Plaintiffs' Post-Hearing Brief on Remedial Issues

    IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 
  

JOHN DILLARD, ET AL., 

Plaintiffs, 

V. 
CIVIL ACTION NO. CV 85-T-1332-N 

CRENSHAW COUNTY, ALABAMA 

ET AlL., 

Defendants. a
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PLAINTIFFS' POST-HEARING BRIEF ON REMEDIAL ISSUES 

  

On September 4 and 5, the Court received two days of 

evidence concerning remedial issues in Calhoun, Lawrence and 

Pickens Counties. The evidence was received pursuant to the 

Court's Order of July 17, 1986, which included the stipulation 

attached thereto signed by the parties. Plaintiffs submit the 

following brief in light of the facts and issues developed at 

that hearing. 

The stipulation entered into by the parties provided 

that if the counties had not obtained preclearance under Section 

5 of the Voting Rights Act from the Attorney General by September 

30, 1986, «the district court should ntake action to approve an 

interim remedial election plan" to be used in special elections 

 



  

: # » 

scheduled to begin with a primary election on November 4, a 

runoff election November 25, and a general election on December 

16, 1986. It is probable that the Attorney General will not have 

ruled by September 30, 1986 and it will be necessary for this 

Court to enter an interim plan. Upham v. Seamon, 456 U.S. 37 
  

{1982}; Burton v. Hobbie, 543 F. Supp. 235 (M.D. Ala. 71982), 
  

affg cl mys. 5103 .8.0t.- 286 (Nov. 1, 1982). 

Furthermore, it is now clear that the Department of 

Justice will not be applying the "result" test of Section 2 of 

the Voting Rights Act. Recent discussion in the Washington D.C. 

press (clippings attached) has made it clear that the Assistant 

Attorney General for Civil Rights, William Bradford Reynolds, 

will be applying the "retrogression" standard enunciated in Beer 

v. ~ United States, 425 U.S. 130, 47 L.Ed.24 629, 96 S5.(1. 1357 
  

(1976). Under this standard, the submitting jurisdiction need 

only show that black citizens are not worse off because of the 

submitted change. This standard has little relevance to the 

standards which this court will have to apply. 

Whether the Court was ordering an interim plan under 

the Upham and Burton rationale before Section 5 approval or 

ordering a plan after a decision under Section 5, the Court would 

in either event have to apply the constitutional and statutory 

requirements favoring single-member districts with nearly equal 

 



  

population and reflecting racial fairness. Plaintiffs have 

previously briefed these standards in both the memoranda 

submitted prior to the remedial hearing and the hearing on 

preliminary injunction. Wise v. Lipscomb, 437 U.5. 535, B40, 98 
  

5.Ct.. 2403, 2497. 57 L.Ed.24. 41%, 417 (1978), sets ‘the standard 

that single-member districts should be used "absent persuasive 

justification to the contrary". Plans submitted by all three 

defendants continue to include an at-large elected seat. In 

light of the history of polarized voting and the dilutive effects 

that at-large elections have on black voting strength, this Court 

ought not approve a plan which retains at-large elections. 

The Supreme Court has affirmed that, where there is 

objective evidence of persistent racial polarization in the 

electorate, Section 2 of the Voting Rights Act requires that the 

design of single-member districts should be "sufficient to 

overcome the effects of past discrimination and racial block 

voting a. .% AlYainv. Brooks, 105 S.Ct. 416, 417 (1984) 
  

(Stevens, J., concurring). Necessarily, a plan that will 

overcome the effects of past discrimination and racial block 

voting must take into account where black citizens live, the 

voting age population of black citizens, their registration, and 

their turnout rate. Ketchum v.. Byrne, 740 F.2d 1398, 1412-15 
  

(7th Cir. 3984); Major v. Treen, 574 F.Supp. 325, 352-54 (E.D. 
  

 



  

| ’ 

La. 4883); “Teyrazas v.. Llements, 58% F. Supp. 1329, 1358-59 
  

(N.D. Tex. 1984); Busiky.v. Qliver, 565 F. Supp. 1473, 1480 (A.D. 
  

Ala. 1983); Gingles.v. Edmisten, 590 F. Supp. 345, at 358 n.,. 2} 
  

{E.D. N.C. 1984), aff'd dn pari and rev'd in part: Thornburg v, 
  

Gingles, J.S. + D4 U.S. L.W. 4877: {June 30, 1986). 
  

