Escambia County, FL v. McMillan Brief of Appellees

    NO. 82-1295

IN THE

^ufxzmz  Court © f JHmtrfr ^tatrs
OCTOBER TERM, 1983

ESCAMBIA COUNTY, FLORIDA, ET AL.,
Appellants,

HENRY T. MCMILLAN, ET AL.,
Appellees.

ON APPEAL FROM THE UNITED STATES COURT 
OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF APPELLEES

W . Edward St il l  
R eeves and Still  
Suite 400, Commerce Center 
2027 First Avenue. North 
Birmingham, Alabama 35203
Ken t  Spriggs 
Spriggs and H enderson 
117 S. Martin Luther King, 

Jr. BlvdL
Tallahassee, Florida 32301

J ames U. Bi .ack.shkr 
Larry T. M en efee  
B lacksher, M e n efee  & 

St e in , P.A.
405 Van Antwerp Building 
P. O. Box 1051 
Mobile, Alabama 36633
J ack G reenberg  
E ric Schnapper  
N apoleon  B. W illiam s 
Suite 2030 
10 Columbus Circle 
New York. New York 10019
Counsel for Appellees



1

TABLE OF CONTENTS

Page
Table of Authorities_______________________________  iii

JURISDICTION _________________________________  1

STATEMENT OF THE CASE ____________________  2

SUMMARY OF ARGUMENT _____________________  4

ARGUMENT
I. The Appeal Should Be Dismissed For

Want of Jurisdiction_________________________  8

II. The Judgment Below, Grounded on the
Fourteenth Amendment, Should Be Affirmed,
Because the Trial Court’s Factual Findings 
of Racial Motives Behind the Appellants’
Decision to Retain the At-Large Scheme
Are Not Clearly Erroneous ___________________  10

III. The District Court’s Findings Provide Addi­
tional Constitutional Grounds for Affirming 
the Judgment of the Court of Appeals___________  26

A. The Judgment Below May Be Affirmed
Under the Fifteenth Amendment, Because 
the At-Large Scheme Was Adopted Through 
a Referendum Election in Which Black 
Citizens Were Denied the Right to Vote____  27

B. The Judgment Below May Be Affirmed 
Under the Fourteenth Amendment,
Because For Plalf a Century the At-Large 
Election Was Part of the State’s Design to 
Exclude Blacks From the Political Process__  29

C. Considering Only Objective Factors, the 
District Court’s Findings Support Its 
Conclusion that the At-Large Election 
System Purposefully Dilutes Blacks’
Voting Strength________________________  31



11

Page
IV. Because the Proper Legislative Authority 

Rejected a Proposed Constitutional Remedy, 
the District Court was Correct to Order Its 
Own Districting Plan ________________________  37

A. The Escambia County Commission Lacks 
the Power to Change Its Method of
Election ______________________________  38

B. The Courts Below Properly Applied
Wise v. Lipscomb _______________________  40

C. McDaniel v. Sanchez Has Not Overruled
Wise v. Lipscomb ___ :__________________  42

CONCLUSION _______ :_____ __  ____________ _____  43

APPENDIX A ______  A-l

APPENDIX B ____________________________________ A-2

A-4

TABLE OF CONTENTS -  (Continued)

APPENDIX C ...



Ill

TABLE OF AUTHORITIES
Cases Page(s)
Alabama v. United States,

304 F.2d 583 (5th Cir. 1962) ---- ,----------- -..............  27, 28.
Augustus v. Board of Public Instruction of Escambia

County, 306 F.2d 862 (5th Cir. 1962) ........ ...... - .............  30
Baker v. Carr, 369 U.S. 186 (1962) -...........- ......-....... - .... 34
Bell v. Hood, 327 U.S. 678 (1946) ---------- ------- ------------ 28
Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967) ........-.... 27, 28

Bishop v. Wood, 426 U.S. 341 -------------------------  39
Bolden v. City of Mobile, 423 F.Supp. 384 (S.D. Ala.

1976), affd,  571 F.2d 238 (5th Cir. 1978), rev’d and 
remanded, 446 U.S. 55 (1980), on remand,
542 F.Supp. 1050 (S.D. Ala. 1982) ----- -:....... ........... . I6> 27

Bradley v. Richmond School Bd., 416 U.S. 656 (1976) -----  9

Brown v. Thompson, 103 S.Ct. 2690 (1983) — -------- ---35, 36

City of Mobile v. Bolden, 446 U.S. 55 (1980) .........  20, 27, 35

Cort v. Ash, 422 U.S. 66 (1960) ............ .............  —- 9
Cross v. Baxter, 103 S.Ct. 1515 (1983) ----------- ---- 9

Davis v. State ex rel. Cromwell,
156 Fla. 181, 23 So.2d 85 (1945) ...............  .......... ----- 30

East Carroll Parish School Bd. v. Marshall,
424 U.S. 636 (1976) ...._______ _-----------------------------  35

Eastland v. TV A, 704 F.2d 613 (11th Cir. 1983) ------------  15
Ervin v. Richardson, 70 So.2d 585 (Fla. 1954) —--------23, 30

Escambia County v. McMillan,
52 U.S.L.W. 3246 (Oct. 4, 1983) ................. ........ .........4, 37

Escambia County v. McMillan,
103 S.Ct. 1766 (1983) __________ _—..

Gaffney v. Cummings, 412 U.S. 735 (1973)



TABLE OF AUTHORITIES -  (Continued)
Cases Page(s)
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ______ .__ ... 28
Green v. County School Bd. (New Kent County),

391 U.S. 430 (1968) ..._____________ ____________ 30
Gregg v. Georgia, 428 U.S. 227 (1976) ________________ 15
Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966) ______  27
Hutto v. Finney, 437 U.S. 678 (1978) ____...____________ 9
Jenkins v. City of Pensacola, 638 F.2d 1249 (5th 

Cir. 1981), appeal and cert. pet. dismissed,
453 U.S. 946 (1981) ______________________________ 2

Karcher v. Daggett, 103 S.Ct. 2653 (1983) ________ 34, 36, 37
Keyes v. School Dist. No. 1, 413 U.S. 189 (1983) ________  30
Kirksey v. Board of Supenisors of Hinds County,

554 F.2d 139 (5th Cir.) (en banc),
cert, denied, 434 U.S. 968 (1977) ___________ ____...__  30

Lockiuood v. Jefferson Area Teachers’ Ass’n,
103 S.Ct. 27 (1983) ______________________________  9

Lucas v. Forty-fourth General Ass’y of Colo., ^
377 U.S. 713 (1964) ______________________________ 14

MacGregor v. State Mutual Life Assurance Co.,
315 U.S. 280 (1942) _____________    39

McDaniel v. Sanchez, 452 U.S. 130 (1981) __ __________8,42
McGill v. Gadsden County Commission,

535 F.2d 277 (5th Cir. 1976) ______________ .............21, 27
McMillan v. Escambia County,

638 F.2d 1239 (5th Cir. 1981) __ ___________________  2

McMillan v. Escambia County,
559 F.Supp. 720 (N.D. Fla. 1983) ______________.,____ 7

Major v. Treen, __  F.Supp. __  (E.D. La.,
Sept. 23, 1983) (3-judge court) ________...._________  16

Milliken v. Bradley, 433 U.S. 267 (1977) ______________  28

iv



V

Cases Page(s)
Perry Education Ass’n v. Perry Local Educators’

Ass’n, 103 S.Ct. 948 (1983) .... ......................... ....... .... -...8,9
Propper v. Clark, 337 U.S. 472 (1949) .... -J_4_...............  39
Pullman Standard v. Swint, 102 S.Ct. 1781 (1982) --------5, 11
Regents of the University of Cal. v. Bakke,

438 U.S. 255 (1978) _____________ U.----------- --------  36
Reynolds v. Sims, 377 U.S. 533 (1964) -----  - . 34,36,41
Rogers v. Lodge. 102 S.Ct. 3272 (1982)      3, 5, 10, 11, 19,

20, 22, 31-35
Sims v. Amos, 365 F.Supp. 215 (M.D. Ala. 1973)

(3-judge court), aff’d sub nom., Wallace v.
Sims, 415 U.S. 902 (1974) ____________ ____________  38

Swann v. Charlotte-Mecklenburg Bd. of
Education, 402 U.S. 1 (1971) ------- ------ --------------- 28, 30

Toney v. White, 348 F.Supp. 188 (M.D. La. 1972),
„ aff’d in part and rev’d in part, 476 F.2d 203, 

mod. on. rehearing, 488 F.2d 310 (5th Cir.
1973) (en banc) .....----------- --------------- .....--------------- 28

United States v. Durham Lumber Co.,
363 U.S. 522 (1960) _____________________________  39

United States v. Schooner Peggy,
5 U.S. (1 Cranch) 1032 (1801) ____ ____ ____________  9

Village of Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252 (1977) -----------------5, 11

Washington v. Davis, 426 U.S. 229 (1976) -------------------  15
White v. Regester, 412 U.S. 755 (1973) _______ ___— 31, 33
Wise v. Lipscomb, 437 U.S. 535 (1978) ...........2, 3, 7, 8, 38-41

CONSTITUTIONAL AND STATUTORY 
PROVISIONS:
Constitution of the United States

Amendment XIV ..... ...... ...... ...... 1-------------------- 2, passim
Amendment XV -------------------- -------- ----- ---------passim

28 U.S.C. §1254(2) ......... - ---- ----------------------- -----1,4, 8, 9

TABLE OF AUTHORITIES -  (Continued)



VI

TABLE OF AUTHORITIES -  (Continued)
Constitutional and Statutory Provisions Page(s)
Voting Rights Act of 1965

Section 2, 42 U.S.C. §1973 ____ ____________________ 2, 9
Section 3, 42 U.S.C. §1973a ________________-..-A , 38
Section 5, 42 U.S.C. §1973c ............ ..... —-------------------  42

Constitution of Florida
Article VIII, §1 (e) ______________________ —-2, 8, 38, 39
Florida Statutes §124.01 --------------------------------------— 39
1907 Florida Laws, Ch. 5697, §1 ___________________  29

Senate Report No. 97-417, 97th Cong.,
2d Sess. 1982   ___________________________-—  9

MISCELLANEOUS:
A. Bickel, The Morality of Consent (1975) ----------------- 36
Blacksher and Menefee, “From Reynolds v. Sims to 

City of Mobile v. Bolden: Have the White 
Suburbs Commandeered the Fifteenth Amendment?”
34 Hastings L.J. 1 (1982) ------------------- -----------------  35

Derfner, “Racial Discrimination and the Right to 
Vote,” 26 Vand.L.Rev. 523 (1973) ,_________ _______ 34

Fisher, “Multiple Regression in Legal Proceedings,”
80 Colum.L.Rev. 702 (1980) _________ __________ . -  15

Hartman, “Racial Vote Dilution and Separation of 
Powers: An Exploration of the Conflict Between 
the Judicial ‘Intent’ and the Legislative ‘Results’
Standards,” 50 Geo.Wash.L.Rev. 689 (1982) _________  31

O’Rourke, “Constitutional and Statutory Challenges 
to Local At-Large Elections,”
17 U.Rich.L.Rev. 39 (1982) ______ 1_______________ 33

Parker, “The ‘Results’ Test of Section 2 of the
Voting Rights Act: Abandoning the Intent Standard,”
69 Va.L.Rev. 715 (1983) _____________ - L _ L 2 3 i- _ -  35

Schnapper, “Perpetuation of Past Discrimination,”
96 Harv.L.Rev. 828 (1983) ________L_____________  30

Note: “Making the Violation Fit the Remedy:
The Intent Standard and Equal Protection Law,”
92 Yale L.J. 328 (1983) _____________________ 30



NO. 82-1295

IN THE

Jsmprsmg fflourt ®f 3Ihs Putted
OCTOBER TERM, 1983

ESCAMBIA COUNTY, FLORIDA, ET AL.,
Appellants,

v,

HENRY T. MCMILLAN, ET AL.,
Appellees.

ON APPEAL FROM THE UNITED STATES COURT 
OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF APPELLEES

Appellees Henry T. McMillan, Robert Crane, Charles L. 
Scott, William F. Maxwell, and Clifford Stokes, on behalf of 
themselves and the class of black citizens of Escambia County, 
submit this brief and request the Court to dismiss the appeal 
or to affirm the judgment of the Court of Appeals.

JURISDICTION
This Court does not have jurisdiction over this appeal under 

28 U.S.C. §1254(2), as Appellants assert. No state statute or 
constitutional provision has been invalidated by the judgment 
below. See Argument, infras at p. 8,



2

STATEMENT OF THE CASE
This action by black citizens challenging the at-large system 

for electing county commissioners in Escambia County, Flor­
ida, commenced on March 18, 1977. J.A. 45. Following a nine- 
day nonjury trial, the district court entered an opinion and 
judgment on July 10, 1978, finding that the election scheme 
had been maintained for a racially indivious purpose and that 
it effectively diluted the voting strength of black voters in vio­
lation of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 
§1973, and the fourteenth and fifteenth amendments. J.S. 71a, 
114a.1

Acknowledging the directions in Wise v. Lipscomb, 437 U.S. 
535 (1978), the District Court postponed entry of a remedial 
order to provide the state an opportunity to present a legisla­
tive plan meeting constitutional requirements. J.S. 104-05a.2 
Tire Florida Constitution requires all noncharter counties to 
utilize at-large elections exclusively for their county commis­
sions. Fla. Const. Art. VIII, §1; J.S. 123-24a. The local legis­
lative delegation had already appointed a charter committee

Similar claims against the election systems for the Escambia County 
School Board and the City of Pensacola Council were tried and decided 
at the same time. The district court found racial motives behind all three 
election schemes and concluded that all three were unconstitutional and 
unlawful. J.S. 99a-100a. The City of Pensacola and one member of the 
school board (but not the entire board) appealed with the county com­
missioners to the Court of Appeals. The Court of Appeals affirmed the 
judgments against the city council and school board election structures, 
and both matters are now finally resolved. Jenkins v. City of Pensacola, 
638 F.2d 1249 (5th Cir. 1981), appeal and pet. for cert, dismissed per 
stipulations, 453 U.S. 946 (1981); McMillan v. Escambia County, 638 
F.2d 1239 (5th Cir. 1981).

