in such ;.-;;;"cation, that the court reconsider it on remand'

employment "na 
n"ulii, *li.i-ii.i". Finallv, with respect to others of the eight

their ability to purti.ip,L iii"ttf*1" i' factors we find that the district court's

the political process; 
- conclusions are not plainly erroneous and

6. whether political campaigns have as to them we affirm'

been characterized by overt or subtle ra- A. Racially polarized voting
cial appeals; ln Marengo county we held that racially

7. the extent to which members. of polarized voiing "wiliordinarily be the key-
the minority group have been elected to .ton" of a dilution case." ?31 F.2d at 1566.

public office in the jurisdiction. It is "[t]he surest indication of race-con'

Additional factors that in some cases scious politics." Id. al 1567.

have had probative value as part of plain- The district court determined that "in
tiffs' evidence to establish a violation those races in which whites have opposed

are: blacks, there has been evidence of polariza-

t8]whetherthereisasignificanttioninthevotingofbothwhiteandblack
tacl 

-ot 
responsiveness on the part of voters." 548 F.Supp. 794 aL 853 (footnote

elected offieials to the particularized omitted), 905.a However, the court dis-

3. While the Senate Report outlines nine factors black,/white candidate races save one' the racial

to be considered under the "totalily of circum- polarization index y"t higher than in

"L..".; 
approach, we, like the district court, white,/u,hite races and probably more impor-

consider together t*o oi the factors, past dis- tant to the cotrt that it ranged in black'/u'hite

crimination in voting procedures and fingering races in [sic] 37 to 75 ' [T]he white'/u'hitc

effects from discrimination in health, education, races were all, save one, lou'cr than any of the

and employment. Consequently, in the remain. polarizarion indices in'rhc black,/white races.,,

der of this opinion we refer to eight, not nine, b R".. ut 1579. Cottrell indicated that a racial

racrors' ::lT''ill":, 'ifr? "!,1l"Li'l:l'Y;'i:i'l;
4. Both the governmcut's expcrt and thc Com' (Dr' Cottrell's analvsis)'

mission's ex'pert found a high dcgrcc.f polar t''rrrr :r differcnl tcst, thc Comtnission's cr-

irJr.ti"g in electi<-rns b"t,,.J"n bla.k err<J r'hitc p!r: I)r . \'o'les, ascertained that "of the raccs

candidatel. Dr. Colrcll, lhg e.r,,',,,rnc1l's ex- ir,tr i'l;,rk candidates " therc is a corrclattort

fi, determined that "i;],, .,: ti rhc i,:. :, irt:ri is sigr.rificant r|hen 1'ou colllpat'c lrr'(



,. !
a1.,!

1636 ' ?39 FEDERAL REPORf,ER', 2d SERIES

count€d racial polarization because Eorne

blacks ran as candidates of fringe parties'

btect s made little effort to attract white

suoDort, whites often supportcd an incum-

Ln't or"t a black, blacks seldom used the

media as extensively as whites, and there

was a high level of apathy of both black

and white voters. /d. at 85&-54, 905-06'

t31 Beginning in 1966 blacks have run

in ga t"."t; they have lost every time' 548

F.Supp. at 84&-50. The district court con-

cluded that apathy was the prime cause of
black defeat at the polls. In this the court

erred. The existence of apathy is not a

matter for judicial notice' Kirksey, 554

F.2d at 145; see also Marengo County, TSl

F.Zd aL 1574. The record does not contain

evidence supporting the district court's

finding that apathy was a prime cause of

black defeat.

t4l The record also does not support the

district court's conclusion that campaigns

of blacks as candidates of fringe parties

and against incumbents helped exp)ain the

polarized voting occurring in Dallas Coun-
'tV. In 19?0 three incumbent commission-

ers defeated three blacks running on the

National Democratic Party of Alabama

ticket (a fringe party). Since 1970 blacks

have apparently not run on this or any

other fringe ticket.s Fourteen blacks have

lost elections during this time' Additional-

ly, in this period, in two of three races for
commissioner a white incumbent has been

opposed by a black and a white and has

b"Ln utte"ted bv the white opponent'

with voting"' 9 Rec' at l78l' See also

Comm'n's Exhibir I (Dr' Vo1'les's analysis)

