Dillard v. Crenshaw County Plaintiffs' Post-Trial Brief

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Dillard v. Crenshaw: Redesigning the Political Map of Alabama

    IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF ALABAMA 
NORTHERN DIVISION-----------------------------------x
JOHN DILLARD, et al.. :

v.
Plaintiffs,

C.A. No. 85-T-1332-N 
(Subclass A Jurisdictions)

CRENSHAW COUNTY, ALABAMA, et al..
Defendants.

PLAINTIFFS’ POST-TRIAL BRIEF

On February 4 and 5, 1988, this Court held an evidentiary 
hearing concerning the use of alternative remedies, that is, 
remedies other than the adoption of single-member districts or 
the abandonment of numbered-post and majority-vote requirements. 
Although the sole question now before the Court is the 
appropriateness of imposing one such remedy— limited voting— on 
two subclass B jurisdictions, the Covington and Lamar County 
Boards of Education, counsel for a number of subclass A 
jurisdictions appeared and participated in the hearing. The 
appendix to this brief consists of the brief filed in No. 87-T- 
1192-N, Dillard v. Covington County Board of Education, and No. 
87-T-1239-N, Dillard v. Lamar County Board of Education.



LARRY T. MENEFEE 
5th Floor, Title Building 
300 21st Street, North 
Birmingham, Alabama 35203

Respectfully submitted,

/CULU7 L
JAMES U. BLACKSHER 
465 Dauphin Street 
Mobile, Alabama 36602

W. EDWARD STILL
714 South 29th Street
Birmingham, Alabama 35233

JULIUS L. CHAMBERS
LANI GUINIER
PAMELA S. KARLAN
99 Hudson Street, 16th Floor
New York, New York 10013
Attorneys for Plaintiffs

Dated: April 22, 1988

2



CERTIFICATE OF SERVICE

I hereby certify that on this 22d day of April 1988, a copy 
of the foregoing Post-Trial Brief was served upon the following 
counsel, by depositing the same in the United States mail, 
postage prepaid:

John Bolton, III
Robison and Belser
210 Commerce Street
P.O. Drawer 1480
Montgomery, AL 36102
(for City of Valley and
Montgomery County Board of Education)
David R. Boyd 
Balch & Bingam 
P.O. Box 78 
Montgomery, AL 36101
(for Shelby County Board of Education, 
Shelby County Commission,
Town of Helena, and
Covington County Board of Education,
Lamar County Board of Education 
and as Subclass B Liaison Counsel)
Charles A. Dauphin 
Baxley, Dillard & Dauphin 
2100 16th Avenue South 
Birmingham, AL 35205
(for Geneva County Board of Education and 
Geneva County Commission)
James M. Dyer
112 Suite A South Side Square 
Huntsville, AL 35801 
(for City of Madison)
William H. Fillmore 
P.O. Box 280 
Ozark, AL 36361 
(for City of Daleville)
Carl E. Johnson, Jr. 
Bishop, Colvin & Johnson

3



601-613 Frank Nelson Building 
Birmingham, AL 35203
(for Jefferson County Board of Education, 
as as Subclass A Liaison Counsel)
Byrd R. Lathan
Patton, Lathan, Leggs & Cole
315 West Market
P.O. Box 470
Athens, AL 35611
(for Limestone County School Board) 
Eugenia McGill
Jefferson County Courthouse, #A-400 
Birmingham, AL 35263
(for Jefferson County Board of Education) 
Susan Russ
Assistant Attorney General 
Attorney General's Office 
11 South Union Street 
Montgomery, AL 36130 
(for State of Alabama)
William E. Shinn, Jr., Esq.
214 S.E. Johnston Street
P.O. Box 1563
Decatur, AL 35602
(for Morgan County Commission)
Jerry E. Stokes
P.O. Box 1636
Andalusia, AL 36420
(for Covington County Commission)
Ronald H. Strawbridge 
P.O. Box 522 
Vernon, AL 35592
(for Lamar County Board of Education)
William J. Trussell 
Church, Trussell & Robinson 
1904 Cogswell Ave.
Pell City, AL 35125
(for St. Clair County Board of Educ ‘ '
St. Clair County Commission)

Attorney for Plaintiffs

4



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF ALABAMA 
NORTHERN DIVISION
JOHN DILLARD, et al. .

Plaintiffs,v.

x

C.A. No. 87-T-1192-N
COVINGTON COUNTY BOARD OF EDUCATION,

Defendant. :
------------------------------------------x
-----------------------------------x
JOHN DILLARD, et al.. :

Plaintiffs, :v. : C.A. No. 87-T-1239-N
LAMAR COUNTY BOARD OF EDUCATION,

Defendant.
x

PLAINTIFFS/ POST-TRIAL BRIEF

On February 4 and 5, 1988, this Court held an evidentiary 
hearing concerning the use of alternative remedies, that is, 
remedies other than the adoption of single-member districts or 
the abandonment of numbered-post and majority-vote requirements. 
This memorandum addresses the appropriateness of imposing one 
such remedy— limited voting— on the Covington and Lamar County 
Boards of Education.1

Both the Covington County Board and the Lamar County Board 
have conceded that their current use of at-large elections with 
numbered posts and a majority-vote requirement for nomination 1

1 A brief incorporating this brief in full has been 
served on the subclass A jurisdictions represented at the 
February 4 and 5 hearing.



violates section 2 of the Voting Rights Act of 1965 because it 
deprives black citizens of an equal opportunity to elect the 
candidates of their choice. Thus, the sole questions before this 
Court are whether the defendants' proposed plans completely 
remedy the current violation of section 2 and, if they do not, 
whether the plaintiffs' plans do.

Introduction

At the February hearing, two political scientists, Dr. 
Richard L. Engstrom and Dr. John Alford, testified on the 
relative merits of different electoral structures. Drs. Engstrom 
and Alford occasionally used different terminology to describe 
the same concepts. Accordingly, we set out here a definition of 
several critical terms to aid the Court in analyzing the issues 
before it.

1. The threshold of exclusion "is the percentage of the 
vote that will guarantee the winning of a seat even under the 
most unfavorable circumstances." Lijphart, Trying to Have the 
Best of Both Worlds: Semi-Proportional and Mixed Systems in 
Choosing an Electoral System: Issues and Alternatives 207, 209 
(A. Lijphart & B. Grofman eds. 1984); see Tr. at 45 (Engstrom)2; 
Tr. at 206 (Alford); Lijphart, Pintor & Sone, The Limited Vote 
and the Single Nontransferable Vote: Lessons for the Japanese and

2 The transcript of the February 4 and 5 proceedings is 
paginated consecutively and will be cited as "Tr. at [Page] 
([witness])." The transcript of the evidentiary deposition of 
Dr. Gordon Henderson, which is paginated separately, will be 
cited as "Henderson Dep. at [Page]."

2



Spanish Examples in Electoral Laws and Their Political 
Consequences 154, 157 (B. Grofman & A. Lijphart eds. 1986); .

The worst case assumptions that define the threshold of 
exclusion require both that the majority sponsor only as many 
candidates as there are seats to be filled (for example, in a 
seven-seat jurisdiction, only seven majority-preferred candidates 
run) and that the majority spread its votes evenly among its 
candidates. (This latter assumption reflects no "crossover 
voting" for the minority-preferred candidate and maximizes the 
number of votes received by the least-preferred majority 
candidate.) See Tr. at 45 (Engstrom).

