Buskey v. Oliver Court Opinion
Public Court Documents
June 10, 1983

Cite this item
-
Case Files, Thornburg v. Gingles Working Files - Schnapper. Buskey v. Oliver Court Opinion, 1983. 5089daee-e292-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4e2bafb4-ce7b-4bff-9724-0a8060cc393e/buskey-v-oliver-court-opinion. Accessed May 15, 2025.
Copied!
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 lt, ''!,r- ll'y Frr- Ea F'npe br.: i lrr I e; t:) IF' f.s F- b b tt t' Ft; I t t ? t i 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 4 II 1I t T n lr n h e v n ir a a I } 1 p a t at c e I t e s f p a t s o 2 , *u- 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)