Buskey v. Oliver Court Opinion

    Agreement, no independent' federal claim vote in one district was substantial and was
against lM9 remains in view of the court's done purposefully, notwithstanding that
decision today. Accordingly, the court, un- district's racial composiition resulted firm
der the teachingt of Gibbs, finds itself with- political animosity between the mayor, who
out juri.yliction to address the remaining drew redistrictini plan, and preseni council_
state testing claim against LILCO and ac- man.
cordingly dissmisses it reluctantly." 

Declaration issued.

BUSKEY v. OLIYER
(Itr .3 58lt FSWp. tlTt (ltES)

1473

l. Elmtions Fl2
Purposeful discrimination need not be

the sole motivation for the challenged ac-
tion in order for that action to fall within
proscription of section two of the Voting
Rights Act, and discriminatory purpose
need only be one of the motivating factors
to trigger strict judicial review. Voting
Rights Act of 1965, S 2, as amended., 42
u.s.c.A. s 1973.

2. Elections el2
Under Voting Rights Act, proof of pur-

poseful discrimination in voting may be
made either by direct or circumstantial evi-
dence and proof of discriminatory result
may be made by establishing a number of
relevant circumstantial factors. Voting
Rights Act of 1965, S 2, as amended., 42
u.s.c.A. $ 1973.

3' El"ttion' e12
Right to vote may be denied or

abridged by dilution just as effectively as
by simply prohibiting the franchise. Vot-
ing Rights Aet of 1965, S 2, as amended,,42
u.s.c.A. s 1973.

4. Elections e=12

Retrogression may constitute unlaw{ul
vote dilution under Voting Rights Act.
Voting Rights Act of 1965, $ 2, as amended,
42 U.S.C.A. S 1973.

5. Municipal Corporations e8g
Redistricting ordinance, as drafted by

mayor, was enacted for racially discrimina-
tory purpose and violated Voting Rights
Act where dilution of black vote in one
district was substantial and purpose was to
decrease majority of black population to the

court, however, expresses no opinion on the
issue todar'.

CONCLUSION
Decision and Order of June 9, 1983 modi-

fied to the extent set out above. The Clerk
of the Court is directed to amend the cap
tion of the case by deleting 1M9 as a de-
fendant.

SO ORDERED.

John BUSKEY and Charles D. Langford,
individually and on behalf of others sim-
ilarly situated; and the Montgomery Im-
provement Association, Inc., Plaintiffs,

Donald Y. Watkins, Plaintiff-Intervenor,
v.

Luther L OLIYER, Iewis Golson, Alice
Reynolds, John Starr, Jr., and \[illiam
Nunn, individually and as members of
the Montgomery, Alabama City Council;
Emory Folmar, individually and as May-
or of the Ci$ of Montgomery, Alabama;
and the City of Montgomery, Alabama, a
municipal corporation, Defendants.

Civ. A. No. 8l-557-N.

United States District Court,
M.D. Alabama, N.D.

June 10, 1983.

Action was sought seeking declaratory
and injunctive relief against enforcement of
Montgomery, Alabama, ordinance redraw-
ing city council districts. The District
Court, Myron H. Thompson, J., held that
ordinance was enacted for a racially dis-
criminatory purpose as dilution of black

tr All indications are that a result similar to that
arrived at with respect to the state testing
claim against LILCO would obtain here. The



1474 565 FEDERAL SUPPI,EMENT

lowest level under.stood to be legally.possi-
ble in order to defeat reelectiop 

-of ;-i'r;i;;
councilman, who was foe of th" ;;;;;:
Y-rl,_ng Rights Act of 1965, g ,, ";;,";;d;:42 U.S.C.A. S 1e?3.

6. Elections 612
Even though a redistrictins Dlan mav

actuatly reflect the voting ,tri{4h ;i-;
m.inorit-r 

-group it is still invatiJ ii-it **
:9:p*t.f:.. a raciaily air."i.i*i"rv pri
pose. 

. 
Voting_ Rights Act of tS6S, $ Zl as

amended, 42 U.S.C.A. S 19?8.

7. Elections 612
Ur.. ?l a black person in effecting apurposefully discriminatory redistrictint

plan is insufficient to save ttre ptan iiori
censure under Voting Rights Aei. Votins
Erghts Act of 1965 S 2, as amend ed, aiu.s.c.A. S 19?3.

Solomon S. Seay, Jr., Gray, Seay & Lans_
ford, Montgor"ry,'AI"., f# pliriifi "-"'

Donald V. Watkins, Montgomery, AIa.,
pro se.

- G. Dennis Nabors, Ball, Ball, Duke &
Matthews, 

F-:"g" p. lar,er"i, C"rpLi
6z Azar, and H.A. Scott, Montgor".y, i1".,for defendants.

OPINION
MYRON H. THOMPSON, District Judge.
The plaintiffs in this cause of action seek

declaratory and-injunctive relief "g;rJil;enlorcement of Montgomery City Ordi_
nance No. 4T-81, which redraws ti,e courcil
l. By-order dated October S, I9g2, this courtc€rtified as a class ,,all black vote; 

";;;;;;:tial black voters residing in tfre City, of'fvfoni-ggfet', to be represented by the nimea ptain
!t_f{: Buskey and tangfoid.,, n"a.n 6ir.i;23(b)(2).

2. .ln its October S, lgg2, order this court con_cluded that the association ,.may Uri", ill.acrion on behalf of itself and it."_e.UErr'i"
accord-ance $'ith the representational status ofplarntril as recognized in NAACp v. Button.37t U.S. 41i,428,83 S.Ct. 328, 335, 9;.il;;
a05 (1963); see Sierra Club v. Mortin, +OS US.727,73y0, s2 s.ct. 1361, 136H9, Si I EJ.z;
636 (1972)."

3. -ln support of their ,.dilution,' 
claim, the plain-tiffs rely alternatively on the fourte.ntfi 

"nA

districts for the citv. The_ plaintiffs areJohn Buskey ana il
brack voters ,i ;Jtff"lllfll#;jl:
suing on behalf of themselves 

"ra "ji".ij,:black voters and porentiat Ur""r,-riiil'Ti
the city; I Donald Watkins, a black ,;;;;
the city and a member of the 

"it, ;;;:aad the Montgomery Improvement err*j"]
"Iollfi ,;'."[?il'T,l1l";['ffi ,r.:if yth".:iry 

3nd lvhose goat is th" i;;;;;;
participation of black persons in the ;;;cal pnrcess.2 The defendants are tf,.'6i,
of Montgomery; its mayor,.Emory ff;1and five of the city's counell member.s r ,.
ther Oliver, Lewis Golson, Alice d"ld"John Starr, Jr., and William Nr;;]";;":
plaintiffs claim that City Ordinanec Noi47-81 was passed with the purpose il #i
liFdiiffi il,#,,0',1i,',",*.i'#:-",iil,io{ tle 

-tglinS 
Rights Act of fS65, 

", "r"naled in 1982, 42 U.S.C.A. $ tgZ3.i F;;;_
sons which follow, the court .or"lrA". iiitthe plaintiffs' claim has merit ,rd d;:
accordingly, the plaintiffs are due upp"ffi
ate relief.{

I.