If either of these assumptions is relaxed, or if the 
minority-sponsored candidate is also the choice of any majority 
voters, then it is entirely possible for the minority candidate 
to win even if minorities do not constitute more than the 
threshold of exclusion in turnout.3 See Tr. at 51 (Engstrom);
257 (Alford); Lijphart, Pintor & Sone, supra. at 158.

There is a calculable threshold of exclusion for any 
election scheme. See Tr. at 46 (Engstrom); 258-60 (Alford); 
Lijphart, Pintor & Sone, supra, at 157. For example, in a 
single-member district, the threshold of exclusion is 50 percent. 
Any group that constitutes more than 50 percent of the electorate 
in that district (that is, a group of 50%+l or more) is 
guaranteed that its preferred candidate will win. Of course, in

The Appendix to this brief provides some numerical 
examples of the results when the assumptions underlying the 
worst-case scenario are relaxed.

3



a plurality-win single-member district (as opposed to a single­
member district with a majority-vote requirement), a group with 
less than 50%+l of the electorate can elect its preferred 
candidate in certain cases. For example, a group constituting 40 
percent of the electorate might elect its candidate in a three- 
way contest where the other 60 percent of the electorate spreads 
its votes between the other two candidates, each of whom 
receives 30 percent.

Although a group that constitutes less than 50%+l of the 
population in an at-large jurisdiction may, in some cases, elect 
its preferred candidate,4 the threshold of exclusion remains 
50%+l. That is, a group of 50%+l, by voting strategically—  
sponsoring only as many candidates as there are seats and voting 
for the entire majority-sponsored slate— can totally shut out the 
minority.

2. Limited vote systems are electoral arrangements in 
which each voter casts fewer votes than there are seats to be 
filled. See Tr. at 39 (Engstrom). In this case, plaintiffs have 
proposed the use of a limited vote system in which each voter

4 For illustrative purposes consider a seven-member 
council elected at-large without numbered posts, staggered terms, 
or a majority-vote requirement— a "pure" at-large system. A 
minority-preferred candidate might win if: (1) only six majority
candidates might run, necessarily leading to the victory of one
non-majority candidate, see Thornburg v. Ginales. 478 U.S. ___,
92 L.Ed.2d 25, 53 n. 29 (1986) (noting case in which only two 
white candidates sought nomination in a three-seat district 
meaning that "one black candidate had to succeed"); or (2) the 
majority might sponsor so many candidates and spread its votes so 
widely that a minority candidate might be one of the top-seven vote getters.

4



would cast only one vote, even though there would be seven seats 
to be filled. Limited vote systems that accord each voter one 
vote have also been termed single nontransferable vote (SNTV). 
systems, see Tr. at 39 (Engstrom), and strictly limited vote 
systems, see Tr. at 202 (Alford). In the discussion that 
follows, we shall refer to the system proposed by plaintiffs 
interchangeably as "limited voting" and "SNTV."

In a limited vote system, the threshold of exclusion is 
dependent on the number of seats to be filled in a given 
election. It can be expressed as 1 +1" — | 0f1seats • See Tr. at 
53 (Engstrom). Thus, in a jurisdiction with seven seats, the 
threshold of exclusion would be 1 + 12.5%.

3. Proportional representation (PR) systems are electoral 
arrangements designed to convert votes mathematically into seats. 
See Tr. at 29 (Engstrom). Most proportional representation 
systems use party lists: voters vote for parties and the 
representatives are selected from party lists according to the 
percentages of the votes received by each party. All 
proportional representation systems use multi-member districts.

As the Court noted, outcomes in which the proportion of 
representatives elected approximates the group's proportion of 
the population can be achieved in a variety of electoral 
arrangements. See Tr. at 273-74. For example, for a seven- 
member county board in a county where the black community is 
geographically compact, it would be possible to draw district 
lines to create a majority-black district if blacks are more than

5



7.14 percent of the population.5 See Tr. at 63 (Engstrom). In 
many instances, single-member district plans will result in the 
ratio of black residents to white residents approximating the 
ratio of majority-black districts to majority-white districts or 
of black elected officials to white elected officials.

That outcome does not, however, render single-member 
district plans a form of proportional representation. Such plans 
are more properly characterized as plurality election systems.
See Tr. at 31 (Engstrom). But, whatever the political science 
nomenclature that attaches to particular systems— "plurality," 
"semi-plurality," "proportional," "semi-proportional," "non- 
exclusionary," and the like, see Tr. at 32, 35, 37 (Engstrom), 
244-46 (Alford); A. Lijphart, Democracies 151-54 (1984)— the 
question of law before the Court remains whether the system will, 
"with certitude completely remedy the Section 2 violation." 
Dillard v. Crenshaw County. 831 F.2d 246, 252 (11th Cir. 1987) 
(emphasis in original). Moreover, the so-called Dole compromise 
in section 2(b), which provides 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," 42 
U.S.C. § 1973(b), does not bar the use of a necessary remedial 
tool on the basis of social science taxonomy. Rather, as the 
Supreme Court has made clear, section 2 demands "a searching

5 Dividing the total population of the jurisdiction by 7 
to produce equipopulous single-member districts would place 
14.28% of the population in each district. To form a majority in 
a single district, a group would have to be larger than 14.28%/2, or 7.14%.

6



practical evaluation" and "an intensely local appraisal of the 
design and impact of the contested electoral mechanisms."
Thornburg v. Ginoles. 478 U.S. ___, 92 L.Ed.2d 25, 65 (1986)
(internal quotation marks omitted; quoting S. Rep. No. 97-417, p. 
30 (1982) and Rogers v. Lodge. 458 U.S. 613, 622 (1982)).

I. The Senate Factors and Characteristics of 
Lamar and Covington Counties That Are 
Relevant to the Nature of the Section 2 
Violations in This Case

The Covington and Lamar County Boards have conceded that 
their current use of at-large elections violates section 2. 
Nonetheless, this Court should consider the precise way in which 
the Covington and Lamar County Board elections dilute the voting 
power of black citizens, because the scope of the complete 
remedy required by section 2 is determined by the nature and 
extent of the violation. See, e.g.. Louisiana v. United States. 
380 U.S. 145, 154 (1965); S. Rep. No. 97-417, p. 31 (1982).

The Senate Report accompanying the 1982 amendments to 
section 2 sets out a list of relevant factors to aid district 
courts in making the requisite "intensely local appraisal."
These factors include:

"1. the extent of any history of official 
discrimination in the state or political subdivision 
that touched the right of the members of the minority 
group to register, to vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of 
the state or political subdivision is racially 
polarized;

3. the extent to which the state or political 
subdivision has used unusually large election 
districts, majority vote requirements, anti-single shot

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provisions, or other voting practices or procedures 
that may enhance the opportunity for discrimination against the minority;

• • • • •

5. the extent to which members of the minority 
group in the state or political subdivision bear the 
effects of discrimination in such areas as education, 
employment and health, which hinder their ability to 
participate effectively in the political process;

• • • • •

7. the extent to which members of the minority 
group have been elected to public office in the jurisdiction.

• • • • •

whether the policy underlying the state or political 
subdivision's use of such voting qualification, 
prerequisite to voting, or standard, practice or procedure is tenuous.

