Washington v. Finlay Court Order

    ,.Ii\lr
i4 I

FROM:

.. -,,

Leslie J. hlinner
November 25, 1981



I

versus

Kirkman Finlay, Jr., individually
and as Mayor of the City of Columbia,
South Carolina; William C. Ouzts,
PauI Z. Bennett, Rudolph C. Barnes, Jr.,
and f. Patton Adams, individually and
as members of the City Council of
Co1umbia, South Carolina; Ivlrs. John T.
(Marcia) Duffy, individually and as
chairman of the Municipal Election
Commission of the City of Columbia,
South Carolina; and Wilhelmina J.
Hallman and John C.B. Smith, Jr.,
individually and as members of the
Municipal Election Commission of the
City of Columbia, South Carolina,

Appeal from the United States
South Carolina, dt Columbia.

Argued February 4, 1981.

Before BRYAN, Senior Circuit Judge,
Circuit Judges.

Decided November L7, 1981

S**D sTATEs co.,*T oF APPEAL'\\w" -::T:l

Frank Washington, Alvin Hinkle,
Gloria James, Rosa BeII Jones,
Walter Storrs,

\

Appellants,

Appellees.

District Court for the District of
Robert F. Chapman, District Judge.

PHILLIPS and SPROUSE,



Laughlin McDonald
Buhl, III; John R.
Appellants; Danny
Appellees.

(Nei1 Bradley; Christopher Coates;Harper, IIi I.S. Leevy Johnson onC. Crowe (Roy D. Bates on

Herbert E.
brief) for

br ief ) for

2-



PHILLIPS, Circuit Judge:

This is a vote dilution case in which the plaintiffs,
asserting rights under the first, thirteenth, fourteenth and

fifteenth amendments and 42 U.S.C. SS 1971, L973, and I993,

allege that the purpose and effect of the at-rarge erection
system for constituting the city council in corumbia, south

carolina, is to dilute the voting rights of brack citizens. The

district court held against the praintiffs on the merits,
expressly determining that the at-Iarge system did not violate
the fourteenth or fifteenth amendments, and, without
specifically addressing them, also necessarily rejecting the

plaintiffs' other constitutional and statutory claims. After
the district court's decision, the Supreme Court decided City of
Mobile v. Bolden, 446 u.s. 55 (1980). on appeal, the plaintiffs
seek reversal of the court's fourteenth and fifteenth amendment

determinations and press their other constitutional and

statutory claims. Alternatively, they seek a remand allowing
them to present additional evidence of discriminatory purpose in
light of Mobile.

we find no reversible error in the district court's
ultimate determination that the at-large system violates none of
plaintiffsr constitutionar or statutory rights. we decline to
order a remand for the presentation of further evidence, for in
our view citv of Mobile v. Borden, white admittedly not

alLogether clear in its ultimate implications, did not change

3-



the law to the extent requiring reconsideration of the claims on

a reopened record. We therefore affirm the district court,s
dismissar of the plaintiffs, individuar craims, but we find
reversible error in its certification of the action as a class
action at the time of its dismissal of the individual claims on

the merits.

I
columbia has a council-manager form of government, adopted

pursuant to the south carolina Home Rule Act in L975. The

present plan incl-udes four councilmen and a mayor, elected at
large from the City of Columbia. This general form of
government has been in existence since 19r0, when corumbia

adopted a commission form of government to reprace a system

under which the City was governed by an intendant and wardens or
aldermen elected from districts.

Prior to L975, nominations for the office of mayor and

councilmen were made through political parties by use of a

primaryr conv€ntion or petition. In September L975, the
corumbia city councir adopted a non-partisan format for
election. The present system, in part adopted in 1977, provides

that the election process is open to any registered elector who

is a resident of the city. candidates may campaign on

particurar party platforms or for a particular party, but there
is no indication of party affiliation on the barlot. Any

candidate who receives a majority of the votes in the election

4-



is elected, while those who receive less than a majority must

participate in a run-off between one more than the number of
candidates necessary to fill the offices. Those receiving the

highest number of votes in the run-off election are elected.

After this suit was filed, the City Council adopted a

resolution proposing a change in the election process and in the

number of councilmen. The proposal would have increased the

number of council members to six, with three elected at large

and three from single-member districtsr prus the mayor elected

at large. This plan !,ras to be adopted if it had been approved by

the voters in a referendum. There was no support either in the

white community or the black community for this plan, and it was

rejected. Black leaders apparently thought that it did not go

far enough.

The 1970 census figures show that Columbia has a population

of 113,542, of which 39,998 (358) are black. In L978, the date

of the last city election, there were LL,464 black registered

voters and 22,296 white registered voters. During the 1978

primary election for City Council, 36.8t of the blacks voted and

4I.58 of whites voted. Blacks have been running regularly for
the City Council for the past ten to twelve years, but no black

has been elected to City Council within living memory.

As expressly found by the district court, there has been a

Iong history of de facto and de iure discrimination in Columbia.

It has touched all areas of Iife. Until 1948 blacks were

5-



excluded from voting by a variety of methodsr including poI1
taxes, literacy tests and membership restrictions imposed by the
Democratic party. schools rdere racially segregated from the
first grade through colleger El.d public accommodations and
transportation within the city were operated on a similar basis.
Arthough the court found this kind of overt discrimination no
l0nger existent, it found that in the areas of ,,income,
education, housing and empl0yment blacks in the city of
columbia, on the average, exist at a l0wer socio-economic Ieve1,
and there are many residential areas in the city which are
racially identif iab1e.',

As arso found by the court, howeverr r.d'! of the techniques
which had been used in the past to discourage brack voters from
voting or which have been found to contribute to dilution of
black personsr votes have been eriminated. south carorina no
ronger has an anti-single shot voting 1aw. This raw was found
unconstitutional in L972. Further, there is no longer a poll
taxr literacy testr of any other restriction which cour-d be
applied in a discriminatory manner. Both major political
parties are open to bracks and actively soricit their membership
and support- Registration officiars nou, visit various parts of
the cities and counties in order to faciritate registrationr Do
l0nger requiring voters to come to the courthouse or office of
the Registration Board to register. Any registered voter may
run for office by paying a small filing fee, which is waived on

5-



the filing of an affidavit declaring inability to pay. There is

no primary and no requirement for party affiliation.