2The Pensacola City Council, which operates under a home rule 
municipal charter, adopted by ordinance a mixed plan of seven single­
member districts and three at-large seats. Under Wise, the district court 
gave legislative deference to the city council’s plan and ruled that it met 
constitutional standards. Plaintiffs appealed this remedial plan, but the 
Court of Appeals affirmed. See generally, Jenkins v. City of Pensacola, 
supra. There was no legislative proposal for the school board, and a court- 
ordered plan, utilizing single-member districts exclusively, was adopted 
for that body. See McMillan v. Escambia County, supra.



3

and had set in motion the process for a referendum election 
on home rule. J.S. 67a; J.A. 318. The election system in the 
proposed charter called for a seven-member county commission 
with five elected from single-member districts and two elected 
at large. J.S. 67a. In light of Wise v. Lipscomb, the District 
Court gave legislative deference to the charter proposal and 
approved the 5-2 plan as satisfying constitutional requirements. 
J.S. 70a. However, on November 6, 1979, Escambia County’s 
voters defeated the home rule proposal. J.S. 54a. Accordingly, 
on December 3, 1979, the District Court adopted a court- 
ordered election plan consisting of five single-member districts. 
J.S. 59a. Another 5-2 plan advanced by the incumbent county 
commissioners was rejected on the ground that, lacking home 
rule powers, the commission had no authority under Florida 
law to change the constitutionally designated at-large structure. 
J.S. 68a.

On February 19, 1981, the Court of Appeals reversed the 
judgment against the county commission at-large system, hold­
ing that the district judge’s disbelief of the commissioners’ 
“good government” reasons was insufficient to support a find­
ing of racial intent in the absence of other contradictory evi­
dence. J.S. 43a. However, on September 24, 1982, the panel 
granted Plaintiffs’ petition for rehearing and affirmed the Dis­
trict Court’s judgment striking down the at-large county com­
mission election system. J.S. la. In its opinion on rehearing, 
the Court of Appeals acknowledged that the district judge had 
in fact considered a wide range of other historical evidence and 
testimony that supported his finding of invidious intent, and 
that there had been inconsistencies in the commissioners’ non- 
racial explanations. J.S. 13-2la. Obeying the teaching of this 
Court’s intervening decision in Rogers v. Lodge, 102 S.Ct. 3272 
(1982), the Court of Appeals concluded that the District 
Court’s findings of fact were supported by the evidence and 
were not clearly erroneous. J.S. 21-22a. Finally, it affirmed the 
District Court’s remedial rulings as properly applying the prin­
ciples of Wise v. Lipscomb. J.S. 28-29a.



4

On November 30, 1982, the incumbent county commissioners3 
filed a notice of appeal to this Court, citing 28 U.S.C. §1254 (2) . 
J.S. 120-21 a. Probable jurisdiction was noted on April 18, 1983. 
Escambia County v. McMillan, 103 S.Ct. 1766 (1983).

On October 4, 1983, the Court denied Appellants’ petition for 
writ of certiorari to review issues concerning redistricting that 
had arisen on remand and which have not yet been addressed 
by the Court of Appeals. Escambia County v. McMillan, 52 
U.S.L.W. 3246 (Oct. 4, 1983) . These remand issues concern 
primarily preclearance under Section 3 of the Voting Rights 
Act, 42 U.S.C. §1973a, of new district boundaries approved by 
the District Court as a result of the intervening 1980 census.

SUMMARY OF ARGUMENT
The Court does not have jurisdiction over this appeal, be­

cause no state statute has been declared invalid by the Court 
of Appeals. The District Court did enter findings of fact and 
conclusions of law that support its judgment on the alternative 
ground that the state constitutional provision requiring at-large 
elections in noncharter counties is invalid as applied to Escam­
bia County.. But the judgment of the Court of Appeals is 
grounded solely on the District Court’s finding of fact that the 
county commissioners, for racially invidious reasons that violate 
the fourteenth amendment, chose not to adopt an alternative 
single-member district election method that is authorized by 
the Florida Constitution.

If the Court nevertheless considers the appeal as a petition 
for writ of certiorari, the petition should be denied. Because 
the Court of Appeals declined to consider the Voting Rights 
Act claim, reversal of the constitutional ruling striking down 
the at-large plan would, at most, require a remand for consid­

3This appeal was taken by Escambia County, Fla., and the members of 
its Board of County Commissioners. J.S. 120a. The five commissioners 
who were elected November 1, 1983, and who will take office November 
15 are Phil Waltrip, Kenneth Kelson, Willie Junior, Max Dickson, and 
Grady Albritton. The Supervisor of Elections is not a party to. the appeal. 
Appellants’ Brief at 1 n.l.



5

eration of the same facts to determine if there has been a statu­
tory violation. Moreover, the remedy issues presented by the 
Appellants concern only the construction of Florida law. The 
Attorney General of Florida agrees with both lower courts that 
the county commission is barred by state law from changing its 
election system, unless the county adopts home rule. Escambia 
County’s voters defeated the home rule charter presented to 
them during the remedy phase of this case. The Florida Legis­
lature has been asked to address this question, and the Court 
should not inject itself in the state’s deliberations about what 
government body should be given authority to adopt a legisla­
tive remedy for an unconstitutional election system.

If the Court decides to review this case on its merits, the 
judgment of the Court of Appeals should be affirmed. There 
is extensive evidence supporting the District Court’s finding of 
fact that the decision of the incumbent commissioners not to 
give the voters a single-member district option was racially 
motivated. The district judge listened to the in-court testimony 
of the commissioners and found that their nonracial explana­
tions were inconsistent with their current practices and could 
not be believed. The applicable standard of review does not 
permit setting aside this finding unless it is clearly erroneous. 
Rogers v. Lodge, 102 S.Ct. 3272 (1982) ; Pullman Standard v. 
Swint, 102 S.Ct. 1781 (1982). In this case, the District Court 
assessed the Appellants’ motives in light of the criteria for de­
tecting invidious intent set out in Village of Arlington Heights 
v. Metropolitan Housing Development Corp., 429 U.S. 252 
(1977). The District Court also applied the analytical stand­
ards later approved by this Court in Rogers v. Lodge, supra. 
The trial judge made specific findings that the at-large system 
systematically denies black voters in Escambia County an equal 
opportunity to participate in the electoral process. Looking be­
yond this adverse impact, leading up to the incumbent commis­
sioners’ actions he found a century-long historical background 
of official manipulation of the election system for the purpose 
of excluding the electoral choices of black citizens. The official 
policy of Florida during the half a century when the election



6

was determined in the all-white primary favored single-member 
districts. The primaries changed to at-large voting in 1954, after 
this Court struck down the white primary. The District Court’s 
findings, therefore, make this a paradigm of the kind of intense­
ly factual decision that ought not to be disturbed on appeal.

Independent of the appellant commissioners’ racial motives, 
the findings of fact made by the District Court in regard to the 
purposefully discriminatory history of the state law governing 
the county commission election system provide alternative con­
stitutional grounds, not reached by the Court of Appeals, for 
affirming the judgment:

(1) The at-large election requirement for noncharter coun­
ty commissions was adopted in 1901 in violation of the fif­
teenth amendment, because black citizens were officially denied 
the right to vote in the referendum election that approved the 
constitutional amendment.

(2) For'the first half of the twentieth century, Florida op­
erated a “dual” election system, in which white voters were 
allowed to use single-member districts in the all-white Demo­
cratic Primary — the only election that counted, while blacks 
were restricted to voting in the at-large general elections. The 
state officially authorized blacks to vote in the primary in 1945 
and then changed to at-large voting in the primaries in 1954. 
But, the District Court found, polarized racial voting, caused 
in part by past official sanction of the dual election system, con­
tinues systematically to defeat all of the blacks electoral choices 
under the at-large scheme. Consequently, in Escambia County, 
the state has failed to take adequate steps to eliminate the ves­
tiges of the de jure dual system.

(3) Under a separate theory, suggested by justice Stevens, 
a racial legislative purpose in the at-large election law may be 
inferred solely from the following objective facts found by the 
District Court: For the last two decades, the at-large county 
commission election system has resulted in the systematic defeat 
of blacks’ electoral choices, on account of a predictable antago­
nistic vote by the controlling white majority bloc. In addition, 
the election system is characterized by special features, num­



7

bered places and a majority vote requirement, that demonstrate 
a clear design to maximize the political strength of the majority 
faction.

Since the judgment in this appeal was entered, the District 
Court has ordered a new election plan, based on the 1980 cen­
sus. McMillan v. Escambia County, 559 F.Supp. 720 (N.D. 
Fla. 1983). Although the new remedial plan technically may 
not moot this appeal (because the District Court rested its 
1983 remedy order, in the first instance, on law of the case) , 
there is a serious question whether in this appeal the remedy 
issue remains meaningful.

In providing a remedy for the constitutional violation, the 
District Court carefully followed the teaching of Wise v. Lip­
scomb, 437 U.S. 535 (1978) . The Florida Constitution speci­
fies the use of at-large elections for county commissions, except 
.where the county adopts home rule, in which event it may 
choose any election method it wishes in its charter. Following 
entry of its judgment striking down the at-large scheme, the 
District Court withheld a ruling on remedy to allow the coun­
ty’s citizens time to vote on a proposal initiated by Escambia 
County’C legislative delegation to adopt a home rule charter. 
Before the referendum was held, the court ruled that, if it 
passed, the proposed charter’s mixed plan of five single-member 
districts and two at-large seats would be a constitutionally ade­
quate legislative remedy. However, the voters defeated the 
charter referendum. Accordingly, the District Court entered 
its own remedial plan, which consisted exclusively of five sin­
gle-member districts. It held that another 5-2 plan urged by 
the county commissioners was not entitled to legislative defer­
ence, because the state constitution forbids a noncharter county 
from using any method other than at-large elections.

Appellants’ first contention is that, notwithstanding the ex­
plicit specification of at-large voting for noncharter county 
commissions, state authority for the incumbent commissioners 
to adopt a new election system can be inferred from tire Florida 
Constitution. Both lower courts rejected this strained interpre­
tation of state law.



8

Appellants’ second contention is that the District Court 
should have accorded their 5-2 plan legislative deference re­
gardless of whether state law authorized the county commission 
to change its own election system. This position is contrary to 
the holding of Wise v. Lipscomb. If it were accepted by the 
Court, it would directly repudiate the will of Escambia Coun­
ty’s electorate and would otherwise invite unnecessary federal 
court interference in the state’s constitutional procedures for 
determining local election structures.

Finally, Appellants contend that McDaniel v. Sanchez, 452 
U.S. 130 (1981), has overruled Wise v. Lipscomb. This simply 
is incorrect. McDaniel v. Sanchez was concerned solely with 
interpreting the coverage of Section 5 of the Voting Rights Act 
and did not consider the issue in Wise v. Lipscomb: whether 
federal courts should defer to the election systems proposed by 
local government bodies regardless of their state authority to 
enact such changes.

ARGUMENT
I. The Appeal Should Be Dismissed For Want 

Of Jurisdiction.
Appellants base this appeal on 28 U.S.C. §1254(2), claiming 

to be parties “relying on a State statute held by a court of ap­
peals to be invalid as repugnant to the Constitution, treaties 
or laws of the United States.” But the Court of Appeals has 
not held any state statute to be invalid in the instant case. 
Section 1 (e) of Article VIII of the Florida Constitution, J.S. 
123a, which provides for at-large county commission elections 
in noncharter counties, has not been invalidated. Rather, the 
Court of Appeals has held that relevant local officials of Escam­
bia County, for invidious racial reasons, have chosen not to ex­
ercise the option afforded by the home rule provisions of the 
state constitution to change to single-member districts. J.S. 20a 
and n.19. Accordingly, the conditions of 28 U.S.C. §1254(2) 
are not satisfied, and this appeal should be dismissed. See 
Perry Education Ass’n v. Perry Local Educators’ Ass’n, 103 S.Ct.



9

948 (1983) ; Lockwood v. Jefferson Area Teachers’ Ass’n, .103 
S.Ct. 27 (1983) .

Appellees realize that, even though the Court lacks jurisdic­
tion of this appeal under 28 U.S.C. §1254(2), in its discretion 
it could treat the appeal papers as a petition for writ of cer­
tiorari and review the case nonetheless. Perry Education Ass’n 
V. Perry Local Educators’ Ass’n, supra, 103 S.Ct. at 954. How­
ever, for the following reasons, certiorari should be denied. 
See Lockwood' v. Jefferson Area Teachers’ Ass’n, supra.