S. Rep. No. 97-417, pp. 28-29 (1982).
This Court's findings in Dillard v. Crenshaw Countv. 640 F.

Supp. 1347 (M.D. Ala. 1986) ("Dillard I”), and Dillard v. Baldwin
County Board of Education. No. 87-T-1158-N (Apr. 8, 1988), with
regard to the first and third Senate factors are equally
applicable to the Covington and Lamar County Boards. On the
question of historic discrimination, this Court has found that
Alabama engaged in an "unrelenting" attempt to minimize the
political power of its black citizens. Dillard I. 640 F. Supp.
at 1361; see Baldwin County Board, slip op. at 17. Similarly, on
the question whether the jurisdiction uses practices that enhance
the opportunity for discrimination, this Court held in Baldwin
County Board that the use of a majority-vote requirement for
primary elections and a numbered-post requirement "have served as
a substantial— indeed, the court is convinced insurmountable—
political barrier to the ability of the county's black voting
minority to elect candidates to the school board." Slip op. at

8



18.
The second and fifth factors— racial bloc voting and 

differences in socioeconomic status— were analyzed by Dr. Gordon 
G. Henderson, a political scientist with extensive experience in 
examining voting patterns and the influence of socioeconomic 
factors on political participation. See Henderson Dep. PI. Exh. 
1. Dr. Henderson examined census data and voting returns for 
Covington and Lamar Counties.

The most significant socioeconomic factors for predicting 
political participation are education and income. In both 
counties, the data compiled by the Bureau of the Census reveal a 
sharp disparity between the status of white and black residents:

Covington Lamar
Indicator White Black White Black
Persons age 25 and over 
percent with < 5 years 
of elementary school

9.3 17.9 5.4 17.8

Persons age 25 and over 
percent high school 
graduates

45.5 33.6 44.5 29.7

Percent of families 1979 
income below $10,000

34.07 48.35 28.75 46.47

Median family income 
1979 $14,124 $10,409 $15,504 $10,824

Percentage of families 
with 1979 income below 
below oovertv level

13.3 34.7 12.4 31.2

See Henderson Dep. PI. Exh. 4 (Lamar County) and PI. Exh. 5 
(Covington County).

In Covington County, roughly twice as many black residents
9



as white residents over the age of 25 lack the rudimentary level 
of education that gives individuals an awareness of the structure 
and nature of the political system and the level of confidence to 
participate in the system. See Henderson Dep. at 25-26. In 
Lamar County, over three times as many black adults as white 
adults lack this level of education. Moreover, the older black 
residents of both counties attended inferior, racially segregated 
schools, which further impaired their ability to participate 
equally in the political process. Id. at 20. Similarly, the 
fact that nearly three times as many black families as white 
families in Covington and Lamar Counties have incomes below the 
poverty level also impairs the ability of blacks to participate 
effectively in the political system by making it more difficult 
for the black community to provide financial and logistical 
support to its preferred candidates. The connection between 
depressed levels of education, income, employment, and living 
conditions and depressed political participation has long been 
recognized. See, e.g.. S. Rep. No. 97-417, p. 29 n. 114 (1982). 
Indeed, in both Lamar and Covington Counties, the percentage of 
the voting age population that is black exceeds the percentage of 
registered voters who are black.

Dr. Henderson also found that voting in Covington and Lamar 
Counties is racially polarized in that, when black candidates 
compete for office, the preferences of black and white voters 
differ. Dr. Henderson employed the technique for analyzing 
election returns— bivariate ecological regression— used by the

10



plaintiffs' expert, and approved by the Supreme Court, in
Thornburg v. Ginales. 478 U.S. ___, 92 L.Ed.2d 25, 48 (1986).
See Henderson Dep. at 8; see also Baldwin Countv Board, slip op. 
at 12 (relying on Dr. Henderson's regression analysis of 
elections in Baldwin County to find racially polarized voting).

Dr. Henderson analyzed the results in Lamar County for two
races in which black candidates competed: the 1984 and 1988
presidential primaries. In each case, Jesse Jackson was the
choice of black voters. See Henderson Dep. PI. Exh. 2. In 1988,
the most recent election in Lamar County involving a black

*candidate, Jackson is estimated to have received all the black 
vote, and only 4.66 percent of the white vote. Id.6 Moreover, 
the presence on the ballot of a black candidate with a reasonable 
chance to win galvanized the black community, which turned out at 
a higher rate than the white community. Td.

Dr. Henderson also analyzed the results in Covington County 
for three races in which black candidates competed: the 1982 
primary and general elections for the Alabama Supreme Court and 
the 1988 presidential primary. See Henderson Dep. PI. Exh. 3.
In the 1982 primary election, nearly 85 percent of the black 
voters supported Oscar Adams III, a black incumbent (who 
previously had been appointed to his seat), while less than 30 
percent of white voters supported Adams. Only in the general

b The regression figure estimates that Jackson received 
104.89% of the black vote. This estimate exceeds the 100% 
maximum because of different turnout in the black and white 
communities. See Henderson Dep. at 13.

11



election, when Adams was the nominee of the Democratic Party, did
he receive a majority of the votes cast by white voters. And in
the 1988 presidential primary, Jesse Jackson is estimated to have
received all the black vote, and only 4.03 percent of the white
vote. Id. Moreover, as it did in Lamar County, the presence on
the ballot of a black candidate with a reasonable chance to win
galvanized the black community, which turned out at a higher rate
than the white community. Id.

In neither Covington nor Lamar County could Dr. Henderson
analyze any countywide races in which black candidates competed.
The reason for the absence of such results is simple, and relates
to the seventh of the Senate factors identified above: no black
candidates have run in modern times for countywide positions in
either county. The absence of such candidacies, however, cannot
preclude a finding of racial polarization:

The number of elections that must be studied in order 
to determine whether voting is polarized will vary 
according to pertinent circumstances. One important 
circumstance is the number of elections in which the 
minority group has sponsored candidates. Where a 
minority group has never been able to sponsor a 
candidate, courts must rely on other factors that tend 
to prove unequal access to the electoral process.
Similarly, where a minority group has begun to sponsor 
candidates just recently, the fact that statistics from 
only one or a few elections are available for 
examination does not foreclose a vote dilution claim.

Thornburg v. Ginales. 92 L.Ed.2d at 51 n. 25 (emphasis added).
Even prior to Ginales. this Court had recognized that

electoral structures may have so clear a discriminatory potential
that the system will simply deter the black community from
sponsoring serious candidates. Hendrix v. McKinney. 460 F. Supp.

12



626, 631-32 (M.D. Ala. 1978), struck down the use of at-large 
elections for the Montgomery County Commission. There, the Court 
noted that:

Today, formal prohibitions no longer prevent blacks 
from seeking county office. There are no screening 
organizations or petition requirements. Blacks now 
register and vote. But barriers remain even after the 
obvious legal roadblocks have been removed. Not only 
have no blacks been elected to the County Commission, 
none have run . . . .  [V]oting in Montgomery County 
follows racial lines. This fact undoubtedly 
discourages black candidates because they face the 
certain prospect of defeat.

Cf. Bolden v. City of Mobile. 423 F. Supp. 384, 388-89 (S.D. Ala. 
1976) (relying on non-commission elections and discussing 
deterrent effect of at-large system), affld, 571 F.2d 238 (5th 
Cir. 1978), rev'd on other grounds. 446 U.S. 55 (1980).

A number of post-Gingles decisions have also recognized that 
proof of the existence of racial bloc voting need not depend on 
the defeat of black candidates in elections to the office at 
issue. Relying on Thornburg v. Ginales/ directive, the Fifth 
Circuit recently held, in Citizens for a Better Gretna v. City of 
Gretna, 834 F.2d 496, 502-03 (5th Cir. 1987), that a racial 
polarization analysis in a case challenging at-large aldermanic 
elections could rely largely on voting behavior in other contests 
involving the city's voters "in the face of sparse data" 
regarding aldermanic elections. Similarly, in Martin v. Allain. 
658 F. Supp. 1183 (S.D. Miss. 1987), the district court found 
racially polarized voting and a violation of section 2 with 
respect to at-large elections in several judicial districts as to 
which there was no evidence of black candidacy on the basis of

13



the pervasiveness of racial bloc voting in elections for other 
judicial and legislative positions in which those districts' 
voters participated.

