Plaintiffs' Proposed Findings of Fact and Conclusions of Law; Order and Preliminary Injunction

    | 
® 

  

BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAW 

405 VAN ANTWERP BUILDING 

P. D. BOX 1051 

MOBILE, ALABAMA 36633-1051 

JAMES U. BLACKSHER 

LARRY T. MENEFEE March 1 | 98 6 

GREGORY B. STEIN ™ "3 : 

WANDA J. COCHRAN 

Honorable Thomas C. Caver 

Clerk, United States District Court 
Middle District of Alabama 

P. 0. Box 711 

Montgomery, AL 36101 

RE: Dillard, et al. v. Crenshaw County, 
Civil Action NO. 85-T-1332-N 

Dear Mr. Caver: 

Please file the enclosed "Plaintiffs’ Pro 

of Fact and Conclusions of Law" and plain 
preliminary injunction in connection with 
cause. 

Sincerely, 

     
BLACKSHER, MENLF EE & STEIN. P.A 

7 7) [7 / / T 

_¥ / /d 

f : bog 

Bones U. Blacksher 
JB :nwp 

Encl 

cc (w/encl) Terry G. Davis, Esquire 

Deborah Fins, Esquire 
Julius L. Chambers, Esquire 
Edward Still, Esquire 
Alton L. Turner, Esquire 
D. "1. Martin, Esquire 
James G. Speake, Esquire 

Warren Rowe, 

lee Otts, 
Esquire 

Esquire 

posed Finding 

TELEPHONE 

(205) 433-2000 

é 

tiffs' proposed 
the above-subject 

Barry Vaughn, Esquire 
H. R. Burnham, Esquire 
Yetta G. Samford, Esquire 
Reo Kirkland, Jr., ILsq. 

Jack Floyd, Esquire 
David R. Boyd, Esquire 
W. 0. Kirk, Jr., Esquire 
James W. Webb, Esquire 

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE 
MIDDLE DISTRICT OF ALABMA 

NORTHERN DIVISION 

JOHN DILLARD and HAVARD RICHBURG 
of Crenshaw County; NATHAN CARTER, 
SPENCER THOMAS and WAYNE ROWE 
of Etowah County; HOOVER WHITE, 
MOSES JONES, Jr., and ARTHUR TURNER 
of Lawrence County; DAMASCUS 
CRITTENDEN, Jr., RUBIN McKINNON, and 
WILLIAM S. ROGERS of Coffee County; 
EARWEN FERRELL, RALPH BRADFORD and 
CLARENCE J. JAIRRELS OF Calhoun 
County; ULLYSSES MCBRIDE, JOHN T. 
WHITE, WILLIE McGLASKER, WILLIAM 
AMERICA and WOODROW McCORVEY of 
Escambia County; LOUIS HALL, dJr., 
ERNEST EASLEY, and BYRD THOMAS, of 
of Talladega County; MAGGIE BOZEMAN, 
JULIA WILDER, BERNARD JACKSON and 
WILLIE DAVIS of Pickens County; 
LINDBURGH JACKSON, CAROLYN BRYANT, 
and GEORGE BANDY, of Lee County, on 
behalf of themselves and other 
similarly situated persons, 

Plaintiffs, 

VS. 

CRENSHAW COUNTY, ALABAMA, gua COUNTY; 
IRA THOMPSON HARBIN, JERRY L. 
REGISTER, AMOS MCGOUGH, EMMETT L. 
SPEED, and BILL COLQUETT, in their 
official capacities as members of 
the Crenshaw County Commission; IRA 
THOMPSON HARBIN, in his official 
capacity as Probate Judge; ANN TATE, 
in her official capacity as Circuit 
Clerk; FRANCES A. SMITH, in his 

H 
HN
 

WN
 

WH
 

WN
 

WH
 

AH
 

WK
 

HK
 

FH
 

KN
 

HN
 

WK
 

WK
 

RN
 

HK
 

HK
 

WH
 

RN
 

NN
 

KX
 

% 
FH

 
FH
 

HF
 

HK
 

HX
 

KX
 

¥ 
FX

 
* 

CA NO. 85-7-1332-N 

 



  

official capacity as Sheriff of 
Crenshaw County; ETOWAH COUNTY, 

ALABAMA, qua COUNTY; LEE 
WOFFORD, in his official capacity as 
Probate Judge; BILLY YATES, in his 
official capacity as Circuit Clerk; 
ROY MCDOWELL, in his official 
capacity as Sheriff of Etowah County; 
LAWRENCE COUNTY, ALABAMA, gua 
COUNTY; RICHARD I. PROCTOR, in his 
official capacity as Probate Judge; 
LARRY SMITH, in his official capcity 
as Circuit Clerk; DAN LIGON, in his 
official capacity as Sheriff of 
Lawrence County; COFFEE COUNTY 
ALABAMA, qua COUNTY; MARION 
BRUNSON, in his official capacity as 
Probate Judge; JIM ELLIS, in his 
official capacity as Circuit Clerk; 
BRICE R. PAUL, in his official capa- 

clty as Sheriff of Coffee County; 
CALHOUN COUNTY, ALABAMA, qua 
COUNTY, ARTHUR C. MURRAY, in his 
official capacity as Probate Judge; 
R. FORREST DOBBINS, in his official 
capacity as Circuit Clerk; ROY C. 
SNEAD, Jr., in his official capacity 
as Sheriff of Calhoun County; 
ESCAMBIA COUNTY, ALABAMA, qua 
COUNTY; MARTHA KIRKLAND, in her 
official capacity as Probate Judge; 
JAMES D. TAYLOR, in his officlal 
capacity as Circuit Clerk; TIMOTHY 
A. HAVSEY, in his official capacity 
as Sheriff of Escambia County; 
TALLADEGA COUNTY, ALABAMA, dua 
COUNTY; DERRELL HANN, in his official 
capacity as Probate Judge; SAM GRICE, 
in his official capacity as Circuit 
Clerk; JERRY STUDDARD, in his 
official capacity as Sherlff of 
Talladega County; PICKENS COUNTY, 
ALABAMA, qua COUNTY; WILLIAM H. 
LANG, Jr., in his official capacity 

"as Probate Judge; JAMES E. FLOYD, in 

his official capacity as Circult 
Clerk; and, LOUIE C. COLEMAN, in his 
official capacity as Sheriff of 
Pickens County, LEE COUNTY, qua 
COUNTY, ALABAMA; HAL SMITH, in his 

H
H
 

WN
 

WH
 

W
O
R
 

WN
 

WH
 

WH
 

FH
 

RK
 

RN
 

NW
 

WN
 

MW
 

RN
 

RH
 

R
H
F
 

FH
 

WH
 

WH
 
K
K
K
 

W
N
W
 

XK
 

OW
 

WH
 

WN
 

WN
 

NX
 

WR
 

WK
 

WK
 

WK
 

RK
 

XK
 
R
H
A
 
W
R
E
A
K
 

X
X
 

 



  

official capacity as Probate Judge of* 
Lee County, ANNETTE H. HARDY, ln her * 
official capacity as Circuit Clerk of* 
Lee County, and HERMAN CHAPMAN, in 
his official capacity as Sheriff of 
Lee County; 

Defendants. 

Xx 

X 

% 

PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 
  

INTRODUCTION 

This matter is before the Court on the plaintiffs’ 

petition for preliminary injunction and class certification, 

dated February 6, 

defendants: 

DESCRIPTION 

Motion to Dismiss 

Motion to Dimiss or Change Venue 

Motion to Dismiss Action 

Motion to Dimiss and Change Venue 

Motion to Transfer, Improper Venue 

Motion to Sever 

Motion to Dismiss or Transfer 

Motion to Dimiss 

Motion to Dismiss 

Motion to Dimiss & Venue 

Motion to Dismiss 

DATE 

1/8/86 

1/10/86 

1/10/86 

1/14/88 

1/14/86 

1/14/86 

1/18/86 

1/14/86 

1/14/86 

1/16/86 

1/17/86 

1986, and on the following motions of the 

COUNTY DEFENDANTS 

Etowah 

Lawrence 

Pickens 

Etowah 

Etowah 

Etowah 

Calhoun 

Lawrence 

Coffee 

Talladega 

Escambia 

 



  

Motion to Dismiss 1/17/86 Escambia 

Motion 1/24/86 Lawrence 

Following oral argument on February 7, 1986, the Court 

entered an order on February 10, 1986, setting all of the 

aforesaid motions for evidentiary hearing on March 4, 1986. These 

findings of fact and conclusions of law are based on the evidence 

adduced at the March 4, 1986, evidentiary hearing. 

Plaintiffs John Dillard and other named plaintiffs 

residing in Crenshaw County filed this action on November 12, 

1985, alleging that the at-large method of electing members of 

the Crenshaw County Commission have both the purpose and effect 

of diluting the voting strength of black citizens of Crenshaw 

County, in violation of the amended Section 2 of the Voting 

Rights Act, 42 U.S.C. section 1973, and the fourteenth and 

fifteenth amendments. On December 13, 1985, plaintiffs moved for 

leave to add seven additional counties. The Court granted the 

motion to amend the complaint to add the additional counties on 

December 19, 1985 of the court’s order. 

Later, by motion dated February 19, 1986, plaintiffs 

moved for leave to further amend their complaint to challenge the 

at-large election of Lee County Commissioners, alleging that an 

out-of-court agreement for Lee County voluntarily to change to 

district elections had fallen through. The Court granted the 

motion to add claims against Lee County on February 21, 1986. 

 



By their petition for preliminary injunction, 

Plaintiffs are seeking +0 obtaln preliminary rellef in the nature 

of an order requiring single-member district elections in all 

nine counties in the upcoming 1986 regular elections. 

Alabama has 67 counties. The nine counties whose 

at-large county commission election systems are challenged in 

this action are the only ones with significant black populations 

that have not been forced, elther by court order or by threat of 

litigation, to change to single-member districts. Other lawsults 

are pending against the at-large county commissions in Dallas, 

Henry, Madison, Marengo and Houston counties. 

In filing this lawsuit, plaintiffs called to the 

Court's attention the intent of Congress in its passage of the 

Voting Rights’ Amendments of 1982 to "deall] with continuing 

voting discrimination, not step-by-step, but comprehensively and 

finally." Senate Judiciary Committee Report, S.Rep. No. 97-417, 

oD... 

The 1982 extension of the Voting Rights Act by Congress 

made clear that full enfranchisement of black citizens 1s a top 

priority; delay is not acceptable. By their several motlons, the 

defendants here seek to create nine separate lawsuits to be tried 

against each of the counties in three different courts. 

Obviously, the delays created by such severance and transfer 

would result in yet another eletion in which black citizens of  



  

Alabama are, 1f plaintiffs’ claims are true, effectively 

disfranchised. 

Plaintiffs base their claims against the eight counties 

first and foremost on a claim of intentional discrimination on 

the part of the State of Alabama, acting through its Legislature, 

which plaintiffs claim has for over one hundred years 

intentionally manipulated at-large election schemes for county 

commissions for the specific purpose of minimizing the voting 

strength of black citizens. Plaintiffs contend that there is a 

racially motivated pattern and practice on the part of the state 

Legislature that infects the election systems of all county 

commissions in Alabama. They have advanced historical proof with 

statewide scope and implications. It goes beyond the historical 

"background" of official discrimination that is one of the 

factors under the Section 2 "resulis" standard or under the 

Yhite/Zimmer "totality of circumstances" intent standard. 

The historical proof of a statewide, racially 

motivated, legislative pattern and practice of statutory 

enactments concerning at-large county commission election systems 

is the key to plaintiffs’ entitlement to class certification, to 

& preliminary injunction, to joinder of all the remaining 

counties with racially dilutive at-large systems, and to the 

denial of the motions to dismiss or for change of venue. 