Voting is racially identifiable because of the racial

identity of certain neighborhoods. In recent elections

polarization on racial lines has remained significant, but does

not approach totality. White and black candidates alike seek

support from all areas of the city and receive suPPort along

non-racial lines. A btack candidate has not yet been elected to

City CounciI, but in the 1978 city election black candidates

received apProximately 25* of the vote in predominantly white

areas and white candidates received 7* of the vote in

predominantly black areas.

In terms of public employment, service on appointive

governmental bodies, and receipt of essential and special

governmental services, black citizens while arguably not yet

fairly served are not on the other hand simply ignored by

elected city officials. Forty-three percent of the cityrs work

force is black. Blacks serve by appointment on a significant

number of city boards and commissions; there are two black city

judges, two black city clerks, and several black Supervisors and

division heads in various departments. Columbia rece,ntly has

applied over 90t of the Community Development BIock Grant Funds

to benefit low to moderate income families, including many

blacks, and has employed a Community Development Director to

work with HUD in an effort to provide more housing and rental

units for low income grouPs.

7-



Addressing directly only the fourteenth and fifteenth
amendment claims, the district court made detailed findings ofevidentiary and ultimate fact to which it applied the votedilution principles set out in @ , 4L2 u.s. 755(L973) 

' as articurated in @, 4g5 F,.2d t2g7

::::^::': 1:']' _'"n 
banc), ar.d on orher srounds sub nom. East

, 424 u. s. 636 (.Lg76) .The court concluded that the plaintiffs had failed under whitev' Regester's standards to prove a discriminatory .;traceable to the at_large voting system. Further., it concludedthat Lhere had been a failure to
;ri -^-:-: 

4srrul ti f,o prove any raciallydiscriminatory intent or purposer ds required by virr*
Arlinqton Heights v. Morrnna.r: !__Metropolitan Housin
corporation' 42g u.s. 252 .,977), to establish or maintain thesystem. Having found no discriminatory effect or purpose inviolation of the fourteenth or fifteenth amendment, and bynecessary implication having rejected all 0ther claims, thedistrict court dismissed the actionr c€rtifying it as a classaction in the process.

II
we first address the fourteenth and fifteenth amendmentclaimsi next, the plaintiffs, contention that the case should atleast be remanded for re-trial 0n a reopened record in light ofMobile; then the other constitutional and statutory claims; and,

8-



finally, the action of the district court in certifying the

action as a class action.

A

The controlling principles for assessing the plaintiffsl

fourteenth and fifteenth amendment claims are now to be sought

in Citv of Mobile v. Bolden, 446 U.S. 55 (1980). The parties

predictably disagree about the effect of Mobile on the merits of

this case and, beyond that, about the proper disposition of this

appeal if we conclude that, tested by I'tobile, the plaintiffs'

claims fail of Proof.

Without attempting here a comprehensive exegesis of the
L/

controlling plurality and concurring opinions in lr'lobiIe and of

the main Iines of earlier authority uPon which they were
Z/basedr- we accept as authoritative and controlling for our

purposes the following principles drawn directly and by

necessary implication from those opinions considered in the

aggregate.

Claims of racially discriminatory vote dilution exist under

both the fifteenth amendment and the Equal Protection Clause of

I Fo, an example, see Lodge v. Buxton, 639 F.2d 1358, 1369-
72 (srh cir. 198r).

2 Essentiallyr orl the fourteenth amendment claim: v: l-Iggg
29 U. S.of Arlington Heights v. MetroPolit.a]'I_ HouS. _DS_v.._CPJP.. , 429 U.S.

. S. 229 (1976) ;- Whlte _ y,
Regester, af , 403 U.S. L24
(19?1); on the fifteenth amendment claim: wright -Yt
iockeieller ' 376 U.S. 52 (1954); 1.364
Tr s --ffiTT960l : Terrv v. Adams, 34m53); Smith v.u:S.-13ilf950); Tqqqv v. Adams, 345 u.s.
Allwriqht, 32L U.S. 649 (I944).

9-

(1 ): Smith v.



the fourteenth amendment. They are essentially congruent since,
under either, the claim can only be established by proof (a)t::r 

:)" 
dilution, as a special form of discriminarorv

effect'- exists and (b) that it results from a racially
discriminatory purpose!/ 

"n^rgeable to the state. rd. at 66-70(plurality opinion).
The first inguiry

claim is whether there

in assessing proof of a vote dilution
is - without regard to motivating purpose

3 thoug-h the four members of the Mobire plurality believedthat the f ilteentr, -"*"ii-*""t oniy -piot"cts- 
againsr denials ofthe righr ro.resi"t"i unJ y9!q, i.'e.,-l1ut tniJ i;'-;" onry kindor ',errecr" it i,r"r,ilii"l ,"pii", -q-[a i. r. uf t4;;; a majoriryof the court -appai""fiv-rGgreeJ 

an_d considers that irsprohibition exten-as i= *lir t"-i'r,"--rlt" dilution effect here inissue' see id' ui g [i iiz! t?g-as- rb"rlrn.n, white ano Marsha.l,JJ'' aisGnErngt; - i6.-""t ao-gi 'tiiu"r*un,"'-,i.-, -'.on"urring;semble); id. at-'gg-ff-tsjevens , J., concurring).
There being no apparent. disagreement within the Mobilecourr thar rhe -nquir -illtection -ci;;" prorecrs against-ThrEkind of vote airuiion 

