United States v. Dallas County Commission Brief for the United States

    ri*' ) 
:

k',-

No. 82-7362

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

UNITED ETATES OF AI'IERICA,

App€ IIant

Vr

DALLAS CouNTY CoHMISSIoHT dI' r

DefendanEa-APP6I Ieea

APPEALFRoMTHEUNITEDSTATESDISTRICTcoURT
FOR THE SOUTHERN DISTRICT O!' ALABAI'IA

BRIEF FOR THE UNITED STATES

WJ.I. BRADFOF.D REYNOLDS
Assistant, Att,orney General

JESSICA DUNSAY .SILVER
IRVING GORNSTEIN
, AttorneYs

Department of Justice
Waehirrgtonl D.C.. U0530



r.}}:J

ETATEMENT REGARDING PREFERENCE

Thta case le not entttled to a preference in processlng.

STATEI{ENT REGARDING ORAL ARGUT.IENT

Because this cage lnvolveg an ertensive factual record and

the appltcation of a recently enacted etatute, the United StateB

regu€Btl oral argument.

, .1,,.



tr'*

ouEsTroNs
6TATE}IENT

Ar

Br

TABLE OF CONTENTS

Page

PRESENTEp ---r*- I
,----a-- t

Procedural htstorY I

Facts 3

1. Reeulte of the at-Iarge systems 3

!. Conalstent defeat of black
candldater -'------

b. Bloc votlng

c. Htstory of votlng diecrimlnatlon
and lts effectg

d, Soclo-economtc Bt.atus

oo Enhanclng factors

f. Unresponsivenese

3

4

6

10

IO

L2

2. Adoptlon of Commission'6 at-Iarge
Bystem

0o The Reconstruction ac-large
aYstem

b. The change to an aPpointive
system

c. The return to at-large electlons

DletrlcE court's declslon

Standard of revlew

ARGUt.{ENT

I4

C'

D.

SUMI.{ARY OT

I4

l5

t5

19

20

20



Page

STATiIENT OF JURISDICTION 25
ARGU}TENTI

r. THE AT-LARGE SYSTE}IS RESULT IN DISCRIMINA-
TION IN VIOLATION OF EECTION 2 25

A. Sectton 2 prohlblte votlng practlcee
that reBult in dtscrlmlnation
lrrespectlve of their lntent 25

B, The evidence compels a finding that.
the at-large BystemB resulE ln
dlecrlmlnatton ---- 27

II. THE COMI,IISSION.S AT-LARGE SYSTEM WAS
ADOPTED WITH DISCRIMINATORY INTENT N.ID
ITS USE THEREFORE VIOLATES SECTION 2
AND THE FOURTEENTH AITIENDMENT ----;.-- {I

A. The evidence establlshee that the
Commlssionre at-large aysEem waa
adopted with a dtscriml.natory lntent 42

B. The dlstrlct courtrs flnding that,

intent is based on an lmproper legal
st,andard and ls clearly erroneoua 45

coNcLUSroN ---- 49

11



Caeesr

TABLE OF AUTHORITIES

United States, 446 U.S. t56

38 
^

2

48

27 r37 r38r4L.42r4

L2

7

B

8

Page

27

4L ,44 ,46

34

36r37

sFia5*#eisli :_:I____-

tArlinqton Heights Vo Metgopolitan Hou-sinq

ffizizffi
Crosg v, Baxter, 60{ F.2d 875 (sth Clr.
-TFTgy -:--

EH,l; :ffi1 Bl,'i,BXE!._:13_f:3:_1111: 7

rKirksey v. Board 9-f S-!p9-EfLi-seIE' 554 F.2d
ffiu[fi ffi ---+ 3s,3?,3e,{0,{I

Lee vr Dallas County Rd. of-84!f9r, 456 F. Supp.
trsi 13

Lockhart v. United States, 5I U.S.L.W. 4189

!9.{gg v. Buxton, 639 F.2d 1358 (5th Cir.
I98I) ------

MobiIe v. Eg}1!g, 446 U.S. 55 ( 1980 ) ---------
NAACP v. Gadsden County gcloof gQ., 691 F'2d-EAiirtffi

*BgggIg r. .s!99., 50 u.s.L.w. 5041 (u.s. July I,
I982 ) ------

Sellront lr.nprovement Ass ln_v. Dal199 CoYn!Y
iz (s.D. Ala.1972) --

Smith v. Allr,rrlqht , 32I U.S. 649 ( t9{4 ) ------

Llnited States vo Atktns, 323 F.2d 733 (5th--TT;;-Tffi3r-----
United States vr Clark, 249 F. Supp. 120
ffi1e65p

tii



Cases(continued)l

Unlte-d Statee v. Gvpsum Co', 333 U'S' 354

@---*---
Unlted States v. Itlcleod, 385 F' 2d 714 ( 5t'h

-cr'r. 
--IEE7I -:-------

United States v. State of Alabama-, 252

-F.Fupp:-E (tq.ffi
.$!Jg v. Begeet9r, 4L2 U.E. 755 (1973)

Willlams v. WaIIaqe, 2lO F' SuPP' I00

-Tf'A-era.-T5r[5f
rZimmer v. McKetthgn, 485 F.2d L297 (5th Ctr.
-T9-r3) --ffi

Constitutlone and Etatutess

Page

26

7r8

6

L9,2L r25

I

34

L,2 ,4L
2

United States Constitution:
Fourteenth Anendment --;-----
Ftfteenth Amendment ----

Voting RightB Act of 1965r Title Ir, Section
2 ------

M i sce I laneous I

tS. Rep.
( le82 )

No. 4!7 , 9th Cong., 2d Sess. 2

U.S. Commission on
Rights Actl Ten

CiviI Rights r The
Years After ( I975 )

20,25,26 r27 ,35,
38, 4I

}I
Vot i ng

1v



IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 82-7362

UNITED STATES OF AHERICA,

Appe I lant

Vr

DALLAS COUNTY Co!'t|',lrssroN, et !1.1

Def ondantB-APPo I leee

APPEALERoTTTTHEUNITEDSTATESDISTRICTCoURT
FOR tHE SOUTHERN DISTRICT OF ALABA}IA

OUESTIONS PRESENTED

I. Whether t.he evidence compels a f inding that' the at-large

svstemg for electlng the Dallas County Commisslon and the Dallas

county Board of Educatlon reault ln discrlmlnation on the basls of

race ln violatlon of Sectlon 2 of the Votlng Rights Act?

2. Whether the evidence compels a findlng that the at-large

system for electing the DaIlas County Commission was adopted with

discrlminatory intent and therefore vlolates Section 2 of the Voting

Righte Act and t'he Fourt'eenth Amendment?

STATEI{ENT

A. Procedural Eletorv
The United States brought this vote dilution suit in October

197g. The United Stat,es' complaint alleged that the at-large method

of electing officials to the Dallas County Commission (Commission)



2-

and the DaIIas county Board of Education (school Board) lmper-

mlestbly dllutes black votlng strength 1n vlolatlon of Sectlon 2

of the Votlng Rtghte Act and the Eourteenth and Flfteenth AmendmentB.

Trlal began ln November 1979. In accordance wlt,h then

prevailtng legal standarda, the partles lntroduced evldence on the

so-called Zlmmer factors. Followlng the Supreme Courtrs declelon

in @r. Bolden, 116 u.s. 55 (1980), ln uhlch a majorlty of

the Court disapproved exclUslve reliance on the EI*9J. factore aB

proof of unlawful dilutlonr the Unlted States requested an oPpor-

tunity to preeent evldence that the at-Iarge ""n"."" rrere adopted

wlth discrimlnatory lntent. At a status hearing 1n JuIy 198I, the

district court stated that it would permit the United States to

intrOduCe Such evidenCe OnIy again6t the CCmmlsslon. rn Novemoer

I9BI, trial resumed for this purpose and the United States and the

Commission presented evidence on the intent underlying t'he adoption

of the Commigsion's at-large scheme.

On September 3, 1982, the digtrict court iesued a decision

findlng tn favor of the Echool Board (5{8 F. SuPp. 79{). One week

Iater, the court iesued a Becond declelon flndlng in favor of the

Commission ( 5{8 F. SupP. 875). The Unlted Stateg filed a timely

not,ice of appeal from these decieions.



3-
B. Facts

DaIIae County le one of LZ counties in Alabamars Black BeIt.

According to I98O census flguree, |t has a populatlon of aPproxl-
v

mately 50rOO0 (Ex. A-99).- I9?0 cen8u8 flgures showed blacke to be

4?t of the votlng age populatlon but only {3.3t of the reglstered

votere (548 P. Supp. at 8S7). BY the 1980 cen8u8, blacka comprtsed

approxlmately 55t of the total populat'ion, but, only 49t of the votlng

age populatlon and only 4{'8t of the regietered votera (Ex' A-991

Ex. A-I0I), The county aeat of Dallas County ie ln Selma'

Slnce I90I, the Commi8glon has been conPo8ed of four commls-

slopers and one probate Judger tII elected at'-Iarge (5'[8 F' Supp'

g771. To win a party prlmary, a candidate muaE win a rnajorlty of

the votes cast (ld. at 881). Each of the fOur Commissioners must

run for a particular Post (!!. at 88I-882)'

slnce at, Ieast 1915, the School Board has been composed of

f ive members, aII elected at-large (!!. at 802). As in the ca6e of

theCornmissionlC6fldidatesmustaecureamajorltyofthevotescast

to wln a party prlmary and must run for a partlcular po8t (!!. at 800)'

l. ReeuIt of thg-?t-larqq ?vetems

io ConslEtent d€-fpat of black candi

No black hae been elected to the Commiselon or the School

Board in an at-Iarge election ln modern times. During much of this

perlod, blacks did not run for office. Since 1956, however, many

l/ tEx.' refers
Erre tranecr ipt.
548 F. Supp. at

to th6 United Statesr exhibits. "Tr.' refers to
References to the courtrE declsione are cited aa



0.