Particularly in jurisdictions such as Covington and Lamar 
Counties, where the minority community is relatively small, the 
requirement that candidates obtain a majority of the votes 
throughout the jurisdiction drastically alters the calculus faced 
by prospective black candidates. In such cases, "the lack of 
black candidates is a likely result of a racially discriminatory 
system." McMillan v. Escambia Countv. 748 F.2d 1037, 1045 (11th 
Cir. 1984). As the district court noted in Citizens for a Better 
Gretna v. City of Gretna. 636 F. Supp. 1113 (E.D. La. 1986), 
aff'd. 834 F.2d 496 (5th Cir. 1987), it is "axiomatic" that when 
minorities are faced with dilutive electoral structures "'their 
voter turnout and candidacy rates tend to drop.'" Id. at 1119 
(quoting Minority Vote Dilution 15 (C. Davidson ed. 1984)) 
(emphasis added); see also id. at 1135; Ginales v. Edmisten. 590 
F. Supp. 345, 363 (E.D.N.C. 1984) (three-judge court) (discussing
similar effect of majority-vote requirement), aff'd. 478 U.S. ___
(1986). When black voters are faced with an electoral structure 
that makes it impossible for them to participate equally in the 
political process, they are not required to wait for redress 
until they are able to persuade a candidate to undertake a 
certainly futile campaign. See, e.g.. Major v. Treen. 574 F. 
Supp. 325 (E.D. La. 1983) (three-judge court) (striking down 
congressional reapportionment scheme although no black candidate

14



had yet run and lost, because plan clearly diluted collective 
black voting strength of Orleans Parish).

Finally, with regard to the last Senate factor identified 
above— the tenuousness of the policy underlying use of the 
challenged electoral mechanism— plaintiffs note that both 
jurisdictions have advanced two remedial plans, one using single­
member districts, the other employing "pure" at-large elections 
(that is, at-large elections with no majority-vote or numbered- 
post requirements). Thus, neither jurisdiction has asserted that 
either at-large or district elections are inherently required for 
the achievement of any governmental purpose. Their positions are 
important, in the context of plaintiffs' remedial suggestion. 
First, by proposing district-based elections in one remedial 
formulation, the Covington and Lamar County Boards have chosen 
not to advance the claim that that any election scheme in which 
each elector cannot influence directly the election of each board 
member impermissibly "disenfranchises" voters. Cf. Tr. at 252 
(Alford). Second, by proposing a modified at-large system, which 
permits single-shot ( or "bullet") voting— and indeed, which 
depends on single-shot voting to give black citizens any chance 
to elect their preferred candidate— the two jurisdictions 
manifest their willingness to have candidates elected by 
jurisdiction-wide coalitions that are independent of geographic 
constraints.

15



II. Defendants' Plans Do Not Completely Remedy 
the Current Violations of Section 2

Although this Court is required to give deference to 
defendants' proposals for remedying the current violations of 
section 2, see Tallahassee Branch of NAACP v. Leon Countv. 827 
F.2d 1436, 1438-40 (11th Cir. 1987), it "cannot authorize [a 
remedy] . . . that will not with certitude completely remedy the 
Section 2 violation," Dillard v. Crenshaw Countv. 831 F.2d 246, 
252 (11th Cir. 1987) (emphasis in original). Defendants have 
presented absolutely no evidence to show that their proposed 
plans will provide the full remedy required by section 2.7 
Moreover, examination of both "pure" at-large systems and the 
proposed single-member district plans shows that neither 
jurisdiction has met its responsibility to "come forward with a 
plan that promises realistically to work, and promises 
realistically to work now." Green v. School Board of New Kent 
County. 391 U.S. 430, 439 (1968); see S. Rep. No. 97-417, p. 31, 
n. 121 (1982) (relying on Green to illustrate the scope of the 
remedial obligation in § 2 cases).

' Indeed, defendants' own expert witness, Dr. Alford, 
offered the opinion that the best system for providing a minority 
with an opportunity to elect the candidate of its choice, 
assuming geographic dispersion and racial bloc voting, is single 
transferable voting. Tr. at 263, and placed a number of other 
alternative remedies, including limited voting, ahead of single­
member district plans.

16



A. The Proposed "Pure" At-Large Systems Do Not 
Provide an Adequate Remedy

"Pure" at-large elections would fail to provide black 
citizens of Covington and Lamar Counties with an equal 
opportunity to participate in the political process and elect the 
candidates of their choice. First, it would not provide black 
voters with an equal chance to elect their preferred candidate. 
Second, it would deprive black citizens of an equal role in the 
political process: for them to elect their preferred candidate, 
they would be forced to engage in bullet voting (thereby giving 
up their ability to influence the election of the remainder of 
the board), while white voters would not face the same dilemma.

As we have already noted, the threshold of exclusion in an 
at-large system is 50 percent. Blacks constitute 10.7 percent of 
the registered voters in Covington County, and 9.41 percent of 
the registered voters in Lamar County. Thus, in both cases, if 
the threshold of exclusion were figured on the basis of the 
current electorate— that is, on the basis of the percentage of 
registered voters— blacks form only a small fraction of the 
threshold (21.4 percent of the threshold of exclusion in 
Covington County and 18.82 percent of the threshold of exclusion 
in Lamar County). Of course, the relevant figure is the share of 
the actual turnout on election day for the office at issue. See 
Tr. at 209 (Alford). In the five elections Dr. Henderson studied 
in Covington County, the lowest turnout by the white community 
was in the 1988 presidential primary, when an estimated 12.4

17



percent of white registered voters cast ballots. See Henderson
Dep. PI. Exh. 3. (The average white turnout for all five 
elections studied was far higher— 36.93 percent.) In the four 
elections studied in Lamar County, the lowest white turnout was 
also in the 1988 presidential primary, when an estimated 12.1 
percent of white registered voters cast ballots. See Henderson 
Dep. PI. Exh. 2. Even if white voters turned out at their lowest 
rate of observed turnout (roughly 12 percent), it would be 
mathematically impossible for black voters in either county to 
reach the threshold of exclusion, even if black turnout was 100 
percent of black registration.

Needless to say, in neither county does the highest observed 
rate of black turnout even approach 100 percent: in Covington 
County, it was 29.93 percent, while in Lamar County it was 20.25 
percent.

Blacks in Covington County would have to turn out at a rate 
over 8 times greater than white turnout for black votes to equal 
50 percent of the votes cast. In four of the five elections 
analyzed, blacks turned out at a lower rate. See Henderson Dep. 
PI. Exh. 2. Even in an election in which the black candidate was 
a front runner, and in which the black community was therefore 
most motivated to turn out, the black turnout rate was only 
slightly more than double the white turnout rate, and for all 
elections analyzed the average black turnout was only 59 percent 
of white turnout.

Similarly, in Lamar County, blacks would have to turn out at

18



more than 9 times the rate of whites for black votes to equal 
fifty percent of the votes cast. Blacks in Lamar County have 
never turned out at a rate greater than 1.67 times the white 
turnout rate, and their average turnout rate is only 62 percent 
of the average white turnout. See Henderson Dep. PI. Exh. 2. 
Thus, blacks stand no conceivable chance of exceeding, or even 
approaching, the threshold of exclusion in an at-large system in 
either Covington or Lamar Counties.