These statistics, using either expert's melhod'

sholr' that in every race between a u'hite and a

Llu.k .u"aldute ihere was a high degree of

tu.iuf pof".i-tion. This takes on added signifi-

"un." 
ln lighr of the fact that blacks constitute

44.8 percent of the registered votcrs'

5. Evidence in the record indicates that in 1974
-'.*" 

NDPA candidates were disqualified from

ih. builot bv thc county probate jud8e but or'

Jcred back on the ballot b1' a federal judge T

n".. or tlSO-81 (Chestnut) The discussion in

th.' ,".,r.d of this occurrence does not reveal

uhether thesc candidatcs ran for counly com-

:.r,i.trinn",- or school board mcmbcr or whether

ii,.j.' .on for other offices not involved in this

lr*.r,t. Thc rccord does shou' that onlv one

i.i.,.k. N'l.rd,,.r's, ran for school board member

Thus, the "tringe party" and incumbency

explanations are not supported by the

record.

Another explanation for voting polariza-

tion was that blacks did not actively seek

white votes. As noted in Morengo Coun-

ty,73l F.2d at 156?, the failure of blaeks to

"-oli.it 
*trit" votes may be caused by the

effects of past discrimination, an issue that
we direct be reconsidered on remand'

We conclude that the court's finding that

racial polarization in voting was not a sig-

nificant factor is clearly erroneous'

B. Structure of the election system 6

151 The court concluded that the re-

quirement of a majority in the primary plus

tie significance of the Democratic primary

combined to "weigh[ ] in favor of a finding

of dilution on this criterion'" 548 F'Supp'

at 908. This finding is correct; the

Supreme Court has recognized the poten-

tial adverse effects of a majority vote req-

uisite. See City of Rome' u' U'S.446 U'S'

156, 183-84, i00 s.ct. 1548, 1564-65, 64

L.Ed.zd 119 (1980). The district court also

determined that there was no anti-single

shot provision and that the requirement

that a candidate run for a specific post was

neutral. 548 F.Supp. at 908' This is clear-

ly erroneous. Even "though there is no

anti-single shot provision, the requirement

that candidates run for numbered posts has

potential effects that are equally adverse'"

Buxtott, 639 F.2d at 1380'

in lhe 1974 general election' No black ran for

.ountl comhissioner in this election' 548

F.ar;;. at 849. Dr. cottrell, the government's

experi, testifies that the NDPA ran candidates in

Dallas County in 1970 but not after' 9 Rec' at

1639. We thirefore assume thal the NDPA can-

didates disqualified by the probatejudge in 1974

were nol running for either county commission-

", 
oi t.t "a 

boa-rd member' However' gven if
Me.do..*'s was a NDPA candidate' our analysis

r.r'ould not change, as blacks lost l3 other races

aficr 1970.

5. We use the term "structure o[ election system"

to encompass a variety of factors' including use

oi a maiority requirement, significance.of the

primary, size and population of the district' use

Lf numbered posti, exislence or not of a resi-

dencl- requirement, and abilitl' or not to usc

single-shot voting.

t61 Addi/ ed that the
live in speci
seats weigh
tion. 548 .

interpreted
showing evi
no dilution.
62?, 102 S.C
tton) uith C
n. 21, 100 S,

of dilution).
tence of a r
by itself, pr,
question ol
structure,
such as nur
for the sepa
tion of cour
contests. S

185 n. 21, lt

t7l Final
population c

large and t
The court's
sub-issue ar

t8l Cons
tors togethr
eourt erred
of a majorit
the significa
and the us
operate to cl

ties.

tgl Giver
factors we l
and the str
under amen
remand for

C. Past,
effect

On this fa
findings are
This issue
mand.