{-

blacks have run noE only for the commlseton and school Board' but

aleo f or aII county-trtde of f lceg ln nallae County (lg!. at 900-902 ) '

In fact, between 1966 and I9?8 over 30 blacka sought count'y-wide i

offlce (.I!id.-). However, not one wa8 elected (1d. at 902}. 
I

i

b. Bloc votlnq

In contesEs beEween black and whtte candldaLes, voting ln 
,

DaIlas County has traditlonally occurred along racial llnes' wlth

bl.acke votlng for bl.ack candlrlates ancl whltes vottng for urhtte candl- ;

dates (ld. at 905). The Unlted state8r €xpert, Dr. Cottrell, examtned 
:

thereturngofmostoftherecentelect1one1pwhichviabIebIack
candidateE opposed uhlte candidatee ae welI aa the returns of 6ome

electlons ln whlCh only white candidates ran (Tr' 1574)' Baeed on

hls analysls of these returns, DE. Cottrell concluded that t'he degree 
i

of racial bloc voting in Dallas County electlons is'ienormously H19h'

(Tr. I?06). Dr. Cottrell reached thla conclusion only after subjecting

the returns to a nunber of different t,e6t8 usod by pollEicaI ecientists.

First, Dr. Cottrell computed a racial polarlzatlon index for

each election. This lndex m6a6ureB the difference between the voting

behavior of predominantly black preclncte and predomlnantly whlte

preclncts (e.Gl. r lf predomlnantly black prectncts glve 80t of their

vote t,o a candidate and predomtnantly white precincts give 20$'

the index is 60) (Tr. 15?6). Dr. CottreII found that in every

election between a black and a white candidate, the racial polar-

ization lndex was high ( ranging f rom 3'l to 75 ) I ancl that in every



5-

oneoftheelections,exceptone,thelndexwaehlgherthanln
electlons tn which there were only white candidat'ea (!!. at 1576'

1579 ).
Dr. CottrelI aleo attempted to determine the avBrage whlte

support for black candidatea. He found that ln thoee preclnct'e in

whtch whites repreaenEed over ?0t of the voter8, black candldates
2/

recelved an average of only lzt of the vote (Tr. 1580)'

As a flnal t€Bt, Dr. cottrell used an overlapplng percentage

technlque, Thls technigue providee a basia for deEermining how

whites and blacks actually voted ln preclnct's,wlth hlgh concen-

trations of one race or the other (Tr. I58I). Applying the overlap-

ping percentage technique to sample precincts ln Da}Ias County,

Dr- cottrell found that voters tn Da1las County are voting "as close

Eo a brIOC as you could aek f or ln social science" (Tr' 163l ) '

The comnlsslonrs expert, DI.. Voylesl confirmed Dr' cottrellts

conclusions about the extent, of racial bloc voting ln conEeata

between whlte and black candldates. Dr. Voyles examined nine such

elections. In each caae, hB determined the correlation between the

race of the voters and the race of the candidates by calculafing

what, is known as an R sguared coefflcient. According to Dr' Voyles'

when the R squared value ie greater than ,5, the correlation is

@accountforasignificantnumber,ifnotmost,
6f the6e votes, the average whiEe support for black candidates is
actually far less than l2t (Tr' 1580)'



5

elgnificant (Tr. t727-1128 ). In the nlnE elections between black

and whlte canrlldates that he examtned, Dr. voyles reported R squared

values of .691 ,131 .67, ,725t ,7L, '657, '7OBt '54{ and '803 (Tr'

I??5-I?80). DI., Voylee thue found a statlstlcally slgnlflcant'

correlation between the race of the voters and Ehe race of the

candldates tn every electlon between a black and a whlte can<lldate

that he analYzed (l!I5!3).

Becauae blacka conat ltute an elect.oral mlnorlty r the htgh

degree of bloc voting in DaIlas County Iimits the oPportunity of

blacks to elect. candldatee of thelr choice. , Ir factl lB Df' CottrelI

testified, given the extensiveness of bloc vottng in DaIlas County

and the fact that blacke represent a votlng mlnority, the use of an

haa the effect of 'basically excludIing] blacks from

holding office' (Tr. 1582, 1583-1584).

The history of voting dlscriminatlon in Alabama is well known'

Blacks were first enfranchised in Alabama in 1867 during the period

of Reconstructlon (!]IfJ=@ v. state qf AIabaTa, 252 F' Supp'

95, g7 (lil.D. AIa. 1966) ). When ReCOnstrUCtlon ended, there followed

.sordid attempts to dlsfranchlse Negro voLers through fraud and

often outright intlmidationx (3i. at 98). Because these practicee

.shocked the conscience and were not entirely effective t t r [a]

demand grew for more sophieticated means of depriving Negroes of

the vot,e' ( ln id . ) .

c. History of v_otinq discrimination anrl ilEs effects



1

In I90t a Constltutlonal Conventlon was called for thlg

purpo8e and resulted ln the adoptlon of euch devlcee aa the cumula-

tlve poll tax, a one year employment cIauge, a petty theft' provlslon

and a literacy regulrement (!!r- at 99). Theee meaaurea were highly

ef fectlve in ellrninating black votera (]!!1!.)'

In addttion, within Beveral years of the dlsenfranchleing

convention, the Democratlc Party instituted a whit'e primary (Tr'

356I).SincetheRepubllcanPartywasnolongeraforceinthe
Stater the white primary effectively precluded blacks from having

any voice ln political affalrs. After the srlpreme Court struck down

a simllar whlte prlmary 8y8tem in E@ v. A.llwriqlt, 32I U.S. 549

(I944), Alahama adopted a provislon reguiring voters to demon8trate

holdtng the provision unconatituttonal, the purpose of t'his measure

was to eliminate as many black voterB as possible (S,. E@IL,

sl F. supp. 872 (S.D. AIa.)r affrd, 336 u.s. 933 (1949)). Dlecrlml-

nation tn voting continued throughouE the State of Alabama until

passage of the Voting Rights Act in 1965 (548 F. Supp' at 88?-888)'

Whtle black voters throughouE Alabama have been subjected to

a long history of diecrlmination in voting, the situation in Dallas

County has been part.icularly egregious. The discrimination in

Dallas County was so complete that tn 1960 less than tt of the

black voting age populatlon was regiatered to vote (Unitqd States v'

McLeorl, 385 F.2d 734r 740 (5th Cir. 1967)). In 1963, the Fifth



lt

I

Circult found that. the Dallas County Board of Registrars had accom-

plished thle through ia pat,tern or practtce of racial dlgcrlmination'

and ordered ext,enaive rellef (Untted states v. Atkins, 323 F.2d

733, 736, 745 (1963)). Deaptte thlg order, ln 1964, the perc€ntage

of black registered voterg had rlaen to Juat 2.21 of the total

black votlng age populatton (Pn,ltgd StaFeq, v. I*g5!, 9!EI9, 385

F.2d at 740).

Membere of the black communlt.y ln Dallaa County then began

intensive efforts to lncrease the percentago of black voters.

(wiIliams v. WaIlace, 240 F. Supp. I00, I03 ('H.D. Ala. 1965) ).

These efforts were steadfastly resisLed by Dallas County officials

. ted by then Shertff Clark and his 60 called'possemen'(id.- at I04).

These Dallas Countv offlciale enqaoed 1n a continuous pattern of

'harassment, lntimidaElon, coercion, threatenlng conduct, and 6ome-

times, brutal mistreatment" (!Ei$). This conducE 'ranged f rom

mass arregts wiEhout just cause to forced marches for several

miles into the countryeide, wlth the sheriff's deputies and members

of his posse herding the Negro demongtrators at a rapid pace t.hrough

the use of electrlcal shocklng devlcee (destgned for u8e on cattle)

and night stlcke to prod them along" (gL at 104-105). only a

!/
number of lawsult.s- and the eventual defeat of Sheriff Clark put

an end to these practlce6.

I-.@r. wal-lace., 240 ['. supp. 100 (M'D. A]a. ]965); unitecl-Stqtes v.-TTarkr-T4f f . supp. 720 (s.D. Ala. 1965); united j;-tqtes v.
IEIffiI, 3gma 714 ( 5rh Lir. ]e6z ).



9-

After passage of the Vottng Rights Act, federal registtrars

were sent to Dallas County and blacks were able to reglater ln

signiftcant, numberg for the flrst tlme (548 F. SuPp. tt 888)' In

1966r the number of, blacka reglEtorod Co voto lncreaaed from approxl-

mately.335 to over 10,000 (1!L*-)' As a con8eg9ence of the long

hletory of dlacrlmlnat,lon, however, many blacke remalned roluctant

to register and parttclpat.e ln pollttcal affalre. AB one long tlme

Dallas county politlcal leader explalned, "a lot of people just had

Bomethlng, I donit, know, ltko a [orror or etlgma that was left

over from the fear Ehat was plant,ed in themr'(rt. 401). Anothor

black leader in Dallas County explained the continuing difficulty

ln persuading blacks to participate 1n political affairs in thle

way (Tr. l064-1065)l

It is far deeper than apathy. It goes
back generatlons. It is deeply engrailed.
You cinnot bar people away from a building
for generations and you cantt tell them
ehat polltlcs is the other mantB trusiness
and to expect to erase that overnight, because
Congress passes some law. There is a deep
pryEf,otogy t.hat has to be dealt with t ' r.
iy-childien have a lot lesa of that in them
than my father has. But lt ls a gradual
proceSB o

B€cauEe of these 6ffectg of past discrimlnation, blacks in DaIlas

County continue to reglster to vote at a lower rate than whites.