., 
Th^e City of Montgomery is the capital ofthe State of Alabama. a.coraing'to-in"e

1980. census figures the populatioi 
"f iir"city is approximately l?gpC,0, of *h; ;;

proximately B9.Dr are black. lts mayoiis
white and of its nine city council ,"rnu..,

fifteenth amendments to the United StatesConstitution and 42 U.S.C.A. SS i9il, 6Si.However, in view of the dispositi;; ;iil;;;;in favor of the plaintiffs under .".ti", i, ii"*is no need to address the alternative ;;.;;;;
the claim.

, The plaintiffs also present an alternative
claim that the ordinance was passed in viola_tion of an ,.annexation 

agreement,, signed bvthe city's mayor and eight of th" 
"i7;;;;council members in I9Zg. Again, in;il;ithe disposition of this casE in f"ro. of tfr-uplaintiffs on the section 2 claim, tfr"r"-L no

need to address this alternative claim.

4. 
. 
The coun has subject matter jurisdiction over

the section 2 claim, 28 U.S.C.A. SS 133I, 1343.
Declaratory relief is also appropriate pursuant
to 28 U.S.C.A. S 2201

(

I
s

t

a

-.i*nr&.



elected by district, five are white and four F.Supp. 95 (M.D.A1a.1966); and have been

,t

BUSKEY v. OLIVER
clt rr5e5F.SuD. ll73 (19&l)

L475

discriminated against in. exercising their
right to reg'ister, United. States v. Parker,
236 F.Supp. 511 (M.D.AIa.1964); Unitcd
Statcs v. Penton,212 F.Supp. 193 (M.D.Ala.
1962). ln Unitnd Statns v. Alabama, the
court found that Alabama's poll tax was
calculated to disfranchise black voters, and
further that

from the Constitutional Convention of
1901 to the prcsent, the State of Alabama
has consistently devoted its official re-
sourres to maintaining white supremacy
and a segrega.ted society.

252 F.Supp. at 101. ln Unitcd States v.

Penton, when confronted with tactics by
the Montgomery County Board of Regis-
trars to exclude black voters, the court
found that

the defendant Stat€ and its agents

[Montgomery County officials], have en-
gaged in procedures and practices which
have favored white applicants and discri-
minated against Negro applicants who
were seeking to become registered voters.

212 F.Supp. at 197.5

Moreover, the history of official econom-

ic, educational, social, and political inequ.ali-
ty still adversely affects the lives of many
of the city's black citizens and, in particular,
their access to the political process. As the
former Fifth Circuit observed in Kirksey v.

Board of Supen rsors, 5U F.%l 139, 145 (sth
Cir.) (en banc), cert. denied,434 U.S. 968, 98

S.Ct. 512, 54 L.Ed.zd a1a Q977): "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 economic and educational inequalities."
The rate of voter registration among voting
age black persons in the City of Montgom-
ery is substantially less than that among
voting age white persons. Black persons

are substantially less well educated than
white persons. The black unemplo.v-ment

rate is substantifily higher than the white
rate. The average income for black house-

holds is only 51.6% of that for white house-

nomic interaction is found in Whitfield v. Oli-
ver, 399 F.Supp. 348 (M.D.Ala.l975).

are black. ,.
The black citizens of the City of Mont-

gomery have a long history of being sub-'
jected to official and pervasive discrimina-
tion simply because of their race. The of-
fenders have been their city, their county,
and their st8te. This discrimination, as doc-
umented in the records of this court, has
manifested itself in practically every area
of social and economic interaction, including
maintaining racially segregated public
transportation, Browder v. Gayle, 142
F.Supp.70? (M.D.Ala.), aff'd mem.352 U.S.
903, 7? S.Ct. 145, 1 L.Ed.zd 1r  (1956);

maintaining racially segregated public
parks and recrcational facilities, Smith v.

YMCA,316 F.Supp. 899 (M.D.Ala.), aff'd as
modified, 462 F.% 634 (5th Cir.1972); Gil-
more v. City of Montgomery, 176 F.Supp.
776 (M.D.A1a.1959), aff'd as modified, Tl7
F.zd 364 (5th Cir.1960); maintaining racial-
ly segregated municipal airport facilities,
Unitcd Statns v. City of Montgomery, X)l
F.Supp. 590 (M.D.A1a.1962); maintaining
racially aegregated bus terminals, Lewis v.

Greyhound hrp.,199 F.Supp. 210 (M.D.Ala.
l96f); excluding black persons from the
public library and museum, Cobb v. Mont-
gomery Library Board, 20? F.Supp. 880
(M.D.Ala.l962); maintaining a segregated
public school system, Carr v. Montgomery
County Board of Eilucation, 232 F.Supp.
705 (M.D.Ala.l964), 37? F.Supp. 1123 (M.D.
A1a.1974), aff'd 5ll F.2d 13?4 (5th Cir.),
cert. denied,4z3 U.S. 986, 96 S.Ct. 394, 46
L.Ed.2d 303 (1975h use of discriminatory
examinations in promoting police officers to
the position of sergeant, Williams v. City of
Montgomery, No. 3739-N, Order and Opin-
ion (M.D.Ala. April 30, 1979); and racial
discrimination in the hiring of county pro-
bate clerks, Srms v. Montgomery County
Comm'n, 544 F.Supp. 420 (M.D.A1a.1982).

In particular, official policies of racial
discrimination have been specifically aimed
at preventing black persons from partici-
pating in the political process. Black per-
sons have been denied the right to register
to vote, Unitd States v. Alabama, ?52

5. A more extensive list of court cases catalog-
ing thrs history of official racial discrimination
in the political process and in social and eco-



:,/.

1476 565 FEDERAL SUPPLEMENT

I].1.: Tfre qer.centaSe sf persons betow thenoyefv tevet is approximatelv gB7.-;1".i
and Wo.whire; ana B8.4vo of ilf lir.t"p".
sons are below the poverty t"r"t, *t ii" J,iiu7.tvo of alr whires ui". of ttlr;lieffi'ili,
ll"^grv police in te8t, 60.8d;;;;ilil;i
39.Po were white.6

[r]:]:::?*,1q ,,the re70 census was

1r;ff "_l*:. 4t" :!*,"d- 1 u,iiili,Xff
[,flPi**:l':u,'iT.". r*o 

.l;i#i,:i
"white flight" and bla, ' ' 

- '- "uuruaDr'l8ler rmmigration had

ff"ITj"tr i::ll { the .impiemeil;iil
i::-T,lT, .geseereeation rrrr'ir'til T._TAccording to tt" r*sso 

vrrc .lI188.

hlqnlz n^^,,r^+:^_:_- c€nsus, district 6,s

gz.7% Thp Aa 
^^r- 

,..r?.o^1'e 
approximately

e2.7%. The S9.46vo wrrite maiJrtli,j'tffifl
:,Y :-o':11:i I b'Y th' 

-le?o 
;;;;i tffi

3,*_ ::, _ ::".yatery renect ;"itr'r""1#
white population by 1SZS.

mc
E8t
8pl
tio:
anr

per
ber
the,
ma:
diti
ben
whi
Ree
Acc
@ut
and
thro
supl
1983

racir
CroUl

that
sppl
stitu
vote
tigur
coun
distr
signt

II.
The significant events Ieading up to thepassage of Ordinance No. 4z_g-t tg;r"l;1.975. In that year the .ity gorur.n;"r;

changed from a commi.rion ioir, *ffiiigoverning city officials elected 
"i1""g., i"a. mayor-council form, with a ,uyo. ui..tJat-large and nine council ,";;;; ;i;il;by distriets. Under the di.t.i.-tirg;;;';:

plemented in lg?5 urA aru*, u.#C;;the t9Z0 census figures, five of rh;-;itr,;;districts--districts 1, 2,' i,' g,;#;:;rr;
white populations oi g,yEo' or'ilil"; ;;
!w9 of the city,s disrrichjis;;il'b ;;&-had black populations of ZSZ. 