 



  

FINDINGS OF FACT 

Historical Evidence of the Legiglature’'s Racial Intent 

1. Plaintiffs presented evidence, primarily through the 

testimony of their expert historian, Dr. Peyton McCrary, 

professor of history, University of South Alabama, of a racially 

discriminatory legislative intent to enact single-member distict 

election schemes for county commissions only when blacks have not 

been in a position to control any of the single-member districts; 

otherwise, the Legislature has enacted, maintained and 

strengthened at-large election systems to dilute black voting 

strength. The evidence is summarized as follows: 

2. In the latter part of the 19th century, following 

Alabama's "redemption" by the white-supremacist Democratic party, 

the Legislature passed local laws establishing gubernatorial 

appointment of county commissioners in Black Belt counties 

threatened with large black voting majorities, including 

Montgomery, Dallas, Wilcox, Autauga, Macon, Chilton, Barbour, 

Butler and Lowndes counties. A similar appointive system of 

county commissioners in Florida was one of the historical facts 

relied on to find intentional discrimination in McMillan v. 
  

Escambia County, 688 F.2d 960, 967 (5th Cir. 1982), vacated on 

other grounds, 104 S.Ct. 1577 (1984). 

 



  

3. Standard historical works have recognized that the 

purpose of gubernatorial appointments in several Southern states 

during the nineteenth century had the purpose of preventing the 

election of black county commissioners in those areas that 

retained black voting majorities. See C. Woodward, Qrigins of 

the New South, 1877-1913 54-55 (1951); E. Anderson, Race and 
  

Politics in North Carolina. 1872-1901 568-87 (1981); H. Price, The 

Negro and Southern Politics: A Chapter of Florida Higtory 13 
  

(1957); J. Kousser, The Shaping of Southern Politics 94-95 
  

(1974). 

4. The authoritative Alabama histories specifically 

identify the gubernatorial appointment of county commissioners in 

eight "black belt" Alabama counties as a scheme after 

Reconstruction to prevent Negro representation. M. McMillan, 

Constitutional Development in Alabama, 1798-1901 222 (1955). 

5. Before 1900 there was widespread use of 

single-member district county commission elections, but most of 

them changed to at-large schemes during the Populist period, when 

whites were threatening to form coalitions with blacks. These 

trends can be seen in the following table: 

 



  

Counties With District Election Systems Before 1900 

County 

¥inston 

Marengo 

Morgan 

Coffee 

Dale 

Geneva 

Etowah 

Cullman 

Marion 

Crenshaw 

Covington 

Pike 

Chilton 

Cherokee 

Yashington 

Blount 

DeKalb 

Marshall 

Bullock 

Lamar 

Baldwin 

Butler 

Date(Dist) 

1866 

186% 

1866 

1867 

1867 

1870 

1879 

1879 

1879 

1884 

1884 

1884 

1884 

1884 

1887 

1887 

1889 

1889 

1889 

1891 

1893 

1893 

Date (At-Large) 

1895 

1800* 

%Black(1890) 

0 

76 

14 

40 

36 

48 

 



  

Choctaw 1893 - 53 

Fayette 1893 1894 13 

Shelby 1893 hy 31 

Pickens 1893 1894 58 

6. There was a significant shift to at-large county 

commission elections in the 1890's at the time of the Populist 

Revolt. Those counties included : 

District Systems That Shifted to At-large: 1890's 

  County Date of Shift Black%(1890) 

Winston 1895 0 

Geneva 1895 o 

Etowah 1891 17 

Cullman 1895 0 

Covington 1894 11 

Pike* 1891 37 

Chilton** 1891 21 

Washington 1804 41 

Blount 1895 8 

Bullock 1894 78 

Lamar 1804 19 

Baldwin 1894 36 

Fayette 1804 13 

Pickens 1894 58 

 



  

Shifted back to districts - 1893 
** Shifted back to districts - 1807 

7. After 1901, following the massive disfranchisement 

of black voters, there was a significant shift in the statutory 

pattern toward single-member districts for county commissions, 

particularly in counties that were heavily black. The following 

table summarizes the changes to single-member districts in the 

first quarter of the twentieth century: 

Counties Shifting to Districts, 1900-1930 

1 
County Date of Shift 

Barbour 1903 

Bibb 190% 

Butler 1900 

Calhoun 

Chambers 

Choctaw 

Coffee 

Conecuh 

Covington 

Hale 

3 
Percent black is calculated according to the federal 

dicennial census next nearest to the date of the change.  



  

Henry 

Houston 

Madison 

Marengo 

Monroe 

Montgomery 

Shelby 

Sumter 

Talladega 

8. 

systems" in which single-member districts were used in the 

white-only Democratic primaries, while the general elections 

(which were the only elections in which the few enfranchised 

blacks could vote) were held at large. 

688 F.2d at 967. The following table summarizes the changes to 

dual systems : 

County 

Autauga 

DeKalb 

Elmore 

Cullman 

Franklin 

19023 

19158 

1901 

1919 

1800 

1807 

1915 

1927 

1919 

There was also a substantial number of 

TN
 

$)
] 

ol
 

-J
 

—
 

nN
 

Compare with McMillan, 

"dual 

  

Counties With District Primaries and 

At-Large General Elections 

  

12 - 

 



Lauderdale 

Macon 

Morgan 

Pickens 

Tallapoosa 

Walker 

Winston 

  

*nearest decennial census 

9. From approximately 1915 to 1944 the efforts of white 

supremacists primarily were aimed at maintaining and defending 

their complete control. In 1944, the Supreme Court struck down 

the all-white Democratic party primary. Smith v. Allwright 321 
  

U.S. 649 (1944). The reintroduction of the federal presence via 

the Civil Rights Acts of 1957, 1964 and 1965 eventually removed 

most of the formal legal barriers to black voting. See 

generally, Blacksher and Menefee, "From Reynolds v. Sims to City 

of Mobile v. Bolden: Have the White Suburbs Commandeered the 

Fifteenth Amendment?," 34 Hast.L.Jd. 1, 1-2 and n.4 (1982). 

10. After Smith v. Allwright, there was a decided 
  

shift back to the use of at-large elections. The following table 

displays these changes : 

Counties Shifting From District to Atlanta After 1945  



  

County Date of Shift %Black* 

Barbour 1965 52 

Bibb 1971 28 

Butler 1969 40 

Chambers 1959 37 

Cherokee 1973 | 9 

Chilton 1963 16 

Choctaw 1965 50 

Covington 1971 15 

Cullman 1955 1 

DeKalb 1969 2 

Franklin 19863 1 

Hale 1965 71 

Houston 19583 29 

Lawrence 1069 19 

Madison 1969 15 

Marengo 1955 69 

Marshall 1969 Q 

Montgomery 1957 30 

St. Clair 1959 17 

Talladega. 1951 3] 

Washington 1951 39 

  

*nearest decennial census 

 



  

11. The Alabama Legislature also took steps to 

foreclose even the possibility that blacks could elect candidates 

Of thelr choice in at-large elections. Theoretically (if not 

practically), in a true at-large election scheme, the top vote 

getters were elected even if they did not achieve election 

majorities. A cohesive minority group, like black voters, 

theoretically could vote for only one candidate, thus avoiding 

giving votes to all the other candidates and increasing the 

likelihood their favored candidate could win by plurality. This 

practice 1s commonly known as "single-shot voting". 

12. In 1951, the Legislature passed a law to prohibit 

single-shot voting in municipal elections. Act No. 606, 1951 

Acts of Alabama, p. 1043. This Act was sponsored by 

Representative Sam Engelhardt of Macon County, who was one of the 

founders of the White Citizens Council movement in the 1950's and 

was a notorious segregationist. Sam Engelhardt was the author of 

the famous Tuskegee gerrymander that was struck down in Gomillion 
  

vy. Lightfoot, 364 U.S. 339 (1960). 

13. According to Senator Miller Bonner of Wilcox 

County, who was Sam Engelhardt’s father-in-law, the 

anti-single-shot bill was aimed at Macon County. 

Of the 2500 registered voters, he said, 622 are colored 
and most of them vote in Tuskegee. 

Bonner said there are some who fear that the 
colored voters might be able to elect one of their own 

 



  

race to the city council by "single-shot" 

voting--marking only one name on the ballot instead of 
as many as there are offices to fill. 

Mobile Register, August 29, 1951, p.4. 

14. Anti-single-shot laws were passed to cover primary 

elections, including county commission elections, in 1956 and 

1957. Act No. 44, 1956, Acts of Alabama, p.337; Act No. 478, 195% 

Acts of Alabama, p.661. 

15. In 1961, the Legislature enacted, first for primary 

elections, then for every state and county primary, general, or 

municipal election in which candidates are to be nominated or 

elected to two or more offices, a requirement that candidates run 

for numbered places. Act No. 570, 1961, Acts of Alabama, p.670; 

Act No. 221, 1981 Acts of Alabama p.2254. Act No. 231 expressly 

repealed the earlier anti-single-shot law, which was no longer 

necessary, because numbered posts accomplished the same result, 

namely, requiring candidates favored by blacks to end up in 

head-to-head contests with candidates favored by whites. 

16. There is also "smoking gun" evidence of the racial 

motive behind the 1961 numbered post laws. For example, at a 

regularly scheduled meeting of the State Democractic Executive 

Committee in Montgomery on January 20, 1962, Frank Mizell of 

Montgomery said: 

I would say this, that we have got a situation in 
Alabama that we are becoming more painfully aware of 
every passing day, that we have increasing Federal 
pressure too, and a concerted desire and a campaign to 
register negroes en masse, regardless of the fact that 

10 i= 

 



  

many of them ordinarily cannot qualify because of their 
criminal records, or criminal attitudes, because of the 
fact that they are illiterate and cannot understand or 
pass literacy tests, but those qualifications are 
things that don’t worry the people from Washington, the 
army of people who are here in Montgomery County 
harassing our Board of Registrars, who are harassing 
the Registrars throughout most of the State of Alabama; 
some counties they haven’t moved into yet, but it is 
Just a matter of time before they get into all of them, 
and in one county where they were few darkies 
registered, there has been probably increased 4 or 5 
hundred per cent already, and the thought behind this, 
you understand this is not at this time a life or death 
matter, and I understand that there are honest 

dlfferences of opinion on it, but it has occurred to a 
great many people, including the Legislature of 
Alabama, that to protect the white people of Alabama, 
that there should be numbered places. 

Proceedings of the State Democratic Executive Committee of 

Alabama, Honorable Sam Engelhardt, presiding, Montgomery, 

Alabama, January 20, 1962, at p.13. 

17. Further on, Mr. Mizell tied the anti-single-shot 

and numbered place laws together: 

Now as you all know that we have had up until 
recently a law that prohibits single-shot votes, that 
the law against single-shot votes has been repealed, 
and consequently if you have a group of people who want 
to vote as a bloc, whether they be negroes or 
otherwise, of course, we do know from past experience 
you can go into the negro boxes, each of the counties 
where they have heavy registration, see where they vote 
right down the line for this person or that person. We 
know that they are easily manipulated by the connivors 
and that they would be manipulated into single 
shotting, and if they did, it could happen as it did up 
in Huntsville. 