First, with respect to the liability issues, the judgment of the 
Court of Appeals is grounded solely on the fourteenth amend­
ment. J.S. 3-5a n.2, 29a. If this Court were to reverse the con­
stitutional ruling, it still would be necessary to remand for 
consideration of the statutory claim under the amended Sec­
tion 2 of the Voting Rights Act.4 See Cross v. Baxter, 103 S.Ct. 
1515 (1983). Appellees do not presume that this Court would 
be inclined to address the amended Voting Rights Act issues 
when it has not been considered by either court below. Accord­
ingly we will not discuss in this brief how the findings of fact 
made by the trial court satisfy the “results” standard established 
by Congress under the amended Section 2.5 If the Court docs 
wish to review the statutory issue on the merits at this time, we 
suggest that the parties be so notified and that additional briefs 
be requested.

4The District Court grounded its judgment on the unamended Section 2 
of the Voting Rights Act, as well as on the Constitution, J.S. 101a. The 
Court of Appeals thought that Appellees had "presented a cogent argu­
ment that die amended Act entitles them to relief," but declined to reach 
the statutory question. J.S. 4-5a n.2. 42 U.S.C. § 1973 (1976), as amended 
by Pub.L, 97-205, 96 Stat. 131 (1982) took effect upon enactment, i.e., 
June 29, 1982, and should apply to pending litigation. See generally 
H utto v. Finney, 437 U.S. 678, 694-695 n.23 (1978); Bradley v. Richmond  
School Board, 416 U.S. 656 (1976); Cort v. Ash, 422 U.S. 66 (1960); 
United States V. Schooner Peggy, 5 U.S. (1 Cranch) 1032 (1801). Both 
the House and Senate Floor Managers stated that "Section 2 . . . will, of 
Course, apply to pending cases in accordance with . . . well established 
principles . . ." V28 Cong. Rec. HS841 (daily ed. June 23, 1982) (remarks 
of Rep. Sensenbrenner); 128 Cong. Rec. S. 7095 (daily ed. June 17, 1982) 
(remarks of Sen. Kennedy).

•’Senate Report No. 97-417, 97th Cong., 2d Sess., p.27 (1982).



10

Second, the remedy issues Appellants seek to raise are, on the 
facts of this case, clearly without merit. The courts below prop­
erly rejected the county commissioners’ contention that they 
could exercise home rule legislative powers that the voters had 
denied them in two recent charter referendums. By challeng­
ing these rulings, Appellants are asking the Court to disregard 
the state constitution and to inject itself unnecessarily in a 
question the Florida Legislature is about to consider regarding 
the proper allocation of power to change county commission 
election systems.

Moreover, because another election plan was adopted by the 
District Court in 1983, resolution of the issues presented con­
cerning the 1979 plan may not finally dispose of the remedy 
issues now pending in the Court of Appeals. See fn.69 infra.

II. The Judgm ent Below, Grounded On The Fourteenth 
Amendment, Should Be Affirmed, Because The Trial 

Court’s Factual Findings Of Racial Motives Behind The 
Appellants’ Decision To Retain The At-Large Scheme 

;Are Not Clearly Erroneous../
The Court of Appeals affirmed the District Court’s finding 

of a fourteenth amendment violation because the trial judge 
squarely had addressed the question of intent‘and had found, 
as a matter of fact, that the county commissioners had decided 
to retain the dilutive, atdarge system, ..at least in ..part, io r  racial 
motives. J:S. 21-22ai-‘The: District Court’s, inquicy/ipto.the pur­
pose of the; election ‘plan Was specific and carefully' focused. 
T his was not a case, dike 'Rogers v. Lodge, ',102 'S.Ct. 3272 
(1982) , where the court inferred invidious intent solely -from 
the broad circumstances of longstanding official discrimination, 
against blacks in the local community,6 Rather, ‘the District 
Court in the instant case looked in the eyes of the local olficiaK 
who, at the time of trial, had been responsible for -the latest 
decisions to reject single-member district proposals,and did nof 
believe their nonraciaT explanations., ,J.S. 96-98a. The court

«102 S.Ct. at 3279-81.



i l

found, again as matters of pure fact, that the recent racially 
motivated actions of the Appellants were only the latest in an 
unrelieved series of changes in the election structure, extend­
ing over 100 years, that were intended to deny black citizens 
the opportunity to elect county commissioners of their choice. 
J.S, 73-77a, 92-93a, 96-98a. The District Court further but­
tressed its findings of intent by considering all of the circum­
stantial factors enunciated in Village of Arlington Heights v. 
Metropolitan. Housing Development Corp.,7 including exhaus­
tive evidence of the present adverse impact of the at-large 
scheme on blacks’ voting strength. J.S. 79-92a,

Under Rogers v. Lodge8 and Pullman Standard v. Swint? 
the District Court’s findings of racial intent may not be dis­
turbed unless they are clearly erroneous. Considering the depth 
and comprehensiveness of the evidence supporting the trial 
judge’s findings here, the judgment should be affirmed.

The district judge was able to hear the testimony and ob­
serve the demeanors of four of the county commissioners on 
the stand. J.A. 470, 495, 507, 532. He did not believe their 
purported nonracial reason for striking down the district elec­
tion proposals. J.S. 96-98a. Not only was this critical finding 
on the question of credibility buttressed by all the Arlington 
Heights circumstantial evidence, but glaring inconsistencies ef­
fectively impeached the Appellants’ testimony.

The race-neutral reason alleged by the commissioners for 
striking the single-member district proposals was to avoid the 
“individual little kingdoms” that supposedly had existed under 
the pre-1954 district system. J.A. 511; accord, J.A. 481, 498, 
540. But cross-examination revealed that even under the exist­
ing at-large system each of the county commissioners was run­
ning the same little kingdom, because he exercised final con­
trol over the road and bridge funds allocated to his residency 
subdistrict. J.A. 473-74, 478-79, 487, 498, 514, 520, 523-24.

7429 U.S. 252 (1977).
8102 S.Ct. at 3278.
»102 S,Ct. 1781 (1982).



12

There were other contradictions in Appellants’ testimony. 
Commissioner Deese, who as a charter committee member had 
“go[ne] over the charter word by word to see what needed to be 
adjusted,” J.A. 510, could not explain why, with no objections, 
he had signed the unanimous committee report urging the 
adoption of single-member districts and then reversed his posi­
tion when the charter came before the county commission. 
J-A. 510, 528-30. One of the commissioners had not consulted 
or heard from black citizens concerning their feelings about 
the election structure. J.A. 488, 492. Three testified that they 
would not consider blacks’ vote dilution in deciding their pref­
erence for election plans. J.A. 490, 492, 504, 530-31. Commis­
sioner Kenney’s testimony at trial directly contradicted the 
views he had expressed at the public hearing.10

It is important to notice that the purportedly nonracial justi­
fication of trying to maintain their incumbencies was not even 
mentioned; by the county commissioners on the stand. It ap­
peared for the first time in a post-trial memorandum filed by 
their counsel. J.S. 98a. In other words, their post-trial memo­
randum impeached the commissioners’ “little kingdom” ex­
planation at trial. This was the point made by the district

I0At trial, Mr. Kenney took this view of changes in the commission’s 
responsibilities:

1 voted for countywide representation. I voted for it basically on 
the premise that there are issues and problems that transcend district 
lines and perhaps did not exist, these problems did not exist in, prior 
to 1950 when the old road boards were in operation.

J.A. 540. But previously, at the public hearing, Mr. Kenney, responding 
to a black citizen’s plea for single-member districts, had viewed the modern 
problems in the opposite light:

I think you have a very valid point, and I am not really very strong 
on county wide thing myself. I don’t really feel it is that important. 
I feel like to a degree, it is kind of a hang over from the old Road 
Board that this Commission used to be where the Commissioner’s only 
job was to take care of paving roads in a certain district and that 
was all he had to worry about. We have progressed quite a ways since 
then, where we deal with municipal problems a great deal more 
since % ’s of our population lives outside the city limits and still 
wants municipal services.

J.A. 1135.



13

judge, who wrote that independently he had found the com­
missioners’ good government justifications to be unbelievable. 
Id. Instead, the trial judge concluded, the commissioners’ mo­
tive for rejecting the proposals for single-member districts “was 
to continue the present dilution of black voting strength,” so 
that none of them could be replaced by a black candidate. Id.

Such a motive is not, as Appellants now contend, race-free. 
The District Court did not ground its finding of invidious in­
tent on the incumbents’ motive to exclude all other potential 
candidates, but on their intent to exclude black potential can­
didates in particular.11 This is no different than the finding- 
upheld by this Court in Rogers v. Lodge. But whereas the trial 
judge in Rogers had to infer from total legislative inactivity 
that state lawmakers intended to retain Burke County’s at-large 
system in order to minimize black political strength, 102 S.Ct. 
at 3280, the district judge in the instant case could base the 
same finding on specific legislative events and the opportunity 
to observe the testimony of the relevant officials.12 J.S. 77a, 
96a-98a.

u
To this court the reasonable inference to be drawn from their 

actions in retaining at-large districts is that they were motivated, 
at least in part, by the possibility single district elections might 
result in one of more of them being displaced in subsequent elections 
by blacks.

J.S. 98a. The evidence reveals at least one occasion when the commis­
sioners were squarely confronted with this prospect. At the public hearings, 
a black precinct committeeman said to them:

Thank you. The very first part where it says five members elected 
county wide. County wide automatically kills it for me because 
eventually I plan on running maybe for one of your jobs. As long 
as it is county wide, I can never beat Jack Kenney out.

J.A. 1133.
12Although Justice Stevens would not invalidate any electoral device 

simply because the elected officials were “motivated by a desire to retain 
control of the local political machiney,” Rogers, supra, 102 S.Ct. at 3292 
(J. Stevens, dissenting), the findings in the instant case satisfy even his 
standards. The Appellant Commissioners made no attempt to justify an 
at-large scheme that employed both a majority-vote and numbered place 
requirements in the primary, "devicejs] that servej] no purpose other 
than to exclude minority groups from effective participation. . . Id,



14

The District Court’s findings here are grounded on virtually 
every type of direct and circumstantial evidence that this Court 
lias referred to in its decisions concerning discriminatory intent. 
Indeed, in the section of its opinion devoted entirely and ex­
plicitly to the issue of intent, the District Court was guided by 
the criteria of Arlington Heights.

In Arlington Heights the Supreme Court set out several 
factors indicative of discriminatory intent. They are 
(1) the effect of the official action, (2) the historical 
background of the decision, “particularly if it reveals a 
series of official actions taken for invidious purposes,” 
(3) the sequence of events, (4) substantive and proce­
dural departures, (5) legislative history. 429 U.S. at 266- 
68. These criteria must be applied to the official act or 
acts which give rise to the respective election systems in 
this case.

J.S. 92a. There was credible evidence of each of these five ele­
ments, in addition to the trial judge’s actual observation of the 
commissioners’ testimony, supporting his finding that the at- 
large plan has been maintained for racially discriminatory pur­
poses. Moreover, the District Court “bolstered” its findings of 
racial intent by an analysis of the circumstantial evidence using 
the criteria that have been approved in Rogers v. Lodge. 
J.S. 98a.

Appellants also contend that a post-trial, post-judgment charter refer­
endum held in 1979, in which home rule was again rejected by the voters, 
this time based on a charter proposal that included a 5-2. single-member 
district and at-large mixed election plan, means that the racial motives 
of the incumbents in 1975 and 1977 are no longer responsible for the 
maintenance of the discriminatory election plan. Appellants’ Bf. at 31-32. 
This argument is flawed for at least two reasons. First, the at-large system 
had been adjudged unconstitutional before the 1979 referendum election 
took place, and the calling of another referendum election on charter 
government could not, by itself, meet the state’s legal obligation to afford 
a remedy. Second, even if there had been no prior judicial ruling, if the 
1975 and 1977 official actions actually violated blacks’ constitutionally 
protected voting rights, that denial of rights could not be cured “by a 
vote of a majority of [the county’s] electorate.” Lucas v. Forty-fourth 
General Assembly of Colo., 377 U.S. 713, 746 (1964).



15

. (1) Adverse Impact,
“The impact of the official action -  whether it ‘bears more 

heavily on one race than another’ — may provide an important 
starting point [for a sensitive inquiry about intent].” Arlington 
Heights, supra, 429 U.S. at 266, quoting Washington v. Davis, 
426 U.S. 229, 242 (1976) . The District Court found “that the 
voting strength of blacks is effectively diluted under the pres­
ent election systems of the county and city.” J.S. 90a (footnote 
omitted). According to Rogers v. Lodge, supra, 102 S.Ct. at 
8279, evidence that a distinct racial minority consistently has 
its candidates defeated by a bloc-voting white majority “bears 
heavily on the issue of purposeful discrimination.” In the in­
stant case, the District Court arrived at this finding after con­
sidering [t]he complete record of county elections since 
1955. . . .” J.S. 81a. This massive record was analyzed by an 
expert statistician and by a political scientist. Numerous black 
candidates testified about racial bloc voting, discouragement, 
threats and intimidation which they encountered in their cam­
paigns. Substantial evidence was introduced about black turn­
out and political participation and about the social and eco­
nomic disabilities of the black community in Escambia County.

Unrebutted evidence of sharply polarized voting along racial 
lines was presented to the District Court. An expert statisti­
cian13 analyzed the correlations between the vote received by 
given candidates in each election precinct with the percentage 
of registered voters in that precinct who were black, with the 
median income of residents in the precinct, with party affilia­
tion and with gender of the registered voters. J.A. 733-50, 1277. 
Step-wise multiple regression analyses14 of these data were per­

13Dr. David Curry, Assistant Professor of Sociology, University of South 
Alabama. J.A. 1267. Dr. Curry was qualified by the District Court as an 
expert in the sociological and demographic applications of statistics.
J.A. 1268.