"ii"_"t, the a;;- c-Iaims are congruent onthis element in the;;", .r a majority of the court.
A' A majority of the Mobile court was -apparently agreed thata discriminatory purfo=": mgst be prole.o to esta-b,ish eitherc1aim. rhe fou'r;;;-b;;; 

"i-_irrJ-nrour1,tity clearly so asreed.gee Mobire, 446 u.s- ;;-dr-, .:,1.. Ii-Jniuurs rhat ,rusrices irrhireano Blackmun concur in that vle-h,, thor-igi the latter only assumedi! for purposes of his spe-gial 
"on"uir"n"" in the result. seerd ' ar e4-103 (wni re, J.-,-ai""."i;;;;;'4. 

_qJ-'eo-'i-Brlcrrun , i;concurring) ' Justices Br".,nun and 
-t"tirs_hal1 

f-latly disagreed,thinkins thar onlv a oi="iTr+;;;.ia.r need be iroveo undereither claim-- 99' +. * ig3-os--(r'rr=;;lrj ;-.-,-uiI"ii.ins); id.at 94 (Brennan, TI, Tis;en;.i.gi . 'J,l=t-iJe 
srevens , s ingular viEwon the matter so substantiairv oiir..I'from that expressed ineiLher the pru-r?1\tv 

"r-.ppg=ed- di=="nling opinions tt"t it mustsimprv be -counted -rn""iiirn 
ii-;-;i:,;r choice berween rhose5:*ff.i?;;il"n= were required. - s"" -iJI u. eo-e4 (srevens, r. ,

10



a discrirninatory "effect" traceable to the challenged state

action. This is the critical threshold issue: are the voting

rights of the racial minority, as a matter of fact,

impermissibly "diIuted" ? Vote dilution as a discriminatory

effect or condition whether viewed from the fourteenth

amendment or fifteenth amendment perspectives is not more

specif i-a1ly def ined by the Ivlobile Court than as a condition in

which the "voting potential" of a racial minority has been

"minimizeId] or cancelIIed] out,'id. at 66i or the "PoIitical
strength" of such a group "adversely affectIed] r" id. at 84

(Stevens, J., concurring); or its "access .

process" demonstrably "restrictedr " id.

opinion).

at

to the political

69 (plurality

Iqore precise meaning may, however, be gleaned from earlier

decisions specifically approved in Mobile in which dilution

claims were assessed in relation to particul-ar facts, and from

the Mobile Court's reiteration of the fundamental negative

principle that disproportionate representation and consistent

"electoral defeat," though traceable to the challenged system,

do not alone constitute impermissible dilution, id. at 75 &

n.22, 76; id. at 86 (Stevens, J., concurring). Factors other

than bare electoral defeat and consequent disproportionate

representation that ffidy, in the aggregate, demonstrate a

condition of impermissible dilution are those synthesized from

earlier Supreme Court decisions in Zimmer v. McKeithen, 485 F.2d

II



L297 (5th Cir . 1973) (en banc) , af f ,d on other grounds sub nom.

East Carroll parish Sqhool Board v. Marshal1, 424 U.S. 636

(te1 6) :

"lack of access to the process of srating candidates,the unresponsiveness oi regisrators to Ithe racialminority'sl particurarized i-nterests, a tenuous statepclicy underlying the preference for . at-largedistricting, . the existence of pastdiscrimination in general preclud tingl the etfectiveparticipation in the election sysiem . [and such'enhancing' factors asl large districts, majorityvote requirements, anti_single shot voting 
-p.ouisions

and the _lack of provision- for at-1argi ianaidatesrunning from particurar geographicar subdistricts."
Id. at 1305 (footnotes omitted).

Proof by such means that a discriminatory effect (or
disproportionate impact, or dilution of voting potentiar) exists
does not end the inquiry; it is also necessary to estabrish
"that the disputed plan was 'conceived or operateo as tal
purposef ul devlc Ie] to f urther racial discrimination, ,,,

Mobile, 446 U. S.

L24, L49 (1971) ) .

The ,' Z immer

at 66 (quoting Whitcomb v. Chavis, 403 u. s.

factors" showing the existence of a

disproportionate lmpact or effect,'may provide an important
starting point" for proving by inference the requisite intent to
cause or perpetuate it. Mobile, 446 u.s. at 70. But, at ieast
where the challenged system's existence "is readily explainable
on grounds apart from race . I disproportionate impact arone
cannot be decisive, and courts must rook to other evidence to
rupport a finding of discriminatory purpose." rd. To the extent

T2



the Fifth Circuit's

the contrary, it is

opinion in Zimmer v. IrlcKeithen had impl ied

expressly disapproved in l{obile.

B

Applying these principles to the record before usr vre fj.nd

no reversible error in the district courtrs rejection on the

merits of the congruent fourteenth and fifteenth amendment

claims. As indicated, the court addressed both the "effect" and

"purpose" elements of these claims and determined that the

plaintiffs' proof established neither. Critical to that

determination were certain basic and ultimate findings of fact

which hre review under the clearly erroneous standard, Fed. R.