In Huntsville they had a couple of negroes, as I 
understand, that ran for the State--1 mean for the City 
Council. And they eased in there with the group, and 
they might near got elected, and those people at 
Huntsville up there go so worried about it they came 

 



  

down and got the law changed, so as far as Huntsville 
is concerned, and made the City Commissioners run by 
place number, so that you could spot them, and if you 
have this type of thing in the primaries, so far as the 
Committees are concerned, it would have the effect as a 
lot of people has advanced the idea of this, in the 
first place if you got a negro or scallowag [sic] who 
wants to come in with the group, he just get in there, 
say, "Well, I will get in there, and they can single 
shot for me," and if you got three or four thousand 
negro voters, you will have more than that in a 
District, of course, you will have several thousand 
over a Congressional District, they come in, single 
shot vote for that one man, and you will begin to have 
Negroes on your State Committee; because with that 
single shot they can assure that one of them will get a 
ma jority to start with. 

Id. at 14. 

18. It should be noted that Senator Archer, who 

sponsored Act 221, the numbered place law for the whole state, 

was from Madison County. As Frank Mizell had referred to in the 

passage quoted above, the Madison County legislative delegation 

had required that Huntsville city elections be conducted with 

numbered posts, against the wishes of the Huntsville city 

officials themselves. 

19. The numbered post law is still in effect for all 

elections in Alabama, and it is further evidence of the 

Legislature's underlying purpose to use at-large elections to 

minimize black voting strength, in many cases regardless of the 

contrary wishes of local officials. 

20. The numbered place requirement had been installed 

in some localities for racially discriminatory reasons even 

before passage of the 1961 statewide law. In 1956, Senator 

18 

 



  

Eddins, an ally of Sam Engelhardt and co-leader of the White 

Citizens’ Council, sponsored a population bill that applied to 

both Tuskegee and Demopolis, requiring the use of numbered places 

in thelr municipal elections. Act No. 19, 1956 Acts of Alabama, 

p.43. This numbered place law was enacted only a year after 

Eddins had sponsored bills that changed the single-member 

district elections of both the County Commission and School Board 

in Marengo County to at large. Act No. 17, 1955 Acts of Alabana, 

P-45; Act No. 184, 1955 Acts of Alabama, p.458. See United 

States v. Marengo County, 731 F.24 1546, 1571 n.5 (11th Cir. 

1984). 

21. In 1965, there were "smoking gun" admissions by 

legislators regarding the racial reasons for changing from 

single-member districts to at-large elections of county 

commissions in Barbour County and Choctaw County. 

22. Senator James S. Clark of Barbour County sponsored 

a Local Act passed in 1965 which changed the method of electing 

the Barbour County Board of Revenue from single-member districts 

to at large. Senator Clark’s bill was introduced against a 

background of increased black voter registration and the 

candidacy of Fred Gray for a legislative seat from Barbour, 

Bullock and Macon counties. Senator Clark is reported as saying: 

"a further consideration in introducing this bill would be to 

lesson [sic] the impact of any block [sic] vote in any districts 

19 - 

 



  

which has a relatively small number of eligible voters." The 

Clavion Record, Thursday, March 25, 1965, p.l. See Act No. 10, 

1965 Acts of Alabama, p.31l. 

23. It is relevant that, a year later, Judge Johnson 

found judicially that a resolution adopted by the Barbour County 

Democratic Executive Committee in March 1966, changing the method 

of electing county committee members from a beat system to an 

at-large system, was racially motivated. 

Having reviewed the facts as stipulated and 
outlined above, and the arguments and the parties in 
thelr briefs, this Court concludes that the March 17, 
1966, resolution, adopted by the Democratic Executive 
Committee of Barbour County, Alabama, was born of an 
effort to frustrate and discriminate against Negroes in 
the exercise of their right to vote, in violation of 
the Fifteenth Amendment and 42 U.S.C. section 1981. 

Smith v. Paris, 257 F.Supp 901, 903-04 (M.D.Ala. 1968). 
  

24. Act No. 4236, 1965 Alabama Acts, p.626, was sponsored by 

Senator Albert H. Evans, Jr., of Choctaw County. It would have 

changed the Choctaw County commission method of election from 

single-member districts to at-large voting. According to the 

local newspaper: 

Many who support the move to change the system say 
they advocate the change because of the increasing 
number of Negro voters that have been qualified in 
recent weeks. This, they say, would increase the 
likelihood of a Negro being elected from the Second 
District of Choctaw. That is the district presently 
represented by Mr. C. R. Ezell. Supporters of the 
proposed change have indicated that as many as 2,000 
Negroes are now registered; many of them in the second 

 



  

district. They maintain that by electing the 
commissioners on an at-large basis the threat of an 
effective Negro bloc vote will be eliminated. 

The Choctaw Advocate, November 18, 1965, p.l. 
  

25. However, in the referendum, the change to at-large 

elections was defeated by the Choctaw County voters. The local 

newspaper reported that many white voters opposed the change for 

reasons not related to race. However, the bill's supporters were 

unequivocal about their racial reasons for supporting it: 

Supporters of the change voiced a concern over the 
likelihood of a Negro being elected next year in the 
District 2 which is currently being represented by C. 
R. Bzell, 

Local political observers were also quick to point 
out the boxes in which the Ku Klux Klan's strength is 
thought to be concentrated. Boxes in those areas voted 
in favor of the change. 

The Choctaw Advocate, December 2, 1965, p.l. 

26. In 1971, after several federal court decisions had 

ordered counties with malapportioned districts to use at-large 

elections, a similar suit was filed for Choctaw County. However, 

blacks intervened and thwarted the collusive attempt to get 

court-ordered at-large elections. Broadhead v. Ezell , 348 

F.Supp. 1244 (S.D.Ala. 1972). 

27. As can be seen from the table set out on page ____ , 

supra, following enactment of the Voting Rights Act of 1965, the 

shift toward at-large county commission elections in Alabama 

became a landslide. By 1975, only six of Alabama's 67 counties 

 



  

were still using single-member district elections for county 

commission: Blount (1.6% black), Lamar (12.0% black), Lauderdale 

(9.7% black), Limestone (14.2% black), Marion (2.3% black) and 

Shelby (10.5% black). 

28. This Court has on numerous occasions noted the 

pervasiveness of Alabama's history of official discrimination 

against blacks with respect to voting and "in practically every 

area of political, social, and economic life." Harris v. 

Graddick, 592 F.Supp 128, 130 (M.D.Ala. 1984), and cases cited 

therein. The use of at-large elections for the county 

commissioners in particular has been struck down by federal 

courts in at least 16 counties: Barbour, Chambers, Choctaw, 

Clarke, Conecuh, Hale, Jefferson, Marengo (remand proceedings 

still pending), Mobile, Monroe, Mongtomery, Pike, Russell 

(settlement pending), Tallapoosa, and Tuscaloosa. At-large 

systems have also been struck down with respect to school boards 

and municipalities in Alabama, to many to list here. This court 

has even rejected as racially discriminatory attempts by the 

Alabama Legislature to utilize multimember districts when 

reapportioning the Legislature itself. Sims v. Amos, 336 F.Supp 
  

924, 935-36 (M.D.Ala. 1972), aff’'4.409 U.S. 942 (1972). 

29. From the 1870's until 1965, the State used legal 

subterfuges to prevent blacks from registering and voting. Since 

1965 some counties in Alabama have used voting practices which 

 



  

night have had the effect of hindering registration of, voting 

by, and the election of blacks. See Plaintiffs’ Request for 

Judicial Notice 1-12. 

30. Until the 1970's Alabama maintained a de jure 

system of segregated schools. See Plaintiffs’ Request for 

Judicial Notice 13-45. 

3l. Until the 1970's Alabama prohibited intermarriage 

or sexual relations between persons of different races. See 

Plaintiffs’ Request for Judicial Notice 51-55. 

32. Until the 1960's Alabama maintained a de jure 

segregation of persons using public transportation. See 

Plaintiffs’ Request for Judicial Notice 56-7. 

33. Throughout most of the last century, Alabama has 

discriminated against blacks in its judicial system. See 

Plaintiffs’ Request for Judicial Notice 58-61. 

34. Until the 1970's Alabama maintained a de Jure 

system of segregated institutions such as hospitals. See 

Plaintiffs’ Request for Judicial Notice 62-69. 

35. Subtle or overt racial appeals have been used in 

political campaigns in the State within the last 20 years. See 

Plaintiffs’ Request for Judicial Notice 82-93. 

36. The Court finds, as a matter of fact, that from 

Reconstruction to the present the Alabama Legislature has enacted 

laws governing the election of county commissioners throughout 

 



Alabama at least in party pursuant to an intentional Policy or 

practice of utilizing at-large election schemes to minimize black 

voting strength. 

87. Pursuant to the aforesaid intentional policy or 

practice of racial discrimination, the Alabama Legislature has at 

various times enacted local laws changing county commission 

election systems from a less racially dilutive one to an at-large 

system and has enacted both local and general laws strengthening 

or enhancing the dilutive power of existing at-large election 

schemes for county commissions. 

At-Large Election Systems 
  

38. No black persons have ever been elected in 

countywide elections in any of the counties presently before the 

Court. 

39. The following black candidates have run 

unsuccessfully for office in Calhoun County: 

name office year 

Ralph Bradford county commission 1968 
A.A. Scales state house 1982 

40. The following black candidates have run  



  

vasuccegsfully for office in Coffee County: 

name office year 

Elma Brock County Board of Ed. 1970 

41. The following black candidates have run 

unsuccessfully for office in Escambia County: 

name Offlce year 

William America Co. School Bd. 1976 
Alfred Middleton County Commission 1982 

42. The following black candidates have rur 

unsuccessfully for office in Etowah County: 

name Office year 

Walker S. Alexander Co. School Bd. 1968 
Leon Ballou Oo. Comm. 1976 

43. The following black candidates have run 

unsuccessfully for office in Lawrence Countv: Y 

SR 
«3% 9)

 

 



    

name office year 

R.A. Hubbard Co. School Bd. 1972 

Theodore Porter Co. Commission 1972, 1980 

Charles Satchel Co. School Ed. 1976 

¥illie Ed Warren Co. School B4. 1980 

Moses Jones Co. Commission 1984 

44. The following black candidates have run 

unsuccessfully for office in Pickens County: 

  

nane office year 

James H. Corder Co. Comm, 1982, 1974 
¥illie GC. Ball Sheriff 1974 
Eliezer Washington Co. Comm. 1980 
Mrs. Dunner Hill Co. School Bd. 

Bantum Co. Bchool Bd. 
Flem Grice Co. Comm. 1974 
Mrs. Spiver Gordon State house 1974 

45. The following black candidates have run 

unsuccessfully for office in Talladega County: 

nam Qffice year 

Wilby Wallace Co. Commission 1982 
Horace Patterson state house 1974, 1978 
Arnold Garrett Co. Commission 1978 

46. Associate Justice Oscar W. Adams, Jr., did not 

recelve a majority of the vote in the 1982 Democratic Runoff in 

any of the counties presently involved in this action, except 

Calhoun. 

26 

 



  

47. All of the elections listed in the preceding 

paragraphs, in which black persons were candidates, were 

characterized by racially polarized voting. 

48. The black population of the defendant counties is 

displayed in the following table 

Population of Counties by Race, 1980 

Total Total Blk %Blk Total 
County Population Population Population 

Calhoun 119761 21074 17.80 

Coffee 38553 6532 16.95 

Escanbia 38440 11376 29.59 

Etowah 103087 13809 13.40 

Henry 15302 5799 37.90 

Lawrence 50170 5074 16.82 

Pickens 21481 8078 41.80 

Talladega 73826 22745 20.81 

source: Bureau of the Census. Department of Commerce. Census 
of Population. Characteristics of the Population. General 
Social and Economic Characteristics. Alabama. PC80-1-B. Table 15. 