14Multiple regression analysis is an accepted statistical technique, a 
quantitative method of estimating the effects of different variables of 
interest.” Eastland v. TV A, 704 F.2d 613, 621 (11th Cir. 1983), citing 
Fisher, “Multiple Regression in Legal Proceedings,” 80 Colum.L.Rev. 
702 (1980). See also, Gregg v. Georgia, 428 U.S. 227, 234 (1976) (J.



16

formed. Id. In modern times, black persons bad sought elec­
tion to the Escambia County Commission on four occasions, to 
the school board on five occasions, and to the Pensacola City 
Council on nineteen occasions. J.S. 107-13a. A total of 168 re­
gression analyses were performed.15 Computer-generated “scat­
ter diagrams,” J.A. 751-54, visually displayed what the expert 
political scientist16 called “irrefutable” evidence of racially po­
larized voting. J.A. 421. In addition, the political scientist 
studied raw election returns, visited Escambia County five 
times, conducted over twenty in-depth interviews of politically 
knowledgeable persons in Escambia County, and did back­
ground reading in local newspapers and publications. J.A. 401. 
Based on all this information, he expressed the opinion that, 
under the at-large system, the votes of black citizens in Escam­
bia County were diluted, in that their electoral preferences 
were submerged consistently by the bloc-voting white majority. 
J.A. 403.

The District Court heard extensive testimony from black 
candidates. J.A. 255-310, 334-74. They were uniformly discour­
aged from making further attempts as candidates in countywide 
at-large elections. J.A. 419, 422-25. The consistent defeat of 
blacks in the past and the high financial cost of countywide 
campaigning when compared with the paucity of financial re­

Marshall, dissenting). In particular, regression analysis is an acknowledged
method for displaying racial bloc voting. See Major v. Treen, ____F.Supp.
___ , Manu.Op. at 30 (E.D.La., Sept. 23, 1983) (3-judge court); Bolden
v. City of Mobile, 423 F.Supp. 384, 388 (S.D.Ala. 1976), affd,  571 F.2d 
238 (5th Cir. 1978), rev’d and remanded on other grounds, 446 U.S. 55 
(1980), on remand, 542 F.Supp. 1050 (S.D.Ala. 1982).

ispi. Exs. 13-16. All the regression analysis results are summarized at 
J.A. 771-98. A summary of the analyses only of those elections in which 
blacks were candidates is appended to the District Court’s opinion. J.S. 
107-13a. In the county commission elections involving black candidates, 
the correlation coefficient between race of registered voters and vote 
obtained by the candidates ranged from 0.85 to 0.98. J.S. 107a. A correla­
tion coefficient of .5 is considered to be unusually high in social science 
data. J.A. 1274-76.

leDr. Charles Cotrell, Professor of Political Science, St. Mary's Univer­
sity, San Antonio, Texas. J.A. 398. Dr. Cotrell was accepted by the court 
as an expert in the field of political science. J.A. 398, 400.



17

sources in the black community were the reasons given.17 Just 
as discouraging for black candidates in Escambia County has 
been the hostility of the white electorate, much of it openly 
expressed. Charlie Taite, knowing that he needed white votes 
to win, campaigned door-to-door in white neighborhoods wear­
ing common work clothes, so that he would not seem like a 
“busybody” and arouse a white backlash. J.A. 264. Rev. Otha 
Leverette received death threats over the telephone, J.A. 278, 
and when he tried to conceal the fact that he was black during 
the general election, his own party published his picture in 
campaign literature. J.A. 274-75. Dr. Donald Spence also testi­
fied to having received telephone threats, as well as other activi­
ties directed against him by the Ku Klux Klan. Vol. XVI 558, 
565. F. L. Henderson received telephone threats, had the win­
dows of his car destroyed and found a dead cat hung on the 
door of his home. Vol. XVII 633. Elmer Jenkins received 
threatening phone calls and had difficulty finding campaign 
workers who were not afraid of going into the white neighbor­
hoods. Vol. XVII 733, 753. Nathanial Dedmond, a local black 
attorney, was threatened over the telephone during his cam­
paign. J.A. 353. James Brewer was unsuccessful in his attempts 
to solicit financial support in the white community. Vol. XVII 
802-04. Charlie Taite testified that lie had been offered $10,000 
to drop out of the election and lost his job when he refused. 
Vol. XVI 363.

The testimony of black politicians confirmed the feeling of 
futility and discouragement the political scientist had found 
among his interviewees. J.A. 419. In his opinion, the reluc­
tance of qualified black citizens to offer as candidates was an­
other manifestation of the inability of the black electorate to 
have any of its preferences expressed in the political process. Id. 
He found this sense of futility and lack of interest expressed in 
the turnout data. It shows that black voters turn out at much 
lower rates than whites except when there are black candidates,

wTaite, J.A. 271: Leverette, J.A. 275, 277; Spencer, J.A. 289, 302-03: 0. 
Marshall, J.A. 335-36; Henderson, J.A. 339; Jenkins, J.A. 347; Dedmond, 
J.A. 351; Hunter, Vol. XVII 784; Brewer, Vol. XVII 802-04,



18

in which event the black turnout rate has been equal to or 
higher than the white turnout rate. J.A. 421-432. Governor 
Rubin Askew, who testified at trial about his involvement, as 
a freshman state legislator from Escambia County, in the 1959 
change of election systems for city council, agreed with the po­
litical scientist that lack of fair representation explains the dis­
couragement within the black electorate:

I have come to believe and believe very strongly that while 
single-member districting will not require necessarily fair 
representation among minorities, in my opinion it is the 
single most important step you can take to better insure 
representation by minorities. . . .  I personally feel that if 
black people in this case, other minorities, if they are not 
afforded an opportunity through single-districting to speak 
and elect some of their own people to the Boards, which 
that government is supposed to represent them, I don’t 
know how we can say that government is truly represen­
tative of all the people. . . .  We need more minority rep­
resentation on government if government is supposed to 
fairly represent them and if we want young black people 
in particular to feel they are part of the system. Then they 
have got to be given a chance in a fair way and not be out­
voted with a larger majority. ,

J.A. 467.
The evidence detailing blacks’ current lack of access to the 

political process in Escambia County followed extensive testi­
mony by two respected Florida historians18 'about the long his­
tory of violence, physical and economic intimidation, segrega­
tion and official oppression that had marked the previous one 
hundred years of Florida’s history. Based on this evidence the

18Dr. Jerrell Shofner, Professor and Chairman of the Department of 
History, Florida Technological University, Orlando. J.A. 146. Dr. Shofner 
has researched and written extensively on Florida history during the 
Reconstruction and post-Reconstruction periods. J.A. 147. At the time of 
his testimony in this case, he was serving as President of the Florida 
Historical Society. Id.

Dr. James McGovern, Associate Professor of History, University of 
West Florida, Pensacola. PI. Ex. 3. Dr. McGovern was the officially desig­
nated Bicentennial Historian for the City of Pensacola. PI. Ex. 4.



19

District Court found that during the Jim Crow period in Flor­
ida “the white government was unwilling or unable to prevent 
a shocking degree of violence and intimidation suffeied by 
blacks at the hands of whites,” J.S. 93a. Although the modern 
forms of intimidation described at trial were not as brutal, per­
haps, as those of the past, they remain, nevertheless, a real and 
substantial additional burden for blacks seeking to participate 
in Escambia County’s political process today. The expert po­
litical scientist spoke of the “shadow of history that still hangs 
over black political participation. J.A. 423.

The District Court also received extensive evidence about 
the depressed socio-economic condition of the black community 
in Escambia County, which, under Rogers v. Lodge, supra, 102 
S.Ct. at 3280, is further evidence that the at-large system lias a 
racial purpose. J.A. 799-1036. Mr. DeVrees, City Planner for 
Pensacola, admitted that neighborhood blight, including de­
teriorating housing, poor streets, and lack of recreational facili­
ties, closely correlates with the proportion of blacks in the 
neighborhood population. Vol. XIX, 1123-24. Mr. Page, a 
senior planner with the West Florida Regional Planning Com­
mission; testified that his Survey of drug abuse, unemployment, 
poor housing’̂ ftinditions, lack of recreational facilities, crime, 
welfare; ‘tietftai'; health,> youth services, fire, tuberculosis and 
venereal disease fat§o;*torrelated with the proportion of blacks 
■in each neighborhood. >Vol. XXI, 1635. Considering all this 
evidence, the‘‘District:Court entered the following findings of 
fact: '■■■■■-. ■■..:■ •■>■; /'

State enforced segregation and discrimination have helped 
create two societies in the city and county — segregated 
churches, clubs, neighborhoods and, until a few years ago, 
schools. These laws left blacks in an inferior social and 
economic position, with generally inferior education. The 
lingering effects upon black individuals, coupled with 
their continued separation from the dominant white so­
ciety, have helped reduce black voting strength and par­
ticipation in government.

J.S. 86a. Similar findings of “lingering effects of past discrimi­



20

nation” were approved in Rogers v. Lodge, supra, 102 S.Ct. at 
3280.

Finally, with regard to the adverse impact of the at-large sys­
tem, the District Court found “independent significance” in 
the severe underrepresentation of blacks on appointed county 
boards and committees. J.S. 90a. Accord, Rogers v. Lodge, 
supra, 102 S.Ct. at 3280. “With such a paucity of black elected 
and appointed representatives, blacks are excluded from almost 
all positions of responsibility in the governmental policymaking- 
machinery.” J.S. 90-91a.

(2) The Historical Background.
The racially motivated charter decisions of the county com­

missioners were only the latest of a series of invidiously in­
tended legislative election changes.

The District Court made explicit findings of fact that Flor­
ida’s official policy from 1868 until at least 1954 was to main­
tain a county commission election structure that assured that 
no black person could be elected. Under Arlington Heights, 
429 U.S. at 267, “[t]he historical background of the decision is 
one evidentiary source, particularly if it reveals a series of offi­
cial actions taken for invidious purposes.” (Citations omitted). 
Similarly, Rogers v. Lodge relied pjr ‘‘fte  ;j*npact of past dis­
crimination on the ability "of blacks *fo pariicipf te effectively in 
the political process.” 102 S.Ct. at 3279.,

The following chain of decisional responsibility1-® was estab­
lished for the election system used hi Escambia County:

(1) From 1868 to 1901 the county commissioners were ap­
pointed by the governor “to ensure against the possibility that 
blacks might be elected in majority black counties.” J.S. 74a, 
16a. The delegates to the ;1868 and ,1885 Florida Constitution­
al Conventions were responsible for the development and main­
tenance of tins system. J.A. 154.-59. 9

I9The District Court’s findings cannot be faulted for “failure to identify 
the state officials whose intent it considered relevant." Rogers v. Lodge, 
supra, 102 S.Ct. at 3281 (J. Powell, dissenting), quoting City of Mobile 
v. Bolden, 446 U.S. 55, 74 n.20 (1980).



21

(2) In 1901 sufficient numbers of blacks had been disfran­
chised to make white supremacists feel safe about returning the 
selection of county commissioners to the electorate, and the 
state constitution was amended to provide for at-large general 
elections. J.S. 74a. The historical sequence of events and the 
contemporaneous passage of Jim Crow laws indicated to the 
district court a racial motive in the adoption of at-large elec­
tions. J.S. 92a-93a; Dist. Ct. Op. p. 24.20 But it declined to find 
a racial intent behind the adoption of the 1901 constitutional 
amendment, primarily because the Fifth Circuit previously had 
held that there could be no racial motive when blacks were al­
ready disfranchised.21
~ '(3) Both the primary and general elections were apparently 

conducted on an at-large basis for one election. J.A. 173. But a 
1907 statute changed the primary elections to single-member 
districts, leaving the general elections to be held at large. Id. 
Because the Democratic primary was for whites only and was in 
effect the only election that counted, the district court found 
that the “anomaly” of a districted primary and an at-large gen­
eral election “worked, not surprisingly, to the unique disadvan­
tage of blacks,” J.S. 75a, was “clearly race related,” J.S. 92a, and 
was part of “a concerted state effort to institutionalize white 
supremacy,” J.S. 74a. This “dual”22 election system for county 
commissioners remained in effect in Escambia County until 
1954. Then, in the wake of judicial rulings striking down the 
all-white primary, the state courts declared that single-member 
district primaries were inconsistent with the 1901 state consti­
tutional amendment requiring county commissioners to be

20Page 24 of the district court’s opinion is omitted in the Jurisdictional 
Statement at p. 92a, after the words “The sequence of”. Page 24 of the 
opinion is reproduced as an appendix to this brief.

21 J.S. 93a, and Dist. Ct. Op. p. 24, citing McGill v. Gadsden County 
Commission, 535 F.2d 277 (5th Cir. 1976). The District Court also under­
stood Dr. Shofner, Plaintiffs’ expert historian, to have “reinforced” the 
conclusion of McGill. Id. Actually, Dr. Shofner testified that the elimi­
nation of blacks as a political threat is what allowed a. return of county 
government to local control; he did not say that the choice of an at-large 
scheme had no racial purpose. T.A. 195-96.

22J.S. 19a.