".-f,Lf,"i.The remainingl two distrrcts__districts 4 andG-had, according ro the 1920 
"";;;.' ;i;:ures, wh i telbl ack popu I ati on p"..un-r-rgu.'if

47 .09 / 52.9tE, ana ss.ioznO.saZ, .".*.ti "}.jThe racial makeup of tf,. city i, ;i;, H:'Jon 
-1970 census figures, was 6&-6?%' whileand 33-M?o blackJ

.. 
In.the election held pursuant to the lg75districting plan, however, five white lnJfour black council members *u."-';l;.;a.

As.expected, the five districts wiirffi.;;higher. white popularions 
"t";;; 

"";irr"
council members, and the t*" airil.t.'"iti
789c. or higher black populations electedblack_council members. bi.t.i*t 4, ;,;;;;according to the 1970 census ";. ;.,:52.917a black was able to "f".i, Uf".f ."rr.lcil member because the district .;;;ri;; ;large predominantly whire rirri".r,-'i,"..
which has a loo. uoLr turnout. Oiri.i.t i,
6,_ The above.findings were based primarilv ongovernmental data compiled i, f g'Sl--"rJ'isii

and submitted to the court Uv tt," pi^_il"fft
7.^ 3. following table reflects the council dis_tricts. and racial makeup as drawn in Ig75based on census figures from lg70:

sta
ber
poE

bla

In 1926 the resider

il".l :t"ffi x;,*ffifl;it#1*.Jfi:
annexation. And in l9?? Emory F;Ir*then president of the city council, be[;Jacting mayor and shortly tt"ruait""l,jl
elected mayor. Folmar, ;";";;;;ld ;;submit the Southlau,n perrtron to the coun-cil. 

. The petition *ould har" l;;;il;f;
iitV.1 !]ach population by. t.S%, f.";;.;;
lo nZa!o, according b 1080 ."il i6res:Instead. he devised and submitted ;':;;:ter annexation plan" that proposed ;rr;;,i::. 9f two predomina_ntly white-;;";
addition to the pred<.rminantl5, nf".f, Sorti_Iau'n area. Foimar's phn ;.o;i;"i#;
the 

^city's - 
btack popuLtion by sr:"f;;

47.7% to B9.pc, aciording to igSO .*r*figures.

The ma.vor's master annexation plan
passed the city council Ur. , uor"-.r i-l'u'ith two of the four black'councii;;;;;
opposing the plan because thel- believed-t-ie
plan diluted black voting strengti ;;;city. 

,The 
plan, hgu.eve.,ti,l ,oi'"r;;;i;:

ciall' Decome lau.. In order for an annexa_
tion plan to become lau,, the pl", ,;;t';;
be, approved bv the state legislatu;", ;;voters of the annexing cit.v, a"nd tfr. 

"Lrcr,oI the proposed anne.xed areas. Further-

Districr

E. TI
ast

v
si
e)

8(
u
ta
r€
n(
\\
th
8r
w
re
ea
w
ve
thr
w
siE
ma
N(
fic

I
2

Population %White
15.53 i 9E.97
15,548 8l .33

Population %White %Black
15,410 21.48 78.52ls,soo 47.09. 52.9115,506 t6.01 $.9915,302 59.46 40.5415,345 86.14 13.86t5,380 99.90 0.10t5,250 85.09 t4.91

138,774 66.1 33 9

%BIack

L0:l
18 67

District

3
4
5
6

8

9

IOTAL

" -.atetl&*



mone, as sn unwritten prerequisit€ to pas- bers except one who was ill. After the
sage by lhj stlte legislqture, a plan must be parties signed the annexation agreement,
a.Plrov$ by four-fifths of the local delega- the two black memberq of the tdl tegista-
tion of .the legislature. Folmar's master tive delegation withdrtw their oppoJition
annexatiqn plan was unable to pass the and Folmar's master annexation plan /
state legislaturc because two black mem- passed the Alabama legislature.
bers of the six-person local delegation op Folmar,s master annexation plan thenposed the plan as a possible dilution of the ..,_;^'i:;:^'i'::.:.:':i:I:"-,I-*_'1,"'::"
black voting strength in the city. After a went before the voters of the city and the

period of nZgotiati; the two black mem- 
proposed annexed areas for approval' The

-bers 
of the iocat delegation indicated that proposed annexed areas were divided into

they would aUow Lgisiative pass4ge of the three separate areas-the east, the south,

mayor's master annexation plan on the con- and the west' including Southlawn' Blaek

dition that ttre mayoi ard city council mem- leaders encouraged voters to support the

ber"s enter into an"'annexation agreement,,, mayor's master annexation plan. within
which had been drafted by Folm-ar and Joe the city and the western proposed annexed

Reed, the council member from district 3. area, including Southlawn, the annexation

According to the agreement, the mayor and plan passed with a significant margin of
council mlembers,';i, 

" 
rpi"ii ri 6;r;;;f, success' Within the eastern and southern

and in an effort to ensure the City's growth proposed annexed areas, however, the mar-
through annexation, do hereby afree to gin of vietory was much closer. The east-

support the redistricting plan, lffeiUre in ern area approved annexation by eleven
1983, that most nearly pi".L*o the current votes, and the southern area, after a judi-
racial 

. 
makeup of ire Montgomery City cial challenge to the vote, approved annexa-

Council." The agreement also required tion by only two votes. Annexation then
that the 19&3 redistricting plan comply with became law for all the proposed areas, with
applicable law; that the plan meet ihl con- the areas to be considered officially a part
stitutional requirement of one-person one- of the city of Montgomery on January 1,

vote; that the redistricted districts be con- 1980.

tiguous; and that no present member of the In 1g?g, before the proposed annexed ar-
council be gerryrnandered out of his or her eas became a part of the city, a second
district.t The annexation agreement was munieipal electiln was held as required by
signed by the mayor and all council mem- law. The results of the election were thl

b,/

CItr er !,01t FSupp. la78 (10&l)
1477

of cooperation and in an effort to ensure the
City's growth through annexation, do hereby
agree to support the re-districting plan, effec-
tive in 1983, that most nearly preserves the
current racial makeup of the Montgomery
City Council, so long as said plan complies
with applicable la*'in general, and with the
following conditions in particular:

l. That any Montgomery City Council
District drawn must meet the "one man, one
vote" concept as required by the Federal
Courts.