Nor would single-shot voting provide plaintiffs with an 
equal opportunity to elect the candidate of their choice. It is 
no accident that the City of Rome footnote which discusses how 
single-shot voting can permit minorities to elect their preferred 
candidates, see City of Rome v. United States. 446 U.S. 156, 184 
n. 19 (1980), postulates a community whose electorate is 40 
percent black, and in which twice as many white candidates run as 
there are seats available, for it takes both a large black 
percentage of the electorate and a significantly higher number of 
white candidates than seats available for single-shot voting to 
work.

In Covington and Lamar Counties, if precisely the same 
assumptions about white behavior are made, single-shot voting 
would not result in the election of a candidate supported by the 
black community. In Covington County, if twice as many white 
candidates were to run as there were seats to be filled, and if 
the white community were to spread its votes evenly among these 
candidates— the assumptions made in City of Rome. 446 U.S. at 184

19



n. 119— each white candidate would receive more than four times
the number of votes received by the black candidate. Only if the 
white community were to split its votes evenly among fiftv-nine 
candidates would each white candidate each receive fewer votes 
than the black candidate.8 In short, in a community with a small 
proportion of black voters such as Covington County, single-shot 
voting cannot offer black citizens a realistic opportunity to 
elect their preferred candidate.9

Moreover, even if blacks were able to elect their preferred 
candidates through single-shot voting, forcing them to rely on 
single-shot voting while white voters can vote for a full slate

This tremendous disparity in voting power in a single­
shot regime was discussed by Dr. Engstrom, using the example of a 
200-voter jurisdiction with a seven-member board, in which there 
are 26 black voters (that is, a jurisdiction where black voters 
satisfy the threshold of exclusion by constituting 12.5%+1 of the 
electorate). In such a jurisdiction, the black voters who engage 
in single-shot voting— the strategy that maximizes their chance 
of electing their preferred candidate, Tr. at 74— would have 26 
votes to cast, while the white voters— who could "afford" to vote 
for a full slate— would have 1,218, Tr. at 76.

An analogous calculation can be performed for Covington 
County. For the sake of simplicity, assume the County has 1000 
registered voters, 107 of whom are black and 893 of whom are 
white. (These numbers reflect the actual proportions of 
registered voters, although the actual number of voters is 
obviously much higher.) In a "pure" at-large system, the black 
community has available 749 votes (107 voters with 7 votes each) 
while the white community has available 6251 (893 voters with 7 
votes each). If the black community engages in single-shot 
voting, it will have 107 votes to cast while the white community 
still has 6251. Thus, the disparity of voting power in even more 
extreme in Covington County than it was in Dr. Engstrom's hypothetical.

9 The same analysis holds true, a fortiori, for Lamar 
County. The black proportion of its electorate is lower than 
that for Covington County, and its black and white turnout 
percentages are roughly comparable. See Henderson Dep. PI. Exh.
2 .

20



deprives black citizens of the full voting rights enjoyed by 
white citizens. See Ginales v. Edmisten. 590 F. Supp. 345, 369
(E.D.N.C. 1984), (three-judge court), aff/d . 478 U.S. ___, 92
L.Ed.2d 25 (1986). Only by sacrificing a significant share of 
their franchise can black voters even hope to elect their 
preferred candidate. Each white voter can cast ballots for a 
full slate of commissioners, secure in the knowledge that at 
worst one of his preferred candidates may be defeated by the 
candidate supported by the black community. A system that 
depends on single-shot voting to provide black voters with a 
chance to elect the candidate of their choice is, at bottom, the 
functional equivalent of a system where each black voter may cast 
one vote while each white voter is entitled to seven.10 A black 
voter must sacrifice any possibility of influencing the election 
of his second-choice candidate to ensure the election of his 
first-choice candidate, while a white voter faces no such

-LU Affording each black voter one vote— the vote which he 
or she casts by bullet voting— while affording each white voter 
seven votes— with which he or she votes for a full slate of board 
members— is not the functional equivalent of using a "mixed 
system," that is, a system where some representatives are elected 
from multimember districts while others are elected from single­
member districts. Because white voters can vote for all seven 
seats (rather than only six as they might in a mixed system, or 
in a "simply" limited voting system, see Tr. at 202 (Alford)), 
forcing blacks to bullet vote in a pure at-large system is more 
like giving them a hypothetical single-member district and then 
allowing whites in a hypothetical six-member district to vote for 
candidates in both districts. Cf. Banzhaf, Multi-Member 
Electoral Districts— Do They Violate the "One Man. One Vote" 
Principle. 75 Yale L.J. 1309 (1966) (showing that voters in 
larger, multimember districts will have more influence over 
elected body's decisionmaking even though both the single-member 
and the multimember districts have the same ratios of voters to representatives).

21



difficulty. Thus, although single-shot voting may result in 
roughly proportional representation on a multimember body, it 
does not result in equal political influence for each voter.

Finally, the retention of at-large elections would 
perpetuate the dilution of plaintiffs' collective political 
strength condemned in Dillard I. In Dillard v. Crenshaw County. 
649 F. Supp. 289, 295 (M.D. Ala. 1986) f"Dillard 11”1. aff'd in 
part and remanded in part on other grounds. 831 F.2d 246 (11th
Cir. 1987), reaff'd on remand. ___ F. Supp. ___ (M.D. Ala. 1988),
this Court held that jurisdictions cannot retain systems that 
depend even in part on at-large elections in the face of its 
findings regarding the Legislature's purpose in implementing and 
maintaining at-large elections. Id. at 294-97. A fortiori, a 
defendant cannot satisfy its remedial obligations by retaining in 
full such a system.

B. Defendants' Single-Member District Plans Do Not Provide 
Plaintiffs With an Equal Opportunity To Elect the Candidates of Their Choice

Defendants have also proposed single-member district plans. 
The Covington County Board has proposed a seven-member board.
One member would be elected from a district that is 51.13 percent 
black in total population. The Lamar County Board has also 
proposed a seven-member board. One member would be elected from 
a district that is 31.3 percent black in total population.

Defendants have presented no evidence to show that their 
single-member district plans will provide black citizens with an

22



equal opportunity to elect the candidate of their choice.
Neither district in fact contains a level of minority population 
likely to result in a competitive district, that is, a district 
in which black citizens have an equal opportunity to elect the 
candidates of their choice.

In Covington County, although 74.79 percent of the white 
population is of voting age, only 59.98 percent of the black 
population is of voting age. See Henderson Dep. PI. Exh. 5.
Thus, applying the countywide figure to the Board's proposed 
district, a district that is 51.13 percent black in total 
population is likely to be only 45.63 percent black in voting age 
population. Since both black registration and turnout among 
black registered voters tends to lag behind white registration 
and turnout in Covington County, the proposed district does not 
provide black voters with a reasonable opportunity to elect the 
candidates of their choice. There is no evidence in the record 
to support finding that a 51.13 percent black district in 
Covington County is an acceptable remedy. Cf. Baldwin Countv 
Board, slip op. at 24 (finding that hypothetical district with 
50.64 percent black total population would not provide blacks 
with equal electoral opportunity).

The district proposed by the Lamar County Board is even more 
inadequate. The district is only 31.3 percent black in total 
population. Thus, given the disparity between white percentage 
of population age 18 and over and black percentage of population 
age 18 and over, see Henderson Dep. PI. Exh. 4, the district is

23



likely to be only a little over 28 percent black in voting age 
population, and the percentage of registered voters and actual 
turnout will be even lower.