The distri
Alabama re
vote, that o

pi,rll tax, ar
.-'haraete' 1

' r ui)i i.i



161 Adclitionally, the court b{ow decid-

ed that the iequirement that candidates
live in specified districts to run for certain
seats weighed in favor of finding no dilu'
tion. 548 F.Supp. at 908. Courts have

interpreted residency requirements as both
showing evidence of dilution and showing
no dilution. Compare Rogers,458 U.S. at
627, LOz S.Ct. at 3280 (evidence of no dilu-
tion) with City of Ronte, 446 U.S. at 185 &
n. 21, 100 S.Ct. at 1565 and n. 21 (evidence

of dilution). We conclude that the exis-

tence of a residency requirement does not,

by itself, provide probative evidence on the
question of dilution when the election

structure, through another mechanism

such as numbered posts, already provides

for the separation of one contest (e.g., elec-

tion of county commissioners) into several

contests. See City of Rome, 446 U.S' at
185 n. 21, 100 S.Ct. at 1565 n. 21.

t7l Finally, the court found the size and
population of Dallas County not unusually
large and that this criterion was neutral.
The court's finding and conclusion on this
sub-issue are correct.

t8l Considering all these subsidiary fac-

tors together, we hold that the district
court erred in finding that the combination
of a majority requirement in the primary,
the significance of the Democratic primary,
and the use of numbered posts did not
operate to cancel voting strength of minori-
ties.

tgl Given the significance of the two
factors we have discussed, polarized voting
and the structure of the election system

under amended section 2, we reverse and

remand for further consideration.

C. Past discrimination and its lingering
effects

On this factor some of the district court's
findings are plainly erroneous, others not.
This issue should be reconsidered on re-

mand.

The district court found that in the past

Alabama required, in order to register to
vote, that one pass a iiteracl' test, pa1' a

poll tax, and preser,: :. vtrucher of good

character frorn a ri'g,-''-;,red voter. 518

F.Supp. at 800, 881 " court concluded

-
UNITED STATES V. DALLAS COUNTi

.' Glteu739F,d1329{t9e0)
COM'N r537

nevertheless that thefe were no lingering
effects of these past discriminatory re
quirements. Id. at 846,909-10. This con-

clusion was based on several factors, in-

cluding blacks' ability to participate in the
election process by registering, voting, run-
ning for office, and serving as election

officials; the progress of integration in the

school system; the development of influen-
tial black political leaders; and the substan-

tial equality in voter registration of blacks

and whites. Id. aL 846-47, 854-55, 899,

906.

ll0l Schools: The court correctly rec-

ognized that Dallas County has made sub-

stantial progress in integrating its sehools.

Blacks nevertheless continue to have lower
income and education levels. 548 F.Supp.

at 855, 906. Ls Mo.rengo CountY ex'
plained, "[b]ecause blacks are poorer and

less educated they have less political influ-
ence than whites." 731 F.zd at 1568.

Once lower socio'economic status of blacks

has been shown, there is no need to show

the causal link of this lower status on

political participation.

[T]he court imposed an improper burden
of proof of eausal relationships. The

Supreme Court and this court have rec-

ognized that disproportionate education-

al, employment, income level and living
conditions tend to operate to deny access

to political life. In this case the court
held that these economic and education

factors were not proved to have "signifi-
cant effect" on political access in Hinds

County. It is not necessary in any case

that a minority prove such a causal link.
Inequality of access is an inference
which flows from the existence of eco-

nomic and educational inequalities.

Kirksey,554 F.2d at 145; accord Marengo

County, 731I.2d at 1569.

Ilfl Pol'itical leadership: The court
found that Dallas County has several influ-
ential black political leaders. This finding
is not clearly erroneous., However, it is not

apparent to us, without additional evidence

of their status, power and influence and

their impact on political affairs, or further
explanation, or both, why the existence of



t:-

?39 FEDERAL REPORTER, 2d SERIES1538

black political leaders tends to show that
the effects of past discrimination h'ave dis-

sipated. On remand the court should con-

sider this sub-issue further.

ll2l Registration' The district court
found that blacks are now registered in
substantially equal numbers with whites.
This is not clearly erroneous. Using popu-

lation estimates, the district court deter-
mined that in 1976 blacks were approxi-
mately 44 percent of the voting age popula-

tion and 43.8 percent of the registered vot-
ers. A difference of .2 percent is not sig-

nificant. By 1980 blacks were 49.8 percent
of the voting age population but only 44.8

percent of the registered voters. It cannot
be reasonably expected that registration
percentages will mirror voting age percent-

ages; some deviation between the two
must be acceptable. We conclude that a

difference of 5 percent. is not significant.

tlSl While blacks do register in approx-
imately the same numbers as whites, evi-

dence suggests that blacks continue to vote

at a rate 5 percent to 10 percent lower than
whites. 8 Rec. at 1586 (Cottrell). Because
the combination of somewhat lower regis-
tration rates and lower turnout rates may

show that the effects of past discrimination
still linger, the district court on remand
should determine whether blacks in fact
turn out at a lower rate and, if so, consider
the significance of this combination.