According to I9?0 census flgures blacks constituted 47t of the

voting age populatlon but only 43.3t of the reglstered votera (548

F. Supp. at 88?). Tha l98O census f igures show a simi}ar gap.



c'

IO

l{hlle blacks const,ltute {9.8t of the votlng age populatlon, th€y

conatitute only {4.8t of the reglstered voters (Ex' A-lO})' In

addltlon, among reglatered votersr the black turn-out rate hae

conglqt,ently been 5-l0l lower than the whlte turn-out rate (Tr'

I585-I586).TheeelowreglEtratlonandPartlcipatlonrateaf}owing
from pa8t discrlmlnatlon contrlbute to the lnability of bl'acks to

elect candidat,es of, thelr cholce'

d. Socio-economlc status

The socio-economlc status of blacks is depreseed. while the

median famtly tncome for whltes te $5828 pert yearr for blacks lt' ie I

only S3065 per year (Tr. 1587 ). There .t" "rnto""nately 
3OOO adults

in Dalrae county who are lrrlt€rater S?'3t of whom are brack (!!&)'

As Dr. Cottrell testified, the low socio-economtc alatua of blacks

has the effect of Itmlting stlII further their effective partict-

pation in the poll.tical proceaa (Tr. 1588)'

@. Enhancino factors

The at-Iarge systems used to elect candidatee to the Commie-

sion and to the Board contaln two features that further diminish the

opportunity for blacks to elect candidates of their choice' First'

to win the Democratlc primary, whlch ls the principal pathway to

electlon in Dallae Countyr t Cardldate must receive a najority of

t.he votes cast (548 F. Supp. aE 908)' Thug, ln a three person rac€

involvlng one black and two white candictates, if the black candidate



1I

capture8 a plurality but not a majorlty of the votee, he ie forced

lnto a head-to-head run-off wlth a alngle white candldate (Tr' 1583-

I58{). In such a head-to-head contogt, the black candidat,e Etands

llt.tle chance of aucceag ( ibld. ).

In addltlon, candidates muBt run for numbered posts. with-

out numbered posts, blacka would be able to increase their relative
!/

voting Etrength by engaging in slngle-shot votlng (Tr. 158{-1585).

The use of numbered posts elimlnates the opportunity for effective

elngre-shot votlng ( tbld. ).8/

!/ Single-shot
on Ctvll Righte,
(re?5)):

vottng has been descrtbed aa follows (U.s.
The Votins Rtqhte Acts len Years Aftor,

Commiss ton
pp.206-20?

Consider tal town of 500 whites and {00 blacks tdith an at-

to last four vote6. Suppoee Ehere are eight white candldateer wlth
the vot,es of the whites spl it among them approximately equally,
and one black candidate, with all the blacke votlng for hlm and no
one else. The result ts that, each whtte candidate receives about
300 votes and the black candtdate recelves 400 vot€8. The black
nus probably won a aeat. This Lechnlque is called single-shot voting.
Single-shot voting enables a minority group to wln aome at-large
seaEs lf it concentrates lta vote behind a Iimited number of candi-
dates and if the vot,e of the majorlty ls divided among a number of
candidates.

2/ The U.S. Commission on Civil Rights has explained the effect
of numbered posts ln thie way (id. at 207lz

[Ilnstead of having one race for four positions, there could
be four racesr each for only One position. Thus for posE t'lo. I
there might be one black candldate and one white, with the white
winning. The situation would be the same for each postr oE seaE--
a black candldate would alwaye face a white in a head-to head contest
and uould not be able to wln' There would be no opportunity for
single-shot voting.



i

if. Unresponsiveness

The Commlsglon has been unreaponslve to the epeclal needs of

blacke ln two of, lta prlncipal areas of resPonsiblttty -- road maln-

tenance and appointments to committees. ID 1972r the district court

found that ln the selmont arer of Dallas county, the commission had

paved ths streots Berving whltes but had refused to pave the atreeta

serving blacka. (Selmont fmprovemPng 4e-grn v. P-gIlas C-oun9v Comm',nr

, 339 F. Supp,477, {8} (S.D. Ala. I9?2)). The court found thls dls-

parity in treatment unconstltutlonal and ordered the Commlselon to

pave the streets ln the black secttone of Selmont (jlb,ld. ). tJhile

the Commieaton has taken Bt€pB to remody the eituatlon tn Se1mont,

- the fact remalns that throughout Dallas County far more blacka than

uh*+es l+v€ en Feeda Eh.t, ar€ unpaved .nd For'rly maintained. Witness

after wttnese t.esttfied that roads servlng blacks are ln poor condl-

tlon and that blacke euffer dleproportionately from the Commlssionrg

road pollcies (Tr. 765-767, 800-8II, B7L-877, 913-9I8, 1007-I012,

I323-1331). The Commleslonrs own wttneeses conceded that propor-

ttonately more blacke than whtteg ltve on unpaved roadg and that' the

roade ln greateet neod of repair Eerve prlmarlly black famlllea
6/

(Tr. 2327, 2379-2383 ) .-

@orSelma,wherebIacksarerepres€nEedontheC1tyeouncll, the situatlon ls far dlfferent. Slnce the electton of
blacke to the City Councll in 1972, the percentagg_9f roads serving
black famllles t.nit are paved hae increased from 15f to almost 100t
(Tr. 17l ).



13 -

The Commisslon's record on appointments also reflects its

lneeneltlvtt,y to black needs, Botwsen 195{ and 1971r for example, 
,

the comnlselon appolntBd over 80 people to varloug commlttees, only 
i

I was black (Ex. l{). while the commlsslon.s record has lmproved 
l
i

somewhat eince 1971, lt has continued to select blacks for committees

at a far lower rate than whites ( lbid. ). In the same perlodr the

CommlEelon had two opportunitles to temporarily filt vacanctes on

the commission. Although members of t.he black communlty euggeeted

qualified candtdatee for the vacancies, 1n both ca6es the commisslon

selected a whiEe person inatearl (Tr. 43?-438, 488-492).

The School Board hae alsg heen unresponsive to black needE.

The Board malntained a dual system untll at least' 1970 (g 
''

Dallaa Countv Bd. of Educ., {56 F. Eupp. I16{, l166 (S.D. AIa'

I9?8)). In that year, a three judge court ordered into effect

a desegregation plan with three principal components neighborhood

attendance zoneB, faculty desegregation and a majority to minority

transfer provislon (jbld. ). In 1978 the district, court found that

the Board had vlolated each ono of ihese provislons (J5!. at I167-l17l,

rr73-117{ ).



I/t

The following facte are drawn largely from the t,estimony of

Dr. HcCrary and Dr' Kousser, both of whom are historians with ;

particular expertlse in Southern hlstory and both of whom testlfied

on behalf of the united states. Although t.he commisslonrs expert,

Dr. Jones, dieputed Dr. llcCrary's and Dr. Kousser's conclusions

about the reasons for the adoptlon of the Commlssionts at-large

n'n''' 
'ihere 

::" ;::'::":::::::::::'"::;::""':",:::' 

fac'i'' 

,

The peri"o ffiuctlon began in rg6?. During' ' 
,

this period, race was the central lsaue ln Alabama polltlcs (Tr.

. 3285). The Republican Partyr which had control of the government,

believprr in Fqrr;rr I ty for blacke, while the Democratic PartY asseEted

a positlon of white supremacy (Tr' 3285-3286)'

In areas of Alabama with predominantly black populations,

the Republlcan Party waa particularly atrong (Tr. 3289-3290). The

reason is that vireually aII blacks were Republlcans (Tr. 3855).

During this periodr the populatlon of Dallas County r"as over 75t

black (Tr. 32g6-t2g7l. Wlth t,hle declslve electoral majority, blacks

uere able to elect the candidates of thelr choice to the Commlssion

under the then exlstlng at-Iarge Eystem. Blacks used this pou,er to

elect aII Republlcans to the Commission (Tr. 3285). Some of thoae

elected were thems a black (Tr. 3285, 3288)'



ts

b. The chanqe to an aopolntlvq svsten

In I8?{r the Democratlc narty reassumed control of the State

government 1n the so-called redeemer electlon (Tr. 329{-3295). The

Democratic legtelature was elected on a campalgn promlee of whlte

supremacy (lbid.-). Although whlte Democrats r€captured polltlcal

control at the st,ate level, they were unable to defeat' all Republican

candidates in the Black Belt countles (Tr. 3296-32971. In the 1874

, electtons in Dallas County, blacka elected a Commlgelon composed of

f ive Republlcans, two of whom werB black (Tr. 3{7't ).

In reapon6e to the contlnued aucceEB of black supported

candidates, whltee ln DaIlae Count,y demanded help from the Etate

- leglelature ln reestablishing whlt,e control (Tr. 3297 ). In par-

ticular, Dallas County whites called on the atate legislature to

abollsh elect,lve government ln Dallas Couniy and replace it wlt'h

an appointive Eystem under whlch the governor would appoint local

officials (tbid.). In 18?6, the Iegig}ature complled with thls

requeBt ( ibid-. ). There is no question that the purpose of the

gubernatorial appointmenE system was to prevent blacks and whites

identified with black interests from hotding county office (Tr. 3300-

3301). Indeed, lts supportere openly admitted as much (Tr' 3425-3426,

3{87-3489 ).



t6

c. The return to at-Iaroe electlons

While the 1876 gubernatorial appolntment ayBtem deprived

blacks of any opportuntty to lnfluence the gelectton of county

offlclals, blacke contlnued to vote in large numberg for state

r 1egislators (Tr. 330{-3305). Democrats responded to thls threat to

white rule by practiclng wideapread fraud 1n countlng ballote (Tr.

3306-3312). In thie udy, DemoCrats were able to control the outcome

' of electione evsn though they represented an electoral minorlty

( ibi_d. ).

Although Democrata eucceeded 1n winniirg elecElons through

ballot fraudl they did not. view lt aa a permanent way to maintain

- political control (Tr. 3522-3525). There wae always the danger

. that a court would order a fair count, a fear frequently expressed

by DemocratB durlng this period (Tr. 3525, 3502).- A falr counE

would have represented a partlcular danger tn DaIlas County, where

blacka continued to repre6enE an electoral maJorlty. Thus, whlle

Democrats in Dallas County were Buccessfully controlling elections

for the state legislature through ballot fraud, they did not imrnedi-

aEely eeek to reatore an elective eystem for county government.