2. That the Montgomery City Council Dis-
tricts must be contiguous.

3. That no Montgomery City Council
member will be gerrymandered out of his or
her district asa result of re-districting.
We further agree thar, to insure that the
spirit of this agreement is carried out, to
submit, the 1983 plan ro the Unired States
Department of Justice for appropriate re-
view.

t. The fi,rll text of the annexation agreement is
as follows:

WHEREAS, it is the desire of the under-
signed officials of the City of Montgomery to
expand the City Limits of the City of Mont-
gomery; and,
WHEREAS, such expansion will require cer-
tain portions of Montgomery County not cur-
rently in the City of Montgomery to be an-
nexed to said City; and,
WHEREAS, such annexation will increase
tlte population of the City of Montgomery by
an estimated 18,000 citizens; and,
WHEREAS, such increase in population will
require an increase in the population size of
each Montgomery- City Council District; and,
WHEREAS, such increase could have an ad-
verse effect on the current racial makeup of
the said City Council; and,
WHEREAS, it is not the desire of the under-
signed officials to dilute the current racial
makeup of the said City Council;
NOW, THEREFORE, We, the undersigned of-
ficials of the City of Montgomery, in a spirit



1478

s&me racially, with white counqil members
being elected from predomirhntly white
districts 1,2,7,8, and 9, and black council
members being eleeted from predominantly
black districts 3, 4, 5, and 6. The council
members today are the same as those elect-
ed in 1979, and are as follows:

District Name Race

f Willie Peak Whit€
2 Lewis Golson White
3 Joe Reed Black
4 Mark Gilmore Black
5 Luther Oliver Black
6 Donald Watkins Black
? Alice Reynolds White
8 John Starr Whit€
I William Nunn Whit€

Folmar, as mayor of the city, was re-
quired by law to present a redistricting plan
to the city council ufon annexation or de-
eennial census. Because of the nearness of
the annexation to the 1980 census he decid-
ed to wait until after the census to present
his redistricting plan to the council. Ac-
cording to the 1980 census figures, the ra-
cial picture for the city by district, without
annexation, was as follows:
District Population VoWhiLe

565 FEDERAL SUPPLEMENT

District

maintained the residence of each council
member within his or her district:

1

2

3

4

5

6

I

I
I

Population

20,r68
r9,587
19838
19,6r9
20,191

19,495

19,799

t9,474
19,886

': :'
i.,tr

%Whit€t %Black

9.2

5.5

61.5

662 [?5%] '.
88.0

89.8

15.5

8.4

8.1

In the spring of 1981, Folmar drafted a
redistricting plan-for which the racial
makeup is as follows based on 1g80 census
figures-which in compliance with the an-
nexation agreement, divided the city into
roughh' equal population districts and

0. The parties did not calculate for the court the
white percentage figures for the plan. Rather,
these figures are only estimates by the court.
The court arrived at the figures simply by sub-
tracting each of the black percentage figures
from 100. Since the percentage oi the cit1,
population that can be accounted for as neither
black nor white is onlr. .7/o, rhese estimates
should be correct within a feu. tenth-s of a
percentage point.

90.8

94.5

38.5

3i!.8

12.0

70.2

&t.5
91.6

91.9

Folm-ar's redistricting plan was, however,
significant in other ways: First, the plan
substantially increased the minimum white
majority in all five of the predominantly
white districts from approximately 6g.87o to
847oi second, it maintained black majorities
of at least 7\Vorr in three of the four pre-
dominantly black districts; and third and
most significantly, it reduced the black ma-
jority in district 3 by 2,.7 percentage points,
from U.Z%n to 6l.5Vo.

When asked to explain why the black
majority in district 3 was reducd by D,.7
percentage points, Mayor Folmar explained
as follows. He stated that the city council
is divided between those whom he considers
and calls his "allies" and those whom he
does not consider his allies. Golson, Oliver,
Reynolds, Starr, and Nunn he considers his
allies; and Peak, Reed, Watkins, and Gil-
more, he does not. But more specifically,
Folmar noted that Reed, the black council
member from district 3, "has been a politi-
cal enemy of mine from the day we sat
down on the council" and that his redistrict-
ing plan "certainly wasn't designed to help
Mr. Reed." And in the follow'ing testimony
he explained in more detail how he accom-
modated Reed in his plan:

[Seay]. Did you make the statement
that-you were quoted on July

10. Under all the redistricting plans drafted by
Folmar and the council mgnbers, district 4 is
listed as having a black population of 66-67/o.
The evidence reflects, however, that this dis-
trict is effectively 75/e black because it con-
tains a large, predominantll, white military
base with a very lou'voter turnout.

ll. Se€ note 10, supra.

i
I
i
t
i
I

I
{

I
t
(

t

VoBlack

I
2
3
4
5

6
I

8
9

?3276 95.4 3.5
16,8?2 69.3 30.3
11,180 15.6 u.2
13,336 30.9 67.9
13,145 3.4 c 96.4
r8,ut2 6.0 92.7
12,680 78.5 21.1
19,554 95.1 3.7
78,U2 86.5 72.9

--_*..--- --'.'.d:.-



race. It is strictly politics.

to Mr. Reed?

A. I am not sure that is a totally accu-
rate statement. But that is certainly
the essence of my sentiment.

Moreover, Mayor Folmar explained that he
arrived at the figure of 6l.57o for Reed's
district in the fotlowing manner:

I had checked other areas across the
United States that had had redistricting
where there had been racial numerical
problems of getting that worked out, and
I found that everlthing at over fifty-five
percent had passed muster. So I thought
sixty-one and a half percent was ample.

The message from Folmar's testimony is
plain. In drafting his redistricting plan
Folmar's goal with regard to R€ed was to
take affirmative steps to decrease the likeli-
hood that Reed would be reelected; and he
sought to achieve this goal by reducing the
black majority in Reed's district to just
above a level that would withstand a court
challenge.

After Folmar presented his redistricting
plan to the city council, it was referred to
the city's Intergovernmental Relations
Committee, which was chaired by' Reed.

12. The racial makeup, based on 1980 census
figures, for the Reed plan was as follows:
Disrict Populatron %Whire %Btack %Other

19,213 94.0
20,073 90.6
t9,724 t't.2
19,809 32.4
19.u7 7.5
20,t91 19.3

19.934 94.6
19.832 87.8
t9.634 96.9

See note 10, supra, for an explanation of the
75S figure in the district 4 line.

13. The racial makeup, based on I980 census
figures, for the Peak plan u'a; as follou's:

BUSKEY v. OLIVER
Cltc es 565 FSupp, lf73 (letit)

1479

14th,'81, Alabama{ournal, as saylng, I Reed drafted a plan that maintained the
am going to design a district to accom- residence of each council member within his
modate those who will work with me. or her district, met the requirements of
And whatever is left over, that is what one-penion onevote, and yet had a black
he gets. majority of 82.bVo for district B, his district.

