Plaintiffs Exhibit Proposals for School Integration and Desegregation
Public Court Documents
November 24, 1970

14 pages
Cite this item
-
Case Files, Thornburg v. Gingles Working Files - Williams. Memorandum from Klein to Williams and Winner; Washington v. Finlay Order to Dismiss, 1981. ecb7a0a6-da92-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3f846d5f-a23e-44f0-9ec7-9c576bccbc6f/memorandum-from-klein-to-williams-and-winner-washington-v-finlay-order-to-dismiss. Accessed July 06, 2025.
Copied!
,U ( ,Lo LSNClUemo To: Napoleon Williams and Leslie Winner From: Richard Klein Date: November 24, r98r Fourth Circuit Slip Opinion *8--L277 - Washj-ngton v. Finlay ffiffi tstr llstice Fot Pw Peoflz Enclosed is a Slip Opinion--Washington v. Fin1ay--for your information. Please note that pages 10 and 21 are missing. They will follow when received from the Court. Enclosure RMK: mht Le$t Sorvices of North Carolina lJ26 Glcnrvood Arrcnuc PO Box 65O5 Relcigh, North Cerolinr ?628 9,9/at2-2046 S*Eo sTATEs cou*T oF APPEAL' t\r -,":" Frank Washington, Alvin HinkIe, Glor ia .Tames, Rosa BeII Jones, WaIter SuorrST ver sus Kirkman F inlay , Jt ., individuallY and as llayor of the City of Columbia, South Carolina; William C. Ouzts, PauI Z. Bennett, Rudolph C. Barnesl Jr., and T. Patton Adams, individually and as members of the City Council of Columbia, South Carolinai Mrs. John T. (Marcia) Duffy, individually and as chairman of the Municipal Election Comnission of the City of Columbia, South Carolina; and Wilhelmina J. Hallman and John C.B. Smith, Jr., individually and as members of the t'tunicipal Election Commission of the City of Columbia, South Carolina, Appellants, Appellees. District Court for the District of Robert F. Chapman, District Judge. Appeal from the South Carolina, Argued February United States at Co1umbia. 4, 1981. Before BRYAN, Senior Circuit Judges. Circuit Judge, Decided November L7, 1981 PHILLIPS ANd SPROUSE, o Laughlin tlcDonald (Nei1 Bradley; Christopher Coates; Herbert E. Buhlr rrr; John R. tlarper, rri r.s. Leevy Johnson on brtef ) forAppellants; Danny C. Crowe (Roy D. Bates on brief) for Appellees. PHILLIPS, Circuit Judge: This is a vote dilution case in which the plaintiffs, asserting rights under the first, thirteenth, fou;teenth and fifteenth amendments and 42 u.s.c. ss 1971, L973r ilDd 1983, allege that the purpose and effect of the at-large election system for constituting the City Council in Columbia, South Carolina, is to dilute the voting rights of black citizens. The district court held against the plaintiffs on the merits, expressly determining that the at-large system did not violate the fourteenth or fifteenth amendments, and, without specifically addressing them, also necessarily rejecting the plaintiffs' other constitutional and statutory claims. After the dlstrict court's decision, the Supreme Court decided Citv of Mobile v. Bolden, 446 U.S. 55 (1980). On appeal, the-plaintiffs seek reversal of the court's fourteenth and fifteenth arnendment determinations and press their other constitutional and statutory claims. Alternatively, they seek a remand allowing them to present additional evidence of discriminatory purpose in light of Mobile. We find no reversible error in the district court rs ultimate determination that the at-large system violates none of plaintiffs' constitutional or statutory rights. We decline to order a remand for the presentation of further evidence, for in our view citv of lr{obire v. Borden, while admittedly not altogether clear in its ultimate implications, did not change 3- the law to the extent requiring reconsideration of the claims on a reopened record. we therefore affirm the district courtrs dismissar of the praintif f s' individuar claims, but rde f ind reversibre error in its certification of the action as a crass action at the time of its dismissat of the individual claims on the merits. I columbia has a council-manager form of government, adopted pursuant to the south carolina Home Rure Act in Lgl5. The Present plan includes four councilmen and a mayor, elected at large from the city of columbia. This general form of government has been in existence since 19IO, when Columbia adopted a commission form of government to replace a system under which the city was governed by an intendant and wardens or aldermen elected from districts. Prior to 1975, nominations for the office of mayor and councirmen yrere made through political parties by use of a primaryr conv€ntion or petition. In September 1925, the corunbia city council adopted a non-partisan format for election. The present system, in part adopted in L977, provides that the erection process is open to any registered elector who is a resident of the City. Candidates may campaign on particurar party platforms or for a particular party, but there is no indication of party affiliation on the balrot. Any candidate who receives a najority of the votes iil the election 4 is elected, while those who receive less than a najority must participate in a run-off between one more than the number of candidates necessary to fill the offices. Those receiving the highest number of votes in the run-off election are elected. After this suit was fiIed, the City Council adopted a resolution proPosing a change in the election process and in the number of councilmen. The proposal would have increased the number of council members to six, with three elected at large and three from single-member districtsr plus the mayor elected at large. This plan was to be adopted if it had been approved by the voters in a referendum. There was no support either in the white community or the brack community for this pran, and it was rejected. Black leaders apparently thought that it did not go far enough. The 1970 census figures show that Columbia has a population of 1I3,542, of which 39,998 (358) are black. In Lg78, the date of the last city election, there lrere LL,464 black registered voters and 22r296 white registered voters. During the 197B primary election for city council, 35.8* of the bracks voted and 41.5t of whites voted. Blacks have been running regularly for the city council for the past ten to twerve years, but no black has been elected to City Council within living memory. As expressly found by the