22

elected at large. J.S. 75a-76a. The Florida Legislature and the 
Democratic Party bore the responsibility for the exclusion of 
blacks from the real election for county commissioners, which 
was conducted by single-member districts. j.A. 173-74.

(4) Since 1954, Escambia County’s election structure could 
be changed only by the adoption of home rule, charter govern­
ment (unless, of course, the state constitution itself were 
amended). The incumbent county commissioners controlled 
what charter propositions would be submitted to Escambia 
County’s voters, and the district court found that the commis­
sioners acted with racial motives when in 1975 and again in 
1977 they rejected proposals by their own appointed charter 
committees to change to district elections. J.S. 77a, 96a-98a.

It is important to keep in mind, as the District Court did, 
that until post-World War II federal intervention began re­
infranchising black voters, state policy favored single-member 
district elections for all three major local government bodies in 
Escambia County. J.S. 74a, 86a; Dist. Ct. Op. p. 24.

At-large requirements have been in effect for general elec­
tions of county commissioners and school board members 
since 1901 and 1895, respectively. However, in the pri­
maries, which were then tantamount to election, the com­
missioners were elected in single-member districts from 
1907 to 1954, and school board members from 1907 to 
1947. Half the city council was elected from single-mem­
ber districts until 1959. Moreover, the evidence shows . . . 
that there were racial motivations connected with the at- 
large requirements of each of these election systems.

J.S. 86a. During most of this period black citizens were offi­
cially excluded from the electoral process by devices like the 
poll tax and the white-only Democratic primary. J.S. 74-75a; 
Dist. Ct. Op. p. 24; J.A. 159-64. See Rogers v. Lodge, supra, 
102 S.Ct. at 3279. Only after the white primary was struck 
down in 1945 was there a precipitate swing to an at-large pol­
icy. J.S. 75a. In the very next session of the legislature, state 
law was amended to require use of at-large voting for school 
boards. J.S. 93a. The District Court agreed with the expert



23

historian that this 1947 change in the school board election 
structure was racially motivated. J.S. 93-94a; J.A. 183. Next, 
in 1953 the Escambia County Circuit Court struck down the 
single-member district feature of county commission primaries, 
in a lawsuit brought by “good government’’ groups backed by 
the Pensacola Journal.23 The Florida Supreme Court affirmed 
the decision in 1954,24 The District Court did not. make a find­
ing that the state courts were racially motivated, but the his­
torian expressed the opinion that the lack of official resistance 
to the change could be accounted for, at least in part, by the 
desire to preserve white supremacy.25 Finally, single-member 
district elections were eliminated from the city council plan in 
a 1959 charter amendment. J.S. 78a. Relying in part on an 
editorial from the Pensacola Journal urging voters to approve 
the charter referendum,26 the District Court found a racial mo­
tive behind this change as well. J.S. 94a.

23Def. Ex. 12; J.A. 1099.
24J.S. 75-76a, citing Ervin v. Richardson, 70 So.2d 585 (Fla. 1954).
25J-A. 183, 209, 213-14. Dr. Shofner explained;

I think the point is that it did not upset the desires of the people who 
Were in control in the comity at that particular time. I think that, 
however, whether or not it was initiated for this reason, it served 
them very well

J.A. 214. The record in Ervin v. Richardson, supra, supports Dr. Shofner’s 
Opinion. Def. Ex. 12. The case was adjudicated from start to finish in two 
months. The state attorney general intervened solely for the purpose of 
ensuring statewide uniformity of the election law and did not vigorously 
defend the fifty-year policy of single-member primaries. The defendant 
county commissioners did not join the attorney general’s appeal, and 
neither the Democratic Party nor any state political leaders objected. The 
state supreme court affirmed the circuit judge even as it acknowledged 
"that nominations of county commissioners by districts has been the 
established policy of the State for many years. . . .” 70 So.2d at 587. There 
was no evidence that any attempt was made after the ruling to amend 
the state constitution or to take any other action to preserve this "estab­
lished policy.”

26The 1959 Journal editorial contained a "smoking gun” admission of 
the racial motives behind the election change and recalled similar changes 
in the county commission and school board election methods:

This would be an advantageous change for at least two reasons. 
One reason is that small groups which might dominate one ward 
could not choose a councilman. Thus one ward might conceivably



24

(3) The Sequence of Events.
“The specific sequence of events leading up to the challenged 

decision also may sited some light on the decisionmaker’s pur­
poses.” Arlington Heights, supra, 429 U.S. at 267. In finding 
that the Appellant county commissioners had acted with racial 
motives when they rejected recent single-member district pro­
posals, the District Court relied heavily on the sequence of 
events. J.S. 77a, 96a. First one and then a second commission- 
appointed charter committee recommended different forms of 
districted systems.27 Blacks appealed to the commissioners in 
public hearings to accept the committee’s proposal for the sake

elect a Negro councilman, although the city as a whole would not. 
This probably is the prime reason behind the proposed change.

However, the best argument for the change, the one which we 
offer, is that all councilmen would be responsible to all city voters, 
not merely to those in their particular section. Councilmen should 
have a city-wide viewpoint, not a localized outlook.

We favored such representation in the county, both for school board 
members and for county commissions. Prior to the Minimum Founda­
tion Law, school board members were chosen by districts, equivalent 
to city wards. This change was helpful as it widened horizons and 
banished petty district politics. A vote in Century became as im­
portant as a vote in Pensacola.

Later, the News Journal attempted by legislation to have county 
commissioners elected county-wide, instead of by districts, because 
the district plan made each commissioner more concerned with his 
district while roads and other problems crossing district lines were 
neglected. Legislation failed, but a suit brought by citizens resulted in 
the Supreme Court deciding the district election was invalid. Now 
commissioners over the state are chosen by county-wide vote and we 
think it has resulted in great improvement.

J.A. 1098-99. The editors’ juxtaposition of black vote dilution and good 
government theories illustrates perfectly the point made by Dr. Shofner 
about policies of this period:

Mr. Cash, the historian of the Democratic Party in ’36, talked about 
good government in terms of cleaning up the electorate by keeping- 
blacks out of it. I think that that is more satisfactory to a person to 
say than to say, “Let’s disenfranchise blacks.”

J.A. 183-84.
2"The 1977 charter committee recommended a five-member county 

commission with all five elected from single-member districts. J.A. 1233. 
The 1975 charter committee had added two at-large seats to the five from 
single-member districts to “provide balanced representation.” J.A. 1201.



25

of fair minority representation. J.A. 1131-41. One commis­
sioner voted for the change as a charter committee member, 
but later all five commissioners voted to strike the single-mem­
ber districts before the charter was submitted to the voters. 
J.A. 528-30.

(4) Procedural and Substantive Departures.
The District Court noted that two separate charter commit­

tees were appointed by the county commission, and that even 
after the second committee came back with a single-member 
district recommendation, Appellants still refused to submit the 
election change to the voters. J.S. 77a, 96a. “Departures from 
the normal procedural sequence . . . [and] [sjubstantive depar­
tures too may be relevant, [to a determination of intent].” 
Arlington PIcights, supra, 429 U.S. at 267.

(5) The Legislative History.
“The legislative . . . history may be highly relevant, espe­

cially where there are contemporary statements by members of 
tiie decisionmaking body, minutes of its meetings, or reports.” 
Arlington Heights, supra, 429 U.S. at 268. The reports of the 
charter committees, J.A. 1195-1227, and the transcript of one 
public hearing conducted by the county commission, J.A. 1131, 
were introduced in evidence. They show that Appellants made 
no attempt to respond to the carefully articulated reasons given 
by the charter committee for favoring district elections.28 In 
particular, the committee squarely rebutted the rationale Ap­
pellants gave the District Court. Compare J.S. 77a with J.A. 
1201:

28

District representation will cut the mounting cost of running for 
Countywide election, and the increasing reliance on special interest 
for financing. The districts will also insure meaningful representation 
and allow close identification and scrutiny of the district Commis­
sioners. The district Commissioners will be closer to the people who 
elected them and more responsive to district problems and needs. The 
district Commissioners will have a ready and in-hand knowledge of 
their districts.

J.A. 1201.



2 6

There may be an argument that district Commissioners 
may be responsive to district pressures first and consider 
vital Countywide matters second. It is based upon the as- 
sumption and not fact that the County Commission can 
only act as a unit in passing County laws or establishing 
policy or issuing administrative directives.

Finally, “members [of the decisionmaking body were] called 
to the stand at the trial to testify concerning the purpose of the 
official action. . . Arlington Heights, supra, 429 U.S. at 268. 
As discussed, supra at pp. 10-3, the district judge was able to 
gauge the commissioners’ credibility by direct observation. 
When, as here, the factfinder’s conclusion is supported by lit-* 
erally every conceivable kind of direct and circumstantial evi- 
dence, there is no basis for disturbing it on appeal.

III. The District Court’s Findings Provide Additional 
Constitutional Grounds For Affirming The Judgment 

Of The Court Of Appeals.
The Court of Appeals affirmed the judgment under the four* 

teenth amendment on the ground that the District Court did 
not clearly err in finding that the incumbent county commis­
sioners acted, in part, with racial motives when they struck 
districted elections from the 1975 and 1977 charter proposals. 
j.S. 20-22a. The Court of Appeals did not decide whether the 
District Court’s other findings supported its conclusions that 
judgment for Plaintiffs could be grounded on (unamended) 
Section 2 of the Voting Rights Act and the fourteenth and fif­
teenth amendments. See j.S. 100-lQla. For reasons stated at 
p. 9 supra, we have not briefed the statutory issue. But if 
the Court decides to review the constitutional issues, it ought 
to consider the additional fourteenth and fifteenth amendment 
bases for affirming the judgment below.



27

A. The Judgment Below May Be Affirmed Under the Fif­
teenth Amendment, Because the At-Large Scheme Was 
Adopted Through a Referendum Election in Which Black 
Citizens Were Denied the Right to Vote.

In its opinion on rehearing the panel stuck by the view ex­
pressed by the plurality in City of Mobile v. Bolden, 446 U.S. 
55 (1980), that vote dilution cases are not cognizable under 
the fifteenth amendment. J.S. 4a n.2. However, in this Court, 
given the peculiar facts of this case, the fifteenth amendment 
affords an alternative ground for affirming the judgment be­
low, a ground that would satisfy even the standard of the 
Bolden plurality.

It is undisputed that in the last two decades of the nineteenth 
century the State of Florida enacted constitutional and statu­
tory measures designed to disfranchise its black citizens and 
that by 1900 only a few blacks were still registered. J.S. 74a; 
j.A. 159-61. Ironically, in the instant case this massive official 
denial of blacks’ voting rights has disadvantaged their ability 
to obtain relief. Adhering to an earlier precedent,29 both lower 
courts concluded that, because of the need to prove invidious 
intent, the elimination of blacks as a statewide electoral threat 
foreclosed the possibility that the 1901 constitutional amend­
ment mandating at-large voting in the general election for 
county commissioners could have been adopted in violation of 
the fourteenth amendment. J.S. 20a n.18, 93a and n.8.

By holding that the “race-proof”30 origin of the election 
scheme constitutionally exonerates its continued use, the courts 
below have overlooked the line of cases that command federal 
courts to provide effective remedies for blacks whose fifteenth 
amendment right to vote plainly has been denied in state or 
local elections.31 These decisions hold that when blacks pur-

29McGill v. Gadsden County Commission, 535 F.2d 277 (5th Cir. 1976).
soBolden v. City of Mobile, 571 F.2d 238, 245 (5th Cir. 1978), rev’d 

and remanded, 446 U.S. 55 (1980), on remand, 542 F.Supp. 1050 (S.D. 
Ala. 1982).

31Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967); Hamer v. Campbell, 
358 F.2d 215 (5th Cir. 1966); Alabama v. United States, 304 F.2d 583



28

posefully have been denied the right to participate in an elec­
tion, a per se fifteenth amendment violation is established, and 
“the sole question remaining is the sort of relief to be grant­
ed.”52 Providing such relief, the federal court of equity “may 
use any available remedy to make good the wrong done.”33

Appellees do not contend that every legislative action taken 
during the period when blacks were officially disfranchised 
must be voided or that all elections conducted during this pe­
riod should be set aside. But in this case there is a direct, un­
deniable connection between the undisputed fifteenth amend­
ment violation and the 1901 legislative adoption of the election 
structure being challenged. Because the at-large scheme was 
installed through an amendment to the state constitution, the 
electorate was an integral part of the legislative process. Thus 
blacks were officially barred from the decision to adopt the 
very same state law that they have demonstrated to he a present 
cause of their exclusion from the political process in Escambia 
County. The 1901 statewide referendum election ought not be 
voided altogether eighty years later. But federal courts are not 
powerless to provide anxmedy in those counties, like Escambia, 
where the-state camiot demonstrate affirmatively that the un­
constitutionally established at-large structure no longer disad­
vantages the class of black citizens.84O

(5th Gir. 1962); Toney v. White, 348 F.Supp. 188 (W.D. La. 1972), 
aff’d in part and rev’d in part, 476 F.2d 203, modified on rehearing, 488 
F.2d 310 (5th Gir. 1973) (en banc) .

s2Bell v. Southwell, supra, 376 F.2d at 662.
33Alabama v. United States, supra, 304 F.2d at 590, quoting Bell v. 