Beginning in the I890sr the leglalature took several steps

that macle possible a return to an elective government in Dallas

County without fear that a court order of a fair count would threat,en

@ceoffraudentai}edotherrisksaSwe}l.Congress
Ead alreidy unseated several represent,atives after finding their-
elections -taintecl by balloc f rauO (Tr. 3522-3523 ). The contlnued
practice of fraud also created a political issue that could be

Lxptolted by other polltical partlee (Tr. 3651-3653)'



,JC

I7

white ruIe. FlrsE, the leglslature passed the Sayre Eecret ballot

Iaw in 1893 (Tr,3510). This law had the practlcal effect of a

Iiteracy requlrement and wae paeaed wlth t.he exprassed purpoee of

llmltlng the number of black vot€rs (Tr. 3307, 3309r 3510). Second,

ln the IgOO-I901 seselon, the legtslature paaaed enabllng Iegislatlon

calllng for a Constituttonal Convention alned aE rlawfully'dlsen-

franchlsing black votera. (Tr. 35I2). Thls Conventlon would eventually

resuIt, ln the adoption of two prlncipal disenfranchlslng devices

a literacy t,est. and a poll tax (Tr. 3590, 3655 ) '
Wlth a llteracy test and poII tax ln placer whltes ln Dallae

County could be aure that a majorlty of the voter6 ln Dallas County

would be whlte, even assunrlng a fair registration system (Tr. 3595-

3595). Accordlngtyr they could safely seek the restoration of

elect ive government rri Ehout Lhreat to white rule r 65 long as an

at-Iarge method of election was used (ibid. ). Whites could not be

as confident of preservlng an alI whlte Commlssion under a fairly

drawn single-member district system (ibid.). That is because,

even wlth the disenfranchlslng deviceei, blacks woulcl contlnue to

conat.ltuts a maJorlty of ttre el lgtble votera ln at least onc of

the districEs (Tr. 3594-3595).

In I901, Bome elx months before the disenfranchlsing conven-

tionr the 6tate legislature adopCed the current at-large system

for Ehe Dallas County Commission. At this Eime, racism was at its

height ln Alabama (Tr. 3584-3585). The state legislature was



l8

composed of whltee whose central concern waa the elimlnatlon of

black politicaL power (Tr. 3585, 3509). The Da1las County delega-

tlon, to whlch the legtalature ordlnarily deferred on local legtala-

tton, was 1ikewlse compoaed of whitee flrmly committed to preventlng

blacks from eharing polltlcal power (Tr. 3610-36I7 ). The selectlon

of an at-Iarge Eystem served preclsely thle purpose. It did not
8/

further any other identlfiable state policy (Tr. 3535). After re-

vlewing in detail the hletorlcal ctrcumetancee surrounding the adop-

tion of the Commlssion's at-large system ln 1901r the United Stateal

expert hiat.orlans, Dr. ilccrary and DE. Kousgbr, both reached the con-

clusion that it was adopted wlth the intent of prevent'lng blacks and

tho6e eympathetic to blacks from holding office (Tr. 3322-3323, 3659).

opinlon that the change from an appointtve to an electlve syatem,

Ilke the change from a party controlled nomtnation procesa to a

direct prlmary, yras part of an effort to bring government closer

to the people (Tr. 3930-3933). The Commission also presented the

testimony of Dr. Stewart, a politlcal scientist. Dr. Stewart

testified that at-Iarge sysEems were conrmon around the turn of the

century and that moat political scientists of that time preferred

at-Iarge Eystem6 over elngle-member dlstrict plans (Tr. 40I4-4015).

8/ There was no state
Trr. 3535). rn fact,
adopted single-member
3533 ).

policy in favor of at-Iarge elections
ULtweeir 1875 and 1920 almost as many counties
distrtct plans as at-large schemes (Tr. 3530-



19

C. Distrlct court I s decis-ion

n"a ln order to establlsh a violation

of Section 2 of the Voting Rlghte Act, proof of dlscriminatory lntent

is not regulred (548 F, Supp. rt 9f4). Under Section 2, the court

concludedr on electlon practlce te unlawful 1f it 'resultsr 1n dis-

crimlnatlon on the basie of race and thie determination is to be made

on the basis of the kind of objective factors aet. forth in Whlte v.

i Beqesrel , 412 U.s. 755 ( l9?3 ) (!!. at 91{-915 ) . In decldtng whether

the Commissionrs and Boardra af-Iarge schemeg result tn dlscrlmlnatlon,

the court made apeclflc findinge on many of tne factorg.

The court found that (f) black candidates have uniformly been

' defeated (j-5!. at gO2, 916) i l2l vottng in elections between black and

( 3 ) there has been a pervasive hiet.ory of racial dlscriminatlon in

voting (id. at 88?-888r 916), ({) the socio-economlc status of blacks

is depressed (!L at 908, 916)i and (5) there is a majority vote

requirement in party prlmarlee and candidates must run for numbered

posts ( id. at 85?, 908). ttespite these f indings, the court was not

persuaded that Ehe at-Iarge systems result in discrimination.

fn reaching thls conclusion, the court relied in part on a

finding that the Commtssion and Board have been responsive to black

needs (!!. at 840-841r 916). The court also relied on a finding

that apathy accounta for the inabitity of blacks to elect, candidates

of thelr choice (id. at 905-905).



I

j

!

I

20

The court aIBo rejected the Unlted Stat€8t clalm that the

Cqnrntcalonra at-Iarge eystem wae adopted wlth dlscrlmlnatory lntent.

Itlthout dlecuaalng ln any detnll Ehe evtdence Pre8ented by the

Unlted State8 ln Bupport, of thls clalm, the court slmply found that

the arloption of the aE-large echeme wag not solely or predomlnantly

raclatty motivated (!!. at 912-9I3 ). Instead, the court, determined,

Democrata adopted the at-large scheme because they'8aw lt aa an

opportunity to consolldate political potr,er and the best means to

perpetuate that polttical povrer" (gl. at 9I3-9I{ ) '

D. Standard of review

l. The dlatrlct court.ra flnding that the at-Iarge electlon

syetems do not ,reeultn ln dlscrimlnation is cloarly erroneous.

2. The dtetrlCt court'g tlnctlng tnat tne Uommr6slon-E ar-

large Bystem waa not adopted wlth dlecrlminatory intent is baeed on

an improper legal standard and 1s clearly erroneous.

SUMI.{ARY OF ARGUMENT

This is a challenge to the at-Iarge method of electing members

to the Dallas County Commission and the DaIlas County Board of Educa-

tton. The eseence of a clalm of vote dllution ls that, although there

may no longer be any formal barrlers preventing blacks from registering

and voting, the election system operates to cleny blacks a meaningful

opporLunlty to elect candidates of Lhetr choice. S. Rep. No. 4L7,

g7th Cong., 2d Sess. 30 & D. I20 (1982). It is that situat.ion that

Congrese reached by lte recent amendment to Sectton 2 of the Voting



2L

Rlghta Act. Our prlnclpal eubmiaalon ls that the dtetrlct courtr s

fallure to ftnd that the at-larg€ eyetema uaed to elect the DaIIas

County Commisglon and School Board vlolate Section 2 was clear

error.
I

Sectlon 2. as recent.ly amendedr prohiblts the use of any at-

Iarge electlon sy8ten that operatea ln a manner to deny votlng oppor-

. tunltiee on the basls of race, The amendment no longer requiree that

plaintiffs must prove dlscriminatory lntent as an element of a viola-

tion of Section 2, providing that racially di'scriminatory *results"

are sufficient. to establish a voting rights offense. The inquiry
. under Sectlon 2 !s urhether blacks have an equal opportunity to elect

the basis of t.he kind of objective factors set forth in &llg v.

Beoe,sF.er, 412 U.S. ?55 ( 19?3 ). The evidence ln the record, when

viewed in light of these factors, leads to the concluslon that blacks

in Dallas County do not have an egual opportunity to elect' candidates

of their choice. Whlle the dlstrict courE found otherwise, that

finding ts clearly erroneous.

Although blackg conatltute about 45S of the registered votBrs,

no black candidate has been elected in an aE-large election in Dallas

County in modern times. Since 1965, over 30 blacks have run for

county-wide office. lJhile viable black candidates have received

solid support from the black community, not one has received signi-

flcant whlte Bupport. BecauBe of racial bloc vot,lng, blacks have

consistentty been unable to elect candidatea of their choice.



Moreover, there hae been a long and egreglous hlstory of dle-

criminatlon against blacke l,n DaIlas County af fect'lng the rlght to

vot.e. Although the Voting Rlghts Act ellmlnated many of the obqtacleg

preventlng black PartlcipatlonT aa a conaeguence of thls hletory of

dtecrlmlnatlon many blacks have remalned reluctant to particlpate ln

polttlcal affatrg. For thls reason, blacke contlnue to reglster and

turn out at a lower rate than whltes and this reduces thetr opPortunlty

to elect canctldates of, thelr cholce st,lIl f,urther. In addltlonr the

soclo-economlc statua of blache ls depreeeed and thle also Iimlts the

ablItEy of blacke to part,lclpate effoctlvely. 1n the.polttlaal procesa'.

Finally, there ls a majorlty vote requi.rement for party primaries and

candldates muat run for numberod poBts. Thege requlrements enhance

the opportunlty for whites voting as a bloc to defeat black supported

cand idates.

The district court relied in part on lts finding that the

commission and Board have been responsive to black needs. That find-

ing ignores prevlous judiclal flndings that the commisslon and Board

have dlscrlmtnated agalnBt blackB 1n DaIlas County and 1s therefore

cleafly erronaoug. In any evont, Congrees haa made clear that a

defendant.s proof of some responslveness doee not defeat a showing

by more objectlve factor6 that blacks nonetheless lack an equal

opportunity to elect cantlidates of their choice.



23

The diatrlct courtrs finding that apathy accounta for the

conBietent ttefeat of black supported candldates ls llkewlse clearly

erroneous. The hletory of dlscrlmlnatlon againet blacke, thelr

depreased eocio-economlc atatus and thelr sense of futlltty are what

account for thelr low particlpatlon. And even lf blacks dtd turn

out aE a hlgher rate, there ls no basls for the courtrE assumption

that blacks would then have a reallstic opportunity to elect candi-

dates of their choice.