district court, there has been a Iong history of de facto and de iure discrimination in Columbia. rt has touched all areas of life. until 1948 bracks rrere 5- excluded from voting by a variety of methods, including'poll taxes, literacy tests and membershiP restrictions imposed by the Democratic Party. Schools rrere racially segregated from the first grade through college, and public accommodations and transportation within the city were operated on a similar basis. Although the court found this kind of overt discrimination no longer existent, it found that in the areas of "income, education, housing and employment blacks in the City of Columbia, on the average, exist at a lower socio-economic level, and there are many residential areas in the City which are racially identif iable. " As also found by the court, however, many of the techniques which had been used in the past to discourage black voters from voting or which have been found to contribute to'dilution of black personsr votes have been eliminated. South Carolina no longer has an anti-single shot voting law. This law was found unconstitutional in L972. Further, there is no longer a polI tax, Iiteracy test t ot any other restriction which could be applied in a discriminatory ma.nner. Both major political parties are open to blacks and actively solicit their membership and support. Registration officials now visit various parts of the cities and counties in order to facilitate registrationr ro Ionger requiring voters to come to the courthouse or office of the Registration Board to register. Any registered voter may run for office by paying a small filing fee, which is waived on 6 the filing of an affidavit declaring inability to Pay. There is no primary and no requirement for Party affiliation. Voting is racially identifiable because of the racial identity of certain neighborhoods. In recent elections polarization on racial lines has remained significant, but does not approach totality. White and black candidates alike seek support from all areas of the city and receive support along non-racial lines. A black candidate has not yet been elected to City CounciI, but in the 1978 city election black candidates received approximately 251 of the vote in predominantly white areas and white candidates received 7* of the vote in predominantly black areas. In terms of public employment, service on appointive governmental bodies, and receipt of essential aqd special governmental services, black citizens while arguably not yet fairly served are not on the other hand simPly ignored by elected city officials. Forty-three percent of the city's work force is black. Blacks serve by appointment on a significant number of city boards and commissions; there are two black city judges, tvro black city clerks, and several black supervisors and division heads in various departments. Columbia recently has applied over 90t of the Community Development Block Grant Funds to benefit low to moderate income families, including many blacks, and has employed a Community Development Director to work with HUD in an effort to provide more housing and rental units for low income grouPs. 7- Addressing directly only the fourteenth and fifteenth amendment claims, Ih" district court nade detailed findings of evidentiary and ultimate fact to which it applied the vote dilution principres set out in white v. Regester, 4L2 u.s. 755 (1973), as articulated in zimmer v. McKeithen, 4g5 F.2d LzgT (5th Cir. L973) (en banc), aff'd on qlhel grounds sub nom. East , 424 u.s. 536 (1975). The court concluded that the plaintiffs had failed under White v. Regester's standards to prove a discriminatory effect traceabre to the at-rarge voting system. Further, it concruded that there had been a fairure to prove any racialry discriminatory intent or purposer ds required by villaqe of Corporation, 429 U.S. 252 l]-g77), to establish or'maintain the system. Having found no discriminatory effect or purpose in vioration of the fourteenth or fifteenth amendment, and by necessary implication having rejected all 0ther claims, the district court dismissed the action, certifying it as a class action in the process. II I{e first address the fourteenth and fifteenth amendment claims; next, the plaintiffs' contention that the case should at least be remanded for re-trial on a reopened record in right of Mobile; then the other constitutionar and statutory craims; and, Carroll Parish Schoo1 Board v. Marsh Arli,ngton Heiqhts v. 1i tan I firially, the action of the district court in certifying the action as a class action. The controlling principles for assessing the plaintiffs' fourteenth and fifteenth amendment claims are now to be sought in Citv of lt{obile v. Bolden , 446 U. S. 55 (1980) . The parties predictably disagree about the effect of lrlobiIe on the merits of this case and, beyond that, about the proper disPosition of this appeal if $re conclude that, tested by !!obiIe, the plaintif f s' claims fail of proof. Without attempting here a comprehensive exegesis of the L/ controlling plurality and concurring opinions in tlobile and of the main lines of earlier authority uPon which they crere Ubasedr w€ accept as authoritative and controllilg for our purposes the following principles drawn directly and by necessary implication from those opinions considered in the aggregate. CIaims of racially discriminatory vote dilution pxist under both the fifteenth amendment and the Equal Protection Clause of I Fo, an example, see Lodge v. Buxton, 639 F.2d 1358, 1369- 72 (5th Cir. 1981). 2 Essentiallyr oD the fourteenth amendment claim: Village of Arlinqton Heights v. Metropolitan Hous. Pgv. C=o=rp., 429 U.S. zsz tlg , 426 u.s. 229 (L976)i white v. Reqester , Al-Z-u.s:- 75-(1973) i whitcomb v. Chavis, 403 U.s. L24 (197I) i on the fifteenth amendment claim: W!gh!