Hood, 327 U.S. 678, (1946).
34Cf. Gomillion v. Lightfoot, 364 U.S. 339, 347-48 (1960). Once invoked, 

“the scope of a district court’s equitable powers to remedy past wrongs is 
broad, for breadth and flexibility are inherent in equitable remedies.” 
Milliken v. Bradley, 433 U.S. 267, 281 (1977), quoting Swann v. Charlotte- 
Mecklenburg Bd. of Education, 402 U.S. 1, 15 (1971).



29

B. The Judgment Below May Be Affirmed Under the Four­
teenth Amendment, Because For Half a Century the At- 
Large Election Was Part of the State’s Design to Exclude 
Blacks From the Political Process.

In addition to its findings about state actions in the 1970’s 
intended to retain a racially discriminatory election system, the 
District Court found that, at least during the period from 1907 
to 1954, the maintenance of at-large voting in the general elec­
tions for county commissioners was part of “a concerted state 
effort to institutionalize white supremacy.” J.S. 74a. The Dis­
trict Court found that, following the successful efforts late in 
the nineteenth century to disfranchise Florida’s black citizens,

[bjlack participation in the electoral process was further 
hampered by the Jim Crow laws and the exclusion of 
blacks from the Democratic Party, both of which began in 
1900. A few years later, the state provided for primary 
elections of county commissioners . . .  in which the candi­
dates were elected from single-member districts. 1907 Fla. 
Laws, Ch. 5697, §1. By that time the white primary sys­
tem, effectively disfranchising black voters, was firmly es­
tablished. The resulting anomaly between having district 
primary elections and at-large general elections worked, 
not surprisingly, to the uuitjuc yli|adv!iynta.ge of blacks, 
Since blacks could not vote .in Remecratjc Primary’ 
district elections, they were forced Jjp challenge white Dem­
ocratic nominees in at-large eleGtjopa which blacks had 
no voter majorities. In effect, Che. white primary was the 
election, < ’ :

J.S. 75a. v A; y '7 ’• '

These findings establish two critical points: (1) for nearly 
fifty years, state policy favored the use of single-member dis­
tricts for the election of county commissioners, and (2) by 
maintaining an at-large system in the general elections, Florida 
denied black citizens as a class the opportunity to participate 
in single-member district elections. Such a situation is in rele­
vant respects constitutionally indistinguishable from Florida’s



30

contemporaneous maintenance of de jure school segregation.39 
There was a “dual”36 county commission election system as well 
as a dual school system. Florida removed its official imprimatur 
from the dual election system in 1945 by opening the Demo- 

■■ cratic primary to blacks.37 But it did not carry out in the elec­
tion area the same affirmative obligation it had in the schools 
to “dismantle” or “disestablish” the racially discriminatory 
vestiges of the de jure system. See Green v. County School 
Board (New Kent County), 381 U.S. 430., 437-40 (1968).38 
Instead, in 1954 the state merely eliminated the single- 
member district feature of the primary elections.89 In light 
of the district court’s finding that present-day racially polarized 
voting in Escambia County “resultfs] from the prior state en­
forced segregation of the races,” J.S. 87a, the imposition of at- 
large schemes in both the primary and general elections per­
petuated the prior official exclusion of blacks from the political 
process in the same way that freedom of choice policies per­
petuated de jure school segregation.40

_• z*E.g$‘'Aa*giiStm;■ v, JBoard, of Public Instruction of Escambia County, 
(5th Cir. 1962).

-citing Davis, v. State ex rel. Cromwell, 156 Fla. 181, 23 So.2d 
8 945)., ....
. ^ 8Th^ disestablishment principle of Green was applied in the context 
of discriminatory election systems in Kirksey v. Board of Supv’rs of Hinds 
County, 554 F.2d 139, 144-45 and n.12 (5th Cir.) (en banc), cert, denied, 
434 U.S. 968 (1977). See also, Note: “Making the Violation Fit the 
Remedy: The Intent Standard and Equal Protection Law,” 92 Yale L.J. 
328, 346-47 n.113 (1983).

89J.S. 75-76 ;̂ citing Ervin v. Richardson, 70 So.2d 585 (Fla. 1954).
40Green v. County School Bd., supra, 391 U.S. 437. Just as prior de jure 

segregated school systems are required to do more than merely end official 
assignment of students on the basis of race, so should a jurisdiction that 
has institutionalized racial segregation in election structures have an 
affirmative constitutional obligation to disestablish all its vestiges. C.f. 
Keyes v. School Dist. No. I, 413 U.S. 189, 200 and n .li (1973), citing 
Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 15 (1971). 
See Schnapper, “Perpetuation of Past Discrimination," 96 Harv. L. Rev. 
828, 855-58 (1983) (“When governmental discrimination creates con­
tinuing social or physical: conditions, each injury caused by those con­
ditions is a fresh constitutional violation. The appropriate remedy in such 
cases is not merely to redress specific injuries, but also to. disestablish



31

The maintenance of at-large election structures in both the 
primary and general elections of county commissioners in 
Escambia County unconstitutionally perpetuates41 prior de jure 
exclusion of black citizens from the political process. Because 
the past official discrimination that is being perpetuated was a 
dual election system, the causal connection between past acts 
and present injury to blacks’ effective exercise of the franchise 
is even more direct here than it was in similar perpetuation 
circumstances condemned by the Court.42 There is, therefore, 
even less constitutional justification for allowing the facially 
neutral at-large system to continue in Escambia County.

C. Considering Only Objective Factors, the District Court’s 
Findings Support Its Conclusion That the At-large Election 
System Purposefully Dilutes Blacks’ Voting Strength.

A separate theory for detecting purposeful discrimination 
behind at-large election laws Iras been suggested by Justice 
Stevens. Rogers v. Lodge, supra, 102 S.Ct. at 3286-88 (J. Ste­
vens, dissenting). This analysis was not employed byjhe. courts 
below, but in this Court it affords an alternative ground for 
affirmance. •

Analyzing voluminous, comprehensive evidence of how, local 
elections have operated over two decades, the District Court 
found that a geographically isolated, politically cohesive racial

whatever ongoing state of affairs produced those injuries and threatens 
future harms.”) .

4iThe particular at-large scheme utilized in the primary elections 
actually aggravates the racially dilutive effect of the overall election 
system by injecting a majority vote requirement, which maximizes the 
strength of the majority in Escambia County. See pp. 32-33 infra.

42Rogers v. Lodge, supra, 102 S.Ct. at 3280 (inferring discriminatory 
intent," in part, from election practices, “which though neutral on their 
face, serve to maintain the status quo,” where past discrimination was 
found in non-election areas like jury selection and public hiring) ; White 
v. Regester, supra, 412 U.S. at 769 (single-member districts properly 
ordered to remedy broad societal discrimination against Mexican-Ameri- 
cans) . See Hartman, “Racial Vote Dilution and Separation of Powers: An 
Exploration of the Conflict Between the Judicial ‘Intent’ and the Legis­
lative ‘Results’ Standards.” 50 Geo. Wash. L. Rev. 689, 719 (1982).



32

group has had its electoral choices systematically excluded by a 
bloc-voting majority. J.S. 79a-84a, 86a-87a. The evidence un­
derpinning this holding went far beyond a mere showing that 
disproportionately few blacks had been elected, and the court 
did not merely presume that the inherent tendency of at-large 
schemes to submerge minority voting strength accounted for 
their poor showing. Rather, Plaintiffs-Appellees proved that, 
over a substantial period of time, members of the black com­
munity have supported with their votes candidates identified 
with their interests, but that the white majority, voting as a 
controlling bloc,43 had consistently and predictably defeated 
them.44 In addition, the parties stipulated that in Escambia 
County there was sufficient residential segregation to make it 
probable that at least some of the black voters’ choices would 
prevail in a districted election. J.A. 78.

This Court has held that trial court findings like these go 
far toward establishing purposeful discrimination, but that they 
are “insufficient in themselves’’ absent “other evidence” that 
blacks do not have an equal opportunity to participate in the 
political process.45 Justice Stevens has urged that this “other 
evidence” be sought out not in the subjective motives of par­
ticular officials but in “objective circumstances that . . . would 
invalidate a similar law wherever it might be found.”46 Justice 
Stevens has expressed the further view that objective evidence 
of an unconstitutional at-large election plan may be found in 
“additional features” or “special features” like the majority 
vote requirement and numbered places noted by the district 
court in the instant case.47 The special features that serve only

48Not all majority-race voters voted against the minority’s favorites. 
J.S. 84a. But the courts below correctly held that white crossover voting 
did not foreclose a finding of majority bloc voting where enough whites 
could be counted on to vote against the blacks’ choice to defeat consis­
tently the combined weight of solid black support plus white crossovers. 
J.S. 33a-35a n.6.

44See pp. 15-18 supra.
45Rogers v. Lodge, supra, 102 S.Ct. at 3279.
46/d. at 3286 (J. Stevens, dissenting).
47Compare id. at 3287-88 (J. Stevens, dissenting), with J.S. 87a-88a. The 

special features include designated ballot places, majority vote require­



33

“to perpetuate the power of an entrenched majority” are not 
necessary for the intended functioning of an at-large scheme.48 49 
Even though White v. Regester, 412 U.S. 755 (1973), speaks 
of these special features as “neither in themselves improper nor 
invidious,”48 it does not disagree with Justice Stevens’ difficulty- 
in finding them “either desirable or legitimate,”50 particularly 
“when viewed in combination” and against a backdrop of dem­
onstrated minority vote submergence.51

Under this analysis, the district court’s findings that the elec­
toral choices of a geographically concentrated racial minority- 
have consistently been excluded over a substantial period by a 
bloc-voting white majority, coupled with “other evidence” that 
the at-large scheme lias special or additional features that un­
necessarily exaggerate the majority’s political stranglehold, sat­
isfy an objective measure of an at-large election scheme, viewed 
in its entirety, as having a legislative purpose to minimize the 
electoral strength of black voters.52 The Appellants did not 
offer at trial any compelling justifications for an election system 
that clearly is designed to maximize the power of an electoral 
majority.
ments, anti-single-shot voting rules and other such provisions, referred to 
by one commentator as “percentage-determining rules.” O'Rourke, “Con­
stitutional and Statutory Challenges to Local At-Large Elections,” 17 
U. Rich. L. Rev. 39, 92 (1982).

48Rogers v. Lodge, supra, 102 S.Ct. at 3288 (J. Stevens, dissenting).
494 1 2 U.S. at 766.
^Rogers v. Lodge,-supra, 102 S.Ct. at 3288 (J. Stevens, dissenting).
51/d.

52See Rogers v. Lodge, supra, 102 S.Ct. at 3283 (J. Powell, joined by 
J. Rehnquist, dissenting) (“the factors identified by Justice Stevens as 
‘objective’ in fact are direct, reliable, and unambiguous indices of dis­
criminatory intent”). It is the at-large system as a whole that violates 
blacks’ constitutional rights, not just its component parts. Indeed, the 
special features of a majority-vote requirement and numbered places pro­
vided unnecessary protection for the white majority in Escambia County, 
where only two black candidates had made the runoffs in countywide 
elections, neither of whom had been the leading vote-getter in the first 
primary. J.S. 107a-09a. Thus, merely enjoining the special features in the 
instant action would provide little or no relief to the black victims of the 
intentionally dilutive scheme.



34

Among the “additional features” which can be shown to en­
hance the majority’s voting strength are numbered places, ma­
jority runoffs, residency subdistricts, and full ballot laws 
(requiring the voter to cast as many votes as there aie seats 
available for election) ,53 Current researcli demonstrates that 
these additional features are found primarily in the South and 
affect in a measurable way the electoral chances of blacks.54

Judicial analysis of at-large vote dilution claims, like claims 
of gerrymandering, raises “special problems.”55 * An at-large 
scheme ought not be thought of as just another potentially 
gerrymandered districting plan. Rather, it represents a delib­
erate choice not to draw district boundaries at all; that is, not 
to apportion seats among geographic areas but to allow the 
same jurisdiction-wide majority the opportunity to control all 
the seats.50 Consequently, objective criteria for detecting in­
vidious gerrymandering in districted election plans are likely 
not to be helpful in assessing the constitutionality of at-large 
schemes.57

Therefore, the Court should make it clear that where, in 
cases like the instant one, at-large election structures have sys­
tematically excluded the choices of racial minorities and are

53E.g ,̂ see Derfner, “Racial Discrimination and the Right to Vote”, 26 
Vand. L. Rev. 523, 553-55 (1973).

54Appendix B to this brief contains two tables prepared by Profs. 
Engstrom and McDonald of the University of New Orleans based on 
their current, but not yet published, research. Blacks are elected at about 
70% of their expected rate in cities that use pure at-large elections but 
at 22%-S2% in cities that have “additional features.”

55Karcher v. Daggett, 103 S.Ct. 2653, 2667 (1983) (J. Stevens, con­
curring) .

56Gaffney v. Cummings, 412 U.S. 735, 753 (1973) (“The very essence 
of districting is to produce a different — a more ‘politically fair’ — result 
than would be reached with elections at large”); accord, Baker v. Carr, 
369 U.S. 186, 328 (1962) (J. Frankfurter, dissenting). See also Rogers v. 
Lodge, supra, 102 S.Ct. at 3275; id. at 3286 n.16 (J. Stevens, dissenting) .

5?Concepts of compactness, integrity of political boundaries, and fair­
ness in the boundary-drawing process, Karcher v. Daggett, supra, 103 S.Ct. 
at 2672-74 (J. Stevens, concurring), have no relevance in the context of 
at-large voting. Where no district lines need be drawn, there is no risk 
that the apportionment result will look like a * crazy quilt, id. at 2690 
(J. Powell, dissenting), quoting Reynolds v. Sims, supra, Ull U.S. at 568.