Civ. P. 52(a), given special color here by the Supreme Court's

admonition that in vote dilution cases special deference is owed

the trial court's superior vantage point in making the required

"intensely loca1 appraisal of the design and impact" of a

challenged voting system. White v. Reqester, 412 U.S. 755, 769

(1973). Applying that standard of reviewr w€ conclude that the

court's dispositive fact findings against the plaintiffs on both

the "effect" and "purpose" elements are not clearly erroneous

and support the legal conclusions that the claims were not

established. We take these in turn.
(1)

The " Zimmer cr i ter ia" for assessing a racially

two essential means by

votes can be effectively

discriminatory effect simply recognize

which any identifiable minority group's

13



diluted. The first and most obvious 
, 
are formar rures and

practices integral to an electoral system that inescapably
prevent "effective participation', by the minority in the total
process by which elections and referenda are conducted. These
range from such direct impediments as po]1 taxes, Iiteracy
requirements, candidate qualifications and the rike to more
indirect technicar forms such as majority voting and anti-single
shot provisionsr pEIrty primaries, and the Iike. obviously these
in suf f icient combination can operate directry to ,,submerge,, the
minority in a racially polarized voting constituency; to
"minimize or cancel out its voting potentiali,, to af fect
adversely its ',politica1 strength.,, Seer e.g., White v.
Reqester, 412 U.S. 755 (1973).

Even where technical impediments of this kind do not exist
in sufficient combination to dilute a minority, s voting
potential, there may yet exist more subtle impediments traceable
to the combined effects of an at-large erectoral system
interacting with various forces of continuing social and
economic disadvantage, also chargeable to the state, that have
this effect- Direct evidence of these subtreties is not like1y
to be availabre, and the only evidence of their existence and
impact may 1ie in the circumstance that the officials in power
are demonstrably "unresponsive" - in either an absorute or
relative sense to the needs and interests of the minority.
such a lack of resPonsiveness may raise the fair inference that

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't'/ithin the total social, economic and political context in which

the electoral system operates, its practical effect has been to

cancel out that residual political strength based uPon the

continuing threat of rePrisal at the polls that is normally

possessed even by currently outnumbered interest groups in the

voting constituency. See Nevett v. Sides, 57L F.2d 209, 223

(5th Cir. 1978), cert. de41eQ, 446 U.S. 951 (1980).

In its general assessment of the evidence of effect under

these Zimmer criteria, the district court recognized that there

was some evidence supporting the plaintiffs' claim that oilution

by some means had been shown. AS the court observed, the black

minority in Columbia stil1 exPeriences the legacy of many years

of de facto and de iure racial segregation, though its more

overt forms in public education, transportation and

acCommOdatiOns, and, to Some extent, in employment, have now

been substantially eradicated under compulsion of law. Vestiges

remain in many forms of continuing social and economic

disadvantage and in racially identifiable residential areas.

These indisputable facts the court perforce found, along with

the bald fact that within living memory no black person had been

elected to the City Council. Within the Zimmer analysis, these

facts either conceded or indisputably shown - demonstrate a

history of racial discr imination whose continuing practical

effects aside from any effects traceable directly to Ehe at-

large voting system itself - may be assumed still to inhibit to

t5



some extent "effective participation in the erection system" by

the black minority. Zimmer v. ItIcKeithen, 485 F.2d at 1305.

In the Zimmer equation these facts militate in favor of the

plaintiffs' claims of a discriminatory effect traceable to the
2/challenged system, and the district court so credited them.

Nevertheless, the court was arso entitled to reject as vote

dilution per se the at-Iarge feature itself, MobiIe, 446 U.S. at
66, as well as the ultimate consequences arguably traceable to
the at-large system of consistent electorar defeat and

consequent disproportionate representation of the black

minority in the municipal government of Columbia, id. at 75, 76.

Furthermore, the court properly weighed against the craim of

discriminatory effect the fact that there no longer exists any

of the technical legar impediments to voting of the kind that
have weighed heavily in favor of dilution claims in other cases.

Though concededly of recent origin and rargely the resurt of
direct or indirect Iegal compursion, there is at present, under

controlling state Iaw, no poII tax, no prohibition against

single-shot voting, no literacy testr rro impediment to joining

5 though the MobiIe plurality expressed serious
reservations about tfre lffivance and proUative force of such
"historical and social factors" in proving a vote dilution
cIaim, l,tobile , 446 U. S. at 75 * n.22 ("gauzy sociological
considerations have no constitutional basis"), we assume their
continued relevance in view of the I'[obile Courtrs acceptance
nevertheress of the continued vitariF-6Fwhite v. necester,
whereintheirrelevancewasaSSumedandundo@e
decision. see_ MgLire, 446 u.s. at 59; see arso Lodqe v. Buxton,
63e F.zd 1358; m138r (5th cir. re8-1).

15



political parties or participating in their activities, no

primary and no requirement for party affiriation or other
barrier to candidacy. cf. white v. Reqester, 4L2 u.s. 755
(1973); Lodqe v. Buxton, 639 F.2d 135g, t377-7g (5rh cir. 1981).
Neither was there any evidence of practicar impediments to
voting in the form of veiled coercion chargeable directly or
indirectly to the state. cf. id. 639 F.2d at 13g1 (,,symbiotic
rerationship" between prr.r* ;u pubric sector). Though most

assuredly excluded in the Past from effective participation in
the erectoral process by both ruthlessry direct and more

indirect forms of state action, bracks do now freery run for
city offices and are registered and vote without hindrance in
proportions comparabre to whites in the city constituency.
Recent voting patterns do not reveal even substantiatly total
racial polarization in candidate choice, though preferences on

racial lines do obviously exist, as reflected in the I97g voting
analysis earlier mentioned. Based upon these evidentiary facts,
the district court found that "It]he election process for the
City Council in Columbia is the most open and accessible that
can be imagined. "

Though there may be some element of hyperbole in this
finding, its essence - that no state imposed impediments, either
lega1 or practical, to candidacies or to actual. voting now

exist - is unassailable as an urtimate finding of fact on the
record before us.