Subjectiue eddence: The district court
did not extensively discuss subjective evi-

dence of continuing effects of past discrimi-
nation. See 548 F.Supp. at 845, 888' A
number of government witnesses testified
to lingering hostility and fear by blacks of
the county courthouse, the site of the

Board of Registrars. See, e.9., 4 Rec. at
138-40, 222-23 (Reese); 5 Rec. at 498

(Crum); id. at 689 (Moss); 7 Rec. at 1064-

65 (Chestnut). The district court discount-

ed this evidence because it concluded that
"[t]he Court House is the seat of county
government, and is therefore a proper and

appropriate place for the Board of Regis-

trars to conduct its activities." 548

7. In 1978 thc lau governing tht R,,:,'rl oi Rcgis'
trars was amended- I'rior lt, tht clt:tllg< lhc
Board was required 10 go lo tl't r'r:tl: perit>di'
cally. Under lhc net lari tht ll,:,'- :: pcrnltl-
ted, but not required, to go lo thu bcats.

F.Supp.Tat 845. This holding does not ad'
dress the "lingering fear" issue.

ll4l The government introduced evi
dence of these practices of the Board of
Registrars: limited hours, failure to go to
the beats to register voters,T and refusal to
appoint deputy registrars. In their consid-
eration of the 1982 amendments to the
Voting Rights Act, both the House and the
Senate expressed eoncern over these kinds
of barriers to registration. The House Ju-
diciary Committpe viewed "inconvenient lo-

cation and hours of registration ... [and]
refusal to appoint minority registration and
election officials" as "continued barriers to
registration and voting." H.R.Rep. No.
227,97th Cong., lst Sess. 14 (1981). In a

like vein, the Senate Judiciary Committee
described such devices as "blatant direct
impediments to voting." 1982 Senate Re-

port at l0 n. 22, reprinted in 1982 U.S.

Code Cong. & Ad.News at 187 n. 22. See

generally Note, Eradicating Racial Dis-
crimination in Voter Registration:
Rights and Remedies Under the Voting
Rights Act Am.endments of 1982,52 Ford-
ham L.Rev. 93, 110-12 (1983).

In light of Congress's concerns about
these practices, the district court erred in
treating their presence in Dallas County as

insignifieant. The court concluded that the
hours were reasonable 8 and furthermore
affected blacks and whites equally. 548

F.Supp. at 845, 889. While being open

during the day may seem reasonable on
first consideration, the evidence indicates
that such hours are inconvenient to those

who work, especially those who work in the
rural areas of the county. See 5 Rec. at
499 (Crum); 6 Rec. at 771 (Han'in); id. at
919 (Dixon); 8 Rec. at 1344-46 (Pettway)
(explaining that a person only has to go a
few miles to vote but may have to go 28

miles to the city and lose a day's pay in
order to register). As C,ongressmln Hyde,
ranking minority member of the House

Subcommittee, stated after listening to tes-

timonl' at a hearing on amendments to the
Voting Righls Act held in Montgomery,
Alabama,

E. Tir. Bolr:'d opens al either 8:30 or 9:00 a m.,

cl<,sc: :rl noon, reopens at either l:0O or 2:00

p.n an:-l .-loses at 4:0O or 4:30 p.m. 5 Rt' ;'

4r-): {ri (l:(}stcr); l4 Rec. at 3222 (H<'rnc\'

In
greBt

YoU'
outra
keep
have
ing.

If
than

Ertewt
Hearin
and Ct
Comm-
Sess. F

evidenc
held ni1

at 3211
dence t
only at
were ur
ter). E
conclurl
cess to
continu,
tion.

