Plaintiffs' Post-Hearing Brief on Remedial Issues
Public Court Documents
October 1, 1986

19 pages
Cite this item
-
Case Files, Dillard v. Crenshaw County Hardbacks. Plaintiffs' Post-Hearing Brief on Remedial Issues, 1986. 45105aba-b7d8-ef11-a730-7c1e5247dfc0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5a82bdca-7773-4a77-b556-800a377766d6/plaintiffs-post-hearing-brief-on-remedial-issues. Accessed April 29, 2025.
Copied!
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 r S e a r ? S o n a ? m s ? S c t ? S s ? S t ? N u t S e u ? ’ g a r ? 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