For each of the three counties, Plaintiffs urge the 

Court to order elections from five single-member districts with 

the commissioners so elected to serve four-year terms. The 

counties would be free to hire whatever administrative assistance 

they need, such as a county administrator or county executive, to 

run the day-to-day affairs of the county and serve at the 

pleasure of the county commission. Briefly, Plaintiffs suggest 

that the overwhelming weight of the credible evidence before the 

Court shows a stark pattern of racially polarized voting in 

elections where blacks have been candidates in each of the three 

counties. This has led to the consistent defeat of black 

candidates in at-large elections. The parties have stipulated 

that the at-large election system violates Section 2. The Court 

therefore should not order the use of at-large elections absent 

the Defendants showing special circumstances. In light of the 

weight of evidence that has been presented in this case as to the 

extreme discriminatory effect of at-large elections, the burden 

borne by the Defendants is extremely heavy. 

 



  

The evidence presented by the Defendants to justify the 

continuation of some at-large elections was, at best, minimal. 

Brief and scattered testimony that there were substantial 

administrative duties that needed to be conducted on a day-to-day 

basis is not nearly sufficient to overcome the burden that the 

Defendants must meet. There was no reason shown why employees 

could not carry out the administrative duties assigned to them by 

the elected commissioners. Most Alabama school boards have hired 

superintendents of education who carry out the day-to-day 

administrative affairs of the schools as delegated to them by the 

elected school board members. Many counties in Alabama have 

their administrative affairs carried out by employees rather than 

elected ATTY Furthermore, the testimony by Ms. Maranan 

about the survey of counties in Alabama shows that the state 

basically has no preference as to forms of government and indeed 

that the proposals made by these Defendants are in a distinct 

minority among counties in the state. They showed no special 

circumstances that would distinguish these three counties and 

their history, economy or population from the other counties in 

the state. The state legislature has shown no inclination to act 

1 
Including, for example, only, the second largest county in 

the state, Mobile County. 

 



  

and implement a uniform system of county government. 

ELECTIONS SHOULD BE HELD FOR ALL COMMISSION SEATS 
  

This Court's order and injunction of May 28, 1986, at 

paragraph 2 enjoined Defendants Calhoun and Lawrence Counties 

(inter alia) to develop plans or elections that would be 
  

implemented by January 1, 1987. The stipulation entered into by 

all three Defendants further agreed that elections would be held 

under the schedule stated above. In neither instance did this 

Court or the stipulation entered into by the parties discuss or 

imply partial elections, elections only from black districts or 

any elections other than for all commission seats. This is 

consistent with the constitutional provisions and laws securing 

protection of the federal right to vote. Numerous cases have 

ordered interim elections. Burton v. Hobbie, supra; Moore Vv. 
  

Leflore County Board of Election Comm'rs, 351 F. Supp. 848 (N.D. 
  

Miss. 1971); United States v. City of Barnwell, Civil Action No. 
  

1:84-.2508-6 (D.C. S.C., February 25,1986): Coalition for 
  

Education in District One v. Board of Elections of the City of 
  

New York, 370 F. Supp. 42 (S.D. N.Y.), aff'd per curiam, 495 F.2d 
rm — 

  

  

1090 (2nd Cir. 4974): United States v.. Post, 297 F. Supp. 46 
  

(W.D. La. 1969); Brown v. Post, 279 F. Supp. 60 (W.D. La. 1986); 
  

 



  

United States v. Democratic Executive Committee, 288 F. Supp. 
  

943 (N.D.-'Ala. 1968); Hamer v. Campbell, 358 F.2d 215 {5th 
  

Cir. ), ceyt., denied, 385 UJ.5. 8571 (1968). 
  

PICKENS COUNTY 
  

Pickens County conducts its elections from a dual 

election system utilizing single-member districts for the party 

primaries and at-large elections in the general election. 

Pickens County consists of four commissioners elected in this 

fashion plus a fifth commission position filled by the probate 

judge. Pickens has proposed a slight modification in their 

districting plan which attempts to cure a malapportionment 

problem without changing the racial composition of the four 

districts. Defendants propose the elimination of the at-large 

general election feature for the commissioners and the retention 

of the commissioner-probate judge position elected at-large. 