-L7



Turning to the question whether despite this rack of

technicar impediments to effective participation, there might

nevertheress be more subtre forms reflected in a lack of
responsiveness on the part of city officials to the black

minorilyrs "needs and interests," the court found as an urtimate

fact that "It]he city government has been responsive to the
9-/needs of the black community. " support for this ultimate

finding $ras found in employment figures showing substantial
black employment in city jobs, in significant though concededty

not proportional black representation in appointive offices and

supervisory positions, in the heavy allocation of federal block

grant development funds to the black community, and in the

substantially equar provision of essential services and

improvements to black residential neighborhoods.

The plaintiffs vigorously challenge the validity of this
ultimate finding of fact. specifically they question the

district courtrs basic finding that blacks had been appointed

"to almost aI1 city boards and commissionsr" and they point to
the fact that though overarr public emproyment of blacks was

proportionately high 438 against a general population

percentage of 35t it is concentrated in the most menial, rower

paid city jobs. Their own evidence they say conclusivery

6 th" actual issue within Lhe Zimmer- analysis was of course
whether the ci ty government was " uiG!,5ns ive, ,, an issue as to
which plaintiffs had the burden of proof. obviously, the
court's finding of "responsiveness" constitutes a finding of
"not unresponsive" on the issue properly cast.

18



t
F

,ts ;hat, contrary to the court's f inding ' city of f icials have

.:i] unresponsive to the black minority's needs and interests'

,e disagree with plaintiffs' contentions respecting the

: ror on this issue. Responsiveness in this sense must of

.,Cu'ssity be measured only in terms of thq ef fective powers had

,r, r.he governmental uni t involved here minor i ty employment '

.rnority representation in appointive offices, and the provision

-,,i essential governmentat services to minority grouPs and

-rrc.iividuals. But cf. Mobile, 446 u.S. at 73 (slight relevance

rf employment and services data as evidence of purposeful vote

'-lilution). Assessing the evidence in these terms and

:onsidering that the burden of proof lay with the plaintiffs to

"rove unresPonsiveness as an element of their dilution claim and

not upon the defendants to prove resPonsiveness by v'ay of

rebuttal or avoidance, g.l. Jones v. P j.tt countv Board of

Education, 528 F.2d 4L4, 4L7 (4th Cir. L975), we cannot declare

the district court's finding against the plaintiffs on this

issue to be clearlY erroneous.

In terms of government employment, the city's proof that

43S of city employees were black against their overall

population percentage of 358 $ras countered only by plaintiffs'

proof that black employment was 1ar9e1y concentrated in lower

paying, more menial jobs. In terms of black representation in

appointive positions, the plaintiffs' evidence that no blacks

had been appointed to some eighteen boards, commissions and

19



committees of varying degrees of importance was countered by the
city's proof that 35 blacks did currentry serve on L2 such
bodies having a total membership of L57 | incruding one as
Chairman of the City Board of Adjustment, and that 2 blacks
currently served as city judgesr 2 as city clerks, and several
as supervisors and heads of divisions in city government. rn
terms of the provision of essential government services, the
city's proof that the overwhelming bulk of federal brock grant
funds for community development recentry available to the city
had been applied to benefit members of the black .community, and
that practically aI1 streets in the city, in both black and
white residential neighborhoods, had now been paved, was opposed
by evidence that one of the consequences of the city's
redevel0pment efforts was disl0cation of members of the brack
minority for whose benefit it was ostensibly intended, and by
the general testimony of individual ,itn""=""2/ that the

our characterization of this particurar evidence as"general" is done advisedry and to emphasize its probativeweakness. praintiffs rely, p", their refLrences in-briet, upon
!h". tgs.timony of two no-n-expert witnesses to support theircontention on this point. we have carefulry reviewed thattes!imony. rt consists essentially of impressionistic obser-vations, unsupported by any technicar data and preponderatelynonspecif ic as to time aria extent,- about ine - pilrrision of
sewage, housing to a rimited numuei-oi urair and-wirite neigh_borhoods in and.contiguous to columbia. without questioning thecredibility of these witnesses or the essential atcuracy of thegeneral observations elicited from them, the testimony simplylacks probative force because of its nonspecificity and limitednature where specificity and c_omprehensiveness are both possibleand criricat to fair tatt_ri*l;'t;'ar., €:e. r Lodge v. Buxron,

(uonEtnued on next page)

20



provision of governmental services in black neighborhoods had

Iagged behind similar services in white neighborhoods.

On total balance this evidence might be taken - if assessed

most favorably to plaintiffs to establish that the legitimate

aspirations of black citizens in Columbia regarding fair public

employment by the city and fair representation on its appointive

boards and commissions have not yet been fully realized, and

that the equal provision of essential governmental services has
9-/only been tardily and not yet perfectly achieved. But even so

assessed it cannot be taken to establish a degree of

unresponsiveness to the needs and interests of the black

minority so palpable that it compels - or even fairly supports -
an inference that the minority's "voting potential" has been so

effectively "cancelled out" that its residual "political
strength" is presently being disregarded with confident impunity

by the city's governing body. This, we believe, is what is
contemplated by the concept of "unresponsiveness" as evidence

(fn. 7 continued)
639 F.2d at 1377 & n.37 (specific evidence of current state of
road improvements). Whether or not, as plaintiffs suggest, the
district court actually "disregarded" this evidence r w€ are
satisfied that it was properly discounted in assessing whether
current unresponsiveness in the provision of services was shown.