Single-member districts fail to provide adequate remedies 
for black citizens of Covington and Lamar Counties not because 
there are too few blacks in either jurisdiction, but because the 
black community is geographically dispersed. If the counties7 
black populations were concentrated in a single geographic area, 
it would be possible to create single-member districts with a 
sufficiently high percentage of blacks to provide equal electoral 
opportunity. In Covington County, blacks constitute 13.4 percent 
of the total population; in Lamar County, they are 12.2 percent 
of the population. The threshold of exclusion for a single­
member district in a seven-seat jurisdiction is approximately 
7.14%+1. See Tr. at 63 (Engstrom). Thus, if all Covington 
County's black residents could be included in one single-member 
district, they would form 93.8 percent of its population. See 
Tr. at 67 (Engstrom). Similarly, if all of Lamar County's black 
residents could be included in one single-member district, they 
would form 85.4 percent of its population. See Tr. at 72 
(Engstrom). Such districts would obviously give blacks an 
excellent chance to elect their preferred candidates. But nearly 
half of Covington County's black citizens live outside the 
proposed 51.13 percent black district, and nearly two-thirds of

24



Lamar's black residents live outside the 31.3% black district.11
Indeed, this Court has entered numerous final orders in the 

consolidated Dillard cases creating single-member district plans 
for jurisdictions with black population percentages comparable to 
those of Covington and Lamar County. See Dillard v. City of 
Piedmont. No. 87-T-1276-N (Feb. 22, 1988) (9.5 percent black/7
districts); Dillard v. City of Russellville. No. 87-T-1288-N 
(Mar.22, 1988) (12.1 percent black population/5 districts);
Baldwin County Board, supra. (13.86 percent black/7 districts); 
Dillard v. Crenshaw County fCitv of Decatur^. No. 85-T-1332-N
i(Nov. 13, 1987) (15.7 percent black/5 districts); Dillard v. City 
of Jemison. No. 87-T-1237-N (Dec. 18, 1987) (16.9 percent black/5 
districts); Dillard v. City of Riverside. No. 87-T-1286-N (Jan. *

xx The following calculations are illustrative of this dispersion: (They are not exact because they do not take into
account the minimal population deviations among the proposed districts).

The Covington Board has proposed a 51.13% black district. 
Multiplying that percentage by .1428 (the percentage of the 
county's total population in each district) gives a figure of 
.0730. This means that 7.3% of Covington County residents are 
blacks who live in the proposed district. But 13.4% of the total 
population of Covington County is black. Subtracting 7.3% from 
13.4% leaves 6.1%, which reflects the fact that 6.1% of Covington 
County residents are black persons who live outside the proposed 
district. Dividing 6.1 (blacks living outside the proposed 
district) by 13.4 (blacks living in Covington County) gives 
.4552. In other words, 45.52% of blacks who live in Covington 
County live outside the proposed district.

Performing the same calculations for Lamar County: 
multiply .313 (percentage of blacks in proposed district) by 
.1428 (percentage of residents in each district). Take the 
product— .0447 (percentage who are black and live in proposed 
district)— and subtract it from 12.2 (percentage of blacks in 
county). The difference is 7.73 (percentage of persons in Lamar 
County who are black and live outside the proposed district). 
Dividing 7.73 by 12.2 equals .6336. In other words, 63.36% of 
blacks live outside the proposed district.

25



28, 1988) (17.2 percent black/5 districts).12
Given the nature of the violation found by this Court in 

Dillard I. the absence of sufficient geographic compactness to 
create a single-member district remedy cannot relieve 
jurisdictions of the obligation to come forward with plans that 
promise their black citizens a reasonable opportunity to elect 
the candidates of their choice. As the Court noted in Baldwin 
County Board. "compactness” is "a 'practical' or 'functional' 
concept" meant to give effect to "§ 2's laudatory national 
mission of opening up the political process to those minorities 
that have been historically denied such." Slip op. at 15.

This Court has already noted that Ginales' dependence on 
compactness to establish section 2 liability is inapposite to the 
Dillard cases. See, e.q.. Dillard v. Crenshaw County (Cities of 
Muscle Shoals. Tallassee, Madison, and Sheffield. Geneva Countv 
Commission. St. Clair County Commission, and St. Clair Countv 
Board of Education). No. 85-T-1332-N (Sept. 14, 1987), slip op. 
at 6-7. The core of plaintiffs' claims against the Covington and 
Lamar County Boards is not that at-large elections, in comparison 
to elections from single-member districts, have resulted in

Because the Decatur, Jemison, and Riverside plans each 
use only five districts, the relationship between the size of the 
black population and the size of an ideal district in those three 
jurisdictions is comparable to the relationship between the size 
of the black populations and the sizes of ideal districts in 
Covington and Lamar Counties. For example, blacks in Riverside 
(with its 17.2% black population) constitute 86% of an ideal 
district (each district would contain 20% of total population and 
dividing 17.2 by 20 equals .86). Blacks in Lamar Counry 
constitute roughly 85% of an ideal district.

26



blacks' being less able than white to elect the candidates of 
their choice, but that the State of Alabama intentionally 
manipulated the local election schemes used by the Boards to 
deprive black citizens of any say in who was elected. The 
Legislature was not content merely to ensure that even large, 
geographically compact, concentrations of black citizens would be 
unable to elect their preferred candidates. Rather, it sought to 
ensure that no black citizen had any effective political power. 
The prohibitions on single-shot voting and the use of numbered 
places discussed in Dillard I were designed, and operated, to 
diminish black political power even in jurisdictions such as 
Covington and Lamar Counties, where black communities were not 
sufficiently contiguous to form single-member districts.

Because the difference between the results of at-large 
elections and the expected results under district-based elections 
are not a full measure of the injury suffered by the Covington 
and Lamar County plaintiffs, single-member districts will not 
provide a full remedy. As we explained in our pretrial 
memorandum, only a remedy that realistically promises to allow 
black citizens to elect the candidates of their choice can remove 
the taint that infects each of the local electoral schemes 
challenged in this case. Because single-member districts do not 
fulfill that promise, this Court should reject defendants' 
proposed remedies.

27



III. Plaintiffs' Limited Vote Proposal Provides 
Black Citizens in Covington and Lamar 
Counties With an Equal Opportunity To Elect 
the Candidates of Their Choice

Plaintiffs' proposed remedy provides the black citizens 
of Covington and Lamar Counties with an excellent opportunity to 
elect the candidate of their choice to their respective school 
boards. Limited voting avoids the critical flaw in the use of 
single-member districts in the two counties: the failure of such 
districts, due to geographic dispersion, to include in a single 
district a sufficient number of blacks to provide the black 
community with a realistic opportunity to elect the candidate of 
its choice.

As Dr. Engstrom testified, limited voting enables voters who 
form a community of interest to elect their preferred candidate 
regardless of geographic constraints. See Tr. at 66 (Engstrom). 
Under limited voting, all the black voters in Covington or Lamar 
County can act as if they lived in one single-member district.
As we have already noted, in both counties, blacks would form 
well over 80 percent of this "floating" district, see Tr. at 67, 
72 (Engstrom), in contrast to the far lower proportions they 
constitute of the defendants' proposed districts.

At the evidentiary hearing, defendants' witness, Dr. Alford, 
identified three potential problems with the use of limited 
voting: first, black voters in Covington and Lamar are unlikely 
to exceed the threshold of exclusion and therefore were not 
guaranteed to elect a candidate; second, limited voting will

28



impair coalition building; and third, limited voting will lead to 
a factionalized electorate. In the context of this case, none of 
these objections is apposite.