49. The black populations in all of the defendant 

counties suffer serious socio-economic disadvantage that further 

exaggerates the racially dilutive effect of the at-large election 

systems. The following tables, taken from the 1980 census, 

 



  

display some aspects of this disadvantage: 

Median Household Income in 1979 by County and by Race 

White Median Black Median* %Black 
Household Income Household Income of White 

County in 1979 in 1979 Incone 

Calhoun $ 14836 $ 230 35.47 

Coffee 15460 8014 51.84 

Escambia 13644 7676 56.26 

Etowah 14184 8726 61.52 

Henry 13958 - 
per capita 6161 2763 44.85 

Lawrence 12016 - 
Per capita 5147 3143 61.06 

Pickens 13069 6364 458.70 

Talladega 14071 8796 62.581 

*Note: Black median household income data suppressed for Crenshaw, 
Henry and Lawrence counties; 

  

per capita income data substituted. 

source: Bureau of the Census. Department of Commerce. 8 Of 
Population. Characteristics of the Population. General Social 
and Economic Characteristics. 

Percent of Families with 

Alabana. 

1979 Income Below 

Poverty Level by Race for Counties 
  

  

  

Yhite Black 
County Families Families 

Calhoun 0.4 31.5 

 



  

Coffee 

Escambia 

Etowah 

Henry 
persons 

Lawrence 

persons 

Pickens 

Talladega 

  

Source: 

Population. 

10.9 

©
 

C
R
 

10.6 

Bureau of the Census. 

Characteristics of the Population. 

Alabama. PC80-1-C2, and Economic Characteristics. 

50. The following table demonstrates 

OL
 C ed
 

41.8 

46.4 

393. no
 

Department of Commerce. 

hat the 

, ¢ 
census 

General Social 

Table 187. 

socio-economic disadvantage of blacks in the defendant counties 

1s symptomatic of the situation in the State of Alabama as a whole: 

Median and Mean Income of Persons by Age Categories, 
by Educational Level and by Race, Alabama, 1980 Census 

18-24 vears old 
with income 

mean income: 

395 hr/week 

mean income: 

40 weeks 

0-7 Years 

Education 
  

White Black 

4 Years 

High School 
  

White Black 

$7587 3 5178 

8883 6629 

10449 8208 

4 Years 

College 

White 

©
 ~ © 9)
 

0,
 

 



  

25-34 years old 
with income 7463 49060 13827 0127 16724 12593 

mean income: 

35 hr/wk 10040 7045 14954 10489 18587 13507 

mean income: : 

40 weeks 11318 7903 15614 114186 1921%Y 14830 

55-64 years old 
with income 7487 5702 15767 8995 25972 12688 
mean income: 

35 hr/wk 12636 0404 20830 129048 34467 17216 

mean income: 

40 weeks 13587 101186 21485 13203 35634 18397 

60-64 years old 
with income 6621 5076 14525 7311 24336 11250 

nean income: 

38 hr/vk 11860 O17 208185 12249 33187 .18585 

mean income: 

40 weeks 12898 0829 21458 125902 33830 19582 

  

source: Bureau of the Census. Department of Commerce. Census of 
Population. Characteristics of the Population: Detailed Population 
Characteristics. Alabama. 

CONCLUSIONS OF LAW 

1. This Court has jurisdiction over the parties and the 

subject matter of this action pursuant to 28 U.S.C. sections 1331 

and 1343 and 42 U.S.C. section 1973(j)(f). 

2. Pursuant to Rules 23(a) and 23(b)(2), Fed.R.Civ.P., 

the plaintiffs are due to be certified as representatives of 

 



  

plaintiff class and subclasses in each county. All such persons 

have been, are being, and will be adversely affected by the 

respective defendants’ practices complained of in the amended 

complaint. The plaintiff class constitutes an identifiable 

social and political minority in the respective communities, who 

have suffered and are suffering invidious discrimination. There 

are common questions of law and fact affecting the rights of the 

members of the class in each county who are, and continue to be, 

deprived of the equal protection of the laws, the Voting Rights 

Act in particular, because of the at-large schemes for electing 

members of their county commissions. These persons are So 

numerous that joinder of all members is impracticable. There are 

questions of law and fact, common to each set of plaintiffs and 

the subclass they seek to represent. The interests of the class 

and each subclass are fairly and adequately represented by the 

named plaintiffs from the respective counties. The respective 

county defendants have acted or refused to act on grounds 

generally applicable to the class, thereby making final 

injunctive relief and corresponding declaratory relief with 

respect to the class as a whole and with respect to the subclass 

each county. 

3. The plaintiffs have established a racial motive on 

the part of the Alabama Legislature with respect to both general 

laws and local laws affecting county commission election systems 

-_ 3] - 

 



  

throughout the state. Accordingly, they have established a 

statewide violation of Section 2 of the Voting Rights Act, as 

amended. It will not be necessary for plaintiffs to proceed with 

proof of a county-by-county violation under the Section 2 

"results" standard. 

[A] violation of section 2 occurs either when official 
action is taken or maintained for a racially 
discriminatory purpose or when such action results in a 
denial or abridgment of the right of any citizen to 
vote on account of race. 

Buskey v. Oliver, 565 F.Supp 1473, 1481 (M.D.Ala. 1983), citing, 

Senate Judiciary Committee Report, S.Rep. No. 97-417, reprinted 
  

in 1982 U.S. Code, Cong. & Admin. News at 205 (footnote 

omitted). 

4. The Arlington Heights method of proving 

discrimination is applicable to a pattern or practice of conduct 

as well as a discrete event. Village of Arlington Helghts v. 
  

Metropolitan Housing Development Corporation 429 U.S. 252, 266   

and n.14 (1927) (Court makes clear that either a pattern of 

official action or a single act may be shown to be discriminatory 

by way of its analysis); Dowdell v. City of Opopka, 698 F.2d 
  

1181, 1182 (11th Cir. 1983) (Arlington Heights analysis used to   

find unlawful defendants’ pattern of providing municipal 

services); dean v. Nelson, 711 F.2d 1455, 1490 (11th Cir.   

  

1983) (Arlington Heights analysis used to determine existence of 

— pb 

 



  

‘ongoing pattern of discrimination" against Haitian immigrants); 

Lodge v. Buxton, 639 F.2d 1358, 1367-68 (5th Cir. 1981) (voting 

rights); United States v. Georgia Power Company, 634 F.2d 929, 

937 (5th Cir. 1981)(employment discrimination); United States v. 

Texas Education Agency, 564 F.2d 162, 166 (5th Cir. 1977), 

rehearing denied, 579 F.2d 910, 914 (1977) (Arlington Heights 

analysis used to find that defendant school district had adopted 

  

various segregative policies with respect to Mexican-Americans); 

Kirksey v. Board of Supervisors of Hinds County, 554 F.2d 139, 
  

147-48 (5thCior. 1977) (voting rights; Arlington Heights analysis 
  

applied to defendants’ actions overtime to determine 

discriminatory purpose). 

5. In the instant case, Plaintiffs have proved a 

racially discriminatory statewide legislative pattern and 

practice based on direct, historical evidence, rather than by 

relying on the "circumstantial factors" found in White v. 
  

Regester, 412 U.S. 755 (1973), and Zimmer v. McKeithen, 485 F.24 
  

  

Fast Carroll Parish School BA, v. Marshall, 424 U.S. 638 (1976).   

Compare Buskey, 565 F.Supp at 1473, (finding Section 2 violation 

based on direct evidence of racial intent) with Harris v. 
  

Graddick, 593 F.Supp 128 (M.D.Ala. 1984)(finding Section 2 

violation based on discriminatory result). 

6. By thelr proof of historical legislative intent, 

 



  

plaintiffs have established a prima facie entitlement to relief 

under the Voting Rights Act. The burden is on the defendants to 

demonstrate that the racially motivated at-large election schemes 

in their respective counties no longer disadvantage black 

Citizens. See 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), citing Keves v. School District No. 1, 413 U.S. 189 
  

(1973). At most, Plaintiffs need establish only that racially 

polarized voting has consistently defeated black candidates in 

the defendant counties to obtain relief after historical intent 

has been proved. NAACP v. Gadsden County School Bd., 691 F.24 
  

  

078, 982 (11th Cir. 1982), citing McMillan v. Escambia County, 

638 F.2d 1239, 1248 n.18 (Bth Cir. 1981). Thus, it will not be 

necessary for Plaintiffs to try individual "totality of the 

circumstances" "results" cases against the eight counties. 

II. REQUEST FOR PRELIMINARY INJUNCTION 

In order for a preliminary injunction to issue, a 
district court must be satisfied that a plaintiff has 
clearly met all of the following four prerequisites: 
(1) that there is a substantial likelihood of success 
on the merits; (2) that without the relief there will 
be irreparable injury; (3) that the threatened harm to 
the plaintiff outweighs any threatened harm to the 
defendants; and (4) that the public interest will not 
be disserved by granting the injunctive relief. 

 



  

Harris, 523 F.Supp at 132, ¢ilting Shatel Corp. v. Mao Ta Lumber 
  

¥ Yacht Corp., 687 F.2d 1352, 1354-55 (llth Cir. 1983). 

Plaintiffs in the instant case have met all four prerequisites. 

7. As demonstrated in the sgotegoing findings of fact 

and conclusions of law regarding the discriminatory intent of the 

Alabama Legislature and the continuing effect of at-large 

election systems in the defendant counties, plaintiffs have 

established a substantial likelihood of success on the merits. 

8. 

since the plaintiffs seek preliminary 
injunctive relief pursuant to section 2 of the Voting 
Rights Act of 1965, as amended, they should not be and 
are not required to make the usual showing of 
irreparable injury as a prerequisite to relief; rather, 
such injury is presumed by law. ... Moreover, section 
2 and its history reflect a strong national mandate for 
the immediate removal of impediments, intended or not, 
to equal participation in the election process. Thug, 
when section 2 is violated, the public as a whole 
suffers irreparable injury. 

bt J Harris v. Graddick, supra, B93 F.Supp at 135. 
  

9. In any event, as a practical matter, Plaintiffs and 

the class they seek to represent will suffer irreparable injury 

1f preliminary relief is not granted. @ualifying for the 

Democratic Party primary begins March 1 and ends April 3, 1986, 

for primary eletions scheduled for June 3, 18986, with a runoff on 

June 24, 1986. Unless the preliminary injunction is granted, the 

1986 primary and general elections for county commission in the 

defendant counties are likely to be held at large, and the voting 

- 35 

 



  

strength of black citizens once again will be submerged or 

minimized. 

10. The defendants wlll not suffer irreparable injury 

1f the preliminary injunction is granted. All incumbent 

commissioners will be able to stand for election if the court 

orders they be held from single-member districts. If the court 

subsequently rules that the at-large election schemes do not 

violate the amended section 2, at-large elections can be restored 

without any irreparable injury to elected officials or the 

citizens of the respective counties. 

ll. As noted earlier, the public interest is expressed 

by the congressional policy underlying the amended Voting Rights 

Act. That policy emphasizes the immediacy of the need for relief 

from racially dilutive election systems. Qnly preliminary relief 

can fully serve this policy and the public interest. See Harris, 

593 F.Supp at 136. 

12. Accordingly, the Court concludes that plaintiffs 

have established their entitlement to a preliminary injunction. 

VENUE 

13. As the Lawrence County defendants essentially 

concede (Lawrence County Defendants’ Brief at p.3), if joinder of 

the plaintiffs and defendants in this lawsuit is proper, venue in 

the Middle District of Alabama is proper under 28 U.S.C. sec. 

 



  

1392(b). That statute provides that in a suit with multiple 

defendants residing in different districts, venue is proper in 

any of the districts in which any of the defendants resides. 