[Folmar]. Basically that is an accurate The Reed plan also continued Folmar's poli-
ststement. It has nothing to do with cy of maximizing racial majorities for the

other council members; the plan main-race. lt is strictly politics. other council members; the plan main-
a. Did you make the statement I do not tained white majorities in the high 807o's in

care which black gets elected in Dis- all the white council members'districts and
maintained black majorities of at least TSVotrict 3 as long as it ain't him, referrinq malntalned black maJorities of at least 75Vo

to Mr. Reed? - in all the black council members'districts.l2
Peak, who was also a memhr of the com-
mittee, then took Reed's plan and modified
it. Under the Peak plan, which also main-
tained the residence of earh council memhr
in his or her district and met the require-
ments of one-person one-vot€, district 3 had
a black majority of 8l.5Vo. The Peak plan
aiso continued Folmar's working formula of
maximizing racial majorities in the other
districts; the plan maintained white majori-
ties in the high 807c's in all the white coun-
cil members' districts and maintained black
majorities of at least 75Vo in all the black
council memberc' districts.ls The commit-
tee adopted the Peak plan.

In the meantime, Luther Oliver, the black
council member from district 5, informed
Folmar LhaL 6l.5Vo for Reed's district was
unacceptable and that at least 657c-the
level Folmar and the other defendants con-
tend constitutes a legally "safe" black dis-
trict-was necessarJi. Oliver, therefore,
with Folmar's approval modified Folmar's
plan to increase the black majority in
Reed's district to 68%, while maintaining, as
much as possible, maximum racial majori-
ties in the other districts, maintaining the

District Population

4.7
8.4

82.5

66.6[75.0]
92.2
80.3

4.4
l 1.3

2.2

19,891
t 9,474
r 9,937
r9,812
t9.447
19,851
19,729
t9.774
l9_939

1.3

1.0

0.3
1.0

0.3
0.4
1.0

0.9
0.9

I
2

3
4
5
6
7

8
9

%White %Black

97.4 2.6
90.2 9.8
18.5 81.5
33 4 66.6 [7s.0]
7.8 92.2

. 19.6 80.4
!16.2 3.8
87.7 12.3
96.3 3.7

The court estimated the white percentages, see
note 9. supra. As to the figure of 75ls for
district 4, see note 10, supra.



1480

["'rC t'E'",

565 FEDERAT SUPPEITIENT

District Population %Whit€ u

I 19,868 91.?
2 m,Bz 98.2
3 20,135 32.0
4 19,619 33.8
5 19,636 r0.2
6 19,523 10.2
? 19584 8?.5
8 19,4?4 91.6
I 19,886 91.9

residenee of each oouncil memhr in his or
her district, and meeting tlr'""qri;;;;r;
of one-person one-vote.- Undei F;lr";;;
modified plan white council ,"rf"", uuui,
lr,ad. ylite majorities in the high g0?,,:-i;
ther distriets and other black council mem_

Fr: hlg btack majorities of ail"*izi?,'t,
tnerr ctrstricts. On July 2g, lgg1, Reed re_
port€d to the city council that the Interso_
vernmental Relations Committee .u*-rn-
mended the adoption of the peak pfun. if,L
11ncil, loy":"I, rejected the ieak plan
ard adopted Folmar,s modified plan, with
th-ose members whom tfre mayoi caits'i,is
allies supporting his modified pl", 

-"r;
those whom he considered not io be his
allies supporting the peak plan. ffre raciai
picture Ior the city under F'olma.', ,oalflJ
pjur,.I!i.h was adopted as City Ordinance
No. 47-81, was as follows:

l',"J 
.,6- 

Ii:i Jiil JT *"J';}#l
over Reed plan or
Do you recall thatl 

rds to that effect'

[Folmar]. yes. I think that is 8n oceu-rate statement. And that p.UJI"
more generally sums,up ,v o[j".tion.
to it than anything else. ' J-vY'v'ro

. . 
Also, even though Reed's district is 6g%black under the citv's redistrictinglf 

"r, 
ffrlevidence reflects llut u only the votino

population is considered, tt" dirt"i.t i.-Og;black- Moreover, the district f,u. u pr"ailI
inantly black state university ;;hir*t';
bounds, and if the university. ar#i",i
students, who are generally 

"onria".Jtjbe residentially unstable, i* ai..ru-rlf,
then the district's black voting aCe pop;i;:
tion is 60%.

III.
ln City of Mobite v. Bolden,4l46 U.S. ,s

fl, g?, 100 s.ct. 14e0, 14s6, r4s7,64 L.Ed;
47 (1980J, the plurality opinion fo, tfreiu_
preme Court stated that section 2 of theVoting Rights Act of 1965, as it thenieaa,
"no more than elaborates upon tf," flij
tge.nth Amendment," and concluded that aviolation of the section required .".iull,
discriminatory purpose.16 In l9g2 Corgr.r".
amended the section to remedy the reJtric_
tive interpretation announced in Bolden.rz

(a).No voting qualification or prerequisite to,,otilq oI standard, practice, o, pioc"ari.
.nl-I. T rmposed or applied by any State orpolitical subdivision in a manner which re_sults in a denial or abridgement of tfre rijtrt
of any citizen of the United States to ,ot.i,
account of race or color, or in contravention
9{_tt. guaranrees set forth in ,..iion
t973b(0(2) of this title,.as proviOea in sub_
section (b) of this section.
(b) A violation of subsection (a) of this sec-
tion is established if, based on tire totatitl, of
crrcumstances, it is shown that the poliiical
pr@esses leading to nomination or Llectionin the Srate or political subdivision 

"rr;;iequally open to participarion by members of
a class of citizens protected bl,subsection (a)
of this section in thar its members have less

voBtack Finally, the evidence before the court rc-
; tb:T9 that the city council is steeped in

r i racjal tension.and mistrust, with the t"n.ion
68.0 and mistrust being most acute between Fol_
66.2 [?s.0] rs mar and Reed.
89.8

89.8

12.5

8.4

8.1

Folmar when asked why he supported his
modified plan over the peak plan explainJ
that the critical factor was Reed's involve_
ment in the Peak plan. Folmar testified as
follows:

[Seay]. I Lrelieve you were quoted
again by the Journal somewherej I be_

14. See note g, supra.

15. See note 10, supra.

16. Section 2, as considered by the Court inBolden, read as foilows:
No voting qualification or prerequisite to vot-
ing, or standard, practice, or p.o"ua*.-.f,"if
?:,,Tp9:"9.o. app.lied by any State or politi_
cat subdilision to deny or abridge the ri;hr ofany citizen of the United St"tE. l"-""i"'""
account of race or color, or in contravention
9l_ tt" guarantees set forrh il ,il;;;
1973b(fx2) of rhis title.

42 U.S.C.A. g l9Z3 (West l98t).
17. 

-.Section 2, as amended in 19g2, reads asfollows:



The section [s amended broadened voting
rights violations to encEmpass not only offi-
cial action taken or maintained for a racial-
ly discriminatory purpose but official action
which results in a denia] or abridgement of
the right of any citizen to vote on account
of race.lt Thus, a violation of section 2
occurc either when official action is taken
or maintained for a racially discriminatory
purposr- or when such action results in a
denial or abridgement of the right of any
citizen to vote on account of race.