_____v._ Rockefeller, 376 U.S. 52 (1964), Gomillion v. Lichtfoot, 364 U.s.339 (1950); Terry v. Adams,345 U.S. 46I (1953)r Smith v. Allwriqht, 32L U.S. 649 (1944). A 9- a discriminatory "effect" traceable to the challenged state action. This is the critical threshold issues are the voting rights of the racial minority, as a matteL of fact, impermissibly "diluted"? vote dilution as a discriminatory effect or condition whether viewed from the fourteenth amendment or fifteenth amendment perspectives is not more specifi^ally defined by the Mobile Court than as a condition in which the "voting potentiar" of a racial minority has been "minimizeId] or cancelIIed] out," id. at 66i or the',politicaI strength" of such a group "adversely affectIed]r" id. at B4 (Stevens, J., concurring); or its "access . to the political process" demonstrably "restricted r " id. at 69 (plurality opinion) . lvlore precise meaning may, however, be gleaned from earlier decisions specifically approved in Mobile in which dilution claims were assessed in relation to particurar facts, and from the laobile Court's reiteration of the fundamental negative principle that disproportionate representation and consistent "electoral defeat," though traceabre to the chalrenged system, do not alone constitute impermissible dilution, id. at 75 & n.22, 76, id. at 85 (Stevens, J., concurring). factors other than bare electoral defeat and consequent disproportionate representation that mdy, in the aggregate, demonstrate a condition of impermissible dilution are those synthesized from earlier supreme court decisions in zimner v. McKeithen, 485 F.2d 11 L297 (5th Cir. L973) (en banc) , aff'd on other grounds sub nom. existence of a East carrorr Parish school Board v. Marsharl, 424 u.s. 636 (le76): "rack of access to the process of slating candidates,the unresponsiveness of legislators to Ithe raciaiminority'sJ particularized interests, a tenuous statepclicy underlying the preference for . at-largedistrictingl .. o the existence of pastdiscrimination in generar precrudtingl the effectiveparticipation in the erection system . . . land suchrenhancing' factors as] Iarge districts, majorityvote requirements, anti-single shot voting provisionland the lack of provision for at-large- landidatesrunning from particular geographicar subaistricts." Id. at 1305 (footnotes omitted). Proof by such means that a discrininatory effect (or disproportionate impact, or dirution of voting potential) exists does not end the inquiry; it is also necessary to establish "that the disputed plan was 'conceived or operated as taI purposeful devicIeJ to further racial . discrimination,r" MobiIe, 446 U.S. at 66 (quoting Whitcomb v. eheyis , 403 U. S. L24, 149 (1971) ) . The 'Zimmer factors" showing the disproportionate impact or effect "may provide an important starting point" for proving by inference the requisite intent to cause or perpetuate it. Mobire, 445 u.s. at 70. But, at reast where the challenged system's existence "is readily explainable on grounds apart from race . , disproportionate impact arone decisive, and courts must look to other evidence to finding of discriminatory purpose." rd. To the extent cannot be xuPport a L2 the Fifth circuitrs opinion in zimmer v.___tlcKeilhen had implied the contrary, it is expressly disapproved in Mgbile. B Applying these principles to the record before usr we find no reversible error in the district "or.a'" rejection on the merits of the congruent fourteenth and fifteenth amendment claims. As indicated, the court addressed both the "effect" and "purpose" erements of these claims and determined that the plaintiffs I proof established neither. Critical to that determination were certain basic and uttimate findings of fact which we review under the clearry erroneous standard, Fed. R. civ. P. 52(a), given speciar color here by the supreme court,s admonition that in vote dilution cases special deference is owed the trial courtrs superior vantage point in making ttte required "intensery locar appraisal of the design and impact" of a chalrenged voting system. white v. Reqester , 4L2 u.s. 75s, .769 (1973). Applying that standard of reviewr rd€ conclude that the courtrs dispositive fact findings against the plaintiffs on both the "effect" and I'purpose" elements are not clearly erroneous and support the legar conclusions that the claims vrere not established. take these in turn. (r) The "Zimmer criteria" for assessing a racially discriminatory. effect simpry recognize two essential means by which any identifiable minority group's votes can be effectively 13 diluted. The first and most obvious are formar rures and practices integral to an electorar system that inescapabry prevent "effective participation" by the minority in the total Process by which elections and referenda are conducted. These range from such direct impediments as porr taxes, literacy requirementsr candidate qualifications and the Iike to more indirect technicar forms such as majority voting and anti-single shot provisions, pdrty primaries, and the like. obviously these in sufficient combination can operate directly to "submerge', the minority in a raciarry porarized voting constituencyi to "minimize or cancel out its voting potentiali " to affect adversely its "political strength. " See, 8.9. r White v. Reqester, 4L2 U.S. 755 (1973). Even where technical impediments of this kind do not exist in sufficient combination to dirute a minority,s voting potential, there may yet exist more subtle impediments traceable to the combined effects of an at-large erectorar system interacting with various forces of continuing social and economic disadvantage, also chargeable to the state, that have this effect. Direct evidence of these subtleties is not Iikely to be availabre, and the only evidence of their existence and impact may lie in the circumstance that the officials in power are demonstrably "unresponsive,, in either an absorute or relative sense to the needs and interests of the minority. Such a lack of resPonsiveness may raise the fair inference that I ; : i 14 within the total social, economic and political context in which the electoral system operatesr its practical effect has been to cancel out that residual political strength based uPon the continuing threat of reprisal at the polls that -is normally possessed even by currently outnumbered interest grouPs in the voting constituency. See Nevett v. Sides, 57L F.2d 209, 223 (5th Cir. 1978), cert. denied, 446 U.S. 95I (1980). In its general assessment of the evidence of effect under these Zimmer criteria, the district court recognized that there was some evidence supporting the plaintiffs' claim that dilution by some means had been shown. As the court observed, the