Daniels v. Murphy, 528 F.Supp 2 (E.D.Okla. 1978). See United   

States v. Mississippi, 380 U.S. 128, 143 (1965) (in suit 

challenging registration practices in six counties, Court found 

venue to be proper under sec. 1392(a) once joinder of all county 

defendants held to be appropriate); Gilmore v. James, 274 
  

  

F.Supp. 75 (N.D.Texas 1967); aff'd 389 U.S. 572 (1968): Brumfield 

Y. Dodd, 405 F.Supp 338 (E.D.La. 1975)(3 judge court).   

14. In addition, venue properly lies in the Middle 

District of Alabama under 28 U.S.C. section 1391(b), because it 

is the district "in which the claim arose". Plaintiffs’ central 

claim is against the State of Alabama acting through its 

Legislature, which sits in Montgomery, Alabama. The state is 

present in this action through its subdivisions, the defendant 

counties which still utilize racially dilutive at-large elections 

for county commission. The traditional "divide-and-conquer" 

strategy of white supremacy in Alabama fails when an 

intentionally discriminatory pattern on the part of the central 

government is proved. 

JOINDER 

15. The Defendants are mistaken in suggesting that this 

 



  

case must consist of eight unrelated mini-trials presenting proof 

for each county of the Section 2 (or Zimmer or Marengo County) 

"results" factors. Plaintiffs have proceeded on a quite 

different course. Plaintiffs’ case ln chief is based primarily 

on historical evidence of a statewide scope focusing on the 

actions of the Alabama Legislature. Since plaintiffs have 

succeeded with this statewlde, historical intent claim, it will 

be unnecessary for them to meet the burdensome and time-consuming 

requirements of section 2's results test. In fact, it would be 

wasteful of judicial resources and directly contrary to the 

policy of the Voting Rights Act to require them to try the same 

case and seek the same relief in eight separate trials in three 

different courts. The issue of historical intent is precisely 

the kind of common question of law and fact contemplated by Rule 

20(a), Fed .R.Civ.P., as warranting joinder of parties plaintiff 

and defendant in a single action. 

16. Under the Federal Rules of Civil Procedure, 

"Joinder of claims, parties and remedies is strongly 

encouraged." United Mine Vorkers of America v. Gibbs, 383 U.S. 
  

715, 724 (1966). Joinder of plaintiffs and defendants is proper 

under Rule 20(a) Fed.R.Civ.P. where there is asserted a right to 

relief "jointly, severally or in the alternative in respect of or 

arising out of the same transaction, occurrence, or geries of 

transactions or occurrences and if any question of law or fact 

- 28 

 



  

common to all these persons will arise in the action." (Emphasis 

supplied). There need not be a total congruence of interests. 

"A plaintiff or defendant need not be interested in obtaining or 

‘defending against all the relief demanded." Rule 20(a), 

Fed .R.Civ.P. The joinder provisions, including the definitions of 

commonality and relatedness of transactions or occurrences, are 

to be liberally construed. League to Save Lake Tahoe v. Tahoe 

Redional Planning Agency, 558 F.2d 914, 91% (9th Cir. 1977): 

Kolosky v. Anchor Hocking Corp., 585 F.Supp 746, 748 (W.D.Pa. 

  

  

1983); Kedra v. City of Philadelphia, 454 F.Supp. 652 (E.D.Pa.   

1978). Joinder is appropriate if "the operative facts are related 

even if the same transaction is not involved." (Civil Aeronautics 
  

Bd. ¥v. Carefree Travel. Inc., 513 FP.2d4 375 (3nd Cir. 1075)   

(different travel agencies and individuals providing affinity 

charters sued by C.A.B.; severance denied). 

  

17. The paradigm for this statewide action is United 

states v. Misgigsippi, 380 U.S. 128 (1965), where registrars in   

six counties were sued for engaging in "acts and practices 

hampering and destroying the rights of Negro citizens to vote, in 

violation of 42 U.S.C. section 1971(a), and the Fourteenth and 

Fifteenth Amendments and Article I of the United States 

Constitution." Id. at 130. Five of the registrars sought 

severance, four of whom also sought transfer since they did not 

reside in the district or division in which suit was brought. In 

 



  

determining whether joinder was proper, the Supreme Court traced 

the history of acts in Mississippi from 1890 to 1962 which 

prevented or restricted voting by black citizens. The Court 

found joinder to be proper because the actions of each of the 

registrars were but the latest in a series of transactions or 

occurrences designed to disenfranchise Mississippi’s black 

citizens. The Supreme Court reversed the district court, which 

had denied joinder on the ground "that the complaint improperly 

attempted to hold the six county registrars jointly liable for 

what amounted to nothing more than individual torts committed by 

them separeately with reference to separate applicants." Id. at 

142. The Supreme Court rejected the district court's reasoning, 

finding it sufficient that the plaintiffs alleged that "the 

registrars had acted and were continuing to act as part of a 

statewide system designed to enforce the registration laws in a 

way that would inevitably deprive black people of the right to 

vote solely beacause of their color.” Id. Plaintiffs here 

challenge the remnants of the same kind of statewide system of 

disenfrancisement, only by the method of election as opposed to 

registration. 

18. Similarly, in a number of cases outside the voting 

rights context, courts have found joinder of multi-county or even 

statewide plaintiffs and defendants to be appropriate in 

situations where there is some common thread to the actions of 

ne 40 ore 

 



  

the defendants -- even 1f they acted seemingly independently -—- 

particularly where the defendants acted in violation of 

  Plaintiffs’ federal constitutional rights. fee, e.2.. Mogslev v. 

General Motors Corp., 497 F.2d 1330 (8th Cir. 1974) (severance 

sought by company and union denied; same general policy of 

discrimination by both suffices for joinder purposes, identity of 

all events unnecessary); Coffin v. South Carolina Dept. of 
  

Social Services, 562 F.Supp 579 (D.S.C. 1983)(age discrimination 

sult against 14 defendants; defendants claimed that their actions 

vere not the resuli of the same series of transactions or 

occurrences, because they were independent and based on different 

policies; severance denied); United States v. Yonkers Board of 
  

Education, 518 F.Supp. 191 (S.D.N.Y. 1981)(complaint against 

school board, city and Community Development agency under Titles 

Iv, VI, and VIII, D.O.E. regulations, the fourteenth amendment 

and contract; motion to sever denied despite variety of claims 

and differences in actions by different entities which were 

challenged); School District of Kansas City, Missouri v. State 
  

of Missouri, 460 F.Supp. 421 (W.D.Mo. 1978), appeal dismissed,   

(inner-city school board and school children seeking 

inter-district school desegregation sued suburban school 

districts, state, H.U.D., H.E.W.; defendants’ motion for 

severance denied despite fact that actions of defendants were 

otherwise independent and involved such different subject matter 

 



  

as teacher hiring, housing, highway construction, urban renewal); 

Redra v. City of Philadelphia, 454 F.Supp. 852 (E.D.Pa. 

1978) (multiple plaintiffs sued city and officials for series of 

events over a period of more than one year involving separate 

incidents of beating and other harassment; defendants motions to 

sever denied despite fact of separate incidents and independent 

involvement of different defendants); Swift v. Toia, 450 F.Supp. 
  

98% (S.D.N.Y. 1978), aff'd. 508 P.2d 313 (2nd Cir. 1979) (suit 

challenging prorating of AFDC benefits; intervention granted to 

plaintiffs also challenging proration, although facts of their 

claims differed; joinder of commissioners in coiunties serving 

intervenors allowed); Brumfield v. Dodd, 405 F.Supp. 338 (E.D. 
  

La. 1975) (3 judge court)(plaintiffs in six parishes challenged 

statewide application of state statutes by which all-white 

private schools opened to defeat public school integration 

received state financing; joinder held appropriate despite 

different facts in each parish re: integration, use of funds, 

etc. ). 

19. In an analogous group of cases, plaintiffs used the 

device of a defendant class action to unite claims against 

multiple defendants in a single lawsuit. In those cases, as 

here, the courts had to determine whether common issues of law or 

1 fact were involved. In Harris v. GCraddick, 593 F.Supp 128 
  

(M.D.Ala. 1984), this court certified both plaintiff and 

42 . 2 

 



  

defendant classes in a statewide suit challenging the failure to 

appoint black voting officials. There, as here, defendants 

protested that different circumstances in different counties 

outweighed any common issues. The court rejected those 

objections. §See also, Rakes v. Coleman, 318 Supp. 181   

(E.D.Va. 1970), (defendant class of state court judges certified 

in a suit by alcoholics against the practice of confining 

alcoholics to penal and other inappropriate institutions under 

state statutes allowing for the confinement for "treatment" of 

alcoholics; class certified despite variations in procedures used 

by the judges, in their rationalizations for the commitments, or 

in the institutions to which class members were committed); 

Marcera v. Chinlund, 595 F.2d 1251 (24 Cir. 1979) vacated on   

TT other grounds, sub nom., Lombard v. Marcera, 442 U.S. 915 (1979)     

(defendant class of 43 sheriffs certified in suit by pre-trial 

detainees for contact visits in 43 separate county jails; 

differences in jail construction, staffing and inmate population 

insufficient to defeat certification). 

<0. Finally, with respect to joinder, it is noteworthy 

that the Lawrence County defendants relied in their brief on the 

Lee v. Macon precedent. Here, as in Lee v. Macon, the "wide 

range of activities" by central state government requires joinder 

of all the county defendants in order effectively to achieve 

enforcement of the Voting Rights Act. See Lee v. Macon, Order of 

- 45 ~ 

 



  

March 31, 1970, at 3. (Order attached to defendant Lawrence 

County's brief). 

TRANSFER 

21. Defendants have taken the position that even if 

they have not been misjoined and venue in this court is Proper, 

the court should nonetheless use its discretionary powers under 

28 U.S.C. section 1404(a) to sever the claims against them and 

transfer those claims to other federal district courts in 

Alabama. Section 1404(a) authorizes transfers to another district 

in which the action could originally have been brought if such a 

transfer would be "for the convenience of parties and witnesses" 

and "in the interest of justice." The standards governing | 

transfers under section 1404(a) place a heavy burden on the 

moving defendant to prove that "the balancing of interests weighs 

in favor of transfer and unless this is clearly established, the 

plaintiff's choice of forum will stand." H.H. Robertson Co. v. 
  

  

Lumbermen’s Mutual Casualty Co., 94 F.R.D. 578, 581-2 (W.D.Pa. 

1082), aff’'d 696 F.2d 982 (3rd Cir. 1982). 

22. In evaluating the balance of interests, the 

plaintiff's choice of forum is to be given "considerable 

weight." Texas Eastern Transmission v.Marine Office Appleton and 
  

Cox Corp., 579 F.24 881, 8687 (10th Cir. 1978). "Unless the 

balance is strongly in favor of the defendant, the plaintiff's 

Tn 4 4 oly 

 



  

choice of forum should rarely be disturbed." Collins v. 
  

Straight. Inc., 748 F.2d 916, 921 (4th Cir. 1984) guoting, Gulf 

Qil v. Gilbert, 330 U.S. 501 (1946). Thus, courts have refused 

transfers requested by defendants even where a majority of the 

witnesses did not reside in the district where the case was to be 

tried, gee, e.¢g., Texas Eastern Transmission v. Marine Office 
  

Appleton and Cox Corp., supra, and where the cause of action   

arose in another district, see, e.g. Collings v. Straignt, Inc., 
  

supra. 