II

The Commisslon's at-largo Eyatem aIBo' vlolates Sectlon 2

and the Fourteenth Amendment. becau8e lt was adopted wlth a diecriml-

natory intent. During Reconstruct,lon, blacks constituted a majority

of voters and were able to elect candldates of their choice under

the then existtng at-large 6yatem. gJhen Democrats recaptured control

of the Etate legislature in IB?4 on a campatgn promise of white

supremactr whites tn Dallas County looked to the Btate leglslature

for help in reestablishing white control in Dal}as County' In re-

sponse, the legi.slature in 1876 eliminated elective government in

DalIas County and establlshed a gubernatorlal appoinEmenE system'

There is no queEtlon that thls wae done to prevent blacks and those

sympathetlc Eo blacks from holding office'

Then in its 1900-1901 6eagion, the legislature called for a

Constitutional Convention to "IawfuIly" disenfranchiee black voterE'

t{hites in DaIlas County knen that this Convention would result' in



24

t,he adoptlon of two principal dlsenfranchlsing devicesr a Ilteracy

test and a poII tax. Wlth these devlcea ln placer whltes ln Dallae

County knew that they would conBtltut.e a majority of the voters and

they could therefore control the outcome of alI elections under an

at-Large syBtem of election. A single-member dietrict plan would

not have provlded such a guarantee becauae, even wlth the dleenfran-

chietng devtceg, blacks would have constltuted an electoral majority

ln one of the dlstrlcte.
Against thls background, the leglelat,ure adopted an ab-Iarge

electlon scheme for Dallas County ln 1901. ia that ttme, racism

rras at its height ln Alabama. The leglslature was composed of whltes

who openly st,ated their desire to elimlnate blacks aa a polltical

force. The DaLlas County delegatlon openly embraceo tntE goar aB

well. The at-Iarge elect,lon scheme clearly furthered this purPose.

It did not aerve any ot,her ldentlflahle Etate policy. It ie thus

clear t.hat the at-large Bystem was eelected to help insure that

blacks would have no opportunity to elect candidates of their choice.

In reaching a contrary conclusion, t.he district court applied

an improper legal standard. The dietrict court found that the United

St.ates had not ehown that diacrlmlnatory tntent was the sole or prl-

mary reason for the adoption of the at-large system. It is well-

established, however, Ehat plalnElffe challenging an at-Iarge system

need only show that race 1g one of the motlvatlng factors.



25

To the extent that, the dletrict courtrs opinion may be viewed

aa resting on a ftndlng that the adoptlon of the at-Iarge Eystem

wag mottvated by polltlcal conaldpratlongr to the excluslon of

racial consideratlone, that flndlng 1e clearly €EEoIl€ouBe The

uncontradicted evidence in the record, lncluding the testlmony of

aII three expertB who teatlfled at trlal, ehows that during thla

perlod in Alabama hiBtory there wae no meaningful distlnction

between partlsan and raclal concerns.

STATEMENT OF JURISDICTION

This Court has jurlsdlction under 28 tl.S.C. I29I.

ARGUMENT

r .-.

DISCRIMINATION IN VIOLATION
OF SECTION 2

A, Sectlon 2 prohihite vot.Lnq practi.ces _that {gsult iJn

Sectlon 2 of the Voting Rlghts Actr ES recently amended by

Congress, prohibits any voting practice which 'resuIt.s" in discrimi-

natlon on the baele of race. As the clistrlct court recognized ( 584

F. Supp. at 914)r the amendment wae ndesigned to make clear that

proof of discrlminatory lntenE ls not required to establish a viola-

tlon of Section 2.' S. Rep. No. 4l7r 97th Cong., 2d Sess. 2 (1982).

Congress adopted lnstead the'egual opportunlty" standard articulated

in lEiE v. Reqester, 4LZ U.s. 755 (1973), which rested on proof of



I

26

a number of object,ive f actore. 9 at 2Bl 32. Thus, lrr the ulorde

ofthesenateReportaccompanytngtheamendmentlunderSectlon2l

courtB muet nou 'aBBess Lhs lmpact' of the challenged BtrucLuro or

practiceonthebasisofoblectlvefact,ors,ratherthanmakinga

determinatlon about the motivatrong which ray behrnd rte adoptlon

or marntenance. 
r I$ at 27 ' 

-.u r ra rnrl eubsequent deciaions

Congresa antlclpated' that White and eubsequent decia

, aPplying lt would Ferve aa n"1: Eo the klnd of factors a courts

should conalcler. ,' ar 32. Thoge factors lnclude (!!r- at 2g-29):

( I) the conalet'enr def eat of black candidateB, ( 2 ) bloc votlnq l ( 3 )

history of discrimination in votingr (4) depressed soclo-economic

- Btatuar ond (5) enhanc 'nn|,tut"-:tt' 
including na jority ""t"tt:::"'ffi*

menEg efrd nutrtrt€red ['nFts'3/ Arthough Ehe d:EtricE courE I

each one of these factorg was

}essconcludedthattheat-IargeEyEtemsaElssueheredonoEresulB
in unlawful dlscrlmlni;)""' As we demonstrate belou' thls findlng

is clearlY erroneous'

ffi:ii!::l"ii':"::::..l*?n3.}.J.?::t:'Bil.',lE.ii3l"::"ieiReP.-nd isiilTi;; Irott ut 291 ' -rirrrv a facrual issue and 1:^^

E;:*+t* ti-tlt""'"'ff;I;=i';'i:"?'t"
; ; ; 

- 
a 

" 
r i n i : : #:.#HH* 

I *u * i i:*ii It h**i-t*lli:",* 

- "

ffi."ooffiffi"t 
verbat'tm 

(conr,d)



27

B. The evidence compels a fiqdlnq that the at-larqe
€vstems result in discriTination.
Our analyala beglne wlth the fact that, although blacks

constltute approxlmately {5t of t,he regletered votera 1n Dallas

Countyr no black haa been elected ln an at-large electlon ln modsrn

timee, Since 1965, over 30 blacke have run tn at-Iarge electiona

for county wide offlce wlthout auccesa (58{ F. Supp. 6t 900-902).

This complete failure of black candidates to galn office ie lmportant

evidence that blacke in Datlas County do not have an egual opportunity

to elect candidates of their chotce. S. Rep. No. 417, !!.8e, at

29 & n. 1l5l cf. Egggg v. 899g, 50 U.S.L.ht. 5041, 50{4 (U.S. JuIy I,
1982) ("Becauee lt, ia Benslble to expect that at least some blacks

would have been elected * * r the fact that none have ever been L _

elected is importanL evidence * * *').

Another fact of critical importance le that. elections in
Dallas County are characterlzed by raclal bloc votlng, with whites

voting only for white candidates and blacks voting predomlnantly for
black candldat.es. After analyzing the results of elections between

black and white candidates, the United Statesr expert concluded that

the extent of bloc votlng in Dallas County ls 'enormously high. "

jn7-GonE'dT
this Court may'feel slight.ly more conf ident t I r that lmport.anL

or inadequately consldered.' Amstar
, 615 ['.2d 252, 258 (5th Clr. T066')-

evidence has been overlooked

g cases in which thia- principle has been applied in evaluating
Corp. v. Domino's Pizza, Inc.(cltinq cases in which this r
findings prepared by couneel).



28-

(Tr. L?06). The commleelon's expert likewlse found algnlficant

raclal polarizatlon ln every cont€st between a black and a whtte

candidate that he analyzed (Tr. 1776-17791.

The district court expresely found that 'in those races in

which whltes have oppoaed blacksr thera has been evldence of polariza-

tion of both white and black voters" and that'ilt such races whlte

vot,era have generally supportsd whlte candidatee and black votera

have generally Bupport.ed black candidatee' (548 F. Supp. Ot 905).

The courE also found that this 'polarizatlon ln black and whtt'e vot-

ing is an obstacle t,o black auccess at the pbltsi ( ld. at 906 ). The

court nonetheless attempted to minimize the importance of this

evidence on a number of grounds. None ig persuasive.

and white candidatee, blacks have supported the white bandidate ( id:

at 905). The only examples clted by the court, however, are the elec-

tion in shich Probate Judge Jones (W) defeated Samson Crum (B) and Lhe

election in which Sheriff Nichols (W) defeated Charles Walker (B)

(ibid..). In the Jones/Crum contest, both the United States' expert

and the Comrnlseion's expert found slgnlflcant raclal polarization ancl

the returna conflrm that blacke generally voted for Crum, whlle whltee

overwhelmlngly supported Jonee (Tr. 610, 647' 1778; Ex. 47r. And ln

the Nichols/Walker contest, the record reflects that Walker did not

present himself as a serious candidate and that he made no effort to

seek black support (Tr. 253, 105?). Accordinglyr oO significance

at.tachee t.o h1s f allure to attract s ignif icant black support.



29

Second, the court found that factors ot.her than race may

account, for the fallure of whltes to support' black candidat'eg. In

particular, the court referred tO the fact that Bome of the early

black candidates ran a8 BIack Panther and Natlonal Democratlc Party

(NDpA) candidates (5{8 F. Supp. rt 905). The fai}ure of whitee to

vote for these candldates, the court thought, could be parttally

explalned by the loyalty of whltee to the Democratlc Party and thelr

perception that they were not welcome ln the Rlack Panther and NDPA

parties (!!a at 905). The evidence shows, however, that whites have

voted aa a bloc agalnst alI btack candirlates', whether they have run

as Democrats or aB t,hird party candidatee. (Ex. 47, Tr. 1776-1780).

In Iight of this fact, the only possible conclusion is that race,

raEner

DalIas County have voted.

The court rras also of the view that the natural tendency to

support lncumbents partially explalns the failure of whit'es to support

black candldates (!! at 905 ). There is no doubt that incumbency ie

ofgen a polltical advantage. But lt cloes not begin to explaln whtte

vot.lng behavlor ln contests between whi.te and black candldates. The

evidence shows that whitea have voted as a bloc against black candi-

dat.es, whether they have been opposed by incumbents or non-incumbents

(Ex. 47i Tr. 1775-1780). fn short, the only consistent explanatlon

for white voting behavior is race.



30

Third, the dlstrict court streaaed that, even though whlte

candtdates seek black eupport, there ls no evldence of bloc votlng

in cont,esta ln whlch only whltee aro lnvolved. But r !8 DE. Cot,trell

and Dr. Voylee te8ttftecl, bloc votlng te expected only when there ls

a black candidate or a whlte candidate who closely identifies hlmself

with black intereets (Tr. I553, 178I-I?82). While some whlte candl-

dates have sought black support, the record shows that not one has

closely ldentlfled himself wlth black lnterestg (Tr. 287, 1071-LO72,

IO?5-I0?6. I782 ). As one bl.ack leader teBttf 1ed, wlthout contradlc-

tion, lt any whlte candtdate truly allgned hfmeelf wtth black tnterest8

and openly promoted the rights of blacks, "that would kiII him rlght

there" (Tr. I07l-I072). The absence of bloc voEing in whlte only con-

tests simolv reflects the fact that no white candidate has yet taken

this step.