black minority in Columbia still exPeriences the legacy of many years of de facto and de iure racial segregation, though its more overt forms in public education, transportation and accommodations, and, to some extent, in employment, have now been substantially eradicated under compulsion of law. Vestiges remain in many forms of continuing social and economic disadvantage and in racially identifiable residential areas. These indisputable facts the court perforce foundr dlong with the bald fact that within living memory no black Person had been elected to the City Council. Within the Zimmer analysis, these facts either conceded or indisputably shown demonstrate a history of racial discrimination whose continuing practical effects aside from any effects traceable directly to the at- large voting dystem itself - may be assumed still to inhibit to 15 some extent "effective participation in the erection system,, by the black minority. Zimmer v. McKeithen , 4g5 F.2d at 1305. rn the zimmer equation these facts militate in favor of the plaintiffs' claims of a discrininatory effect traceable to the challenged system, and the district court so credited tr,.rn.r/ Nevertheress, the court was arso entitled to reject as vote. dilution per se the at-large feature itselfr Mobi1e, 446 U.S. at 66, as werl as the urtimate consequences arguably traceabre to the at-large system of consistent electoral defeat and consequent disproportionate representation of the black minority in the municipal government of Columbia, id. at 75,76. Furthermor€r the court properly weighed against the craim of discriminatory effect the fact that there no longer exists any of the technical regal impediments to voting of the kind that have weighed heaviry in favor of dirution craims in other cases. Though concededly of recent origin and rargely the resurt of direct or indirect legal compulsion, there is at present, under controlling state raw, no poll tax, no prohibition against single-shot voting, no riteracy testr rro impediment to joining 5 Though the Mobile prurarity expressed seriousreservations ab,out the EfFEn"" -ina lrobative force of such"histor icar and social - i""tor_"_, in proving a vote dilutionclaimr Mobile-, - 446 u- s. at 75 & n.'i2 (,,gauzy sociorogicalconsiderEEi-s have nt- ctnstitutionai-u."is,), we assume theircontinued rerevance in view of the Mgbile couri," -."""ptance neverrheress of the continued vilirilffiwi'ili'"] Resesrer,whereintheirre1evancewasaSsumedanduii"uffikfectedthe decision. see- PP*,- tes-y_..q. ar G9; "L" also I,odge v. Buxton,G39 F.2d 1358; T3Eirbr- t5th cir. 196.I:) . s4ev ryur{E 15 political parties or participating in their activities, no primary and no requirement for party affiriation or other barrier to candidacy. Cf. White v. Reqester, -4],2 U.S. 755 . (1973); Lodqe v. Buxton, 639 F.2d 135g, L377_7g (5th cir. 1gg1). Neither was there any evidence of practical impediments to voting in the form of veiled coercion chargeable directly or indirectly to the state. Cf. id.639 F.2d at l3gI (,,symbiotic relationship,' between private and public sector). Though most assuredly excluded in the past from effective participation in the electoral process by both ruthlessly direct and more indirect forms of state action, blacks do now freely run for city offices and are registered and vote without hindrance in Proportions comparable to whites in the city constituency. Recent voting Patterns do not reveal even substantially total raciar porarization in candidate choice, though preferences on racial lines do obviously exist, as reflected in the 197g voting anarysis earrier mentioned. Based upon these evidentiary facts, the district court found that ',It]he election process for the city council in columbia is the most open and accessible that can be imagined. " Though there may be some erement of hyperbole in this finding, its essence - that no state inposed impediments, either legal or practicarr to candidacies or to actuar voting noh, exist is unassailabre as an ultimate finding of fact on the record before us. L7 Turning to the question whether despite this rack of technical impediments to effective participation, there night nevertheless be more subtle forms reflected in a lack of resPonsiveness on the part of city officials to the black minorilyrs "needs and interestsr" the court found as an ultimaEe fact that "It]he city government has been responsive to the 9/needs of the black community. o- support for this urtimate finding $ras found in employment figures showing substantial black emproyment in city jobs, in significant though concededry not ProPortional black representation in appointive offices and supervisory positions, in the heavy allocation of federal block grant development funds to the brack community, and in the substantially equar provision of essential services and improvements to black residential neighborhoods. The plaintiffs vigorously chalrenge the validity of this ultimate finding of fact. specificalry they question the district court's basic finding that blacks had been appointed "to almost all city boards and commissionsr'and they point to the fact that though overarr public employment of bracks was proportionately high 43t against a generar popuration Percentage of 358 it is concentrated in the most menial, lower paid city jobs. Their own evidence they say concrusively 6 rh" actuar issue within the lrruner. anarysis was of course whether the city government was "uffinsiver" an issue as towhich plaintiffs had the burden of proof. obviously, thecourt's finding of "responsiveness" constitutes a finding of "not unresponsive" on the issue properly cast. 18 shows that, contrary to the court's findingr city officials have been unresponsive to the black minority's needs and interests. We disagree with plaintiffs' contentions respecting the proof on this issue. Responsiveness in this sense must of necessity be measured only in terms of thq effective powers had by the governmental unit involved here minority emPloyment, minority representation in appointive offices, and the provision of essential governmental services to minority groups and individuals. But cf. Mobile, 446 U.S. at 73 (slight relevance of employment and services data as evidence of purposeful vote