[,2] Purposeful discrimination need
not be the sole motivation for the chal-
lenged action in order for the action to fall
within the proscription of section 2; rather,
discriminatory purpose need only be one of
the motivating factors to trigger strict judi-

opportunity than other members of the
electorate to participate in the political proc-
ess and to elect representatives of their
choice. The extent to which members of a
protected class have been elected to office in
the State or political subdivision is one cir-
curnstance which may be considered: Provid-
ed, 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.A. $ 1973 (West Supp.l983). The
senate Judiciary Committee Report on the
amendment states:

The proposed amendment to Section 2 of
the Voting Rights Act is designed to restore
the legal standard that governed voting dis-
crimination cases prior to the Supreme
Court's decision in Bolden. ln pre-Bolden
cases plaintiffs could prevail by showing that
a challenged election law or procedure, in the
context of the total circumstances of the
local electoral process, had the result of de-
nying a racial or language minority an equal
chance to participate in the electoral process.
Under tiis results test, it was not necessary
to demonstrate that the challenged election
law or procedure was designed or maintained
for a discriminatory purpose.

S.Rep. No.97417, reprinted in 1982 U.S.Code
Cong. & Ad.News at 177, 192-193.

18. The Senate Judiciary Committee Report ex-
plains that:

The amendment to the language of Section
2 is designed to make clear that plaintiffs
need not prove a discriminatory purpose in
the adoption or maintenance of the chal-
lenged system of practice in order to estab-
lish a violation. Plaintiffs must either prove
such intent, or, alternatively. must show that
the challenged system or practice. in the con
tex of all the circumstances in the jurisC:

BUSKEY v. -OLMR
Clte ts td6 F.Supp. l{73 (10&t)

1481

cial review. Village of Arlington Heights
v. Metropolitan Housing Development br-
poration,429 U.S. ?52,265-f,6,97 S.Ct. 555,
563, 50 L.Ed.zd a50 (1977); see also Rogers
v. l,odge, 

- 
U.S. 

-, - 
n. 5, 102

S.Ct.3272,3276 n.5, ?3 L.&1.2d 1012 (1982).
Furthermore, proof of purposeful discrimi-
nation in voting may be made either by
direct or circumstantial evidence.le How-
ever, proof of discriminatory result may be
made by establishing a number of relevant
"circumstantial factors," primarily those
found in the pre-Bo/den cases of White v.

Regester, 412 U.S. 755, 93 S.Ct. 2332, 37
L.Ed.2d 314 (1973), and Zimmer v. McKeith-
en, 4f}5 F2n ln7 (5th Cir.1973) (en banc),
aff'd on other grounds sub nom. East Car-
roll School Board v. Marchall,4% U.S. 636,
96 S.Ct. 1083, 47 L.Ed.zd 296 (1976).20 The

tion in question, results in minorities being
denied equal access to the political process.

S.Rep. No. 97417, supra at 205 (footnote omit-
ted).

19. The Senate Judiciary Committee Report ex-
plains that a plaintiff "may establish discrimi-
natory intent for the purpose of this section
through direct or indirect circumstantial evi-
dence, including the normal inferences to be
drawn from the foreseeability of defendant's
actions .which 'is one type of quite relirvant
evidence of racially discriminatory purpose."'
S.Rep. No. 9741?, supra aL205 n. 108, quoting
Dayton Board of Education v. Brinkman,443
U.S. 526, 536 n. 9, 99 S.Ct. 2971,2978 n. 9, 6l
L.Ed.2d 720 (1975). See a/so Rogers v. Ldge,
supra, -- U.S. at 

-, 
102 S.Ct. at 3276.

20. Typical factors, as enumerated by the Sen-
ate Judiciary Committee Report, include but
are not limited to the following:

l. the exlent of any history of official dis-
crimination in the state or political subdivi-
sion 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 elec-
tions of the state or political suMivision is
racialll' polarized;
3. the extent to which the state or political
suMivision ha3 used unusually large election
districts, majority vote requirements, anti-
single shot provisions, or other voting prac-
tices or procedures that may enhance the
opponunit)' for discrimination against the
minorit)'group;
4. if there is a candidate slatin8 process,
\\'hether the members of the minoritr- group
hale been denied access to that process;



1482 *, .iir*nl s,ppLEMENr
plaintiffs.in the present case contend that
$on_tggmery City Ordinance No. 4?_gl. re_orstncting the city, was passed \,ith'tt 

"pu_r?os€ or, alternatively, will have the re_
sult of diluting black voiing ,r"ngtf,-ii tf,"clty ln violation of section 2, as 

-amended.

The evidence presented t" t[-;;;';;
stantiates and this court finds that a moti_vating factor behind the passaC" ;i-il;
ordinance was to dilute the blaik votins
strength in district B, and, since aistrici i li
1 part.o{ the city, to dilute black voting
strength in the city.

one district ,,diced" 
into_ three parts as a

;i:'':ifiT' 3:,x i,", ".* l,:; "'l.:i* mplaintiffs have been tl
posefut denial of th" l-I:t:''s of the pur-

tion, in the form :'tn: P vote bY dilu-

account of their .*". " 
retrogression, on

The evidence reflects a black citizenrv

ii1l"ffr [,i1TX""il1"#'ii,[.,:,1;Ti#
of a past, pervasive ro

"ril; LJi J;;;;;;i';flIi'fi 5l fi' *:lit reflech a city still polarized UV 
".""", ffionly whire council members #rrilil"J

from predominantly whitc eounciiOririia.

;pifi 'H*:illff [ii,?:i,Ti:ff **fidistricts; and it reflects a city ";;#;;:fering from racial discord urorg il;;:
be11 an{ the- city's mayor. ThL ;";;;
;:ijiH"fl:j[ ;::xgr "f M",k;;;;

r8c(
mci
mai
u%
and

R: aJ- T-h: right to vote may be denied
or abridged by dilution just as uif""ti*f u'u.
by simply prohibiting t[.," frun.ti.".;i 

-i{;
thermore, retrogression, as is claimed in the,,T*.r, 

:rset may constitute unl"*fri ,ot"
9,lurlol:- y",u.g., Wyche v. Madison par_
$n rott@ Jury, &3b F.2d ll5l, 1160 (Sth
Cir.1981) (district lines redrawn'to t."rri".
substantial number of minority ,"t"i, i""r,
one district to another); Kirisey ,. B;;;;oj luryrvisors, b54 F.2d t3g, t4i, 14t (;l;
Cir.) (en banc), cert. denied,as4 U.S. 66S,li
S.Ct. 512, 54 L.Ed.2d tu (nzt1f*ai#"r-
jnS. n1.", fragmented geographicaily cor."n_
trated minoritl' group); Robinsoi v. Com_
mrssronens Court, 50i F.ZJ 674, 6Zg (sth
Cir.f974) (concentration of black uot"..-ii

5. the extent to which members of the mi-nority group in the state or pofitcai su-Uaivi
sion bear the effects of Oiscriminatlon-i, *"i
^..?: ?r education, employment ana n."itf,whjch hinder their ability t" p"rti"rprt"'"ff".]
tively-in the political process;
6_ whether political campaigns have beencharacterized by, oven or' su'btle ;;.;i;;peals;
7. the extent to which members of the mi_nority group have been elected to ;ili;';;_fice in the jurisdiction.

! R:p .1" 97-4t7, supra a1206_OZ (footnotesomitted). Of these .,rhere is no ."qui."ni"nithar any particular number 
"f i;;;;;";

lll""d,.9r th?t a. majority or tnern poini oliway or the other.,' /d Because *tin;;igil;violations may take many forms,';;;i";li,;
factors and their relevance may vary from caseto case.