Wer
gard to
and 19t
voters.
appropr
Registr
need fo
on the
tions.
reprint
News a

necessa
under I

order k
Act). S

the Bor
register
but the
was cal

that thr
Board's
house a

disenfrr
County.

t15l
properl;
failure
54E F,S

positive



h

- UNITED'STATES v. DALLAfCOUNTY COM',N 
' otsgg

Cltc u ?39 F2d t529 r(19t4) r

I want to say thit I have lislened with isdiciions seeking to.bail out of S 5 was

great interest and concern, 
"nd 

I *ill t"tt "appointment of deputy registrars who are

!ou, registration hours from 9 to 4 is present at locations aceessible to minority /
outrageous' It is absolutely designed to candidates'" 1982 Senate Report at 55'

keep people who are working and who reprinted in 1982 U.S.Code Cong. & Ad.

have difficulty in traveling from register- News at 233. While the district court cor-

ing. rectly characterized the appointment of
If that persists and exists, it is more deputy registrars as discretionary under

than wrong .... the law, the fact that the Board refused to

ErtensionoftheVotingRightsAct:appointsuchdeputiesisevidenceofafai]-
Hearings Before the Subcomm' on Civil ure to act to overcome past discrimination'

ond Constitutional Rights of the House
Comm. on the Jud.iciary, 97th Cong., lst
Sess. Part 2 at L584 (1982). There was

evidence that the Board had previously
held night and Saturday meetings, 14 Rec.

at 3217 (Horne), but there was also evi-

dence that these meetings were publicized

only at the courthouse, so that most people

were unaware of them, 5 Rec. at 418 (Fos-

ter). We find the district court erred in not
concluding that this practice hindered ac-

cess to the political process by blacks and

continued the effects of past discrimina-
tion.

We reach the same conclusion with re-

gard to the Board's failure, between 197E

and 1982, to go to the beats and register
voters. That the county courthouse is an

appropriate meeting plaee for the Board of
Registrars does not address the possible

need for the Board to take steps to carry
on the registration process at other loca-

tions. Cf. 1982 Senate Report at 53-55,

reprinted in 1982 U.S.Code Cong' & Ad.

News at 231-34 (describing positive steps

necessary for covered jurisdiction to take

under S 4 of the Voting Rights Act in
order to qualify for bailout from 5 5 of the
Aet). Some evidence suggests that in 1982

the Board decided to go to the beats to
register voters, 14 Rec. at 3205 (Horne),

but the record does not reveal whether this
was carried out. We therefore conclude

that the district court erred in treating the

Board's meeting at only the county court-
house aq sufficient in light of the historical
disenfranchisement of blacks in Dallas
County.

trSl We also find the district court im-

properly considered as unimportant the

failure to appoint deputy registrars. See

548 F.Supp. at 84f46, 889. One of the
positive steps Congress suggested for jur-

This issue of lingering effects of past

discrimination must be reconsidered by the

district court. We express no view on the

ultimate merits of the issue.

III. OTHER FACTORS

We have discussed three of the eight
factors. Now we turn to the other five and

hold the district court correctly decided

them.

tl6l The court determined that no white
groups slate candidates, a fact that sup-

ports a finding of no dilution. 548 F.Supp'

at 851, 855, 856, 903, 90?, 910. It found

that there have been no racial campaigns

since 1966 and that this factor weighs in
favor of a finding of no dilution. Id. aL

855, 90?, 916. It held that no blacks had

been elected in modern (post-1965) times
and that this determination supports a find-
ing of dilution. Id. at 847,857, 899, 908.

All these findings are correct.

The district court's finding of responsive-

ness, a subsidiary factor under amended

5 2, is also correct. Because the court's

findings concerning the Board of Education
and the County Commission rest on differ-
ent evidence, they are considered separate-

ly.

ll?l On the issue of responsiveness by
the Board of Education, the government

and the Boaftl stipulated that the district
court could take judicial notice of Lee tt.

Dallas Cou,nty Board of Education, 456

F.Supp. i164 (S.D.A1.19?8), a case involving

school desegregation and facultv hiring in
Dallas County. The district court set out
an impressive trodl' of evidetrt'. shou'iltg
significant improvenrents in Italli,s (lountr'

sehools. The governntent did nr't irr'-'iude in

the record for this al)J'('al tir' r'. i rt'r'rrrd.



1540 73e FEDERAL REPORTER,
L

Fed.R.App.P. 10(bX1) and 1lth Cir.R.
1 (a)(1) require the appellant to include in
the record all parts of the transcript of the
proceedings not already on file and rele
vant to findings that it contends are unsup
ported by or contrary to the evidence. In
the absence of a complete record we cannot
adequately review the challenged findings
on responsiveness by the Board and must
affirm the district court on this issue. See
U.S. a. Bob Lawrence Realty, Inc., 474
F.2d 115, 126 (sth Cir.), cert. denied, 414
u.s. 826, 94 S.Ct. 131, 38 L.Ed.2d 59 (1973).