dilution). Assessing the evidence in these terms and considering that the burden of proof -Iay with the plaintiffs to prove unresponsiveness as an element of their dilution claim and not upon the defendants to prove resPonsiveness by way of rebuttal or avoidance, gg. Jones v. Pitt Countv Board of Education, 528 F.2d 4L4, 4L7 (4th Cir. L975) , $re cannot declare the district court's finding against the Plaintiffs on this issue to be cldarly erroneous. In terms of government employment, the city's proof that 43t of city emPloyees were black against their overall population percentage of 35t was countered only by plaintiffs' proof that black employment was largely concentrated in lower payingr rnor€ menial jobs. In terms of black rePresentation in appointive positions, the plaintiffs' evidence that no blacks had been appointed to some eighteen boards, commissions and 19 committees of varying degrees of importance was countered by the cityrs proof that 35 blacks did currentry serve on Lz such bodies having a total membership of LSl, including one as Chairman of the City Board of Adjustmentr dnd that 2 blacks currently served as city judges, 2 as city clerks, and several as supervi.sors and heads of divisions in city government. rn terms of the provision of essentiar government services, the city's proof that the overwherming bulk of federal brock grant funds for community deveropment recentry available to the city had been appried to benefit members of the brack.community, and that practically a1l streets in the city, in both black and white residential neighborhoods, had now been paved, was opposed by evidence that one of the consequences of the city, s redevel0pment efforts was disl0cation of members of the black minority for whose benefit it was ostensibly intended, and by the general testimony of individual "ritr,""=""2/ that the 7 ou, characterization of this particular evidence as"general" is done advisedry una -fo- "rphasize its probativeweakness. plaintiffs reryr per their reftrencei in u.ief, uponthe testimony of two no'n-expert witnesses to support theircontention oi this poinc. we have carefurry reviewed thattestimony. rt consisis essentiarry ir' impressionistic obser-vations, unsupported by any technicar {ata an_d preponderaterynonspecific as to timl u;q .;aa;r;- about the provision ofessential governmentar services -; nu"ing, police protection,sewage, housing to a rimited nrrnu"i-oi Siadr;;J *f,it. neigh-borhoods in and contiguous'to columbia. without questioning thecredibirity of these iitnesses or the essentiar atcuracy of thegeneral observations elicited fiom it.*, the testimony simplylacks probative force ueciuse or its nonspecificity and rimitednature where :g"gificity and c_ompr"t"n"ireness are both possibreand criticar to fair ritt:ilnal;?;'c.E':',' e.-q. , @,(continued on ffi 20 provision of governmental services in black neighborhoods had lagged behind similar services in white neighborhoods. On total balance this evidence might be taken'- if assessed most favorably to plaintiffs to establish that the legitimate aspirations of black citizens in Columbia regarding fair public employment by the city and fair representaticin on its appointive boards and commissions have not yet been fulIy rearized, and that the equal provision of essential governmental services has 9/only been tardiry and not yet perfectly achieved.- But even so assessed it cannot be taken to establish a degree of unresponsiveness to the needs and interests of the black minority so palpable that it compels - or even fairry supports - an inference that the minority's 'voting potentiar" has been so effectively "cancelled out" that its residual "politicar strength" is presently being disregarded with confident impunity by the city's governing body. Thisr w€ believe, is what is contemprated by the concept of "unresponsiveness,, as evidence (fn. 7 continued) 639 F.2d at L377 & n.37 (specific evidence of current state of {9ad improvements). Whether or not, as plaintiffs suggest, thedistrict court actually "disregarded" this evidencer w€ aresatisfied that it was properly discounted in assessing whethercurrent unresponsiveness in the provision of services was shown. 8 ,h" Mobile plurality opinion suggests that while evidenceof discr imIIEI-on- in employment and - lhe provision of public services might weIl support other constitutional and stafutoryclaims, it " is relevant only as the most tenuous andcircumstantial evidence of the constitutional invalidity of t,heelectoral system under which Ithe responsible ofiicials]attained their offices." I'tobiIe,44G U.S. at 73-74. 2L of , or indeed as the essence of ,2/ vote dilution by means more subtle than the direct or indirect denial of formal access to the ballot or the voting booth. certainry, assessing the rerevant evidence under the crearly erroneous standard, and considering that the burden of proof on the issue ray with plaintiffsr w€ are not "reft with the definite and firm conviction that a mistake has been committedr" United States v. United States Gvpsum Co., 333 U.S. 364, 395 (194g), in the district court's finding on this urtimate issue of fact. (2) Even vrere the district court's finding of no discriminatory effect clearly erroneous, its rejection of the fourteenth and fifteenth amendment claims must still stand, for its further finding that no racially discriminatory purpose had been shown is unassailable under MobiIe. As Iuobile has now establisheo, in assessing attempted proof of discriminatory purpose in vote dirution cases where ,'the character of a law is readily explainable on grounds apart from race . , disproportionate impact alone cannot be decisive, and courts must rook to other evidence to support a finding of 9 rh. Fif th circuit has now held that ,,unresponsiveness,, isan essentiar element of a prima facie case of vote dirutiorunder the fourteenth and f if [6nEh Eiil'fr-dments. Lodqe v. Buxton, of vote dilution 639E.2dat1375.-we'arepreparedtosayananeffi[ where no direct denial of voting righls can be shown,-there -.vourd seem no _r_emaining hray to prove that a racialryJiscriminatory effect chargeable to the state neverthelesiexists than by this means. 