Fourthr the district court apparently thought that, because

blacks have played aome role in the elect.ion of several trhite

candidates over other whlte candirlat,esl they have no real cau6e f or
, ll/
complalnt (548 F. Supp. Bt 904).- But as the evidence ln the record

Ilfffi;ourtts findlng that the black
,*ny elections is somewhat mieleading.
court, except one, the winnlng candtdat.e
support, (Ex. 1).

vote has been decisive in
In every examPle cited bY the
received substantial white



3l

demonstrateg, rrhen blacks vote ln electlons ln which there are only

white candldatee, they vote for the }esser of two evlle (Tr. 132,

lO5?). The fact that blacks have Bome lnput ln decldlng which of two

baslcally undeairable candldatee wlII be elected 1s no substitute for

an election Bystem that provldea them wlth a meanlngful opportunity

to support candidatee they regard aa truly responsive to thelr

interegts.

, In Bum, notwithsEanding the court'g effort to mlnimize the

stgnificance of bloc votlng, the following facts emerge. Ftrst,

blacka ln Dallae Cunty have overwhelmlngly preferred black candidates

for offtce. S€condr becauge blacke conaEltute an electoral mlnority,

t.hey have needed whlte EupPort ln ordor to have an opportunity to

clanr rhrrqa t-nndidetnn^ Thlrd. whites. without gxCeOtion, havg rg-

fused for racial rea6on6 to provlde this kind of support. These

facts, all of which are either undisputed or overwhelmingly Eupported

by the recordr show that, tn Dallas Countyr bloc voting significantly

dimlnishes the opportunity of blacks t.o elect candldates of their

choice. To t,he extent that the dlst,rict court concluded oLherwiae,

that findtng is clearly erroneoua.

Although the conaist.ent defeat of black candidates and the

enormoualy high degree of bloc votlng le persuasive evidence t.haE

the at-large systems result in discrimination, the United Statesl



32

case doea not rest on proof of these facts alone. The evidence also

shows that there has been a }ong htstory of discrimtnation against

blacks ln Dallae County affect,lng the rlght to vote. Through a

variety of dlecrtmlnat.ory votlng procedures aa well as outrlght
lntimidatlon and harasement, blacks 1n Dallae County were almost,

completely digenfranchlsod prlor to the enacEment of the Votlng

Rlghts Act in I965 (pp. 6-8, supr?).

. The dietrict, court found that blacks ln Dallas County have

been subJected to 'pervasiver dlecriminaLlon (548 F. Supp. at, 887).

It concluded, however, that because blacks can now reglster and vote

wtthout hlndrance, thte hlatory of dlscrlmtnat,lon ls wlthout slgnt-
- ticance ( id. at 905 ).

rnffindino lonores the ovnrwhelmino evidence in the record

that many blacks cont.inue to be disenfranchised because of the

lingerlng effecLs of pa6t discriminatlon. As Marie Foster, a }ong-

time black politlcal leader teaElfled, even after Ehe Vot.lng Rlghts

Act made it possible for blacks to register 'a lot of people just

had somet.hing t t r llke a horror or st'igma that was lef t. over f rom

the fear that waa planted 1n them" (Tr. ,t0l ). Another black leader,

Joseph Pettwayt Eaferred to the blacks working on plantatlons who

are reluctant to partlcipate in political affairs anrl explained that

'the fear is still there' (Tr. l3J5). Councilman Reese testified



33-

that t.he hletory of dtaeriminatlon stlII affects many blacks in

Dallas County and that ' lyl ou really have to be black to understand

what lt means to have been denied t,he prlvilege of reglstration and

of iroting and the klnd of fears that have been lnJected lnto the

black community' (Tr. 2751. Flnally, another black leader,

Attorney J.L. Cheetnutl teettflecl about the continulng dlfflculty

1n pereuadlng many blacks to parElclpate ln politlcal affalrs ln this

way (Tr. 1064-1065):

It is far deeper than apathy. It goes back genera-
tions. It, ls deeply engralned. You cannoE bar people
away f rom a bullding for generatl.ons and you canr t -tellthem that politics is the other man'8 business, and to
expect to erase that overnight., because Congress passes
some law. There ls a deep psychology that hae to be dealt
wlth I t r. Hy children have a lot lesa of that ln them
than my father has. But it ls a gradual process.

The courtrs f indlng that t.here are no present ef fects of

past discrimination also faile to take into account the evidence

that the black registration rate continues to lag behind the white

registration rate. According to 1970 census figures, blacks con-

stltuted 4?t of the votlng age poPulatlon, but only {3.3$ of the

regtstered voters (548 F. Supp. at 88?), Thtl I980 cenEuB show.s a

slmilar gap. While blacks constltute {9.8t of the vot.ing age popula-

tlonl they con6titufe only 44.8t of the registered voters (Ex. A-99,

A-l$tl. The fifth Ctrcuit has expressly held that differences 1n

white and black registration rates indicate that the effects of past



34

dlscrimlnatlon pereist. gIggg v. Baxter' 604 F.2d 875, 88I (1979)l

zimmer v. HcKeithen, {85 F.2d L297, 1306 (I973} (en gg!g).

The dlstrlct court, apparently dlcl not, conaider dlf ferences of

thls magnitude to be substantlal. Ae Dr. Cottrell testifled, wlthout

contradiction, however, given the hlgh degree of bloc votlng ln Da}lasg/
County, these dlfferencee are obvtously algnlflcant (Tr. I643).

The courtrs findtng of no present effecte is also refuted by

the fact that among eligible voter8, the black turn-out rate has

consistently been 5-I0t lower than the whtte turn-out rate (Tr. 1585-

l5g6). As Dr. CottreII te8ttfled, thts lorer particlpation rate ls

a predlctable effect of paBt dlscrimlnatlon (Tr. 1589-I590)'

In shortr the evidence in Lhe record affirmatively shows that

the egregious hlstory of discrlminaElon 1n DaIlas County has PreBenE

day effects. There is no evidence in the record to the contrary'

The district courtrs flndlng that there are no present effects of

pa6t diecrlmination is therefore clearly erroneous.

1fTffiaching lts conclusion that the black registration rate ie
ffit".un.i;ii;.{uaI ro rhe whlLe reglatraclon rate, tho court rolled
in part on f6Ze populatlon estimateg. These population estimates
showed that the -percentage of blacks in the population had declined
( from 52t to 4gti and th; court therefore assumed that the percentage
of blacks ln the votlng age populatlon had declined to a slmilar
extent (from 471 to 44t). nlciuse blacks con8tituted a somewhat larger
p"i."ntig" of t.he registered voters (from 43t Lo 44t) the court con-
LlrO.O that blacks constituted aboub the same percentage of the. re-
gistered voters aB of the voting age populatlon. I comparison between
[fre 19?0 and l98O censug figures, however, shows that the percentage
of blacks in t,he general po[u]ation has, ln fact, increased (from 52t
to 55t) and the p6rcentage Lf blacks ln the voting ag9 popul"tlgl^has
lncreased as weli (fron nzt to 49.8t). Accordingly, both the 1970 and

(continued)



35-

The depressed aocio-economic etatue of blacks aleo Iimlte

their abllity to partlclpate effectlvely in t'he polltical process'

while the median famlly lncome for whltee is $5828 per year, for

blacks it is only S3065 per year (Tr. 1587 ). There are approxlmat'eIy

3000 adulte ln Dallae County who are ifllterater ST'3t of whom are

black (j!!1]3).

Although the district court recognlzed that the socio-economic

status of blacks remalns low, lt held that the unlted st'ates had

fallecl to show that thle affects tlreir accega to Etre polltlcal

proce66 (548 F. Supp.6t 9O8r 9f6). That finding ts clearly erron-

eous. The united staEes presented undisputed evidence that depressed

socio-economic status adversely affects a personrs ability to par-

any event, "[iJt is not necegsary t t t [toJ prove such a causal link'

Inequality of accesa is an inference which flows from the existence

of economic and educational lneguaIltles. " lljl-Eigy. v. Iloard of

supe{visore, 55/t ?.2d 139, I45 ( 5th Ctr. L971) (en banc), aee aleo

S.Rep.No.4l7,aHPI3rat29rDolI4'Thedistrictcourt'erredin
holding otherwlse.

iTi cont fnued )

iE'ao';;;;;;-iigrr"" show the same basic 4t-5t f all-of f between black
voting age p";;i;iion ancl black registerecl voters. Because the 1975

population esllmates cannot be r.c6nciled wi thr Lhe rnore reI iable I970
and 1980 census figuresr the dlstricE court clearly erred in relying
on them.



36

The at-large systems at issue here also contain features

which enhance the opPortunity for whites votlng as a bloc to

cancel out black vottng Btrength. The most algnlflcant of theee
L3./

!s the majorlty vote regulrement in the Democratlc prtmary' The

dlstrict court found that the maJorlty vote requlrement trwetghs in

favor of a f lndlng of d-llutionr ( ibti. ). This f lndlng ls clearly

correct. As explained ln 9i,!y.@ v. Urlted ptates, 446 U'S'

155, 183-I84 (I980), under a plurallty-w1n system 'a Negro candi-

date would have a falr opportunity to be elected by a pturality

of the vote if white citlzens split t.helr voies among several white

candtclates and Negroea engage 1n Iblocl vot lng 1n hls f avor.'r Under

a majorlty vote Bys;em, however, 'even if he gained a plurality of

candidate in a head-to-head runoff electlon 1n which,

voting by race and a whlEe majorlty, lnel would be at

dleadvantage.' JIIL (guotlng !it!y-91- Rogg v. UnitSC State!, 472

F. Supp. 22l-, 224 (D. D.C. 1979)).

In addiEionr CBlrdidates in Dallas County must run for

numbered postss. The dietrlct, court found thts factor 'neutral"

(54g F. Supp. it 908). But aB evldenco ln the record demonetrat€E

(Tr. 1584-1585), and the Supreme court has expreesly lndicated, the

use of numbered poste also minimlzes minority voting strength be-

Ez-rfFi5Temocratic party ts the primary t t t pathway to election'
( 548 F. Supp. at 908 ).

given bloc

a aevere



37-

caua6 it elimtnates the opportunlty for effective aingle-shot voting.