Plaintiffs object to the Defendant's proposed plan on 

the following grounds: 1) The Defendant's four-district plan did 

not use acceptable standards of proof and reliable data to show 

that it comports with one person-one vote requirements; 2) The 

single-member districts are not designed in a manner to achieve 

racial fairness: 3) The continued use of an at-large elected 

 



  

chairperson cannot be justified in light of the severe 

discriminatory effect of that election system. 

Defendant's districting plan has numerous problems 

which combine to make the plan unacceptable. The criteria used 

by the defendant's expert, Mr. Smith, first calls for maintaining 

the integrity of the existing precinct lines. (Depo. p. 53). 

This ensured as little change as possible in the existing 

districting scheme. Second, Mr. Smith attempted to equalize 

population. (Depo. p. 53). Third, Mr. Smith wanted to "have at 

least one majority/minority district." (Depo. p. 54). These 

priorities place administrative convenience over constitutional 

and legal rights. Pickens County is forty percent black and a 

districting scheme which sought to achieve only one majority 

black district out of four would not fairly reflect the black 

electoral strength in the county. Mr. Smith did not use the 

final census data published according to public law. He used an 

earlier estimation of population which, as Dr. Henderson 

testified in court, was only an estimate of the final population 

and had a substantial margin of error that would effect the 

reliability of district Tines when trying to achieve one 

person-one vote equality. Mr. Smith's work was not done 

according to reasonable professional standards and was pure 

hearsay. The methodology used by Mr. Smith is theoretically 

 



  

acceptable but he conducted it in an unacceptable manner. The 

system Mr. Smith utilized calls for conducting house counts in 

the Enumeration Districts (census divisions) which are split by a 

district line. Those houses counted are then multiplied by the 

average person per household count, either black or white, as 

derived from the 1980 census and an estimation of population is 

then determined for that split part of the E.D. Mr. Smith did not 

conduct any of the house counts, did not know the workers who 

conducted the house counts, had not worked with them before, and 

did not direct them. (Depo. p. 68). Because Mr. Smith was asked 

to maintain the integrity of the precinct lines, it was necessary 

to split nine of the twenty-four Enumeration Districts in the 

county... (Depoiap. 67). 

In 1ight of the evidence presented in court, it is 

clear that neither of the districts with a black population 

majority (Districts 2 and 4) has an effective voting majority. 

The Defendants attempted to show otherwise by the introduction of 

the registered voters by commission district. That exhibit to 

the deposition shows that in District 2, which has a 56% black 

population, 55% of the registered voters are black and that in 

District 4, which is supposed to have a 63% black population, 55% 

of the registered voters are black. The example in District 2 is 

probably clearest. Dr. Henderson testified that according to his 

 



  

calculations the Defendants claim to have registered 119% of the 

voting age eligible blacks. These registration figures are not 

reliable, and the best evidence, as testified to by Dr. 

Henderson, is that there are not effective black voting 

majorities in either of these districts. Therefore, Plaintiffs 

contend that the four districts proposed by the Defendants comply 

neither with the constitutional requirement of one person-one 

vote nor with the constitutional and legal requirement of racial 

fairness. 

The further evidence in Pickens County was a lengthy 

discussion by Dr. Henderson of socioeconomic disparity, extreme 

cases of racially polarized voting and a "captive vote" situation 

where white employers and leaders were able to control votes in 

the black community through economic and other types of 

coersion. Other witnesses at the hearing confirmed this 

testimony. The Defendants presented no evidence of 

countervailing circumstances existing in Pickens County that 

would warrant retention of at-large voting in spite of its 

dilution of black voting strength. 

Plaintiffs presented a districting plan for five 

single-member districts through the deposition of Mr. Jerry 

Wilson. Mr. Wilson testified that the total deviation for the 

plan is 6.64%. It splits only six of the twenty-four Enumeration 

 



  

Districts in the county and required counting (or estimating), 

only about 1299 of the 21,000 people in Pickens County. (Depo. 

pp. 101-104). The plan provides for two seats with majority 

black populations. District 2 has a black population of 64.36% 

and District 4 has a black population of 65.86%. Plaintiffs 

believe that these are effective black voting majorities and will 

allow black citizens to elect candidates of their choice. (Depo. 

p. 101). Plaintiffs' plan thus. calls for two of the five seats 

having effective black voting aa 8r Jites, which fairly refiebts 

black voting strength in Pickens County. 