First, while it is true that the percentages of black 
registered voters in Covington and Lamar Counties are below the 
12.5 percent threshold of exclusion, black voters will 
nonetheless have an excellent opportunity to elect their 
preferred candidates. The threshold of exclusion is a worst-case 
scenario that depends on the presence of several forms of 
strategic behavior by the white electorate. The worst-case 
scenario is extremely unlikely. See Tr. at 51 (Engstrom). 
Defendants have provided no evidence to suggest that the white 
community in either county will support only seven candidates, 
let alone that the white community is sufficiently disciplined to 
allot its votes absolutely evenly over seven candidates. The 
testimony of defendants' own witness, Dr. Alford, suggested that 
in Japan, the majority LDP party has found it extremely difficult 
to discipline its voters. Tr. at 237; see also Lijphart, Pintor 
& Sone, supra. at 158-59 (while "the optimal limited vote system 
from the point of minority representation is SNTV," majority 
groups may find it difficult to win the expected number of seats 
because of uneven support, overnomination, and undernomination).

Moreover, as the examples in the Appendix demonstrate, the 
assumptions underlying the worst case scenario need be relaxed 
only a slight amount for the black community to achieve the 
election of its preferred candidate. From the point of view of a

29



remedy for intentional discrimination against a minority group, 
however, the potential difficulties the majority faces in 
engaging in the optimal strategy for maximizing its share of 
seats is not a weakness, but a benefit of limited voting.

Finally, Dr. Alford's assumption that black turnout will be 
far below white turnout in Covington and Lamar Counties, and that 
blacks must therefore constitute 16.25 percent of the population 
for plaintiffs' plan to provide them with an equal opportunity to 
elect their preferred candidates, is not borne out by the 
evidence. In fact, in both counties, black turnout exceeded the

ithreshold of exclusion in the 1988 presidential primary, an 
election in which the presence on the ballot of a black candidate 
with an excellent chance to win encouraged blacks to turn out.13 
Thus, it is simply not the case that the black population

13 In Covington County, black turnout represented 
approximately 20.19% of the total votes cast in the Democratic 
primary. The percentage of votes cast by black voters is the 
ratio of black votes cast to total votes cast. Black votes cast 
are the product of the percentage of voters who are black times 
the percentage of black voters who turn out. The total is the 
sum of black votes cast plus white votes cast:

.107 X  .2621 = .0280 
+ .893 X  .1240 = .1107

. 1387
.0280/.1387 = .2019.

Similarly, in Lamar County,
.0941 X  .2025 = .0191 

+ .9059 X  .1210 = .1096
.1287

.0191/.1287 = .1484. In other words, blacks cast 14.84% of the 
ballots in Lamar County.

30



percentage would have to be adjusted upward by nearly the 
adjustment factor posited by Dr. Alford.

Second, Dr. Alford's argument that limited voting impairs 
coalition building ignores several critical realities of politics 
in Alabama. For one thing, the presence of racial bloc voting 
means, by definition, that whites will not form coalitions with 
blacks to support black candidates. Thus, blacks cannot enter 
into coalitions as equal partners. For another, as this Court 
recognized in its opinion in Dillard II. insuring the 
representation of the interests of the black community in the 
day-to-day decisionmaking by elected bodies is every bit as 
crucial a goal of the Voting Rights Act as opening up the 
electoral process itself. See 649 F. Supp. at 295-97; see also 
Tr. at 81 (Engstrom) (building coalitions within governing 
structures is more likely to serve black interests than building 
coalitions in simply electing officials). Indeed, in 
jurisdictions whose officials are elected from single-member 
districts and in which most black voters are concentrated in one 
or a few districts, this is precisely the point at which 
effective coalitions are built. Thus, limited voting is no less 
likely than election by district to permit or encourage biracial 
coalition formation.14

Third, Dr. Alford's observations on the dangers of

14 The same is true of Dr. Alford's claims regarding the 
inability of voters in a limited-vote jurisdiction to influence 
the election of more than one candidate. In jurisdictions using 
single-member district elections, precisely the same criticism can be leveled. See Tr. at 252.

31



factionalization simply are inapposite to the issue in this case. 
The sole question before this Court is whether the black 
residents of Covington and Lamar Counties will have an equal 
opportunity to elect their preferred candidates. It is 
irrelevant how the white community splits its votes among its 
preferred candidates. Thus, if a group of white voters with 
discrete interests are underrepresented relative to other white 
voters, their miscalculations are simply the stuff of politics as 
usual. Dr. Alford in no way suggested that limited voting would 
in any sense impair the political cohesiveness of the black 
community. Again, to the extent that limited voting tends to 
diminish the hegemony of the majority community, that 
characteristic is a benefit, rather than a detriment, in using it 
as a remedy for historic white domination.

Conclusion

This Court has the power, and the obligation, to develop an 
election system for the Covington and Lamar County Boards of 
Education that gives their black residents an equal opportunity 
to elect representatives to bodies that have long been chosen by 
a process deliberately designed to exclude black representatives 
and black influence. The defendants have provided absolutely no 
evidence to show that their proposed plans provide the 
opportunity required by section 2. Plaintiffs have proposed an 
alternative system. We believe defendants' criticisms of limited 
voting are meritless in the context of Covington and Lamar County

32



Board elections. But if the Court credits those objections, it 
has the duty to develop a system which more nearly provides black 
citizens with the rights so long denied them. It cannot simply 
consign them to the continued use of election schemes that 
exclude them from the fundamental processes of government.

LARRY T. MENEFEE 
5th Floor, Title Building 
300 21st Street, North 
Birmingham, Alabama 35203

JAMES U. BLACKSHER 
465 Dauphin Street 
Mobile, Alabama 36602

W. EDWARD STILL
714 South 29th Street
Birmingham, Alabama 35233

JULIUS L. CHAMBERS
LANI GUINIER
PAMELA S. KARLAN
99 Hudson Street, 16th Floor
New York, New York 10013
Attorneys for Plaintiffs

Dated: April 22, 1988

33



CERTIFICATE OF SERVICE

I hereby certify that on this 22d day of April 1988, a copy 
of the foregoing Post-Trial Brief was served upon the following 
counsel, by depositing the same in the United States mail, 
postage prepaid:

David R. Boyd 
Balch & Bingam 
P.0. Box 78 
Montgomery, AL 36101
Susan Russ
Assistant Attorney General 
Attorney General's Office 
11 South Union Street 
Montgomery, AL 36130
Ronald H. Strawbridge P.0. Box 522 
Vernon, AL 35592

Attorney for Plaintiffs

34



The following two examples are each based on a town with 
1000 voters and a seven-member council elected by limited vote, 
with each voter having only one vote. The threshold of exclusion 
would be 126, that is, a candidate who receives the votes of 126 
voters is guaranteed election, since it is impossible for the 
other 874 voters to allocate their votes in a way that will 
result in seven candidates' getting 126 votes or more.

Example 1: Town 1 has 893 white voters (89.3% of the
electorate) and 107 black voters (10.7% of the electorate).1 Its 
black community unanimously supports one candidate.

Under the worst-case scenario, the black community will not 
elect its preferred candidate. The worst-case scenario is that: 
(1) only seven white candidates run; (2) the white community 
supports only those seven candidates (i.e.. no white crossover 
voting); and (3) the white community divides its votes evenly 
among these seven candidates so that the least-favored white 
candidate receives the highest possible number of votes:2

1 In Covington County, 10.7% of registered voters are black. See Tr. at 330 (stipulation).
For ease of reference, all candidates who are numbered 

are white candidates and "candidate # 1" will represent the most 
popular white candidate, while "candidate # 7" or "candidate # 8" will be the least popular.