The question of the Commission's respon-
siveness is more complex.

I18l Roads: A great portion of the trial
concerned testimony about paving and
maintenance of roads. The district court
found that "blacks live scattered across
most of the County." 548 F.Supp. at 892.
This finding is not clearly erroneous. Fur-
thermore, the district court correctly con-
cluded tha! even had it found that blacks
tended tp live on unpaved and fringe roads,
such a conclusion would not show unre-
sponsiveness without other evidence show-
ing discrimination in providing road servic-
es. Id.

Appointment Policy: All eounty boards
are integrated except for one that is all
black. 13 Rec. aL 3L27-22 (Jones). While
the Commission did appoint two whites to
replace deceased commissioners, this action
was insignificant since one replacement
was the brother of the deceased commis-
sioner and the other was someone who had

once run for the office.
Fun.ding: Evidence shows that the Com-

mission has funded or sought federal fund-
ing for a variety of projects that have
benefitted the black community, including
drainage projeets, water service, site prepa-
ration for industry, a regional comprehen-
sive mental health cent€r, the county
health department, and recreational facili-
ties. See generolly 548 F.Supp. at 89G-98.

9. There is some evidence that suggesrs that in
1974 the Probate Judge disqualified several
black candidates from appearing on the ballc,t
u'honr thu ledcral court ordeled be put back on.
7 Rcc. at I l8()-81 (Chestnut). However, ques-
tior,ing bv counsel for the County Commission
su!.r( sl,ri thar the black candidates had not mcr
stat,: r.cquircrnents on_ qua_lifications and ballot

,
2d SERIES

,

ll9, tOl After reviewing the entire
record, we conclude that the district court's
finding that the Commission is responsive
-to the needs of blacks is nqt clearly errone.
ous.

The other subsidiary factor listed under
amended 5 2 is the tenuousness of the
state policy or political subdivision policy
underlying voting procedures. The district
court determined that there was a firm and
long-standing state policy favoring the at-
large election of the Dallas County Board
of Education as well as the boards of the
other 34 counties covered by AIa.Code
S 16-8-1 (1975). 548 F.Supp. at 859. This
finding is correct.

The court also concluded that although
there was a long-standing policy favoring
atJarge elections of the County Commis-
sion in Dallas County, the policy state-wide
was neutral. 548 F.Supp. at 910. The
finding and conclusion are correct.

l2ll The Senate Report stated that the
Zimmer factors were typical but not exclu-
sive. 1982 Senate Report at 28-29, re-
printed in 1982 U.S.Code Cong. & Ad.
News at 206-07. The district court did not
limit its consideration ta the Zimmer fac-
tors, and we turn to other factors the dis-
trict court analyzed. The court correctly
determined that there was no property re-
quirement for candidates for the Board of
Education or the Commission and that this
factor supported a finding of no dilution,
548 F.Supp. at 857, 908; that Dallas Coun-
ty had been designated for use of federal
registrars and that this factor weighed in
favor of dilution, id. at857; and that there
was no evidence of disqualification of black
candidates and that this sub.issue sup-
ported a finding of no dilution,e id. at 857,
908.

IV. INTENT .

t22l Because we cannot resolve this
case on the statutory claim, we must turn

black who sh<-ruld have been disqualified be-
c:itrsc lre was a convicted felon was allowed to
rrlri 5-18 F.Supp. at 857. Because the govern-
::" dicl not challenge the district court finding
r,' i;,s sfilgp'6n and the record does not pro-
. -rrflicient information about the 1974 inci-
. ,.,'! cont lude the districl court's determina.
i :iiai thcrc had been no eviden6 ofdisquali.

to the
Acts B

Commi
under
plaintil
the eni
ute. fr
1499.
the gor
inatory

t23I
that th
was mc
as the
power ,

at 913.
ous. I
Jones,
power i
no fear
3925-2(,
district
the 18?

rather 1

at-large
were re
to the
howeve;
control
cause t
that 32t
sought
case ml
well as

124l
siderati<
lyzing tl

[T]he
opinio
inant:
evider
nomie
were
reject

lO. As e:

the gor
crimina
becausc
ute onll

ll. Or: ;
the distr

- .---*l*.



h

L cltcu739F2d lsz, (1984)

to the constitutional challenge to t90l Ala. expert witnesses that disenfranchisement

Acts 328(6), the section under which the was solely racially motivated.