CALHOUN COUNTY 
  

Calhoun County proposes election of five commissioners 

from single-member districts with the election of a chairman at 

large. Plaintiffs and Defendants have agreed upon the district 

lines to be utilized for the five single-member districts. The 

only point in dispute with regard to Calhoun County is whether or 

not there should be an additional at-large position. The 

at-large position proposed by Calhoun County would serve as the 

chief executive officer for the county and supervise the 

day-to-day operations of the county and vote in case of a tie. 

The five "associate" commissioners would be part-time. 

 



  

Calhoun County has conceded the existence of racially 

polarized voting and a dilution of black voting strength caused 

by at-large elections. The evidence before the Court, including 

Dr. Henderson's testimony, fully supports that fact. Calhoun 

County has failed to demonstrate any exceptional circumstances to 

justify an at-large seat when it is known to have such a 

discriminatory effect. In spite of the personal views of a 

number of black community leaders that the current chairman was 

responsive to their needs, most of them also testified that past 

chairmen have not been responsive to their needs. Furthermore, 

the opinion that a particular incumbent is responsive to the 

needs of the black community does not in any way indicate that 

the at-large system would not dilute black voting strength. 

Indeed, all of the witnesses, except one, agreed that at-large 

elections were discriminatory and unfair to black citizens. 

While some witnesses may have a personal or political attachment 

to the current chairman, such opinions are not probative of the 

burden that the Defendants shoulder in proving exceptional 

circumstances which justify this at-large seat. Thornburg v. 
  

Gingles, supra, 54-U.S.L.W. at 4881). 
  

The Defendants' theory that blacks will have influence 

over the at-large chair is fundamentally inconsistent with their 

admission that there is a racially diluted vote caused by 

 



  

at-large elections. The theory of the black vote "influencing" 

the at-large commissioner is called a "swing vote" in the 

political science literature, and Dr. Henderson specifically 

testified that his analysis of the election did not show the 

existence of any swing vote. The swing vote is a very carefully 

defined phenomenon. It requires that there be a sizeable group 

of voters whose votes can be controlled by a group of leaders 

capable of bargaining effectively with candidates and delivering 

those votes over a number of years. That is not the political 

reality in Calhoun County. The only other ameliorative feature of 

the Calhoun County election history was the election of a black 

district judge. Judge Owens had initially been appointed to that 

position. When he sought election to circuit judge, he was 

defeated. Dr. Henderson described this as "cuing". This has been 

discussed in McMillan v. Escambia County, Florida, 638 F.2d 
  

1239... 6 ABLth "Civ, 198%). 

LAWRENCE COUNTY 
  

Lawrence County, like Calhoun, proposes a system of 

five single-member districts with a chair to be elected at 

large. The associate commissioners would serve on a part-time 

basis while the chairman would serve full-time. The chairman 

 



  

would preside over the commission, function as the county’s 

executive officer and supervise the day-to-day operations of the 

county but would not have the right to vote on matters coming 

before the commission. Unlike Calhoun County, the parties in 

Lawrence County have not been able to agree on a districting 

plan. Plaintiffs oppose the continuation of an at-large member 

of the commission. ! 

The principal area of disagreement between the parties 

concerning the district plan is whether the industrial park 

should fall in the majority black district (District No. 1 or in 

a neighboring white district. The industrial park is a joint 

development between the county commission and the City of 

Courtland. The immediately surrounding community is an 

unincorporated area of black citizens. Both parties agree that 

that community should be part of the majority black district. 

Plaintiffs contend that it is appropriate that the industrial 

park also be part of the district since those residents 

immediately adjacent to it will be most affected by the course of 

development of that industrial site. Plaintiffs contend that the 

reasons for not including the industrial site in the majority 

black district are purely racial. The City of Courtland does not 

wish to have to deal with the commissioner elected from the 

majority black district, and the Lawrence County Commission does 

 



  

not wish to see the majority black district have such potential 

economic development. Though the remaining district lines have 

not been agreed upon, there is, in fact, no real dispute as to 

the location of those lines. Plaintiffs do not express an 

opinion on location of those other lines except to contend that 

their plan is more contiguous and follows census boundaries more 

closely than does the Defendants’ plan. 