Candidate Votes Elected?
White # 1 128 YesWhite # 2 128 Yes
White # 3 128 YesWhite # 4 128 YesWhite # 5 127 YesWhite # 6 127 YesWhite # 7 127 YesBlack 107 No
TOTAL 1000

Relaxing any of the assumptions about white voting behavior 
can permit the black community to elect its preferred candidate.

If eight white candidates run, and if candidate # 8 captures 
only 16.5% of the votes which would otherwise go to candidate # 7 
(only 2.3% of the total white vote), then the black candidate 
will be elected:

Candidate Votes Elected?
White # 1 128 YesWhite # 2 128 YesWhite # 3 128 YesWhite # 4 128 YesWhite # 5 127 YesWhite # 6 127 YesWhite # 7 106 NoWhite # 8 21 NoBlack 107 YesTOTAL 1000

Similarly, a minimal level of white cross-over voting for 
the candidate preferred by the black community can allow that 
candidate to win. Suppose again that only seven white candidates 
run. But eleven whites who might otherwise have voted for the 
least-favored white candidate instead support the black 
candidate. (They would represent 8.7% of the support for the

Appendix-2



least-favored white candidate and only 1.2% of the entire white 
electorate.):

Candidate Votes Elected?
White # 1 128 YesWhite # 2 128 YesWhite # 3 128 YesWhite # 4 128 YesWhite # 5 127 Yes
White # 6 127 Yes
White # 7 116 No
Black 118 YesTOTAL 1000

In addition, if the white community does not spread its 
votes evenly among the seven white candidates, the black 
community's candidate can win. Under the worst-case scenario, 
candidate # 1 candidate gets only 128 votes (or 14.3% of the 
votes cast by white voters). Suppose instead that the whites' 
favorite candidate gets 28.2% of the white votes (or 252 of 893), 
and that the white community spreads the rest of its votes evenly 
among the remaining six white candidates (to maximize the votes 
received by candidate # 7). In that case the black candidate 
will win:

Candidate Votes Elected?
White # 1 252 YesWhite # 2 107 YesWhite # 3 107 YesWhite # 4 107 YesWhite # 5 107 YesWhite # 6 107 YesWhite # 7 106 NoBlack 107 YesTOTAL 1000

Appendix-3



The deviation, of course, need not go to one candidate. For 
example, if candidates #1, #2, and #3 were to increase their 
shares of white votes cast from 14.3% each to between 16.5% and 
16.7% each, and were to draw these votes roughly evenly from 
candidates #5, #6, and #7, this would allow the black candidate 
to win:

Candidate Votes Elected?
White # 1 149 YesWhite # 2 148 YesWhite # 3 148 YesWhite # 4 128 YesWhite # 5 107 YesWhite # 6 107 YesWhite # 7 106 NoBlack 107 YesTOTAL 1000

Of course, if more than one of these "deviations" were to 
occur (for example, more than seven white candidates run and 
there is some white crossover voting), then the likelihood of the 
black-supported candidate being elected increases even more. 
Suppose that only 18 (or 2%) of the 894 white voters deviate from 
the worst-case scenario: ten white voters vote for an eighth 
white candidate; four white voters who "should" have voted for 
candidate # 7 vote instead for candidate # 1; and four white 
voters vote for the candidate supported by the black community:

Candidate Votes Elected?
White # 1 132 YesWhite # 2 128 YesWhite # 3 128 YesWhite # 4 128 YesWhite # 5 127 Yes

Appendix-4



White # 6 127 YesWhite # 7 109 NoWhite # 8 10 NoBlack 111 Yes
TOTAL 1000

* * *

Example 2: Consider a town with 906 white voters (90.6%
of the electorate) and 94 black voters (9.4% of the 
electorate).-* Again, assume that the black community unanimously 
supports one candidate.

Here, too, under the worst-case scenario, the black 
community will not elect its preferred candidate:

Candidate Votes Elected?
White # 1 130 YesWhite # 2 130 YesWhite # 3 130 YesWhite # 4 129 YesWhite # 5 129 YesWhite # 6 129 YesWhite # 7 129 YesBlack 94 NoTOTAL 1000

But, as Example 1 showed, relaxing any of the assumptions 
about white voting behavior can permit the black community to 
elect its preferred candidate.

If eight white candidates run, and if candidate # 8 captures 
36 white votes (only 28% of the votes which would otherwise go to 
candidate # 7 and only 4% of the total white vote), then the

J In Lamar County, 9.41% of the registered voters are black. See Tr. at 330 (stipulation).
Appendix-5



black candidate will be elected:

Candidate Votes Elected?
White # 1 130 YesWhite # 2 130 YesWhite # 3 130 YesWhite # 4 129 YesWhite # 5 129 YesWhite # 6 129 YesWhite # 7 93 NoWhite # 8 36 NoBlack 94 YesTOTAL 1000

Similarly, a minimal level of white crossover voting can 
affect the outcome. If 18 whites (14% of the support for the 
least-favored white candidate and only 2% of the entire white 
electorate) who might otherwise have voted for candidate # 7 
instead support the black candidate, the black candidate can win:

Candidate Votes Elected?
White # 1 130 YesWhite # 2 130 YesWhite # 3 130 YesWhite # 4 129 YesWhite # 5 129 YesWhite # 6 129 YesWhite # 7 111 NoBlack 112 YesTOTAL 1000

Similarly, if the white community does not spread its votes 
evenly among the seven white candidates, the black community's 
candidate can win. Under the worst-case scenario, candidate # 1 
gets only 130 votes (or 14.3% of the votes cast by white voters). 
Suppose instead that he gets 37.3% of the white votes (or 338 of 
906), and that the white community spreads the rest of its votes

Appendix-6



evenly among the remaining six white candidates (to maximize the 
votes received by candidate # 7) . In that case the black 
candidate will win:

Candidate Votes Elected?
White # 1 338 YesWhite # 2 95 YesWhite # 3 95 YesWhite # 4 95 YesWhite # 5 95 YesWhite # 6 95 YesWhite # 7 93 NoBlack 94 YesTOTAL 1000

Again, the votes need not flow solely to candidate #1. For 
example, if candidates #1, #2, and #3 were to increase their 
shares of white votes cast from 14.3% each to a little over 18% 
each, and were to draw these votes roughly evenly from candidates 
#5, #6, and #7, this would allow the black candidate to win:

Candidate Votes Elected?
White # 1 166 YesWhite # 2 165 YesWhite # 3 165 YesWhite # 4 129 YesWhite # 5 94 YesWhite # 6 94 YesWhite # 7 93 NoBlack 94 YesTOTAL 1000

If more than one of these deviations were to occur, this 
would also make it possible for the candidate supported by the 
black community to win. For example, suppose that 31 (or 3.4%) 
of the 906 white voters do not follow the optimal strategy (from

Appendix-7



the point of view of shutting out the black candidate): sixteen 
support an eighth white candidate; ten who "should" have 
supported candidate # 7 instead support candidate # 1; and five 
vote for the black candidate:

Candidate Votes Elected?
White # 1 140 YesWhite # 2 130 YesWhite # 3 130 YesWhite # 4 129 YesWhite # 5 129 YesWhite # 6 129 YesWhite # 7 98 NoWhite # 8 16 NoBlack 99 YesTOTAL 1000

Appendix-8