22 discriminatory purpose. " It{obiIe, 446 U.S. at 70. Here, the plaintiffs' evidence as to both effect and purpose was essentially confined to establishing a sufficient---aggregate of Ehe Zimmer factors, on the apparent perception that by this means alone a discriminatory effect would be directly proven and a discriminatory purpose might rationally be inferred. Even had this evidence sufficed to prove the requisite effect, this would have constituted, under Mobile, merely "an important starting pointr" id., and not a sufficient means standing alone for proving purpose behind effect. It is inescapable that here both the initiation and the maintenance of the at-large voting system are readily "explainable on grounds apart from. race. " The district court found as fact that the at-large system was adopted in 1910 because of "abuses of the ward system" that it replaced and that "race was not a consideration" because at the time "few, if any, blacks vrere voting in city elections. " These findings are amply supported by contemporaneous documents introduced into evidence by the defendants, and are generally confirmed by the Mobile Courtrs intervening observation that at-large systems have come to be the norm in municipal government, reflecting a general consensus that they are less subject to corruption than are ward systems. See id. at 60 & rt.l, 5l.at 70 & n.I5. Faced therefore with the necessity of producing "ot,her evidence" than the Zimmer factors alone, id. at 70, the plaintiffs, attempt to prove 23 discriminatory purpose simpry fails under Mobile - indeed farrs far short of that which the Mobile court found racking on the record in that case . See f.d . at 97 _gg (Whi te , il . 1L9/dissenting).- rn assessing the evidence of discriminatory purpose in the instant case, the district court of course did not have Mobile for instruction, but it found as fact, relying upon pre_Mobile authority later relied upon by the Mobile cour rY that a; large system had not been ,,maintained or operatedr dt any time since its adoption to promote raciarly discriminatory purposes.,, That findingr o'the record before the district court, was not clearly erroneous under Mobile. Though the plaintiffs seek on appeal to avoid this emphasis on in obvious consequence of Mobilg's. substantive and procedural the purpose element ,9/ they contend alternatively, 10 a"id" from the fairure of plaintiff,s proof there is ofcourse defendants' countering ""ia"n." that tt.- current citycouncil has recently proposed a revisi& of the at_Grge systemspecificarry to insufe 6tact< r"pr.""niation. - whil" obviouslynot conclusive uPon the issue of- it"-p"""ible racial motivation i3"r'r11'lriii.rtnt the .t irr"',e"a- "vJi"*, it ."riii'ry bears 11 court ar@v Ls 7 I ),'; ; i . - -*t,.".;- -i n offi o il " I' il titf Jrt"t t ri i a ;circui t-E'Ia I&-ttrat pu-rposef uI di"".imination was requiredunder the relevant Supre-me Court decisions. L2 rn addition to challenging directly the district court,sEindings and conclusions assuming.Mobile applies, the plaintiffs (Continued on next page) 24 recognition of the difficulty they face, that the emphasis in I'lobiIe was in critical respects so unexpected and unforeseeable that, dt the least, a remand should be ordered to a-l}ow them to attempt to perfect their proof in Mobilers light. For reasons that followr w€ reject that suggestion. First oft, though it is obvious that the Mobilq Court was itself sharply divided on the full implications of earlier decisions concerning the purpose element in vote dilution cases, a substantial majority of the Court agreed that those decisions established discriminatory purpose as an essential element in both Equal Protection and fifteenth amendment claims of vote L]/denial or dilution. Other federal courts had also expressly (fn. L2 continued) also suggest that contention is that form of government electoral'svstem. l'lobi le rs arguably aPPly. it does not apply to this case. The Ir{obile applies only to attacks upon an entire and not to an attackr ;ts here, only upon an In the latter type situation, it is urged, more stringent proof requirements do not We reject this contention. It is based upon a passing characterization in the Mopi_]-g. plurality opinion of the action according to the remedy gGnEV the district court, 446 U.S. at 70, and we ascribe to it no such substantive implication asplaintiffs urge. Justice Blackmun, indeed, thought the remedy given so much wider than the actual issue presented, that on this basis alone he thought remand required. Id. at 80. The MobiIe Court's intro<luctory statement of thE issue therepresented identifies the claim as one identical to that presented in the instant case: "The question . is whether this at-large system of municipal elections violates r ights in contravention of federal statutory or constitutional law." Id. at 58. The decision in l4obiIe clearly controls the decision E-ere 13 s". note 4 supra. 25 recognized this at the time the instant action was tried, gslq, e.9., Nevett v. sides,57L F.2d 209, 2Lg-2L (5th cir. 197g), cert. denied, 446 U.S. 951 (I980); and in this very caser Els earlier indicated, the district court assumedr on the basis of existing authority and without discussion, that this hras established constitutional raw. we cannot therefore accept plaintiffs' suggestion that they could not fairly be charged with the perception that discriminatory purpose was an essential element of these claims when they were litigated in district cour t. Much less crear is the extent to which pre-llqbile decisions had presaged the limitation on proof of purpose imposed by the Mobile plurality: that where a challenged system is "exprainabre on grounds other than rErc€7,r discriminatory purpose cannot be inferred from discriminatory effect standing alone, but that xother evidencer" independent of effect, is required. This question, for example, divided the ttobile majority, incruding the plurality, that was agreed (or wirring to assume) that purpose was an essential substantive erement. The plurality and perhaps onry the plurarity believed that the Court was not already committed by those earlier decisions to the proposition that purpose might be inferred sorery from Proven effect. other members of the court flatly disagreed. Assuming from this division within the Mobile Court that there $ras sufficient