Correspondence from Bernham and Jones to Assistant Attorney General Re Calhoun County

    BURNHAM. KLINEFELTER. HALSEY. JONES & CATER. P C 

ATTORNEYS AT LAW 
40! SOUTHTRUST BANK BLDG 

  

P O BOX 1618 

ANNISTON. ALABAMA 36202 

H R BURNFHAM 
TELEPHONE 

J L KUINEFELTER 
AREA CODE 20° 

WM S HALSEY 
237-851% 

HERBERT D JONES JR July 30 > 1 986 

RICHARD H CATER 

PATRICK S BURNHAM 

THOMAS M SOWA 

Assistant Attorney General 

Civil Rights Division 
Department of Justice 

Washington, D.C. 20530 

Re: Calhoun County, Alabama 
Submission Under §5 of 
Voting Rights Act 
  

Gentlemen: 

Submitted herewith is a plan to alter the composition and method of 

electing the County Commission of Calhoun County, Alabama. Because 

of the Court's deadline, expedited consideration is requested. 
  

  

Currently, Calhoun County is governed by a three member commission. 

There is a full time Chairman elected by all the voters of the 

county. There are two part-time Associate Commissioners who must 

reside in, respectively, the Northern District and the Southern 

District; however, they are elected by all of the voters in the 

county. 

Under the proposed plan (attached as Exhibit "A"), the number of 

Associate Commissioners would be increased to five and each 

Commissioner would be elected by the voters of a specified 

district; these would remain part-time positions. The Chairman 

 



Assistant Attorney General 

July 30, 1986 
Page Two 

would continue to be a full time position and would be elected by 

all the voters of the county. Under the terms of the plan being 

submitted, one district would have a majority black population of 

64.09%; the balance of the districts would be majority white. 

According to the 1980 census data, Calhoun County has a black popu- 

lation of 21,074 or 17.6%. A copy of the proposed district lines 

is attached hereto as Exhibit "B". the census data is attached as 

Exhibit "C". The Plaintiffs in this suit described below have 

agreed to the proposed district lines and have informed us that 

this portion of the submission will not be contested. 

Calhoun County is currently a defendant in Civil Action Number 

85-7-1332-N, U.S. District Court for the Middle District of 

Alabama, which is styled John Dillard, et. al. v. Crenshaw County, 
  

  

Alabama, et. al. The Court has issued findings of facts and 

conclusions of law and has issued a preliminary injuction. 

Attached hereto as Exhibit "D" is the Court's order and injunction 

together with its memorandum opinion. In its orders, the Court 

concluded that the Alabama legislature intended to discriminate 

when it prescribed the form of government for the various defendant 

counties. 

Calhoun County does not challenge the fact that the county-wide 

election of Associate Commissioners results in a dilution of black  



Assistant Attorney General 

July 30, 1986 
Page Three 

voting strength and this feature of the system has been eliminated 

from the submitted plan. It is position of the County, however, 

that the county-wide election of Chairman does not violate §2 of 

the Voting Rights Act and, thus, this feature has been retained. 

Plaintiffs in the described litigation do contest the retention of 

the office of Chairman. The plaintiffs’ counsel will address their 

objections directly to you. However, we understand that their 

basic position is that the plan creates, in effect, a "super com- 

missioner" which detracts from the position of Associate 

Commissioner, and presumably, a Black person will represent one 

of the districts. We can only say that no new position is being 

created. That office exists now and has existed and functioned 

since 1939. An affidavit from the current Chairman is attached as 

Exhibit "E". This explains the nature of his duties and respon- 

sibility. 

In the view of Calhoun County, the position of Chairman is qualita- 

tively different from that of Associate Commissioner. Under 

general Alabama law governing county government, the Chairman 

serves as the chief executive of the county and supervises the day- 

to-day operations of County government. This is particularly true 

in counties such as Calhoun where Associate Commissioners are part- 

time positions. In this situation, the Chairman is the county  



  

Assistant Attorney General 

July 30, 1986 
Page Four 

officer to whom falls the responsibility for seeing that the 

Commission's decisions are implemented. The only "legislative" 

prerogative of the Chairman is to vote in the case of a tie. 