35

characterized by features that are designed to strengthen ma­
jority control, purposeful racial vote dilution will be presumed, 
and violation of the fourteenth and fifteenth amendments es­
tablished, solely from these objective facts.

Justice Stevens’ objective test of at-large vote dilution lias 
promise as a more judicially manageable constitutional stand­
ard, which accommodates both local; government interests in 
autonomy and the racial minority’s interest in fair political 
access.58 The theory should not include a requirement that the 
judicial remedy be restricted to striking down only the special 
features, leaving at-large voting intact.59 Unlike R o g ers  v. 
Lodge, in the instant case, an injunction directly solely at the 
majority-vote and numbered place requirements would afford 
no relief for blacks in Escambia County.60 If tire established 
rule61 requiring singlermember districts in court-ordered reme­
dies were left undisturbed, recognition of Justice Stevens’ ob­
jective test would present a strong incentive for local govern­
ments voluntarily to improve minority access in their election 
systems rather than to wait for a judicial, challenge.

This objective measure of unconstitutional vote dilution af­
fords vulnerable racial and ethnic minorities surer protection 
against representational unfairness than does a subjective in­
tent standard,62, and it is more in line with the underlying prin­
ciples of one person, .one vote.63 * Recently, in B ro w n  v. T iio m p -

58Hartman, supra fn. 42, at 724.
59/d. (Criticizing Justice Stevens’ theory as “incomplete” if it includes 

such a remedial restriction). In. fact, in Rogers, Justice Stevens thought 
the question “need not be decided”. 102 S.Ct. at 3288 n.22.

®°See fn. 52, supra. Escambia County has only a 20% black population. 
It contrasts sharply in this regard with Burke County, which had a 53.6% 
black majority. 102 S.Ct. at 3274. Consequently it is not at all “apparent”, 
as it was for Justice Stevens in Rogers, 102 S.Ct. at 3288 n.22, that a well- 
organized black minority could elect anyone in Escambia County.

elE.g., East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976).
62See Rogers v. Lodge, supra, 102 S.Ct. at 3284-93 (J. Stevens, dissent­

ing) ; id. at 3283 (J. Powell, dissenting); City of Mobile v. Bolden, supra, 
446 U.S. at 121 (J. Marshall, dissenting).

ezSee generally, Parker, “The ‘Results’ Test of Section 2 of the Voting-
Rights Act: Abandoning the Intent Standard,” 69 Va. L. Rev. 715 (1983): 
Blacksher and Menefee, “From Reynolds v. Sims to City of Mobile v.



36

son, 103 S.Ct. 2690 (1983), and Karcher v. Daggett, 103 S.Ct. 
2653 (1983), the Court undertook a fresh examination of the 
extent to which states are bound to adhere to strict population 
equality notwithstanding the need to take account of other, 
nonpopulation factors affecting fair representation. The in­
stant challenge to an at-large election scheme may present the 
converse question: To what extent may states rely on inherent 
population equality to justify failure or refusal to change elec­
tion structures that are systematically unfair to particular racial 
groups? A proper resolution of both constitutional issues, how­
ever, depends on recognition of the same fundamental princi­
ple of equal protection recalled in Brown v. Thompson and 
Karcher v. Daggett. Reynolds v. Sims, 377 U.S. 533 (1964) , 
did not simply announce a rule of numbers; rather, it acknowl­
edged that other important representational concerns may out­
weigh even large population disparities04 and that the ultimate 
constitutional mandate is “fair and effective representation.”65

The Court has never suggested that the population equality 
rule, derived from the Civil War amendments to the Constitu­
tion, furthered a constitutional policy more important than the 
elimination of racial discrimination in the exercise of the fran­
chise. To the contrary, it has identified elimination of state 
supported racial discrimination as a primary judicial concern 
because it is “illegal, immoral, unconstitutional, inherently 
wrong, and destructive of democratic society.”66 Further, the 
Court has acknowledged that the population equality rule does 
not by itself measure every variety of unconstitutional denial 
of fair and effective representation.67 In fact, fairness of group
Bolden: Have the White Suburbs Commandeered the Fifteenth Amend­
ment?” 34 Hastings L. J. 1 (1982).

MBrown v. Thompson, supra, 103 S.Ct. at 2697.
65Karcher v. Daggett, supra, 103 S.Ct. at 2689 (J. Powell, dissenting), 

quoting Reynolds v. Sims, supra, 377 U.S. at 565; accord, Karcher v. 
Daggett, supra, 103 S.Ct. at 2678 (J. Stevens, concurring); id. at 2678 
(J. White, dissenting).

66Regents of the University of Cal. v. Bakke, 438 U.S. 255, 295 n.35 
(1978), quoting A. Bickel, The Morality of Consent 133 (1975).

67Brown v. Thompson, supra, 103 S.Ct. at 2696; accord, Karcher v. 
Daggett, supra, 103 S.Ct. at 2671 (J. Stevens, concurring).



37

participation in the political process may be more important 
constitutionally than mere numerical equality.6 * * 68 Recognition 
of an Equal Protection violation under this objective standard 
could restore constitutional priorities in the area of fair repre­
sentation.

IV. Because The P roper Legislative A uthority ' Rejected 
A Proposed Constitutional Remedy, The District Court 

Was Correct To O rder Its Own Districting Plan.
Before addressing the complicated, somewhat arcane ques­

tions of state and federal law governing the District Court’s 
discretion in providing a remedy for the constitutional viola­
tion, a broader view of Appellants’ claim should be considered. 
The question they present is whether the District Court was 
required to accept a plan advanced by the very same local offi­
cials it had found to be guilty of racial discrimination, even 
though their plan had just been rejected by the county’s voters.

The Appellants challenge the 1979 remedial order69 of the 
District Court solely on the ground, rejected by both courts

6SKarcker v. Daggett, supra, 103 S.Ct. at 2671 (J. Stevens, concurring) : 
accord, id at 2683 (J. White, dissenting); id. 2689 (J. Powell, dissenting).

"There is some question whether the remedy issue in this appeal is 
still meaningful. Since the remedy order was entered in 1979, the District 
Court has conducted new proceedings as a result of the 1980 census and 
has considered afresh new plans presented by both the county commission 
and the Plaintiffs. The remedial election plan now’ before the Court has
been replaced by another plan adopted by the District Court in 1983. The 
Court has denied petitions to stay implementation of the 1683 plan, and 
elections have been held under it. The county commissioners’ challenge 
of the 1983 plan is now pending in the Court of Appeals. This Court 
denied a petition for writ of certiorari that would have bypassed the Court 
of Appeals. Escambia County v. McMillan, 52 U.S.L.W. 3246 (Oct. 4.
1983)/

Technically, the remedy issue in this appeal may not be moot, because 
the District Court’s first ground for rejecting the latest 5-2 plans of the 
county commissioners was law of the case, based on the instant judgment of 
the Court of Appeals holding that Appellants lack the requisite legislative 
power under Florida law. McMillan v. Escambia County, 559 F’.Supp. 720. 
725 (1983) . But even if the Court were to decide in this appeal that 
Appellants should have been accorded legislative deference in 1979, the 
ruling would not necessarily answer the question whether the commis-



38

below, that the County Commission had the power under state 
law to restructure the method by which it is elected and to in­
crease the number of commissioners. Appellants’ Brief at 42. 
The District Court found, and the Court of Appeals agreed, 
that, because Escambia County’s electorate had refused to adopt 
the home rule option offered by Florida law, the incumbent 
commissioners were bound by explicit state constitutional pro­
visions governing the method of electing noncharter county 
commissions and lacked the legislative authority to adopt any 
other method of election, J.S. 68a.
A. The Escambia County Commission Lacks the Poiver to 

Change Its Method of Election.
The Florida Constitution sets a general policy of at-large 

elections for county commissions, but allows counties which 
adopt home rule charters to vary the method of election.?0
sioners’ 198S plans also should have been accorded legislative deference. 
Issues about the 1983 election proposals still would require fresh assess­
ment by the lower courts. For example, it is not certain, even if the 
county commissioners’ 1979 5-2 plan was entitled to deference, that they 
could still exercise the same Wise v. Lipscomb extraordinary legislative 
powers four years later. The intervening period has afforded ample time 
for new home rule charter proposals, legislative initiatives and even 
amendment of the state constitutional provision that restricts noncharter 
counties to five-member commissions elected at-large. No such clear legis­
lative responses have been forthcoming, and even Wise v. Lipscomb 
suggests a time limit on the . local government’s emergency powers. See 
p. 41 infra.

Moreover, even if the commissioners’ plans are entitled to legislative de­
ference, the District Gdurt'-has made alternative rulings that the Appel­
lants’ 1983: plans would mot meet .constitutional and Voting Rights stand­
ards. The commissioners "have not on the record carried the burden on 
them of showing that they do not have the purpose and will not have the 
effect of denying or abridging the right to vote on account of race or 
color. . . .” 559 F.Supp. at 726, This is a burden of Appellants must con­
tinue to bear with each new election proposal, a burden imposed both by 
Section 3 of the Voting Rights Act, 42 U.S.C. § 1973a, J.S. 61a, and, be­
cause they have been adjudicated guilty of purposeful racial discrimina­
tion, by the Constitution. Sims v. Amos, 365 F.Supp. 215, 220 n.2 (M.D. 
Ala. 1973) (3-judge court), aff’d sub nom., Wallace v. Sims, 415 U.S. 902 
(1974).

70Fla. Const., Art VIII, § 1 (e) (1968), provides “Except when other­
wise provided By county charter, the governing body of each county shall



39

Twice within the last six years, the citizens of Escambia County 
have rejected referendum proposals to adopt a home rule char­
ter. J.S. 54a, 96a. The Constitution of Florida strictly pro­
hibits any form of election for non-home rule counties other 
than the at-large system. Fla. Const. Art. VIII, §1 (e). Conse­
quently, unlike the City Council of Dallas,71 the Escambia 
County Commission may not adopt another election structure.

The Attorney General of Florida agrees. In a letter dated 
July 19, 1983, to the Speaker of the Florida House of Repre­
sentatives, the Attorney General pointed to the problem that 
arises when noncharter counties are successfully sued for utiliz­
ing an at-large system that dilutes blacks’ voting strength. (The 
full text of this letter is attached to this brief as Appendix C.)

Article VIII, §1 (e) Fla. Const, and §124.01 Fla. Stat. pro­
vide for the at-large election of county commissioners ex­
cept when otherwise provided by county charter. Thus, 
unless a charter provides' otherwise, a county is without 
authority under state law to enact a single-member system 
or other alternatives to a purely at-large election system for 
county commissioners.;

Both the district court and the Court of Appeals interpreted 
the Florida Constitution‘in thd same Way;'' J:S. 24-26aj 68a. The 
long established t ide in ibis Court, is- that- it'Will'not-disturb 
the interpretation o {.-State law concurred in' by a' local federal 
district judge, wlid has practiced law-forrtiany years iii the state, 
and by the federal coiirt 'ol' appeals fb'r that state.- Bishop -v. 
Wood, 426 U.S: 341, 345-16 and h.lD: (I976H Yitmg m tif'd  
States v. Durhdih'Lubibef'"Go:, 363 l S:\522 (I960) \ Propper 
v. Clark, 337 I'.S. 472, 486-87 fl'949) .''Bcro'rd. e.gp MacGregor 
v. State Mutual Life 'Assurance Go.,- 315' ITS! 280-(1942)'-.'' ;

be a board of . county commissioners composed o.f five members serving- 
staggered terms of four years. After each decennial census the. Board of 
County Commissioners shall divide" the county’into districts of contiguous 
territory as nearly equal in population as practicable;' One commissioner 
residing in each district shall be elected by the electors of the county.” 

nwise v. Lipscomb, 437 U.S. 535, 544 and n.8 (1978).



40

B. The Courts Below Properly Applied Wise v. Lipscomb.

Wise v. Lipscomb, 437 U.S. 535 (1978) , holds that an elec* 
tion plan adopted by a local government body should be- treated 
as a legislative plan by a federal court only if state law provides 
that body with the power, express or implied, to change its 
election structure. Id. at 542-46. The critical feature of Wise 
was that the City of Dallas government exercised home rule 
powers. Id. at 544 and n.8. Consequently, since there was in­
sufficient time to complete the charter amendment process, 
which culminated in a referendum election, id. at 539 and n.3, 
the federal court could presume that the residual legislative 
power to act in such an emergency had been delegated by the 
state to the city, making the city council’s plan one that was 
entitled to legislative deference. Id. at 544. By contrast, in the 
instant case, Escambia County’s citizens had decided against 
giving the county commission home rule powers, so the district 
court properly concluded that the residual legislative power to 
change the method of election remained with the state govern­
ment. The adoption of a new election plan by the county com­
mission did not relieve the court of its duty to order its own 
remedial plan.