Concerning the election of the at-large chairman, 

Lawrence, like the other counties, has failed to offer proof of 

any exceptional circumstance that justifies continuation of 

at-large elections when such elections have been proven to have 

racially discriminatory effect. Significant testimony concerning 

the existence of polarized voting and the unresponsive nature of 

Lawrence County was presented to the Court. There is no reason to 

believe that an at-large elected chair could be responsive to the 

needs of the black community. 

ROTATED AMONG THE COMMISSIONERS 

Plaintiffs contend that in each of the three counties, 

five commissioners should rotate the position of chair among 

themselves on an equal basis over the period of four years (48 

 



  

months). Each of the five commissioners should serve as chair 

for approximately nine and one-half months. Plaintiffs contend 

that chair rotation is relief required by Section 2 of the Voting 

Rights Act as a further remedy for the dilutive effects of 

at-large elections. Plaintiffs also suggest that there are 

significant salutory benefits of such a procedure. Knowing that 

the other commissioners will each have a turn as chair of the 

commission will encourage the chair to be fair with his/her 

fellow commissioners and to work in a more cooperative way. it 

will tend to lessen the formation of factions centered around the 

position of chair. 

This system has been used in Mobile County 

successfully. Each of the three commissioners serves as chair 

for one and one-third years. In light of the racial history in 

these counties (and in our entire state), Plaintiffs urge the 

Court to order that the chair be rotated pursuant to its broad 

equitable powers under Section 2 of the Voting Rights Act to make 

blacks’ right to truly equal access to the political process a 

reality. 

The Court should exercise its traditional 

equitable power to fashion a relief so that it 

completely remedies the prior diluation of minority 

voting strength and fully provides equal opportunity 

for minority candidates to participate and elect 

 



candidates of their choice. 

S. Rep. No. 97-417, 97th Cong., 2d Sess., p. 31 (1982). 

Respectfully submitted, 

BLACKSHER, MENEFEE & STEIN 
Fifth Floor Title Building 
300 Twenty-First Street North 
Birmingham, Alabama 35203 
(203) 322-7300 

. BLACKSHER 

WANDA J. COCHRAN 

TERRY G. DAVIS 

SEAY & DAVIS 

732 Carter Hill Road 
P.O. Box 6125 

Montgomery, Alabama 36106 
(205) 834-2000 

DEBORAH FINS 

JULIUS L. CHAMBERS 
NAACP LEGAL DEFENSE FUND 
99 Hudson Street, 16th Floor 
New York, New York 100173 
(212) 219-1900 

 



  

EDWARD STILL 

REEVES & STILL 

714 South 29th Street 

Birmingham, Alabama 35233-2810 

(205) 322-6631 

REO KIRKLAND, JR. 

307 Evergreen Avenue 

P.O. Box 6&46 

Brewton, Alabama 36427 

{205) 8467-5711 

Attorneys for Plaintiffs 

 



  

CERTIFICATE OF 

This is to certify that a copy of the foregoing has 

been served upon the following by depositing same in the United 

States Mail, postage prepaid, on this the ih day of 

H. R. Burnham, Esq. D. L.. Martin, Esq. 

BURNHAM, KLINEFELTER, HALSEY, 215 South Main Street 

JONES & CARTER Mounton, Alabama 356350 

P.O. Box 1618 (LAWRENCE COUNTY, SMITH & LIGON) 

Anniston, Alabama 36202 

(CALHOUN COUNTY) 

David R. Boyd, Esq. James G. Speake, Esq. 

BALCH & BINGHAM SPEAKE, SPEAKE & REICH 

P.O. Box 78 P.D.. Box SB 

Montgomery, Alabama 36101 Moulton, Alabama 35630 

(LAWRENCE COUNTY, SMITH & LIGON) (PROCTOR OF LAWRENCE COUNTY) 

W. 0. Kirky Jr.» Esq. 

CURRY & KIRK 

P.0. Box A-B 

Carrollton, Alabama 35447 

(PICKENS COUNTY) 

BLACKSHER, MENEFEE & STEIN