8 ,h" Ntobile plurality opinion suggests that while ev idence
of discrimination in employment and the provision of public
services might well support other constitutional and statutory
claims, it " is relevant only as the most tenuous and
circumstantial evidence of the constitutional invalidity of the
electoral system under which I the responsible officials]
attained their offices." I"lobile, 446 U.S. at 73-74.

-2l-



of , or indeed as the essence of ,2/ vote dilution by means more

subtle than the direct or indirect denial of formal access to
the ballot or the voting booth. certainry, assessing the
rerevant evidence under the clearly erroneous standard, and

considering that the burden of proof on the issue lay with
plaintiffs r w€ are not "reft with the definite and firm
conviction that a mistake has been committedr" United States v.
united states Gvpsum co., 333 u.s. 364, 3g5 (1g4g), in the
district court's finding on this urtimate issue of fact.

(2)

Even were the district court's finding of no discriminatory
effect clearly erroneous, its rejection of the fourteenth and

fifteenth amendment claims must stilI stand, for its further
finding that no racially ciiscriminatory purpose had been shown

is unassailable under Mobile.

As I'Iobi le has now establisheo, in assessing attempted proof
of discriminatory purpose in vote dilution cases where "the
character of a law is readily explainable on grouncls apart from

race . , disproportionate impact arone cannot be decisive,
and courts must look to other evidence to support a finding of

9 th" Fifth Circuit has now held that "unresponsiveness,, isan essential element of a prima facie case of vote dirutionunder the fourteenth and fifteenth EmEn?ments. Lodge v. Buxton,639F.2datL375.-Wearepreparedtosayandnee@t
where no direct denial of voting righls can be shown, there.rou1d seem no _r_emaining way to prove that a racially
-,iiscriminatory effect chargeable to the state neverthetessexists than by this means.

22



discriminatory purpose. " Mobile, 446 U.S. at 70. Here, the

plaintiffs' evidence as to both effect and purpose was

essentiarly confined to establishing a sufficient aggregate of
the zimmer factors, on the apparent perception that by this
means alone a discriminatory effect would be directly proven and

a discriminatory purpose might rationally be inferred. Even had

this ev:.lence sufficed to prove the requisite effect, this wourd

have constituted, under Mobire, merery "an important starting
point," id., and not a sufficient means standing alone for
proving purpose behind effect.

It is inescapable that here both the initiation and the

maintenance of the at-large voting system are readily
"explainable on grounds apart from race." The district court
found as fact that the at-large system was adopted in 1910

because of "abuses of the ward system" that it replaced and that

"race was not a consideration" because at the time "few, if any,

blacks were voting in city erections." These findings are ampry

supported by contemporaneous documents introduced into evidence

by the defendants, and are generally confirmed by the taobile

Court's intervening observation that at-Iarge systems have come

to be the norm in municipal government, reflecting a general

consensus that they are less subject to corruption than are ward

systems. see id. at 60 & o.7, id,at 70 & n.15. Faced therefore
with the necessity of producing "other evidence" than the zimmer

factors arone, id. at 70 , the plaintiffs' attempt to prove

23



discriminatory purpose simply fails
far short of that which the uobile
record in Ehat case.

t0_/dissenting).-

under l4obile - indeed fall-s
Court found lacking on the

See id. at 97-99 (White , J. ,

avoid this
emphasis on

in obvious

rn assessing the evidence of discriminatory purpose in the
instant case, the district court of course did not have Mobile
for instruction, but it found as fact, relying upon pre-Mobile
authority later reried upon by the Mobile cour r?/ that the at-
rarge system had not been "maintained or operated, dt any time
since its adoption to promote racially discriminatory purposes.,,
That finding, on the record before the district court, was not
clearly erroneous under MobiIe.

Though the plaintiffs seek on appeal to
consequence of Mobile's substantive and procedural
the purpose erement ,"' they contend alternatively,

10 Aside from the fairure of plaintiff,s proof there is ofcourse defendants' countering evidence that lne current citycouncil has recentry proposed a revision of the at-1arge systemspecifically to insure black representation. while 5uvi6usrynot conclusive upon the issue of its possible racial motivationin "maintaining" the challenged syite*, it certainly bearsheavily upon it.
specificalry, virrqgg of Arrinqton Heights v. Metro-politan. Hous. oev. Cor

court also relied upon Nevett v. sides, 571 F.2d 2og (5th cir.
i?78), g.e.r!. denied, 44@io), in which rhe Fif rhCircui t had held-that purposef u1 discr iminati.on was requiredunder the relevant Supreme Court decisions.

T2 In addition to challenging directly the district court's:indings and conclusions assuming Mobire appries, the praintiffs
(Continued on next page)

24



recognition of the difficulty they face, that the emphasis in

Mobile was in critical respects so unexpected and unforeseeable

that, dt the least, a remand should be ordered to allow them to

attempt to perfect their proof in Mobilers light. For reasons

that followr w€ reject that suggestion.

First off, though it is obvious that the Mobile Court was

itself sharply divided on the fuII implications of earlier

decisions concerning the purpose element in vote dilution cases,

a substantial majority of the Court agreed that those decisions

established discriminatory purpose as an essential element in

both Equal Protection and fifteenth amendment claims of vote
L3/

denial or dilution. Other federal courts had also expressly

(fn. L2 continued)
also suggest that it does not aPply to this case. The
contention is that lrlobile applies only to attacks upon an entire
form of government and not to an attackr 3S here, only uPon an
electoral svstem. In the Iatter type situation, it is urged,
MoEITils aTguaE-Iy more stringent proof requirements do not
aPP1y.