<5. The interests of justice in this case weigh heavily 

against transfer to other districts. Transfer would involve 

delays that would prevent the granting of relief in time for the 

1986 elections. It would substantially increase the burden on 

plaintiffs -- the aggrieved parties -- both in terms of time and 

expense, requiring, for example, many additional hours in travel 

time and in-court time for expert witnesses crucial to the 

prosecution of voting rights claims, who would be required to 

appear in three different forums for eight different trials 

rather than appearing in one forum once. Since "[tlhe interest 

of justice favors retention of jurisdiction in the forum chosen 

by an aggrieved party where, as here, Congress has given him a 

choice," Newsweek, Inc. v. United States Postal Service, 652 
  

F.2d 239, 243 (2nd Cir. 1981), the Court should deny defendants’ 

motions to transfer. 

 



  

Class Action Issues 

24. It is axiomatic that Article III empowers federal 

courts to hear only cases and controversies. One aspect of this 

doctrine, standing, demands there be a direct connection between 

the injuries suffered and the violations alleged. Church of 
  

cientology v. City of Clearwater, 777 F.2d 598, 608 (11th Cir.   

1985). Defendants here concede that each named representative has 

standing to challenge the at-large system in his or her county. 

They assert, however, that every named plaintiff must have 

standing in relation to every named defendant. 

25. While defendants’ argument might have merit in 

commercial litigation where a single named plaintiff seeks to sue 

multiple, unrelated defendants, See, Lamar v. H & B Novelty and 
  

Loan Co., 489 F.2d 461 (9th Cir. 1973)(named plaintiff sued   

several pawnbrokers with whom he had no dealings), it is 

meritless in the context of this litigation. Here, plaintiffs 

seek to represent black citizens who have been injured by acts 

adopted by the Alabama Legislature and implemented by the named 

defendants, subordinate governmental units. The crux of 

plaintiffs’ case is a common historical intent to discriminate. 

26. In civil rights cases such as this one, the inquiry 

is "whether the class as a whole has standing to sue the named 

defendants, rather than upon the narrow question of whether each 

 



  

named plaintiff meets the traditional standing requirements 

against each named defendant." ¥Yilder v. Bernstein, 499 F.Supp 

980, 994 (S.D.N.Y. 1980). There, a plaintiff class of children 

alleged that New York's statutory child placement scheme was 

unconstitutional. The court, recognizing that standing is a 

broader concept in civil rights cases, held the children had 

at 993. See also ¥ashington v. Lee, 263 F.Supp 327 (M.D.Ala.   

1968) aff'd, 300 U.8. 333 (1968) (class of plaintiffs had Standing 

to challenge segregated detention facilities in Alabama, despite 

the fact that not all plaintiffs had been detained in all 

facilities); Q’Shea v. Littleton, 414 U.S. 491, 404 (standing   

denied where none of the named plaintiff's stated a case or 

controversy). 

27. Even if this court accepts defendants’ stringent 

standing analysis, any perceived standing problem can be cured by 

certifying appropriate subclasses. This is precisely the action 

taken in Young v. Pierce, 554 F.Supp 1010 (E.D.Tx. 1982). There   

the court certified a class of residents and applicants in a 36 

county area who had suffered discrimination in public housing. 

  

  

Id. at 1026. See also Vulcan Society v. Fire Department of City 

Qf White Plains. 82 F.R.D. 370 (5.0.0.7. 1975) (employment 

discrimination suit by firefighters in four municipalities where 

common issue was test used by all four cities; court created four 

—— 417. 

 



  

subclasses, one for each municipality.) 

28. Resolving the standing problem does not 

automatically establish that the representative plaintiffs are 

entitled to litigate the interests of the class they seek to 

represent. Instead, the emphasis shifts from justicibility to an 

examination of the criteria of rule 23(a). Sosna v. Iowa, 419 
  

U.S. 393, 402-03 (1975). 

29. The Court finds that this cause satisfies rule 

23(a) and rule 23(b)(2). 

Numerosity. Whether the numerosity requirement is met 
  

depends upon the circumstances of the case rather than upon any 

arbitrary limit. General Telephone Co. v. EEOC, 446 U.S. 318, 
  

330 (1980). The putative class in this action meets this 

requirement. The number of known, identifiable class members is 

at least 64,515 (less the number of black persons in the two 

counties that have settled). That number, set forth in 

plaintiff's motion to certify, represents the number of black 

citizens in the defendant counties according to the 1980 census. 

The impossibility of joining all of these class members in any 

one action is obvious. When class size reaches these 

proportions, the joinder/impracticability test is satisfied by 

WA numbers alone. 1 Newberg on Class Actions, section 3.05, p.142 
  

(24 E4.). 

30. Commonality. Plaintiffs seek to represent a class 

” 48 

 



  

of persons situated precisely as themselves with regard to 

defendants’ election system. There is one determinative common 

question in this case: whether the State of Alabama has adopted 

and maintained racially discriminatory, vote diluting, at-large 

election systems for the specific purpose of denying and 

abridging black citizens voting rights. 

This issue 1s plain, narrow and manageable, and affects 

the putative class members and the named plaintiffs alike. Thus, 

the class device will save the "resources of both the courts and 

the parties by permitting an issue potentially affecting every 

[class member] to be litigated in an economic fashion under rule 

23." General Telephone v. Falcon, 457 U.S. 147 (1982).   

61. Typicality. Though closely related, commonality 

and typicality are actually separate inquiries. The commonality 

requirement focuses on the absent or represented class, while the 

typicality requirement addresses the desired qualifications of 

the representatives. "[A] strong similarity of legal theories 

will satisfy the typicality requirement despite substantial 

factual differences." Appleyard v. Wallace, 754 F.2d 955, 958 

(11th Cir. 1088). 

Here, the predominate question is whether the State of 

Alabama adopted the at-large election scheme in these counties 

for the purpose of discriminating against black citizens. 

32. Adequacy of Representation. Whether the named 
  

 



  

plaintiffs will adequately represent the class is a question of 

fact to be raised and resolved in the trial court in the usual 

manner, including, if necessary, an evidentiary hearing on the 

  

matter. Johnson v. Georgia Highway Express, 417 F.2d 1122, 

1124-25 (5th Cir. 1972). The standard to be applied in this 

determination is whether the named plaintiffs have qualified and 

experienced counsel able to conduct the proposed litigation and 

whether there is any possibility that the named plaintiff is 

involved in a collusive suit or has interests actually 

antagonistic to those of the remainder of the class. Id. 

Plaintiffs here are represented by experienced counsel, 

and there is no evidence that plaintiffs’ suit is collusive or 

that plaintiffs have any interests which are actually 

antagonistic to those of the remainder of the class. 

33. Injunctive relief is appropriate. Defendants   

have acted or refused to act on grounds which are generally 

applicable to the entire class, thereby making appropriate final 

injunctive and declaratory relief. This court determines that 

this cause should proceed as a class action and certifies this 

suggested class of plaintiffs under rule 23(b)(2) of the Federal 

Rules of Civil Procedure. 

PRIOR COURT ORDERS 

 



rejected the change. Following the pattern described with 

respect to Choctaw County in the findings of fact, a change to 

at-large elections was finally effected for the Talladega County 

  

Commission by means of the Brown v. Gallion lawsuit, in which 

blacks did not participate. 

36. There is some question whether the 1970 

court-ordered change to at-large elections for Talladega County 

is enforceable in light of the subsequent decision of the supreme 

Court in McDaniel v. Sanchez, 101 S.Ct. 2224 (1981), which held 

that redistricting plans entered by consent of the local 

government still must be precleared under Section 5 of the voting 

Rights Act. There have been at least two three-judge court 

decisions in Alabama restoring single-member district elections 

to counties that were using similar court-ordered at-large 

schemes. Marshall v. Monroe County, Civil Action No. 77-224-C   

(S.D.Ala., June 22, 1983); Holley v. _ Sharpe, F.Supp. 
  

(M.D.Ala., Sept. 9, 1982) (Tallapoosa County). 

37. However, plaintiffs have established their 

entitlement to relief in this action under Section 2 of the 

voting Rights Act, because Talladega County has failed to bear 

its burden of showing that it should be allowed to continue using 

at-large elections in the face of the statewide, racially 

motivated pattern and practice. Requiring plaintiffs to seek the 

convening of a three-judge court necessarily would be time  



  

consuming and would increase the unlikelihood that they could 

obtain relief in time for the 1986 elections. 

38. Accordingly, the Court is of the opinion that the 

preliminary injunction should be issued against Talladega County. 

The 1970 court order in Brown v. Gallion on its face 
  

contemplated that it would operate as a temporary plan pending 

expected action by state and local authorities to provide a 

constitutional redistricting plan. Although the order recited 

that the court was retaining jurisdiction until such a 

legislative plan was enacted, the Legislature (not surprisingly, 

in light of the findings this Court has made) has failed to take 

any action, and the docket records in the Northern District of 

Alabama indicate the action has been dismissed. In any event, 

the action in no way involve the plaintiffs in this case, and 

provides no bar to their assertion of Section 2 claims in an 

2 
independent action. 

Pickens County 

39. Pickens County has a different and more substantial 

2 
Copies of the court orders in Brown v. Gallion and 

Marshall v. Monroe County are being provided to the Court along 
  

  

with these proposed findings of fact and conclusions of law. 
Copies will be provided to counsel for other parties upon 
request. 

 



  

Claim based on a prior action. It contends that Plaintiffs’ 

claims in the instant case are barred by the final judgment 

entered in Corder v. Kirksey, Civil Action No. 73-M-1086 

(N.D.Ala., Sept. 24, 1980). Pickens County's argument is without 

merit. Corder v. Kirksey was decided solely on the basis of an 

asserted constitutional cause of action; it does not bar the 

instant action based on the Voting Rights Amendments of 1982. 

40. Here is the chronology of Corder v. Kirksey: 
  

March 12, 1976: Judge McFadden entered a one and 

one-half page order approving the Legislature's reapportionment 

of the Pickens County commission residency subdistricts utilized 

with the at-large election system. Final judgment was entered on 

August 18, 19786. 

November 1978: The Fifth Circuit vacated the judgment 

and remanded the case to the district court for explicit findings 

of fact using the Zimmer standards. 585 F.2d 708. 

February 16, 1979: The district court entered an 

order upholding the at-large system for county commission general 

elections (districts are used only in the primary elections) 

under Zimmer. No evidence was presented by the plaintiffs that 

would allow the district courts to determine the distribution of 

the black population among the districts, no evidence was 

presented that would allow the court to draw inferences that the 

election scheme diluted the voting strength of blacks or was 

 



designed to discriminate against blacks, and no evidence was 

presented regarding the general law of Alabama, which provides 

for at-large elections for county commissions not otherwise 

governed by local acts. Slip Op. at 3. 

August 21, 1980: The Fifth Circuit again vacated and 

remanded, this time for findings consistent with the supreme 

Court's intervening decision in City of Mobile v. Bolden, which 
  

called for findings on the issue of purpose or intent. Corder 

v. Kirksey, 625 F.2d at 520. 
  

September 24, 1980: The district court again found 

that "there is no evidence that the election scheme was designed 

to discriminate against blacks." Corder v. Kirksey, No. 
  

73-M-1086, unpublished order at 3. The plaintiffs declined the 

court's invitation to present further evidence. at 1, 

March 16, 1981: The Fifth Circuit affirmed the 

district court's holding that the at-large county commission 

election scheme was constitutional, on the ground that the 

district court had found "simply no facts in the record probative 

of racially discriminatory intent on the part of those Officially 

responsible for the Pickens County Board of Commissioners 

at-large election scheme." Corder v. Kirksey, 639 F.2d 1191, 
  

1195. The analysis of the Fifth Circuit and the district court 

focused entirely on the inadequacy of the plaintiffs’ 

¥hite/Zimmer evidence to establish an inference of discriminatory  



  

intent. 