,r:,^I*_l:i"te Judiciary Committee took spe_ctal care to explain that:
Section-2,.as amended, adopts the functional
Ty .i ,,polirical p.oces.;, ,.eo i" iitiilrarner than the formalistic view espoused bythe plurality in Mobile . . . fnfris sectioi

_ In his original redistricting plan Mavor
{.To.{ Folmar, who by statuf, ;^.;;;;-
sible .for drafring a iedistrictinS pl";i;;
the city, tailored each of tt" .o,ir.ii *#_
ber districts, except district th.u", i;'.;;;';
manner as to increase the majority race inthe district as much as possible ;, ii d;district was already overwhelminCli ;i ;;;

without question is aimed at discrimination
which takes the form ot aifutton. as ;ifi:outright denial of the right to ."gir,"i o] iovote.

S.Rep. No. 97417, supra, at 208 n. 120. SeeCity of Port Anhw v. Llnited Srrr"r,-i_ ff. , _, t03 s.ct. 530, 534, l+ t..r.a.za lii
!1,?q?l 

(" . the rishr to vote ma). ue aeniejuvoltutton or debasement iust as effecuvefy 
"i UiwhoUy prohibiUng the franchise,,).

22, Thy specific challenge presented in this casers not. one of alleged vote dilution resuttinprrom the operation of multimember voting disltricts. See e4.., White r.. Re3esrer, ,riii Bit_oen, supra: Zimmer v. McKeithen, siprai,.

- Moreover, it should be added that the SenateJudiciary Subcommittee o, tf,e Con.Uiution,
which was Eenerally critical of the f Sg2 amend'l
ments to the Voting Rights Act,rfound that asectlon Z claim based on retrogression was amore discemible section 2 offenie than a cLlm
based on multimember district dilution U"c"ui"a rerogression claim would present a clearlydefined "startintt point" from which to ."r.rr.
the alleged dilution of minoritl, voting strength.
S.Rep. No. 97411,. supra, at 309 n. i.06.

exk
whi
jorit
w8s
m8j
by:
undr
the
still
othe
witt
majr
whit
mair
75%
trict
exce
incrr
trict
race,
trict
redu
that

t5l
stror
soug.
blaclr
evide
In d:

unde
trict
Inspi
abour
mem
ly rer
perce
Howr
not 5
he all
fy hir
ty bk
purp(

23, 1
mar
acce
sche
Lee
F.2d
the',

..-.anf&-



brsa
Ilt case
tr the
b I'ut-
y ditu-
ir, on

E"o
Fn po-

fircLs
Fq ori*,lr th
f**A
Itn rt^
F."g
luncil
lc r-
irr-
I trelr

"r,.r.?Hl"l;.?.r,ll3*, r48B

r8ce, to maintain that level. With all the ess was therefore ,to decrease district B,s
majority white districts he succeeded and majority black population to the lowest lev:
p1inQiryd white populations no lower than el he understood to be legally possible if
&17o. With the majority black districts 4, 5, order to reduce the possibiiity tliat district
and 6, he again succeeded though not to the 3's council member could be reelected. To,
extent he succeeded with the majority the extent his purpose was to dilute the
white districts. He maintained black ma- voting strength of district 3's black popula-
jorities of at least 757o, Distict 3, however, tion, his purpose was impermissible under
was the oddity. Folmar reduced the black section 2. Motrover, Folmar secured pas-
majority in district 3 from 84.2o tn 6l.5Vo, sage of his modified plan. At his behest,
by 2,.7 percentage points. Furthermore, the five members of the city council whom
under Folmar's modified plan, adopted by he referred to as his allies adopted his modi-
the city as Ordinance No. 4?-81, district 3 fied plan and enacted it as City Ordinance
still stood out in marked contrast to the No. 47_81. City Ordinance 47_91 was
other districts. Under his modified plan, as therefore in substantial measure the prod-
with his original plan, he maintained white uct of a scheme purposefully designed and
majorities no lower Lhan 87Vo in all the executed to decrea^se the voting strength of
white council members' districts and he the black electorate in district B.

maintained black majorities no Iower than The proffered explanations and justifica-
75Vo in all the black council members' dis- tions of the defendants do not warrant a
tricts, except district 3. In each district, different conclusion. First of all, the de-
except district 3, the majority race was fendants maintain that Folmar's motivation
increased as much as possible or if the dis- was political not racial. They argue that
trict was already overwhelmingly of one district 3's racial composition resulted from
race, the level was maintained. With dis- political animosity between Folmar and
trict 3, however, the black majority was still Reed. To the extent Folmar's goal was
reduced substantially, from U.Wo Lo 68To, political, and to the extent that he acted out
that is by f6.2 p".*nt"g" points. of a desire to reduce the possibility of dis-

t5] while the abo'e evidence raised , trict 3's council member being reelected, the

strong suspicion that Folmar purposeruuy ;:i,:[:"?*'iffl';#'tr'i"',lffi;X""?sought to dilute the voting strength of the section 2. However, the legality of such ablack electorate in district 3, .the following goal is simply not the issue before the court.evidence confirmed the suspicion as true. This court is totallv indifferent to the politi-In drafting his original plan Folmar was car future of any of the cit.y's poriticar fig-under the impression that a SSTo black dis-
trict coutd wlthstand any court challenge. ;'ff "Iitl?,?,llt::il1"i:"{,J'-:"^T';}Inspired by an admitted desire to bring purposefully diluting the voting strengl.h of
about the defeat of Reed, the black council the black electorate in district B. It is
member from district 3, Folmar purposeful- therefore solell, the voting rights of the
ly reduced district 3's black majority by 22.1 black electorate of district 5, an-d by exten-
percentage points, from U.D, ta 61.57a. sion the voting rights of the black elector_
However, when he was informed that 65% ate of the citl:, *:hich are now the court,s
noL 55Vo was the magic percentage number, concern undei section 2; and it is solell,
he allowed another council member to modi- those rights.which the court finds were
fy his plan by increasing district 3's majori- violated by the enactment of Citv Ordi-
ty black population Lo ffiTo. Folmar's clear nance No. 4?-€1, the citv's 1s61;d.11r*
purpose throughout the redistricting proc- plan.B

23. The defendants have not contended that Fol- not have faired any better. The evidence re-
mar's modified plan would have emerged as the flects that in the abience of Folmar,s scheme toaccepted plan even in the absence of Fotmar,s dilute the voting strength of district 3. Folmarscheme of purposeful discrimination. See, e.g., would have applied across_the_board the rule ofIee-r'.Xusse1/ County Board of Education,6fu maximizing the racial majorities in each dis-F.2d 769, 773-74 (llth Cir.l982). However, if t.i"t and would have drafted such a plan.,.h?y had advanced this contention they would