uncertainty on the point to warrant our 26 oo Proof that the at-rarge voting system nas adopted in lgro at Ieast in part for the specific purpose of excluding blacks from effective participation in the electoral process. Reserving the question of the probative force or relevance of the specific evidence which the plaintiffs suggest is available to them on this issue ,L!', there is a fatal flaw in the premise upon which they rest the contention that fairness compers remand. They say that this type of direct evidence of Purpose was of doubtful admissibirity prior to Mobile; that the only clearly admissible evidence at that time $ras evidence of effect, from which purpose could be inferred. This contention is simply without merit. Neither general principles of procedure or evidence, nor logic, nor anything said in the rerevant pre-MobiIe decisions of the supreme court supports it. At most, as earlier noted, pre-Mobile cases may have suggested that proof of effect could alone suffice to prove purposei none suggests that only in this way could it be proven. when, upon trial of the instant case, the city introduced contemporaneous documents tending to show that the essential purpose of adopting the system in 1910 was to root out revealed abuses of the ward system, it clearly ray with the plaintiffs to counter that proof with the kind of evidence that they suggest 14 Evidence of past acts of official discrimination wassaid by the Mobile prurality to be "of limited herp,, inresorving questions of present official motivation. 446 u.s. at74. 28 should now be considered for the f irst time. Indee.d, not only right but common prudence dictated the effort at that point. on this basis plaintiffs have failed to ddinonstrate any basis for the relief they seek through remand. III Although plaintiffsr amended complaint clearly retained the alleqation that Columbia's at-large election system violated 42 U.S.C. SS 1971 and 1973, the district court held that these statutory craims had been abandoned. on appear, plaintiffs pursue these claims, denying their abandonrnent, and argue that Congress intended that proof of impact alone is sufficient to show a violation of SS l97t and 1973. Assuming without deciding that the craims were not abandoned during trial and that there is a private right of action under SS I97l and 1923, E Mobile, 446 U.S. at 50 e n.g; Brooks v. Nacrelli, 331 F. Supp. 1350, 1352 (E.D. pa. 197l), aff'd, 473 F-2d 955 (3d cir. 1973), we concrude thatr ds a matter of Iaw, praintiffs may not succeed on either crainr so that remand for their consideration by the district court would O-. unavailing. Section ]-97L (a) (1) provides that " [a] lI citizens of the united states who are otherwise qualified by law to vote . . shall be entitled and allowed to vote at all . . . elections, without distinction of race, coror t et previous condition of servitude . .,' plaintiffs cite no authority for the 29 Proposition that the prohibitions of S 1971 encompass practices which have only an indirect effect on the worth of a citizenrs vote in addition to those which directly affect the ability to cast a vote. We find nothing in the language of S I971(a) or in the more expansive language of s 1g71 (e) (,the word ,vote, includes all action necessary to make a vote effective,,) that support it. we accordingly conclude that the arregations of voting dilution from the at-large erection system in corumbia are not cognizable under 42 V.S.C. S 1971. See United States v. ururd. con"olid.t"d rnd"o"nd"nt s"hool Di"tri.t , 46L F. supp. LL7, 119-20 (w-D. Tex r97g), rev'd on other qrounds , 6zs F.2d 547 (5Eh Cir. 1980), cert. denied, _ U.S. (198I). Section L973 provides that "In]o voting qualification or prerequisite to voting t oE standardr prdctice, or procedure shall be imposed or appried by any state . to deny or abridge the right to vote on account of race or color., This section concededly appears on its face to be broader than s 197f id' at L2o, and praintiffs argue not onry that it encompasses a voting dilution claim such as this one but that the standard intended by congress is proof only of a diluting effectr Dot the more stringent one of effect and invidious Purpose. we think this interpretation is precluded by Mobire. Arthough the prurari ty opinion in tr{obi re sought to rimi t the 30 proscriptions of the fifteenth amendment and its embodiment in S 1973 to direct infringements of the right to voter 445 U.S. at 60-55, the rest of the Court did not concur in thig.linitation. See United States v. Uvalde Consolidated Independent Schoo1 District, 625 T.2d at 551-52. Assuming therefore, without deciding, that vote dilution claims of this tyPe are cognizable under S I973r w€ proceed on the assumption that a majority of the Supreme Court in Uobile rejected the contention that such a claim can be established by proof alone of a disproportionate Dt'impact.- Pending a definitive ruling by the Court on this question, we consider ourselves bound by this apparent view of a majority of the Mobile Court. Accord, Lodqe v. Buxton, 53g F.2d at 1354 a n.11. On this basis, even had discriminatory effect been established here, we would nevertheless have been forced to hold as we do that the claim fails for lack of proof of discr iminatory purPose. 15 Admittedty, only the four members of the plurality can be counted f irmly in such a supposed majority. See lutobile, 446 U.S. at 60-65. Only two other Justices directly addressed the statutory question. These were dissenting Justices Brennan and Marshall, whose view that the fifteenth amendment includes no purpose requirement seems necessarily to Put them in conflict with the plurality on this aspect of the congruent statutory claim. Of the remaining three Justices who did not address the statutory claim, the best estimate would apPear to be that at Ieast Justice White agreed t,hat the statute also required proof of Purpose. If it did not, this would have provided a further basis, and an even stronger one, for his disagreement with the r esult . 