October 12, 1982: The Fifth Circuit denied 

plaintiffs’ petition for rehearing and rehearing en banc, 

  

concluding that the Supreme Court's decision in Rogers v. Lodge, 

102 S.Ct. 3272 (1982), "does not affect our analysis or 

disposition of this case." Corder v. Kirksey, 688 F.2d 991, 
  

002. 

41. Rirkgey v. City of Jdackgon, 714 F.2d 42 (8th Cir. 
  

1983), accord, United States v. Marengo County Commigsion, 731 
  

F.2d 1546 (11th Cir. 1984), is dispositive of the Pickens County 

  

res judicata defense. In Kirksey v. City of Jackson a plaintiff 

class of black citizens had suffered a final judgment on their 

claims that Jackson, Mississippi's at-large elections violated 

the thirteenth, fourteenth, and fifteenth amendments and 

(unamended) section 2 of the Voting Rights Act. Id., 714 F.2d at 

43. As in Pickens County, there had been a remand for trial court 

findings based on City of Mobile v. Bolden, which had resulted 
  

in a final judgment based on insufficient evidence of 

discriminatory intent. Id. 

42. After Congress amended section 2 of the Voting 

60(b)(5) motion to reopen the case after final judgment. The 

Fifth Circuit held that the motion to reopen the old case should 

be denied, because the final judgment in the old case was not a 

 



  

bar to a brand new action based on the amended Voting Rights Act. 

In Moch v. Kast Baton Rouge Parish School Bd., 
548 F.2d 594 (5th Cir.), cert. denied, 434 U.S. 859 
(1977), we held that the doctrine of res judicata would 
not bar a second suit, virtually identical to one that 
had been dismissed earlier, when there had been a 
change in the interim in the opinions of this Court and 
the Supreme Court as to the proper constitutional 
standard to apply. The same principle applies to 
statutory changes, such as the amendment to section 2 
of the Voting Rights Act, for, as Judge Wisdom has 
written, "Faced with changing law, courts hearing 
questions of constitutional right cannot be limited by 
res judicata. If they were, the Constitution would be 
applied differently in different locations." Parnell 
¥. JPapides Parish School Bd., 863 F.24 180, 185 (5th 
Cir. 1977), cert. denied, 438 U.8. 915 (1978). 

  

  

  

  

If the judgment of dismissal does not stand in the 
way of a new action, Rule 60(b)(5) does not apply by 
its terms. In addition, the issues can be clearly and 
directly presented in a new action, one that does not 
carry either the freight of old issues or the weight of 
six years of no longer relevant briefs and papers. 

Kirksey v.City of Jackson, 714 F.2d at 44. See also Lee County 

Branch of the NAACP v. City of Opelika, 748 F.2d 1473, 1480-81 
  

and nn.10 & 12 (11th Cir. 1984), citing Croms v. Baxter, 480 
  

U.S. 1085 (1983), yacating, 688 F.2d 279 (5th Cir. 1982). 

43. Res Judicata only precludes relitigation where the 
  

cause of action is the same. When it is not the same, the rule 

has no application. 

If the second lawsuit involves a new claim or 
cause of action, the parties may raise assertions or 
defenses that were omitted from the first lawsuit even 
though they were equally relevant to the first cause of 

 



  

action. 

To the extent that a different claim or cause of 
action 1s involved, the parties are free to advance new 
natters without regard to the role that the new matters 
night have played had they been advanced in the first 
action. 

Wright, Miller and Cooper, Federal Practice and Procedure at 440% 
  

(emphasis added). 

44. As 1n the City of Jackson case, the plaintiffs in 

Corder v. Kirksey were able to raise claims based on the 1982 
  

amendments to the Voting Rights Act only when the case was 

pending in the court of appeals for the last time. As in City of 

Jackson, the court of appeals refused to grant plaintiffs’ motion 

to reopen the already litigated action to consider claims under 

the amended Section 2. Consequently, the Section 2 claims are 

Still available to be litigated in the present independent civil 

action. 

45. Although Pickens County does not raise the issue, 

the Court will address the question of whether the finding of 

fact in the instant action, that there is a racially motivated 

legislative pattern and practice involving at-large county 

commission elections in Alabama, is barred by the principle of 

collateral estoppel, at least with respect to Pickens County, in 

light of“Corder v. Kirksey. 
  

46. The doctine of collateral estoppel is a related but 

4 much narrower application of the general principles of res I! i 

  
Judicata. Collateral estoppel precludes relitigation "only of 

 



  

those 1ssues actually litigated in the original action, 

regardless of whether the second suit is based on the same cause 

of action.” Johnson v. United Siategs, 5796 7.24 608, 811 (5th 

Cir. 1978). Hornbook law names three preconditions to the 

application of collateral estoppel: (1) the issue to be concluded 

must be identical to that involved in a prior action; (2) it must 

actually have been litigated; and (3) it must have been necessary 

and essential to the resulting judgment. This circuit adds three 

more. The court must be satisfied that "the parties against whom 

estoppel is urged had a full and fair opportunity to litigate the 

issues in the prior proceeding [and] that application of the 

doctrine under the circumstances, will not result in injustice to 

  

the party ... [and] the application of ... collateral estoppel 

does not contravene any overriding public policy." Johnson v. 

United States, 576 F.2d at 614-15. 

47. Applying these principles to the case at bar 

demonstrates that collateral estoppel does not apply. The 

precise issues determined in Corder v. Kirksey were: (1) that 
  

there was no Zimmer evidence of intentional discrimination behind 

the Pickens County at-large election system, and (2) no evidence 

whatsoever was presented regarding racial motives behind the 

general law governing county commission elections, now codified 

at Ala. Code, section 11-3-1 (Supp. 1985). The statewide proof of 

legislative intent plaintiffs have adduced was not presented at 

59 

 



  

all in Corder v. RKirksey, it was not actually litigated, and it 

would not have been necessary and essential to the resulting 

judgment in Corder. Moreover, where the plaintiffs in Corder v. 

Kirksey made no attempts whatsoever to present historical proof, 

it would result in clear injustice to the present plaintiffs and 

class to apply collateral estoppel in a way that would squarely 

contravene the overriding public policy of the amended Voting 

Rights Act. 

48. A recent case in point is Judge Clemon’s December 

7, 1985, Memorandum Opinion and Judgment in United States v. 
  

Alabama, No. 83-C-1676-S (N.D.Ala. Dec. 7, 1985), where he 

rejected claims by the State of Alabama, Auburn and other 

defendants that the Knight intervenors’ attempts to raise the 

issue of racial intent behind the decision to establish an Auburn 

branch in Montgomery was barred under principles of res judicata 
  

and collateral estoppel by the prior judgment in ASTA v. Alabama 

Collede and Public School Authority, 289 F.Supp 784 (M.D.Ala. 
  

1968) (3-judge court). U.S. v. Alabama, Order of December 7, 
  

1985 at 44-45, 91-97. 

REMEDY 

49. The Court has concluded that the at-large county commission 

elections in the defendant counties likely violate Section of the 

- 60 - 

 



  

Voting Rights Act as amended, 42 U.S.C. section 1973, and that 

the plaintiffs are entitled to a preliminary injunction 

restraining the defendants from conducting further elections on 

an at-large basis. 

50. The Supreme Court has firmly established the rule 

that single-member districts are to be preferred in court-ordered 

remedial districting plans unless there is a "singular 

combination of unique factors" that justifies a different 

result. Connor v. Finch, 431 U.S. 407, 418 (1977); ¥ahan v. 
  

  

Howell, 410 U.8. 315, 333 (1973); Chapman v. Meier, 420 U.S. 1, 
  

21 (1976); East Carroll Parish School Bd. v. Marshall, 424 U.S. 
  

636, 639 (1978). 

51. The rationale for the single-member district rule 

is that 

the practice of multimember districting can contribute 
to voter confusion, make legislative representatives 
move remote from their constituents, and tend to 
submerge electoral minorities and overrepresent 
electoral majorities. 

connor v. Finch, supra, 431 U.S. at 415. Not even an historic 

state policy against fragmenting counties is sufficient to 

overcome the strong preference for single-member districting in a 

court-ordered plan. 14. 

52. This circuit has followed the Supreme Court mandate 

favoring single-member districts. Corder v. Kirksey, 639 F.2d 
  

-i 81 

 



  

1191, __(1981); ¥allace v. House, 538 F.2d 1138, 1142 (5th Cir. 

1976), cert. denied, 431 U.S. 965 (1977). 

853. Moreover, in order to comply with the requirements 

of Section 2 of the Voting Rights Act, the Court must insure that 

any single-member district plan it approves and orders into 

effect does not unnecessarily waste natural concentrations of 

minority voting strength. Only traditional principles of 

redistricting, stretched to their outer limits, can justify, as 

finally unavoidable, breaking up or over concentrating the 

  

population of protected racial groups. See generally Blacksher, 

"Drawing Single-Member Districts to Comply with the Voting Rights 

Amendments of 1982," 17 The Urban Lawyer 347 (1985), and cases   

   

3 
cited therein. Respectfully submitted this AY day of February, 

1986. 

BLACKSHER, MENEFEE & STEIN, P.A. 
405 Van Antwerp Building 
P. O. Box 108] 
Mobile, Alabama 36633 

f / 
\ ; / / / 

BY : Ld fel ne 
/ BLACKSHER 

\_/ LARRY T. MENEFEE 
WANDA J. COCHRAN 

0 

A copy of the cited law review article is provided to the 
Court, copies will be made available to counsel for the other 
parties upon request. 

 



  

TERRY DAVIS 

SEAY AND DAVIS 
732 Carter Hill Road 
P.O. Box 6315 
Montgomery, Alabama 36104 

JULIUS L.. CHAMBERS 

DEBORAH FINS 

Legal Defense Fund 
99 Hudson Street 

16th Floor 

New York, New York 10013 

¥. EDWARD STILL 
REEVES AND STILL 
714 South 29th Street 
Birmingham, AL 35233 

REO KIRKLAND, JR. 
Attorney at Law 
P. O. Box 646 
Brewton, AL 36427 

Attorneys for Plaintiffs 

March 
I do hereby certify that on this 4 day of February, 

CERTIFICATE OF SERVICE 

1986, a copy of the foregoing pleading was served upon counsel of 

record: 

Alton L. Turner, Esq. 
404 Glenwood Avenue 

P. 0. Box 20% 

Luverne, AL 36049 Attorney for Defendants Crenshaw County, et al. 

(205) 335-3302 

Jack Floyd, Esq. 
FLOYD, KEENER & CUSIMANO 
816 Chestnut Street 
Gadsden, AL 35999 Attorney for Defendants Etowah County, et al. 
(205) 547-6328 

g 

 



  

D. L. Martin, Esq. 

218 South Main Street 

Moulton, AL 35650 

David R. Boyd, Esq. 
BALCH AND BINGHAM 
P. O. Box 78 
Montgomery, AL 36101 Attorneys for Defendants Lawrence County, 
(205) 834-6500 et al., 

AND 

James G. Speake, Esq. 
Speake, Speake & Reich 
101 Spring Street, N.V. 
P. O.Box 5 Attorney for Probate Judge, Richard I. Procto 
Moulton, AL 35650 Probate Judge of Lawrence County 

¥. OO. Rirk, J2., Esq. 

CURRY & KIRK 

P. O. Box A-B 

Carrollton, AL 3544%Y Attorney for Defendants Pickens County, 

(205) 367-8125 et al. 

Warren Rowe, Esq. 

