Correspondence from Blacksher to Clerk

    BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAW 

405 VAN ANTWERP BUILDING 

P. O. BOX 1051 

MOBILE, ALABAMA 36601 

  

JAMES U. BLAGKSHER June 9, 1980 TELEPHONE 

LARRY T. MENEFEE (205) 433-2000 

GREGORY B. STEIN 

Mr. Gilbert F., Ganucheau, Clerk 
U. S. Court of Appeals 
Fifth Circuit 
Room 102, 600 Camp Street 
New Orleans, Louisiana 70130 

Re: Wiley L. Bolden, et al. v, City of Mobile, et al, 
No. 76-4210 
  

Dear Mr. Ganucheau: 

Please grant us leave, pursuant to Local Rule 10,1,12, to 
file this reply to the supplemental brief filed by the City 
on or about May 29, 1980. Three copies are enclosed for 
immediate distribution to members of the panel. 

There are at least two questions this Court must address on 
remand: 

(1) Is the issue of racial intent in the maintenance 
of at-large elections still open? 

(2) If so, has the district court decided this question? 

The City contends that the Supreme Court's mandate requires 
reversal of the district court's judgment and leaves no issues 
open on remand. But counting the votes of the justices on 
the critical issues shows that such an interpretation of the 
mandate would be fundamentally unjust and could not have been 
intended by the Court. 

The Court held, 8 to 1, that proof of racial intent in the 
creation or maintenance of at-large elections, under Arlington 

  

 



  

Mr, Gilbert F. Ganucheau 
June 9, 1980 
Page Two 

Heights - Feeney standards, establishes a violation of the 
fourteenth amendment.l/ And five of the justices eonclyded 
that a racial purpose was proved on the present record.=< 
Justice Stevens voted for reversal because he believed race 
should be the sole motive in order to adjudge the election 
system unconstitutional.2/ Thus, for widely varying reasons, %/ 
six justices voted for reversal and remand for further pro- 
ceedings consistent with the Court's several opinions. But 
while the Supreme Court need not have a majority reason for 

  

1/ 
~ City of Mobile v. Bolden, 48 U.S.L.W. 4436, 4438-39 

(Stewart), 4448 (White), 4443 (Blackmun), 4446 (Brennan), 
4458 (Marshall) (Apr. 22, 1980). 

  

2/ 
© 48 U,S.L.W. at 4446 (Stevens), 4443 (Blackmun), 4449 

(White), 4446 (Brennan), 4458 (Marshall). 

3/ 
~ "I am persuaded that some support for its retention 

comes, directly or indirectly, from members of the white 
majority who are motivated by a desire to make it more 
difficult for members of the black minority to serve in 
positions of responsibility in the city government. I 
deplore that motivation and wish that neither it nor any 
other irrational prejudice played any part in our politi- 
cal processes. But I do not believe otherwise legitimate 
political choices can be invalidated simply because an 
irrational or invidious purpose played some part in the 
decisionmaking process." 48 U,S.L.W, at 4446, 

4/ 
Justice Blackmun voted for reversal because of his 

unhappiness with the remedy. 48 U.S.L.W. at 4443, 

 



  

Mr, Gilbert F, Ganucheau 
June 9, 1980 
Page Three 

reversal and remand, the proceedings in the lower courts 
must be governed on each issue by the majority view of the 
justices. 

The answer to question (1), whether reexamination of the 
motives for retaining Mobile's at-large elections is still 
open, is yes. Because of his unique viewpoint, Justice 
Stevens would supply the fifth vote for foreclosing the 
maintenance intent issue in this case if the Stewart plurality 
has also foreclosed it. Clearly they have not, Contrary 
to the City's assertion, footnote 21 plainly states that the 
plurality did not reach the issue Of wherkgr at-large elections 
had been retained for invidious purposes b) 
  

Since the maintenance intent issue is still open, this Court 
must address question (2): Has the district court decided 
it? The appellant City contends that it did not. We disagree; 
indeed, we believe this court has already acknowledged such 
a finding independent of the Zimmer analysis, However, if 
the Court has any doubt, the question should be remanded to 
the district court for clarification and any necessary additional 
proceedings, 

If there is a remand, it is critically important that this 
Court first answer question (1). If this Court does not 
at least decide whether the maintenance intent issue is still 
open, the question is bound to return here on appeal, regard- 
less of how the trial court rules. 

  

5/ 
As we argued in our supplemental brief on remand, 

p.10, in light of footnote 21, the plurality's statement 
about the evidence falling '"far short" of proving intent can 
only be understood as restricted to its reading of this Court's 
opinion as having relied solely on Zimmer, 

 



  

Mr. Gilbert F, Ganucheau 
June 9, 1980 
Page Four 

Best regards. 

Sincerely, 

BLACKSHER, MENEFEE & STEIN, P.A, 

pi: Glpebidle 
es U, Blacksher 

JUB:pfm 

xc: Edward Still, Esq, 
Eric Schnapper, Esq, 
Charles B. Arendall, Jr., Esq. 
Fred G, Collins, Esq. 
Charles S, Rhyne, Esq. 
Non-Partisan Voters League 
Hon. Virgil Pittman 

Encls.,