We reject this contention. It is based upon a passing
characteriiation in the I"loLLle plural--ity opinion of the action
according to the remedy gTven by the district court, 446 U.S. at
70, and h,e ascribe to it no such substantive implication as
plaintiffs urge. Justice B1ackmun, indeed, thought the remedy
given so much wider than the actual issue presented, that on
this basis alone he thought remand required. Id. at 80. The
tqobile Court's introductory statement of the issue there
presenteO i.dentifies the claim as one identical to that
presented in the instant Case: "The question . is whether
this at-Iarge system of municipal elections violates
r ights in contravention of federal staLutory or
constitutional law." Id. at 58. The decision in MobiIe clearly
controls the decision E-ere.

13 see note 4 supra.

25



recognized this at the time the instant action was tried, see,

e.9., Nevett v. sides,57]- F.2d 2og, 2lg-2t (5th cir. 197g),
cert. denied, 446 U.S. 951 (l9gO); and in this very caser ds

earlier indicated, the district court assumedr on the basis of
existing authority and without discussion, that this was

established constitutional Iaw. we cannot therefore accept
praintiffs' suggestion that they could not fairly be charged

with the perception that discriminatory purpose was an essential
element of these craims when they were ritigated in district
cour t.

Much ress clear is the extent to which pre-tr4obile decisions
had presaged the rimitation on proof of purpose imposed by the
Mobile plurality: that where a challenged system is
"explainable on grounds other than rdc€7,, discriminatory purpose

cannot be inferred from discriminatory effect standing a1one,

but that "other evidence," independent of effect, is required.
This question, for example, divided the l\,tobiIe majority,
incruding the plurality, that was agreed (or wirling to assume)

that purpose was an essentiar substantive element. The

plurality and perhaps onry the plurality berieved that the
Court was not already committed by those earlier decisions Lo

the proposition that purpose might be inferred soIely from
proven effect. other members of the court flatry disagreed.

Assuming from this division within the MobiIe Court that
there was sufficient uncertainty on the point to warrant our

26



r
I
I

practical inquiry into the fairness of holding plaintiffs to the

deficiencies of proof now revealedr w€ nevertheless think that

remand here is not warranted. Plaintiffs presumably adduced all

the evidence availabte to them at the time to prove a

disproportionate impact under the Zimmer criteria. Certainly

they must be held to have had a fu}} and fair oPPortunity to do

sor since obviously they knew that such an impact or effect must

be established as an essential element of these claims. They

must also be held to have understood that this proof could only

have inferential force in establishing purpose, and that if

other inferential or direct proof of purpose were available, it

t-oo would be highly relevant and perhaps needed to buttress the

inference based upon ef fect alone. While tt'IobiIe may have made

more explicit the absolute need for other, independent evidence

of purposer we cannot Say that the need r ot certainly the

helpfulness, of such evidence could not have been reasonably

apparent to ordinarily prudent counsel in litigating these

claims. This, we think, is determinative against the suggestion

that fairness requires remand in light of Mobile. See Lodqe v.

Buxton, 639 F.zd at L375-76.

We are buttressed in this position by consideration of the

specific basis upon which plaintiffs, in their RepIy Brief in

this court, say they would be able, and should be allowed, to

prove discriminatory purpose upon remand. They suggest, with a

proffered forecast, that upon remand they could offer direct

27



proof that the at-Iarge voting system was adopted in 1910 at
least in part for the specific purpose of excluding blacks from

effective participation in the electoral process.

Reserving the question of the probative force or relevance
of the specific evidence which the praintiffs suggest is
available to them on this issue,y/ there is a fatal flaw in the
premise upon which they rest the contention that fairness
compels remand. They say that this type of direct evidence of
Purpose was of doubtful admissibility prior to Mobile; that the
only clearly admissible evidence at that time was evidence of
effect, from which purpose courd be inferred. This contention
is simply without merit. Neither general principles of
procedure or evidence, nor 1ogic, nor anything said in the
rerevant pre-ltobire decisions of the supreme court supports it.
At mostr €rs earrier noted, pre-Mobire cases may have suggested

that proof of effect could alone suffice to prove purpose; none

suggests that only in this way could it be proven.

when, upon trial of the instant case, the city introduced
contemporaneous documents tending to show that the essential
purPose of adopting the system in I91O was to root out revealed

abuses of the ward system, it clearly 1ay with the plaintiffs to
counter that proof with the kind of evidence that they suggesE

14 Evidence of past acts of official discrimination $rassaid by the Mgbile prurality to be ,'of rimited herp', inresolving questions of present officiar motivation. 446 u:s. at74.

28



should now be considered for the first time. rndeed, not only
right but common prudence dictated the effort at that point.

On this basis plaintiffs have failed to demonstrate any

basis for the relief they seek through remand.

III
Although plaintiffs' amended complaint clearly retaine6

the alleqation that Columbiars at-Iarge election system violated
42 u.s.c. ss 1971 and 1973, the district court held that these

statutory claims had been abandoned. on appeal, plaintiffs
pursue these craims, denying their abandonrnent, and argue that
Congress intended that proof of impact alone is sufficient to
show a violation of SS l97I and t973.

Assuming without deciding that the craims were not
abandoned during triar and that there is a private right of
action under SS 1971 and L973, see Mobile, 446 U.S. at G0 & n.g;
Brooks v. Nacrelli, 331 F. Supp. 1350, 1352 (E.D. pa. LgTL),

af f 'd, 473 r.2d 955 (3d cir. 1973) , we conclude thatr Els a
matter of law, praintiffs may not succeed on either craimr so

that remand for their consideration by the district court would

be unavailing.