Ere., E!.pIgr ?0 U.S.L.W. at 50{51 Citv- -of Rome, 9!JEE, 446 U'S' at

185 & rlr 2]-t Bee aleo p. ll, E!pI!.. The dletrlct court dtd not

dlspute thls polnt, It stmply falled to recognlze lt. The dlstrlct

courtrs findi.ng that. thts factor ls'neutralx ls unsupported by any

evidence and is clearly erroneous.

In reaching its conclusion that the at-Iarge syatems at issue

here do not regult ln dlecrlmlnatlon, the dlstrlct court relled upon

two prlnclpal findinge. Flretr the court found that the Comtnlssion

and School Board have been responsive to blatsk needs. This finding

cannot be reconciled wlth the overwhelmtng evldence in the record to

the contrary. Thls evidence is discussed at length in our 6tatement

bears emphasis, however, that thls evldence lncludes judicial deter-

minations that the Commissionr os recently as 1972, discriminat.ed

against blacks in decidlng what roade to pave and that the Board,

aE recently as 19?8, vlolated the most. lmportanb provisions of its

courE ordered desegregation plan ( ihida). The dietrict court

apparently contiictered Ehe Commiesionra and Boardrs compllance wtt,h

t.he orders ent,ered ln these cages aE evidence of tlreir responsive-

ness. But , [tlo the extent t,hat Lhis evidence tends to rrrove any-

thing, lt is that Iitlgatlon was required to remove discriminaIion

in these inportant areas, and ttiat Iit,tgation has worked.' Kirks,ev,

supraf 55{ F.2d at 146. It, ls not evidence of responsiveness. Ibid.



38

The court also relied extensively on evidence that blacks as well aB

whites have benefited from aervlces provided by the Commission and

the Board. Although thLs evldence showa that the Commleslon and Board

may have complied with the Constitution |n these areas, lt does not

show that they have afflrmatively responded Eo the particular needs

of blacks.

In any eventr eB explalned in Ehe S€nata ReporL accompanying

amended gection 2, r,defenrlantBr prclof of aome reBPonBivenese Idoesl

not negace plalntiffrs ehowing by other, more objective factors

t * * that rninorlty votera neverLhele8s were'shuL out of 6qua} accese

to the polttical procesE. n S. Rep. No. 4L7 , B-uBI-?, at 29 , rrr 116 '

Thus, even assuming the distrlct courtrs finding on responEiveness

the clistrict. courErE ultimate conclusion that the at-large systems
L4/

aL issue here do not violat,e Section 2.-

The other critical component. of the district, courErs decision

ls ita findlng that, since a large number of blacks do not voter the

inability of blacks to elecL candldates is the result of apathy,

rather than the absence of equal opport.unity. There is absolutely

no basis for this flnding.

re supreme Courtr s af f irmance in-torJ.:5: or the Fif th
eTrcuit's Secislon in leslgs. v. B.!.r,xt-qn, 639 F.2d 1358 (1981), the
districL court heI<t tni-El?oof &-unresponsiveness 'is an essential
element of Plaintiffrs prima facie casel (548 F. Supp. ot 869r 9I9).
However, the Supreme Court in Rjlqers expressly disapproved the !'ifth
Clrcuiti s holdiirg that proof oT-Irrresponsiveness 1s a necessary pre-
dicate for proviig unconstitutional vote dilution (50 U.S.L.W. at
5044, n. g): And-as discussed above, Congress made clear in amendlng
Section 2 that proof of unresponsiveness is not essential'



39

To begin with, there le no evldence in the record that blacke

as a group are apathetlc. on the other hand, the unlted sLaEes pre-

senEed undisputed evtdence of other factorE that account for low black

voter participation. we have already discussed the effect of the

Iong history of discriminatlon on black part'iclpation and the aeparate

impact. of their depressed socto-economlc etatus. The evidence aleo

shows that many blacks regard voting a8 futile because che candidacee

they have supported have conBistently been def eated by..whlt'es vot'ing

as a hrloc (Tr. 275r 690-69I, 159I). As Ed Moss, chairman of the

SeIma-DalIas Counry Black Leadership Councll'testi'f ied (Tr. 690-69I):

I woulcl conslder Ielections] like a sport' You
know when you donr t get a wlnner, lt ie hard t'o get

ople to participate, and they contlnue to satr
ount. We have been trying and

bre have lreen trying, over and over and over, ancl ue
st.ill don't. qet anybody elected.' So that causes a

kind of aloofness in a Person.

Thus, the record reflects that factors other than apathy account

for low black participation. Tha district, courtts conErary finding

is unsupporced by any evidence and is clearly erroneous.

In IiEbEg-y,r the rif th circuiE reversed a ctlstricc court's

finding on apathy aB clearly erroneous holding that a finding Ehat'

blacks do not partlcipate because of apathy mutit be suPported 'by

sufficient evidence. It is not a matter for judicial notice.'

554 F.2d at 145. The Court speciftcally explained that a failure

to participat.e may be'a reeidual effect of past' non-access, or of



40-

dieproportlonate educatton, employment, lncome level or living

conditions. or it may be in whole or ln part attributabLe to bloc

voting by the white majorit,yr LS, a black may thlnk tt futlle

to reglster.' 19, at 145, D. 13. In t,hls caae, the district

court completely failed to follow the approach compelled by ]!E!SSI'

Inst.ead, it slmply ageumed that blacks are apat.hetlc and lgnored

the evidence that, ot.her factors account for low black participat'ion.

Moreover, the courtrs concluslon that a hlgher black turn-out

would permit. blacks to elect candldates of their choice is purely

Bpeculative. The courtra concluslon neceesarily depends on an aasump-'

tion that, if black turn-out increases, white turn-out would not also

increase. There ls no basls in the record for thie assumption. To

strongly reslsted the election of black candidates through bloc

vot.lng and that, irrespectlve of the degree of black turn-out, whitee

have turned ouE in eufflcienL nunrbers to defeat black candldateg.

There is not a ehred of evidence in the record to support the courErg

asEumptlon that thls pattern would not hold if blacks should turn out

aE a higher rate.

To find that. blacks have an equal opportunity to elect candi-

dates of their choice there must be something more than'gossamer

possibilities of aII variables falling into place and leaning in



- 4l

the same direction.' 5lrkseY, 9!PI3., 55{ F.2d at I5O. There must be 
I

evidence to thls effect. Because the dlstrict court failed to rely

on such evidence, ltg findlng on thte polnt le clearly erroneous'

In 6um, tho €vldsnc€ overwhelmlngly Eupport8 the concluslon :

that blacks ln Da}las county do not have an equal opportunity to

partlctpate in the polltical proceaB and to elect candidates of their

choice. This CourE should therefore reverse the dietricE courtr s I

contrary finding as clearly erroneous and remand for the entry of

appropriate relief.
II 

I .

THEcoMMIsSIoNISAT-LARGESYSTEMwASADoPTED
WITHDIscRIMINAToRYINTENTANDITSUSETIIERE.
FORE VIOLATES SECTION 2 AND TIIE FOURTEENTH
AMENDMEN'T

As we have explalned (p. 25\, a showing of dlscriminaEory

intent is no longer egsenttal to establlstr a violation of SecEion 2.

Nonetheless, proof of such an intent provides an independent ground

for invalidating an election procedure under Section 2' S' Rep'

No. 4L7, .gllp.B aE 27, Ancl the Fourteeneh Amenrlment Ilkewise

prohibits any votlng practice that is animated by a dlecriminatory

intent. .$!gg,, supra, 50 U.S.L.W. at 5041-5042'

In Arlington Egiqh-ts v. M,etropoltarl Housing corp. , 429

U.S. 252, 266-268 (fg77l, the Supreme Court specified a number

of factors a court should consider in determining whet,her a decision

has been macle wlth dlscriminatory lntent. They include: (l) the



42-

effectofthedecisiont12)thehlstoricalbackgroundofthedeclston'

particularly if tt reveals a eeries of decieions undertaken wlth

di'scrimtnatorylntentl(3)theBeguenceofevenEBleadlnguptothe
declsionl (4) deparEures from the normal procedural Eeguence; (5)

substantive departures from the normal practi'ce; and (6) legislat'ive

historyr including contemporaneous st.atements by the decislonmakors'

when viewed in Iight of thsse and oLher relevant factorB, the evidence

in this record compels a flnding thaE t'he Commlselonre at-Iarge

system uraa adoptod with a discrlmlnatory intent. The dlstrict court'8

conErary conclusion ls based on an improper I'egal standard and is

clearly erroneous.

A. The evidence est.ablishes that th9__q_qlruTlltsion' s at-lar
a

It is undisputecl that the adoptton of rhe Conunleslon's at-

Iarge system has had an adverse impact on blacke. Slnco its adoptlon

in 1901, not a single black has been elected to the Commieslon,

although many have run. As the supreme courc recenEly emphasized

ln &ggs=, E-!LEg, 50 u.s.L.w. at' 5044, "[t]hese facts bear heavily on

the issue of purposeful dlscrimination."

The sequence of events Iikewise indicates that racial consid-

erations influenced the selection of an at-large election system.

During Reconstruction, Dallas County had an at-large system (Tr. 3283).

Because blacks constituted a large majority of the registered voters,

they hrere able to elect candi<iates of t,helr choice (Tr. 3288-3289 ).



tl3

When Democrats regained cont,rol of the etate legislature ln l87tt

on a campaign promlse of white Bupremacy, whites ln DaIIas County

looked to the 6tate legislature for help ln eliminatlng black con-

trol in DaIlas County (Tr. 3?971- In 1876, the state legislaLure

accommodated the wishes of Dallas County whltes by passing a law

aboltshing the elective Bystem and replaclng it. wtEh a gubernatorial

appointment Bystem (ib.ld:). There ls no queation that thls systom

vras adopted ln order to prevent blacks and those sympathetic to

blacks from holding office (Tr. 3300-330I, 3425-3426, 3487-3489).