IE Appellants’ contention were upheld, it would emasculate 
the legislative authority requirement insisted on by a majority 
of the Court in W ise  v , L ip sc o m b . It would mean that federal 
courts would have given the Escambia CQunty Commission a 
legislative power that the Florida Constitution carefully has 
withheld front the local government, except where the county 
chooses to adopt a home rule chatter. To avoid unnecessary 
and unseemly interference with states’ prerogatives, federal 
courts must refer to state law to determine who has the author­
ity to adopt new election structures. This case is a perfect ex­
ample of the mischief that otherwise would be likely. Here in­
cumbent county commissioners are asserting that, by a stroke 
of the pen, a federal district court has invested them with the 
very same legislative power that the people of Escambia County 
have on two recent occasions denied them. Indeed, the 5-2 elec­



41

tion scheme, which the Appellants claim now to have the force 
of law, was the one contained in the latest charter proposal re­
jected by the voters. J.S. 67a,

In effect, the Appellants by their contention are asking this 
Court to choose between competing claimants for lawmaking 
authority: the citizens of Escambia County, who are designated 
by the state constitution, and the incumbent commissioners, 
who claim that they have been empowered by the district 
court’s judgment to ignore the state constitution. Other possi­
ble competing claims for “deference preference” that could be 
occasioned if Appellants’ contentions were accepted include: 
different plans adopted by each house of a state legislature but 
rejected by the other; one plan adopted by the state legislature 
and another adopted by the local government; one plan adopt­
ed by the local government body and another adopted by the 
county’s legislative delegation; a plan adopted by the legislature 
in one form, amended by the governor (using executive amend­
ment power), and then rejected by the legislature in that form.

It must be remembered that a court-ordered election plan is 
by definition a temporary one, to remain in effect only until 
the proper authorities can enact a constitutionally adequate 
plan under state law.72 The Court was willing to overlook 
Dallas’ failure to comply with the full charter revision process 
in Wise only because of the shortness of time. 437 U.S. at 544 
n.8. After pending elections had been held under the remedial 
plan, the voters of Dallas ratified the proposed change in the 
city’s charter. 437 U.S. at 539 n.3. Had they voted it down, it 
would have been necessary for the district court to adopt its 
own temporary plan. In the instant case, however, there was 
sufficient time before the next elections for a properly drawn 
charter proposal to be presented to the Escambia County elec­
torate, and it was rejected. In these circumstances, the district 
court correctly entered a court-ordered election plan. This ju­
dicial course is least likely to interfere with Florida’s constitu­

72Reynolds v. Sims, supra, 377 U.S. at 586-87; accord, Wise v. Lipscomb, 
supra, 437 U.S. at 540.



42

tionally crafted procedure for determining the election struc­
tures for its county commissions. The court-ordered plan will 
remain in force only until Escambia County’s voters accept a 
legally and constitutionally adequate charter proposal, or until 
the state constitutional provisions governing the method of 
electing noncharter county commissions are themselves amend­
ed. Only a few weeks ago, the Attorney General of Florida 
asked the state legislature to consider whether changes should 
be made in the constitutional procedure. See Appendix C to 
this brief.

C. McDaniel v. Sanchez has not overruled Wise v. Lipscomb.

The Appellants also argue that McDaniel v. Sanchez, 452 
U.S. 130 (1981), compels the decision that the courts below 
erred in their interpretation of Wise, because it had been modi­
fied by McDaniel. Brief of Appellants at 44.73 The Appellants’' 
argument is based entirely on one statement, in McDaniel.74 
McDaniel, however, is clearly an interpretation of §5 of the 
Voting Rights Act, 42 U.S.C. § 1973c, and not the “legislative 
deference” issue regarding state legislative authority to change 
methods of election. Indeed, the Court noted that all “parties 
appear to agree that the Commissioners Court had authority 
under Texas law to redraw the boundaries of the commission­
ers’ precincts,” 452 U.S. at 152 n.34.

Although the question of “legislative deference” and the 
question of §5 preclearance will often arise in the same case!, 
Wise and McDaniel do not hold that they are analyzed the 
same way. Clearly, because entirely different policies are at 
stake, they should not be analyzed the same way. On the one 
hand, the policy underlying deference to state legislative au­
thority when formulating a constitutionally adequate remedy

73The appellants did not suggest this theory for reversal while the 
appeal was pending in the Court of Appeals, nor did they mention it in 
their Jurisdictional Statement.

74“[T]he essential characteristic of a legislative plan is the exercise of 
legislative judgment. The fact that particular requirements of state law 
may not be satisfied before a plan is proposed to a federal court does not 
alter this essential characteristic.” 452 U.S. at 152.



43

is the avoidance of unnecessary interference with the state’s le­
gitimate legislative processes. On the other hand, the preclear­
ance policy of the Voting Rights Act seeks to assure strict fed­
eral scrutiny of all changes affecting voting initiated by the 
state or its political subdivisions.

CONCLUSION
The appeal should be dismissed for lack of jurisdiction. If 

the Court determines to review the merits of the appeal, the 
judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

J ames U. B lacksher 
L arry T .  M en efee  
B lacksher, M en efee  & St e in , P.A. 
405 Van Antwerp Building 
P. O. Box 1051 
Mobile, Alabama 36633
W . Edward Still  
R eeves and Still  
Suite 400, Commerce Center 
2027 First Avenue, North 
Birmingham, Alabama 35203
Ken t  Spriggs

Spriggs and H enderson

117 S. Martin Luther King,
Jr. Blvd.

Tallahassee, Florida 32301
J ack G reenberg 
Eric  Schnapper  
N apoleon  B. W illiam s 
Suite 2030 
10 Columbus Circle 
New York, New York 10019
Counsel for Appellees



A P P E N D I X



A-l

APPENDIX A

events, including the Democratic Party’s establishment of 
the white primary in 1900, suggest racial motivation. There 
was no procedural departure, but a substantive inconsistency 
was soon apparent. Beginning in 1907, commissioners ran in 
single-member districts in the white primary, which was 
tantamount to election. Thus, though the constitution man­
dated at-large elections, the effect of the state policy was to 
ensure that commissioners were elected from single-meniber 
districts. The ultimate effect of all this was a system in 
which whites were elected in single-member districts and 
blacks were forced to challenge them in at-large elections. 
No blacks were elected under this scheme.

Although these factors indicate racial motives, in affirm­
ing another voting dilution case from the Northern District 
of Florida, the Fifth Circuit was able to reach the conclusion 
that there was no racial motivation behind the 1901 amend­
ment because blacks were effectively disenfranchised at that 
time. M c G ill  v . G a d s d e n  C o u n ty  Commission, 535 F.2d 277, 
280-81 (5th Cir. 1976). Dr. Shofner, plaintiffs’ expert his­
torian, testified that there was general disenfranchisement 
due to the poll tax and that blacks were no political threat 
at the time. Though he did not specifically mention the 1901 
amendment, he did testify that another at-large requirement 
passed in 1895 for the school board was not racially motivated 
due to this disenfranchisement. The evidence did show, how­
ever, that there were always some blacks registered to vote 
in Florida. Furthermore, Dr. McGovern, plaintiffs’ other his­
torian,



A-2

APPENDIX B

Research of Profs. Engstrom and McDonald

Table 1
Combined Categorizations of At-Large Types 

(central cities of SMSAs)
ALL SOUTH1 NONSOUTH

Free for all 81*
N
15

<%)
(25)

N
66

(%)
(75)

Residency sub-districts, 
majority 203 16 (26) 4 (5)

Residency sub-districts, 
plurality 94 5 (8) 4 (5)

Numbered places, majority 32 20 (33) 12 (14)
Numbered places, plurality 4 2 (3) 2 (2)
No Place, full slate5 36 3 (5) 0 (0)

TOTAL (at large systems) 149 61 (100) 88 (100)
TOTAL (all central cities) 317 103 214

1. Former Confederate States.
2. Contains one majority black city, Detroit. Also, 21 of 

the cities actually have separately elected mayors who sit on 
the council.

3. Contains 5 cities with separately elected mayor who 
sits on council. Also has 3 cities which have sub-district resi­
dency requirement for only some of the members.

4. Contains one majority black city, Augusta. Also one 
city has subdistrict residency requirement for some council 
members; Augusta has majority requirement for mayor.

5. Each voter must cast as many votes as there are seats 
available in the election.

6. Contains one majority black city, Birmingham, which 
elects council in two groups with staggered terms. The other 
two (Jackson and Pascagoula, MS) have full slate rule for 
council members but separately elected mayor sits on the 
council.



A-3

Table 2
Regression Equations, by system type1 

Type black % of council =
all districts —.641 +  .955 (black pop. %)
pure at-large —1.74 +  .697 (black pop. %) 59
pure at-large (designated

mayor on council) +4.86 +  .217 (black pop. %) 21
at-large, residency,

majority +2.91 +  .325 (blackpop. % )  20
at-large, place system,

majority vote +5.65 +  .227 (black pop. %) 32

Majority black cities are excluded.

S
I2



A-4

APPENDIX C
Letter of Attorney General

DEPARTMENT OF LEGAL AFFAIRS 
OFFICE OF THE ATTORNEY GENERAL 

THE CAPITOL
TALLAHASSEE, FLORIDA 32301

JIM SMITH 
A t to r n e y  G e n e ra l  
S ta t e  o f  F lo r id a

July 19, 1983

Honorable Lee Moffitt 
Speaker, House of Representatives 
Room 420, The Capitol 
Tallahassee, Florida 32301

Dear Mr. Speaker:

It has come to my attention that a number of recent law­
suits have been filed against counties concerning at-large 
elections for county commissioners and school boards mem­
bers. I am also informed that possibly as many as 30 addi­
tional suits may be brought against county school boards.

These suits address alleged vote dilution resulting from 
at-large elections. I am concerned about these cases because 
of the implications of the decisions in NAACP v. Gadsden 
County School Board, 691 F.2d 978 (11th Cir. 1982) and 
McMillan v. Escambia County, 638 F.2d 1239 (5th Cir. 1981).

In NAACP v. Gadsden County, supra, the Eleventh Cir­
cuit, citing Supreme Court authority, stated:

Accordingly, to prevail in a vote dilution case under the 
equal protection clause of the fourteenth amendment, a 
plaintiff must demonstrate (1) the existence of a dis­
criminatory purpose in either the enactment or oper­
ation of the election scheme; and (2) differential impact, 
i.e., dilution of the minority’s voting power.



The court found that § 230.08 and § 230.10, Fla. Stat., were 
enacted with a discriminary purpose. Having satisfied the 
first prong of the vote dilution test, the court then held that 
the legislation has had the effect of diluting minority votes 
in Gadsden County, thus satisfying the second prong of the 
vote dilution test. Based on the facts present there, § 230.08 
and § 230.10, Fla. Stat., were found unconstitutional as they 
apply to Gadsden County.

My first concern in view of the NAACP v. Gadsden 
decision is that while the factual findings regarding the dis­
criminatory purpose behind § 230.08 and § 230.10, Fla. Stat., 
may be limited to Gadsden County and not be binding in 
future litigation, they appear to be supported by the history 
behind the legislation and consequently could he persuasive 
in future litigation. If such were the case, it would then only 
remain for a plaintiff to prove a differential impact (dilution) 
in order to prevail in a vote dilution case. . ,

In sum, the implication of NAACP v. Gadsden could well 
be that in order for a plaintiff to prevail in a vote dilution 
case challenging the at-large election of county school board 
members, the plaintiff would merely have to prove dilution. 
This is generally proven by evidence that a substantial 
minority is consistently unable to elect candidates of its 
choice.

Assuming arguendo that a plaintiff could establish such 
dilution in any of these lawsuits, a dilemma becomes ap­
parent for such counties. Sections 230.08 and 230.10, Fla. 
Stat., mandate that the “election of members of the school 
board shall be by vote of the qualified electors of the entire 
district.” Consequently, counties, which may realize that 
the at-large system has diluted a minority’s voting power 
are without authority under state law to enact a single­
member system or other alternative to a purely at-large 
system. Such counties’ hands are tied should they wish to 
unilaterally remedy the situation.

A similar dilemma arises in the election of county com­
missioners. Article VIII § 1 (e) Fla, Const, and § 124.01 Fla.

A-5



A-6

Stat. provide for the at-large election of county commis­
sioners except when otherwise provided by county charter. 
Thus, unless a county charter provides otherwise, a county 
is without authority under state law to enact a single­
member system or other alternative to a purely at-large elec­
tion system for county commissioners.

In order to examine means for alleviating the counties’ 
potential dilemma, I recommend that the legislature con­
sider this subject as an interim study project. The study 
project should consider amending § 230.08, § 230.10, § 124.02 
Fla. Stat. and Article VIII § 1(e), Fla. Const., to allow all 
counties the option to utilize single-member districts for the 
election of school board members and county commissioners. 
Single-member districts at the statewide level have proyen 
responsive to the voters’ needs and are, in my opinion, ap­
propriate to consider for the local level at least on an optional 
basis. Such study project should also consider the applica­
bility and impact of the 1982 Congressional Amendments to 
§ 2 of the Voting Rights Act of 1965, 42 USC § 1973 (Pub. 
L. No. 97-205, § 3, 97th Cong., 2d Sess., 1982) to vote dilution 
cases.

The courts have been implementing single-member re­
districting plans and imposing significant attorneys’ fees 
awards in vote dilution cases where minority plaintiffs have 
prevailed. Therefore, I urge your thorough consideration of 
this matter. I and my staff will be happy to assist the legis­
lature in any way you desire.

If you should have any questions, please do not hesitate 
to contact me.

Sincerely,
/ s /  J im Smith

Attorney General



JS: vb
cc: Honorable Bob Graham, Governor 

State of Florida
Honorable Curtis Peterson, President 

Senate
Mr. Donald Magruder, Executive 

Director, Florida School 
Board Association

Mr. John Thomas, Executive 
Director, State Association of 
County Commissioners of 
Florida