ROWE, ROWE & SAWYER 
P. O. Box 150 
Enterprise, AL 36331 Attorney for Defendants Coffee County, et al.; 
(208) 347-3401 

James ¥. Webb, Esq. 
WEBB, CRUMPTON, MCGREGOR, SCHMAELING 

¥ WILSON 
166 Commerce Street 
P. O. Box 238 
Montgomery, AL 36101 
(205) 834-3176 

AND 
Lee Otts, Esq. 
OTTS & MOORE 
P. O. Box 46% 
Brewton, AL 36427 
(205) 867-7724 Attorneys for Defendants Escambia County, et al. 

Barry D. Vaughn, Esq. 

PROCTOR & VAUGHN 
121 North Norton Avenue 
Sylacauga, AL 35150 Attorney for Defendants Talladega County, et al. 

H. R. Burnhan, Esq. 
P. O. Box 1618 

- B44. 

 



  

Anniston, AL 36202 Attorney for Defendants Calhoun County, et al. 

Yetta G. Samford, Esquire 
SAMFORD, DENSON, HORSLEY, PETTEY, 
MARTIN & BARRETT 

P. O., Box 2345 
Opelika, AL 36803 Attorney for Lee County Defendants, et al. 

by depositing same in the United States mail, postage prepaid. 

   
fet Ll 

Y FOR PLAINTIF 

 



IN THE UNITED STATES DISTRICT COURT FOR THE 
MIDDLE DISTRICT OF ALABMA 

NORTHERN DIVISION 

JOHN DILLARD and HAVARD RICHBURG 
of Crenshaw County; NATHAN CARTER, 
SPENCER THOMAS and WAYNE ROVE 
of Etowah County; HOOVER WHITE, 

MOSES JONES, Jr., and ARTHUR TURNER 
of Lawrence County; DAMASCUS 

CRITTENDEN, Jr., RUBIN MCKINNON, and 
WILLIAM S. ROGERS of Coffee County; 
EARWEN FERRELL, RALPH BRADFORD and 
CLARENCE J. JAIRRELS OF Calhoun 
County; ULLYSSES MCBRIDE, JOHN T. 
WHITE, WILLIE McGLASKER, WILLIAM 
AMERICA and WOODROW McCORVEY of 
Escambia County; LOUIS HALL, dJr., 
ERNEST EASLEY, and BYRD THOMAS, of 

of Talladega County; MAGGIE BOZEMAN, 
JULIA WILDER, BERNARD JACKSON and 
WILLIE DAVIS of Pickens County; 
LINDBURGH JACKSON, CAROLYN BRYANT, 
and GEORGE BANDY, of Lee County, on 

behalf of themselves and other 

similarly situated persons, ¥ 
HK
 

KX
 

WH
 

HK
 

XK
 

% 
BK
 

WB
 

FH
 

% 
RK

 
HX
 

XH
 

HK
 

RN
 

WN
 

WH
 

% 
¥ 

% 
* 

Plaintiffs, 

VS. CA NO. 85-7-1332-N 

CRENSHAW COUNTY, ALABAMA, qua COUNTY; * 
IRA THOMPSON HARBIN, JERRY L. ¥ 
REGISTER, AMOS MCGOUGH, EMMETT L. 
SPEED, and BILL COLQUETT, in their 
official capacities as members of 
the Crenshaw County Commission; IRA 
THOMPSON HARBIN, in his official 
capacity as Probate Judge; ANN TATE, 
in her officlal capacity as Clroult 
Clerk; FRANCES A. SMITH, in his  



  

official capacity as Sheriff of 
Crenshaw County; ETOWAH COUNTY, 
ALABAMA, qua COUNTY; LEE 
WOFFORD, in his official capacity as 
Probate Judge; BILLY YATES, in his 
official capacity as Circuit Clerk; 
ROY McDOWELL, in his official 
capaclty as Sheriff of Etowah County; 
LAWRENCE COUNTY, ALABAMA, qua 
COUNTY; RICHARD I. PROCTOR, in his 
official capacity as Probate Judge; 
LARRY SMITH, in his official capacity 
as Circuit Clerk; DAN LIGON, in his 
official capacity as Sheriff of 
Lawrence County; COFFEE COUNTY 
ALABAMA, gua COUNTY; MARION 
BRUNSON, in his official capacity as 

Probate Judge; JIM ELLIS, in his 
official capacity as Circuit Clerk; 
BRICE R. PAUL, in his official capa- 
City as Sheriff of Coffee County; 
CALHOUN COUNTY, ALABAMA, gua 
COUNTY, ARTHUR C. MURRAY, in his 
official capacity as Probate Judge; 
R. FORREST DOBBINS, in his official 
capacity as Circuit Clerk; ROY C. 
BNEAD, dr., in his officlal capacity 
as Sheriff of Calhoun County; 
ESCAMBIA COUNTY, ALABAMA, qua 
COUNTY; MARTHA KIRKLAND, in her 
official capacity as Probate Judge; 
JAMES D. TAYLOR, in his official 
capacity as Circuit Clerk; TIMOTHY 
A. HAWSEY, in his official capacity 
as Sheriff of Escambia County; 
TALLADEGA COUNTY, ALABAMA, qua 
COUNTY; DERRELL HANN, in his official* 
capacity as Probate Judge; SAM GRICE, 
in hls official capacity as Circuit 
Clerk; JERRY STUDDARD, in his 
official capacity as Sheriff of 
Talladega County; PICKENS COUNTY, 
ALABAMA, qua COUNTY; WILLIAM H. 
LANG, Jr., in his official capacity 
as Probate Judge; JAMES E. FLOYD, in 
his official capacity as Circuit 
Clerk: and, LOUIE C. COLEMAN, in his 

official capacity as Sheriff of 
Pickens County, LEE COUNTY, gua 
COUNTY, ALABAMA; HAL SMITH, in his 

¥ 
O
K
 

XK
 

HK
 
O
H
 

O
H
 

O
H
 

O
H
 

O
H
 

H*
 

x 
W
H
 

KH
 

WN
 

HK
 

FH
 
O
X
 

HN
 

WH
 

OW
N 

O
H
 

HN
 

EK
 

KN
 
O
E
 

O
X
 

KX
 

OH
 

OK
 

N
O
X
 

KX
 
O
X
 

» 
* 

¥ 
OX

 
OK

 
OH

 
OX

 
OX

 
OH

 
OX

 
OH

 
H*

 
¥ 

» 

 



  

official capacity as Probate Judge of* 
Lee County, ANNETTE H. HARDY, in her * 
official capacity as Circuit Clerk of* 
Lee County, and HERMAN CHAPMAN, in ¥ 
hls official capacity as Sheriff of * 
Lee County; % 

Defendants. X 

ORDER AND PRELIMINARY INJUNCTION 
  

In accordance with the findings of fact and conclusions 

of law entered this date, it is the ORDER, JUDGMENT and DECREE of 

the Court: 

1. That this action be and it is hereby declared 

properly maintainable as a class action, pursuant to Rule 

R3(b)(R), with respect to a plaintiff class consisting of all 

black citizens of Crenshaw County, Lawrence County, Etowah 

County, Coffee County, Calhoun County, Escambia County, Talladega 

County, Pickens County, and Lee County, Alabama. 

2. That subclasses be and are hereby provisionally 

certified to be represented by the named plaintiffs as follows: 

a. John Dillard and Havard Richburg shall 

represent the subclass of all black citizens of Crenshaw County; 

b. Nathan Carter, Spencer Thomas and Wayne Rowe 

shall represent the subclass of all black citizens of Etowah 

County; 

C.  Earven Ferrell, Clarence Jairrels, and Ralph 

Bradford shall represent the subclass of all black citizens of 

 



  

Calhoun County; 

d. Damascus Crittenden, Rubin McKinnon and William 

S. Rogers shall represent the subclass of all black citizens of 

Coffee County; 

e. Ulysses McBride, Willie Mae McGlasker, Woodrow 

McCorvey, John T. White and William C. America shall represent 

the subclass of all black citizens of Escambia County; 

f. Hoover White, Moses Jones, Jr. and Arthur 

Turner shall represent the subclass of all black citizens of 

Lawrence County; 

g. Lindburgh Jackson, Carolyn Bryant and George 

Bandy shall. represent the subclass of all black citizens of Lee 

County; 

h. Maggie Bozeman, dulia Wilder, Bernard Jackson, 

and Willie Davis shall represent the subclass of all black 

cltizens of Pickens County; and, 

1. Louls Hall, Jr., Ernest Easley and Byrd Thomas 

shall represent the subclass of all black citizens of Talladega 

County. 

3. That the motions of the defendants in Etowah County, 

Lawrence County, Pickens County, Coffee County, Calhoun County, 

Talladega County, and Escambia County, as amended, to dismiss, to 

transfer, for change of venue, for severance and for other 

related orders are HEREBY DENIED. 

4 

 



  

4. It is further ORDERED that the defendants from 

Etowah County, Lawrence County, Coffee County, Calhoun County, 

Escambia County, Talladega County, and Pickens County, and each 

of them, their agents, attorneys, employees and those acting in 

concert with them or at their direction are ENJOINED 

preliminarily from conducting elections for the county 

commissions in their respective counties under the present 

at-large election schemes, and are FURTHER ENJOINED preliminarily 

as follows: 

a. The elections for the county commission to be 

held in 1986 will be from single-member districts. 

b. The number of single-member districts and their 

boundaries shall be drawn so as to comply as closely as 

practicable with the requirement of one person, one vote and to 

avoid unnecessary fragmentation or overconcentration of black 

voting strength. 

c. No members of the county commission may be 

elected on an at-large basis. In those counties where the 

probate judge presently is a member of the county commission, he 

or she shall cease to serve as a member of the county commission 

when the commissioners elected from single-member districts take 

offlce. 

d. Following their election from single-member 

districts, the newly elected county commissioners shall elect one 

 



  

of their number to be president of the commission. The president 

of the commission shall preside at meetings of the county 

commission and shall set the agenda, but shall receive no more 

compensation than does any other commissioner. 

e. Where state law does not already authorize it, 

the county commission shall be empowered to appoint a full-time 

county administrator. 

£f. On or before , 1986, the parties in   

each county shall attempt to negotiate an agreed upon 

single-member district plan for the 1986 county commission 

elections. If no plan can be agreed upon, on that date the 

parties in each county shall file their respective proposed plans 

with the Court. An evidentiary hearing is hereby scheduled for 

, 1986, to consider the parties’ contentions concerning 

which plan should be adopted by the Court. 

g. All candidate qualifying deadlines established by 

state law for county commission elections in the enjoined 

counties are hereby suspended pending determination of the 

single-member district plan that will be utilized in each such 

county. The Court will establish new qualifying deadlines when 

it approves each remedial plan. 

h. The proposed remedial election plans to be 

submitted to the Court pursuant to this preliminary injunction by 

the defendant counties, whether agreed upon or not, as soon as 

 



  

practicable shall be submitted by the county for preclearance 

under Section 5 of the Voting Rights Act. However, because of the 

impending elections, the Court will not postpone until after 

preclearance consideration of whether the plans should be adopted 

for use in the 1986 county commission elections pursuant to this 

preliminary injunction. If preclearance subsequently is denied 

for single-member district election plans adopted by the Court, 

they will not be considered for use in any final injunctive 

relief, if such final relief is deemed warranted. 

5. The Court wishes to emphasize that nothing in this 

preliminary injunction or in subsequent orders of the Court is 

intended to foreclose action by the Legislature of Alabama or 

other duly authorized state or county authority to enact new 

election plans for the county commissions in the enjoined 

counties, so long as such legislatively enacted plans do not 

violate the provisions of the Voting Rights Act or the 

Constitution of the United States with respect 0 the dilution of 

black voting strength. 

DONE this day of . 1086. 
    

  

UNITED STATES DISTRICT JUDGE