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L.-_



565 FEDERAL SUPPIJMENT

['Xdi]a,i

i
t4u

The defendants also contend that the re-
trogression in blackfopulatioq.in district B
was necessitated by the requirements of
one-person one-vote. They note that there
had been population shifts among the dis_
tricts and that there was a need to in"ru""
the population of each district as a result of
annexation. Their contention withers in
the face of the evidence. First, the record
reflects that between 19?0 and l9g0 the
percentage of black residents in the city,
even with an annexation that brought in
more white than black residents, grew fircm
approximately 34lVo ta BgVo. Furthermore,
the evidence was that the predominant goai
for the mayor and the council in redistrict_
ing the city was to maximize the racial
majorities in the council district; and the
court cannot overlook the fact that the
council had two plans, the Reed and peak
plans, which achieved this goal without vio_
lating the principle of one-person one_vote
and without violating the annexation agree_
ment requirement that no council member
be gerrymandered out of his or her distriet.
But more significantly, the evidence affirm-
atively reflects that the motivating factor
behind the retrogression was the desire to
reduce the black population in the district
to just above a level that would withstand
court challenge.

t6l The defendants also sirongly ad_
vance the argument that a 657o or above
black district can ,,safely" select a black
representative. Even if this argument had
merit-a factual issue which this court does
not address-it would not detract from the
conclusion that the dilution of the black
vote in district 3 was substantial,% was
done purposefully, and therefore was im_
permissible under section 2. That is, even
though a redistricting plan may accurately

2a: 
^ l"y contenton by the defendanrs that therb.z percentage drop in district 3 under the

ordinance is insignificant or insubstantial
would be simply disingenuous, in view of the
overwhelming eyidence that the defendant
council members and the mayor sought to max_
imize the racial majorities'in the-defenaant
council members' districts.

Moreover, the evidence reflects that if onlv
the voting age population of district S is con-

rreflect the voting strength of a minoritv
Foup, it is still invalid if it was adopted foi
a racially discriminatory purTose. *" At,
of Port Arthur v. unitd States, 

- 
U.S.

-, 
_r 1B S.Ct. 530, 535, 74 L.M.%J

334 (1982) ("even if the 4--2-B electoral
scheme might otherwise be said to reflect
the political strength of the minority com_
munity, the plan would neverthelesJ be in_
valid if adopted for racially discriminatory
purpos€s.")

t7l The defendants also place signifi_
cance on the fact that Luther Oliver, a
black council member, voted in favor of
City Ordinance No. 4?-81. This argument
also fails. The use of a black person in
gffecting a purposefully discriminatory re-
districting plan is insufficient by itseif to
save the plan from censure under section 2.
As the former Fifth Circuit recently stated
in McWilliams v. Eseambia County *hoot
Bd., 658 F.%l3% (Sth Cir.198t) (Unit B), an
employrnent discrimination case:

The mere presence of blacks in the selec_
tion process is insufficient to rebut a pri_
ma facie case of purposeful discrimina_
tion, even when blacks comprise a majori_
ty of those responsible for the allegedly
discriminatory result.

658 F.2d at 333. Moreover, in Castaneda v.

!?4idu,€0 U.S. 4Bz, s7 S.Ct. 12t2, El
L.Ed.zd 498 (1977), which concerned alleged
racial discrimination in the selection of
grand juries, the Supreme Court observed
that:

Because of the many facets of human
motivation, it would be unwise to pre_
sume as a matter of law that human
beings of one definable g"oup will not
discriminate against other members of
their group.

sidered the district's black population is onlyS7o; and if the dormitory- students at a ore-
dominantly black universitf in tne district'are
discounted the district's voting age population
is further reduced to only 60/r. -In'liyche 

v.
Madison Parish police Jury, 635 F.zd ll5l,
I I63 (sth Cir.l98l), the court noted that voting
age population, if available, is desirable evi-
dence for a court faced with a challenge based
on dilution of the black vote

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rli|0 U.S. at 4p9, 97 S.Ct. at l%tz.u

Iv:
The plaintiffs have advanced, alternative-

ly, that Montgomery City Ordinance No.
47-81 violates section 2 because its imple-
mentation, irrespective of its purpose,
would result in a denial or abridgement of
their right to vote on account of their race.
They contend that they have established
most of the "circumstantial factors" articu-
lated in White v. Regester, supra, and Zim-
mer v. McKeithen, supra. Since the court
has concluded that the ordinance was enact-
ed for a racially discriminatory purpose in
violation of the section, the court sees no
need to consider whether these factors were
in fact established and whether, as an
aggregate, they substantiate the plaintiffs'
alternative basis for relief under section 2.26

v.
In view of the court's conclusion that

Montgomery City Ordinance No. 47-81 vio-
lates section 2 of the Voting Rights Act of
1965, as amended, the court will enter ap-
propriate deelaratory and injunctive relief
against enforcement of the ordinance. Fur-
thermore, since devising redistricting plans

"is a legislative task which the federal
courts should make every effort not to pre-
empt," Wise v. Lipscomb,4S? U.S. 535, 539,

98 S.Ct. 2t93,2197,57 L.Ed.2d 411 (1978),

the court will afford the City of Montgom-
ery an opportunity to fashion, enact, and
submit to the court a new redistricting plan
free of the discriminatory purpose or result
proscribed by section 2. Of course, before
any new plan is submitted to the court by
the defendants, it must be precleared pur-
suant to section 5 of the Voting Rights Act
of 1965, as amended, 42 U.S.C.A. S 1973c.

25. The defendants also place significance on
the fact that Oliver voted in favor of the ordi-
nance, Folmar's modified plan, because the oth-
er plans placed a "no growth" area in his dis-
trict. This argument also fails. First of all,
this "no growth" reason explains only Oliver's
vote. But more importantly the reason, which
is extremely subjective, simpl),cannot stand up
against the overwhelming objective evidence
that, in practice and theory, the predominant
goal for any redistricting plan for the council

A]TIERICAN HOME PRODUCTS
CORPORATION, Plaintiff,

v.

LIBERTY 
.MUTUAL 

INSURANCE
COMPANY, Defendant.

No. 80 Civ. 5653 (ADS).

United States District Court,
S.D. New York.

June 13, 19&3.

As Amended Aug. 29, 1983.

An action was filed seeking a declara-
tion that an insurer was obliged to defend
and indemnify the insured in products lia-
bility lawsuits, regardless of when physical
harm became manifest, because of exposure
to alleged agents of harm during the policy
periods. On the insured's motion for sum-
mary judgment and the insurer's motion for
partial summary judgment, the District
Court, Sofaer, J., held that coverage under
the policies providing liability coverage for
"occurrences" which resulted in "personal
injury, sickness or disease including death
resulting therefrom ' * * sustained by any
person" was triggered by an injury in fact
during the policy period, not by either expo-
sure to an allegedly harmful substance or
actual manifestation of illness.

Ordered accordingly.

1. Insurance e=146.6, 146.7(1)

Insurance contracts must be liberally
construed, with ambiguities in policy lan-
guage resolved in favor of insured.

2. Insurance G--146.1(l)

Under New York law, court should ap-
ply its own construction to insurance poli-

was that the racial majority in council mem-
ber's district be as large as possible. District 3
was the only one fcrr which this goal was not
achieved. The cedibility of Oliver's reason is
further undernfned by the fact that Oliver and
Reed were also staunch political enemies.

26. See note 20, supra. Man.v- of these factors
were, however, considered bl the court in
reachrng its conclusion of purpcsefuJ discrimi-
nation

;f tt

AMERICAN HOMP PBOD. v. LIBERTY MUT. INS. CO.
.' CltetsS0SFsupp: I'185 (1983)