Commission is elected.ro To prove a claim 548 F.Supp. at 912-13. To find a violation

under the Fourteenth Amendment rr the of the 'Fourteenth Amendment plaintiff
plaintiff must show discriminatory intent in does not have to prove that racial discrimi
the enactment or maintenance of the stat- nation was a "dominant" or "primary" mo-

ute. Bolden, 446 U.S. at 66, 100 S.Ct. at tive, only that it was a motive. Arlington
1499. The district court determined that Heights a. Metropolitan Housing Deuelop'
the government had failed to show discrim- *tit Corp., 429 U.S. 252, 26ffi6,9? S.Ct.
inatory intent. 548 F'Supp. at 912-14. b55, 563-64, 50 L.Ed.2d 450 (197?). On

t23l The district court found "as a fact remand, if the court reaches the constitu-

ttrat ttre adoption of the atJarge system tional claim, it should determine whether

was motivated by one human desire as old racial discrimination was a motivating fac-

as the hills: the group which was out of tor.

-
UNHED STATES v- DALLAS COUNTY COM'N 1541

V. CONCLUSION

PER CURIAM:

IT IS ORDERED that the petitions for
rehearing filed by Dallas County Commis-

sion, Board 9f Supervisors of Elections,

and Dallas Countl' Board of Education and

iLs members are DENIED.

proven a violation of thc Fourtccnth Amend-
ment. We therefore do nol rcach the issue

whether the Fifteenth Amcndmcnt proscribes

votc dilution, uhich is an opcl!.iirisiirtn. See

Jonas r. Cir;' o/ Lubbock, 727 | 1: ' -17(r (-ith

Cir. 198-{).

ous. As the Commission's expert, Dr' Our analysis of the government's claim

Jones, testified, the Democrats were in under amended Q 2 has shown that the

power in 190M1 in Dallas County and had district court was elearly erroneous on two

no fear of losing their control' 16 Rec' at of the six principal factors-polarized vot-

3925-26. In reaching its conclusion the ing and structure of the election system'

district court may have been thinking of We have additionally determined that on

the 1876 change to an appointive system remand the district court must reconsider

rather than the 1901 change to an elected the factor of lingering effects of past dis-

at-large system. In 18?6 the Democrats crimination. Finally, we have concluded

were returning to power that they had lost that the district court erred in finding that
to the Republicans after the Civi) War; the enactment of 1901 Ala.Acts 328(6) was

however, the Democrats had solidified their motivated by the Democrats' desire to re-

control in Dallas County before 1901. Be- gain power. We therefore remand the case

cause the district court erred in finding for further proceedings consistent with this
that 328(6) was enacted because Democrats

sought to regain power in the county, the 
oplnlon'

case must be remanded on this issue as AFFIRMED in part' VACATED in part'

well as on the statutory elaim. REVERSED in part' and REMANDED'

1241 To aid the district court in its con- oN PETITIONS FoR REHEARING
sideration on remand, we note that, in ana-

lyzing the intent issue, it stated: Before GODBOLD' chief Judge' RoNEY
and KRAVITCH, Circuit Judges'

power wanted to get back in power." Id.

at 913. This eonclusion is clearly errone-

[T]he plaintiff's witness testified to the

opinion that race was the sole or predom-

inant motivation. This court believes the

evidence more clearly shows that eco-

nomic as well as political considerations

were dominant factors . '.. The Court

rejecLs the conclusions of the Plaintiff's

lO. As explained supra, the court did not permit
the govcrnmenl to introduce evidencc of dis-

criminatorf intenl in the enactment of 5 l6-6-l
bccausc tht g<rr.'rnnl.nt had challcngcc lllc stal-

utc otrll a: aitil:r -i

ll. On apperi thr s.)\'.rnnlent 6fi3ll1ng1''i onir
fhc dis',:'ict -(.i.r' i:':'-lllinJll()n tl:i' l' : ::'l ;:ri:

-!J--J-g