31 IV The plaintiffs also press on appear their craims that the at-Iarge election system violates their first and thirteenth amendment rights. we hord that to the extent either of these amendments protects the voting rights here asserted - a question we do not decide their protections do not in any event extend beyond those more directly, and perhaps onry, provided by the fourteenth and fifteenth amendments. while congress nay arguabry have some discretion in determining what kind of protective regisration to enact pursuant to the thirteenth amendment, it, appears that the amendment's independent scope is limited to the eradication of the incidents or badges of slavery and does not reach other acts of discrimination. See The Civi1 Riqhts Cases, I09 U.S. 3, 23_ 25 (1883). In the realm of votingr w€ think the thirteenth amendment offers no protections not already provided under the fourteenth or fifteenth amendments. rn support of their first amendment craim, plaintiffs argue that rerectoral victory is at the very core of the [democratic] processr oDd that "[g]iven the courtrs steadfast protection of more incidental poritical rights under the First Amendment, it would surely be strange if the right to win elected office were not equally protected from undue infringement." we reject this proposition in the form Put. The first amendment's protection of the freedom of association and of the rights to run for 32 office, have one's name on the baI1ot, and present one,s views to the electorate do not also include entitlement to success in those endeavors. The carefully guarded right to expression does not carry with it any right to be listened to, believed or supported in one's views. wherer ES here, the onry charlenged governmental act is the continued use of an at-Iarge erection systernr and where there is no device in use that directly inhibits parti.cipation in the political process, the f irst amendment, like the thirteenth, offers no protection of voting rights beyond that afforded by the fourteenth or fifteenth amendments. V one finar issue requires attention. plaintiffs sought at the outset to have this action certified as a class action under Fed. R. Civ. P. 23(u) and (b) (2), with a plaintiff class made up of arI black citizens of the city of corumbia. rn a pre-triar order the district court denied class certification on the basis that certification would serve no practical benefit to black citizens , for all would be equalry affected by any action of the court. Subsequently, however, in conjunction with entry of its finar judgment dismissing the action on the merits, the district court reversed its earlier order and certified the action as a crass action with a praintiff crass composed of arr black citizen residents of Columbia. 33 Plaintiffs challenge this ruring and contend that, regardless of the disposition of the appeal in other respects, this berated class certification must be set aside,. we agree. The effect of this ruling, if allowed to stand, would be to make the finar judgment on the merits binding upon members of the belatedly certified class as well as the individual plaintiffs, Restatement (Second) of Judqments S g5 (I) (e) , (21 (19g0) , though the former had not been parties to, nor persons otherwise subject to being bound by, the action at any time prior to entry of the adverse judgment. rd. Aside from the serious constitutional due process questions thereby raised, see Hansberrv v. Lee, 3lI U.S. 32 (1940), this ruling cannot stand as an appropriate exercise of trial court oiscretion. rt constitutes at least an abuse of oiscretion in application of the class action rules and must on that basis alone be reversed. whatever the power of courts to certify class actions after judgment on the merits favorinq a crass, compare peritz v. Libertv Loan corp. , 523 F.2d 34g (7th cir. 1975) (impermissible), with, e.q., 1364 (6th Cir. t977) (permissible), there can be no comparable power to certify a class action only after, or contemporaneously with, judgment on the merits against a crass at least where, as here, there has been no notice to the putative class members IntrI Assrn of hinists & Aerospace Workers, AFL-CIO, 565 F.2d 34 r.rith consequent opportunity to be heard on the certification question, and possibly not even under those circumstances. The bald power conferred in Fed. R. Civ. P. _23 (c) (I) to alter or amend an earlier certification ruling "before the decision on the merits" (emphasis added) obviously cannot be drawn upon as a source of povrer for this ruling. The district courtrs announced perception when it denied certification before trial that "no practical benefit would be served by certifying a class, since all citizens of Columbia would be affected equally by any action of the court' was in accord with circuit precedent, see Sandford v. R. L. Coleman Rea1tv Co. , 5'13 f .2d L73 (4t.h Cir. 1978), but it simply recognizes that so far as the interests of the putative class members in this type 23 (b) (2) class action seeking only injunctive relief are concerned, non- certification as a class action is likely to be of no practical consequence. If judgment on the merits goes for the individual plaintiffs, the members of the putative class wiIl be fully benefitted by it in practical, if not technically IegaI, termsi if judgment goes against the individual plaintiffs, the members of the putative class will not be legaIly bound by it. Obviously, however, the same irrelevance of consequences does not attend a subsequent determination to certify the class and thus bind it to an unfavorable judgment. ! However fictive may be the assumption that class members, either actual or putative, actually rely upon judicial rulings 35 that actions potentially affecting their interests may proceed or may not proceed as class actions, it is a necessary assumption recognized in varlous ways in the administration of the class action device. See, e.q., Susman v. Lincoln American Corp., SB7 F.2d 866, 969 (7th Cir. I97g), cert. denied, 445 u.s. g42 (1980). Here the putative class members were entitled to rely upon the district court's pre-trial ruling that the action wourd not proceed as a class action. They are entitled to protection against detrimental reliance on thaL ruling. This requires setting aside the order eertifying the action as a class action. VI The judgment dismissing the individuar claims on the merits affirmed. The order certifying the action as a class action reversed. IT IS SO ORDERED. ls is 36