The state legislature then took a number of steps that

woulcl permit a return to electlve government without endangering

white control of DaIlas County. !'irst, the leglslature passed the

intended to eliminate as many black voters aa possible (Tr. 3307,

3309, 3510). Then, in ite 1900-190I aeBsion, the legislature called

for a Constltutional Convention to legally disenfranchise black

voters (Tr. 3512). Whites ln Dallas County knew that the Convention

would result in the adoption of two principal disenfranchising

devices, a polI tax and a literacy regulrement (Tr. 3590, 3655).

With these devices, uhices in Dallas County could be sure that they

would constitute an electoral majority, even under a fair regis-
tration system (Tr. 3595-3596). Accordingly, they knew they could

control the outcome of all elections under an at-large election

Eystem (_i!!d. ). A falrly-drawn sinqle-member districE plan, by



44

contrast, would not. have provided Buch a guarantee, alnce under

such a plan blacks wou.ld have conatltuted an electoral majority in

one of the dietrlctg deeplte the dleenfranchlalng devtces (Tr.

3593-3595). Agai.nst this background, the legislature restored

an at-large electlon eystem to Dal.las County ln I90L This Bsquence

of eventB ie compelllng evidence that t.he 1901 Act wab adopted

with discriminatory lntent.

The historical context of the Act shede further light, on its
:

purpose. At the turn of the century, racism was at its height ln

Alabama (Tr. 3584-3585). Aa explalned abovel the Iegislature had

recently called for a Constltutional Convention to lawfully disen-

-. f ranchiee black voters. Six months af t.er the adoption of the Commis-

sion's aE-Iarge arsEem, the Genvent,ion met, anrr adnPtprl t nrrmher of
' disenfranchising rlevices with the expressed purpoae of limiting

black polltical lnfluence. MoreoV€81 jusc tbro years later, the

Iegislature enacted the white prlrnary (Tr. 3561). I'hls series of

. contemporaneoua actlons almed at eliminatlng black polttical

influence is persuasive evldence that the I90I at-large election

systemwasdee1gnedtofurtherag1m1Iarend.@,

fn additlonr the state legislature at. this t,ime was composed

of whites who openly admitted that t.heir central goal was to eliminate

blacks as a political force (Tr. 3584-3585). The Dallas County

delegation, to uhich the legislature ordinarily deferred on local



t'

45-

Ieglslat.ion, wag also composed of uhltes flrmly commltted to prevent-

ing blacks from havlng any volce ln polltlcaI affairs (Tr. 3610-3617 ).

The racial attltude of theee decisionmakere provldes further evidence

that, the 190I at-large aystem waa dlecrlmlnatorlly mottvated.

Moreover, the St,ate dtd not have a pollcy in favor of at-large

electione. To the contrary, during thta perlod, almoet as many

counties adopted districtlng plans as at-large systems (Tr. 3530-

, 3531). Thus, while the selection of an at-large system plainly

furthered the Statets goal of elimlnatlng black political power,

it did not furt.her any other identlfiable 6tate policy. The abEence

of a nonracial explanation for the State's choice of an at-Iarge

- system convinclngty reinforces the conclusion thaf it was motivated

by di qcrimi nafory i ntent.

In shortr ds the expert historians called by the United

States testified (Tr. 3322-3323, 3559), aIl of the avallable infor-

mation uniformly pointe to the concluslon Etrat raclal discriminatl'on

was a motivating factor in the adoption of the Commission's at-Iarge
L5/

election syatem. On thle rocordr Do oLher concluston 1s poBBihle.

retestimonyoftheCornrnission.6expert,DE.Jones,frpports this conclusibn. According to Dr. Jones, the legislat'ure
actipteo the at-Iarge sygtem because under it'the governnrent is in
the control of the r,rhli,e people and Eo lt is all rlght" (Tr. 3931).



.. ' 
tta

t6

The distrlct courtrs findi that the Commissionrs
at-larqe svst€m was not a ted with d iscrimlnator
ntent Is base etandard a
6 clearly erroneQuq.

The Supreme CourE hae made clear that plalntlffs who challenge

a declelon on the ground that tt la motivated by dlecrlmlnatory lntent

are not required to show that tho challenged action rested solely on

raclally dlscriminabory purposes or even that dlscriminatory int.ent

vras the dominant or prlmary motlve, ArfilgUm qe.igbtsr Elllfg, 429

U.S. at 25I. Inatead, Plaintlffe' burden 1s eimply to show that

"discrimlnatory purpose has been a mottvatlng factor ln the declston.'

J! at 265-266 (emphasis added) I aee also, Rtqers, !l{Pllg, 50 U.S.L.W.

at 5042 (nCases charging that, multimember districts unconstitutionally

dilut.e the votlng strengEh of raclal mlnoritles are * *'subjecL to

B.

mDroDer leqa

the gtandard of proof generally applicable to Equal ProEecLlon ClauBe

cages, t )

The dlstrlct court falled to apply thle }egaI etandard. In

rejecting the Untted States' claim that the Commlasion's aL-Iarge

scheme was adoptecl with discriminatory intent, tho court Et,ated

(5{8 F. Supp, ot 9}2)r
t * r Plaintiffrs witness testtfied to the opinion
that race was the sole or predomlnant moLivation.
This Court belleves the evidence more clearly shows
that economic as well as political consideraEions
were domlnant factors.

The court further Eunmari.zed its findings as follows (id. at 913)

(emphasis added):

The Court f lnds as a fact t,Irat t.he adoption of the
at-large Eystem rr,aa motivated by one human deslre
as old as the hills: the group whlch was out ot
pohrer wanted to get' back into power. Those calling
themselves Democrats sought economical and political



r tr

47

power. This quest necegsitated that the Political
ind economic fower of both black and hrhlte Republlcans
be crushed. Properly vtewed, the disenfranchlsement
was a con6eguenca of thelr political leaninge. - The
Court rejecis the conclueions of the Plalntlffrs
expert witnesses that rlisenfranchisement was sqleU
racially mot.lvated.

These passages from the courtra opinlon make clear t.hat the

court rested lts declalon on flndlngs that. dlscrimlnatory lntent wae

not the,,sole,, or'prlmary'motlvatlng facLor in the adoption of the

' Commiss lon'g at-Iarge syst.em and never souqht t.o det.ermine whether

racially digcriminatory tntent hraa a mot.ivating f actor. The courtr s

rejection of the Unlted St,ateBr claim of dtscriminatory lntent. ie

based on the applicatlon of an lmproper legal gtandard.

In any eventr dtry finding that the decision to adopt an

exclusion of racial considerations, would be clearly erroneous.

As the evidence we have already discussed plainly shows, during

this period of Alabama hlstory, partisan concerns were also racial

concerns (pp. 42-45).

AII three expert hisLorians who testified al trial agreed

on this fundamental point. One of the United StaLesr exPerts,

Dr. McCrary r put i t t.h is way (Tr. 3384 ) :

There is no dlstlncEion thar's worth drawing in the
Reconstruction period between the politlcal criticism
of Republicans by Democrat6 and references to the race
question since they regularly referred to t.5e Republi-
6ans as the party of the Negror 6s the party opposed_ to
white supremiCYr and so on. There was a close Correla-
tion, in short, between partisan and racial character,
and that was certainly true ln DaIlas County.



I ' '"r

{8

The United Stateer other expert historlan, Dr. Kousser, made a slmllar

point etating that 'political and racial motlvee ln the South are tn-

extricably lntertwined, impossible to dlsent,angle" (Tr. 352? ). The

Commisstonts expert, Dr. Jones, likewlse recognlzed the close correla- '

Eion bethreen raclal and political concerns in this perlod. Dr. Jones

explainecl tho relatlonship aa followe (Tr. 3856-3857)r

So, the Democrats have got to devise any system they
can to win these electione and keep these kinds of
people [Republlcansl out of office. Because if the
nepubllcans ara ln, they are going tc-r appoint. blacks,
they are golng to appolnL Republicans. When I say
blacks and Republicans, this is almost synonymous.

In short, while the dietrict court r,ras correct ln finding that

the at-Iarge system was adopted to guarantee the election of Democrats

an+ Ehe de€eaFef D€meeraEie eppenenE6, EhaE moEivaElon cannot ba dis-

associated with the egually strong lncentive to lnsure the election of

whites and the defeat of blacks and ot.hers sympathetic to black

interests. The accomplishment. of the political objecEives achieved aB

well the racial purpose, and, as our review of the record amply demon-

strates (pp. 16-tB), this waa fully understood by those implementing

the leg islat tve change to an at,- large system. To the extent that. the
L6/

district court concluded oEherwise, it committed clear error.

tr/-fh,Is-Court has held that plaintiffs who challenqe an at.-large
frstem on the grountl that it wa$ adopted with discrirninatory intent. must
also show that it. hae a present. discriminatory effect. I4A9B V. Ga-t1-qden
Countv Schogl trrl. , 691 F.2d 978, 982 ( 1982 ) . This Court has explalned
ffitext,adiscr1mlrrat.oryeffectisshownby,evlrlence
that a subst.antial mlnorlty is conaistently unable to elect candidates
of its choice.' Ibid. (ouotlnq HcMillan V. Escambia County, 638 F.2d
I23e, tzla n. rg T-sTE-cii. rgBI)TI-TnEe ts@at blacks in
DaIlas County are con6istently unable to elect candidates of their
choice. Accordinglyr the United States clearly sat.isfied its burden of
proving a preaent diecriminatory effect.



49-

CONCLUSION

The judgmente of the dlstrict court ehould be reversed and

the cases should be remanded foF the entry of approprlate rellef.

RespectfuIIy submltted,

WM. BRADT'ORD REYNOLDS
Aaaletant AttorneY General

IRVING GORNSTEIN
AttorneYs
Department of Justice
Waehington, D.C. 20530

JESSICA bUNSAY SILVER



a-I

=f, It-

on [arch 27r

CERTIFICATE OF SERVICE

I9S3r I nallod tro coples of thls brief tor

Joe T. Pllcher7 JE.
28 Broad Strest
Selraa, Alabama 36701

Cartledge W. Blackuelll Jr.
P.0. Box 592
8elma, Alabana 3670I