Historically, the chairmanship of the Commission was given to the 

Probate Judge, an officer elected county-wide. With population 

growth and the ever increasing responsibility for both positions 

in this county, the function of chairing the Commission and serving 

as the county's executive has been given over to an officer specif- 

ically created for this purpose. The Probate Judges' roles predate 

the Civil War and cannot be said to be racially inspired. The con- 

version to the current system cannot be racially motivated; one 

official elected county-wide is substituted for another. In this 

regard, we attach as Exhibit "F" pages 145 through 151 of the 

transcript of the testimony of Dr. Peyton McCrary, the expert wit- 

ness for the plaintiffs. Your attention is particularly called to 

pages 148 and 149. Race played no part in the selection of a pre- 

siding officer. 

Nor does retention of the position of Chairman result in unlawful 

dilution of black votes. As noted, the offices of Associate 

Commissioner and Chairman are distinct positions. Under the pro- 

posed plan, assuming racially polarized voting, one Associate 

Commissioner will be black. The Chairman will have to be responsive 

 



  

Assistant Attorney General 

July 30, 1986 
Page Five 

to all voters in the county, including black voters. That the 

position of Chairman is responsive to the black community is 

attested to by the attached affidavits of prominent black citizens; 

these are attached collectively as Exhibit "GY. 

While an unlawful election plan cannot be implemented simply 

because people want it, it is submitted that these affidavits do 

demonstrate that the office of Chairman is responsive to the needs 

and views of the Black community. This is legitimate con- 

sideration. 

Attached as Exhibit "H" are affidavits from white citizens of 

Calhoun County who either now hold or have held responsible public 

office. These affidavits represent their considered judgment on 

the need of the office and the effect of not having it. 

Under the proposed plan, the persons nominated in the June primary 

would be the candidates for the office of Associate Commissioner 

for the district in which they reside. No candidate now running 

for Associate Commissioner resides in District One, the majority 

black district. The persons nominated by their parties in the 

primary will be the candidates for the office of Chairman. 

Pursuant to $51.25 of the Department's Regulations, the following 

is specifically offered: 

 



  

Assistant Attorney General 

July 30, 1986 
Page Six 

(a) a copy of the plan is attached as Exhibit "A" 

(b) five rather than two Associate Commissioners will be 

elected; they will be elected by district rather than 

at large. 

(c) the county attorneys signing this submission 

(d) Calhoun County, Alabama 

(e) not applicable 

(£) the plan was devised by the Calhoun County 

Commission; however, the Commission has no authority 

to implement the new plan on its own accord. 1f:it 

receives preclearance, it will be submitted to the 

United States District Court for the Middle District 

of Alabama. The Court has authority to approve the 

plan and to order its institution. 

(g) the plan is being submitted to the Department pur- 

suant to the Court's order dated May 28, 1986 

(Exhibit "D", Memorandum Opinion at page 27). 

(hy it will be effective upon Court approval. Currently, 

the schedule assumes primary elections in November 

and general elections in December, 1986. 

(i) see (h) 

(j) the change has not yet been enforced or administered 

(k) the new plan will affect the entire county 

 



Assistant Attorney General 

July 30, 1986 
Page Seven 

(1) 

(m) 

to comply with the Court order dated May 28, 1986 

a majority black district will be created from which 

it is anticipated a black citizen will be elected to 

the County Commission 

the described litigation is the only litigation to 

which Calhoun County is a party 

the prior practice was not one which required 

preclearance; it was adopted in 1939 

BURNHAM, KLINEFELTER, HALSEY, 

JONES & CATER, P. C. 

  

~ H. R. Burnham