Section 197I (a) (l) provides that ', Ia] 1I citizens of the

united states who are otherwise quarified by raw to vote

sharl be entitred and alrowed to vote at arr . elections,
without distinction of race, colorr oE previous condition of
servitude . . " praintiffs cite no authority for the

29



proposition that the prohibitions of S 1971 encompass practices
which have onry an indirect effect on the worth of a citizen,s
vote in addition to those which directly affect the ability to
cast a vote. We find nothing in the language of S I97I(a) or in
the more expansive language of S 1971(e) ("the word rvote,

incrudes all action necessary to make a vote effective") that
support it. we accordingry conclude that the arlegations of
voting dilution from the at-Iarge election system in Columbia

are not cognizable under 42 U.S.C. S 197I. See United States v.

LL7, 119-20 (w.D. Tex 1978), rev'd on other grounds, 625 F.2d

547 (5th Cir. 1980), cert. denied r _ U.S. (1991).

Section 1973 provides that "In]o voting qualification or
prerequisite to votingt oE standard, practicer or procedure

sharl be imposed or apptied by any state . to deny or
abridge the right to vote on account of race or coror."
This section concededly appears on its face to be broa<ler tSan S

197r, id- at L20, and plaintiffs argue not onry that it
encompasses a voting dilution claim such as this one but that
the standard intended by congress is proof only of a diruting
effect, not the more stringent one of effect and invidious
Purpose.

Although the plurality opinion in Mobile

precluded

sought

by Mobile.

to Iimit the

uvalde consolidated rndependent school District, 46L F. supp.

- 30



proscriptions of the fifteenth amendment and its embodiment in S

Lg73 to direct infringements of the right to vote, 446 U.S. at

60-65, the rest of the Court did not concur in this limitation.

See United States v. Uvalde Consolidated Independent School

District, 625 E.2d at 551-52. Assuming therefore, without

decidi.g, that vote dilution claims of this tyPe are cognizable

under S 1973r w€ proceed on the assumption that a majority of

the Supreme Court in Mobile rejected the contention that such a

claim can be established by proof alone of a disproportionate
D/impact. Pending a definitive ruling by the Court on this

question, we consider ourselves bound by this apparent view of a

majority of the Mobile Court. Accord, Lodge v. Buxton, 639 F.2d

at 1364 a n.11. On this basis, even had discriminatory effect

been established here, we would nevertheless have been forced to

hold as $re do that the claim fails for lack of proof of

discriminatory purpose.

15 Admittedly, only the four members of the plurality can
be counted firmly in such a supposed majority. See l{obi1e, 446
U.S. at 60-65. Only two other Justices directly addressed the
statutory question. These were dissenting Justices Brennan and
Iv1arshal1, whose view that the f if teenth amendment includes no
purpose requirement seems necessarily to Put them in conflict
with the plurality on this aspect of the congruent statutory
claim. Of the remaining three Justices who did not address the
statutory claim, the best estimate would appear to be that at
least Justice White agreed that the statute also required proof
of purpose. If it did not, this would have provided a further
basis, and an even stronger one, for his disagreement with the
result.

31



rv
The plaintiffs also press on appeal their claims that the

at-large election system violates their first and thirteenth
amendment rights. We hold that to the extent either of these
amendments protects the voting rights here asserted - a question
we do not decide their protections do not in any event extend
beyond those more directly, and perhaps on1y, provided by the
fourteenth and fifteenth amendments.

while congress may arguably have some discretion in
determlning what kind of protective regisration to enact
pursuant to the thirteenth amendment, it appears that the
amendmentrs independent scope is limited to the eradication of
the incidents or badges of slavery and does not reach other acts
of discrimination. See The CiviI Rights Cases, 109 U.S. 3, 23_

25 (1883). rn the realm of votingr w€ think the thirteenth
amendment offers no protections not already provided under the
fourteenth or fifteenth amendments.

rn support of their first amendment c1aim, plaintiffs argue
that "electoral victory is at the very core of the [democratic]
process, and that "Ig]iven the court's steadfast protection of
more incidental poritical rights under the First Amendment, it
would surely be strange if the right to win elected office were

not equally protected from undue infringement.,' we reject this
proposition in the form put. The first amendment's protection
of the freedom of association and of the rights to run for

32



office, have one's name on the balIot, and present one's views

to the electorate do not also include entitlement to success in
those endeavors. The carefully guarded right to expression does

not carry with it any right to be ristenecl to, betieved or

supported in one's views. where, as here, the only chalrenged

governmental act is the continued use of an at-Iarge election
systernr dnd where there is no device in use that directly
inhibits participation in the poritical process, the first
amendment, like the thirteenth, offers no protection of voting

rights beyond that afforded by the fourteenth or fifteenth
amendments.

V

one finar issue requires attention. praintiffs sought at
the outset to have this action certified as a class action under

Fed. R. Civ. P. 23(a) and (b) (2), with a ptaintiff class made

up of all brack citizens of the city of Corumbia. rn a pre-trial
order the district court denied class certification on the basis

that certification would serve no practical benefit to black

citizens, for aIr wourd be equally affected by any action of the

court. Subsequently, however, in conjunction with entry of iEs

final judgment dismissing the action on the merits, the district
court reversed its earlier order and certified the action as a

crass action with a plaintiff crass composed of arr black

citizen residenLs of Columbia.

33



Plaintiffs challenge this ruring and contend that,
regardless of the clisposition of the appear in other respects,
this belated crass certification must be set aside. we agree.
The effect of this ruling, if allowed to stand, would be to make

the final judgment on the merits binding upon members of the
belatedly certified class as well as the individual plaintiffs,
Restatement (second) of Judqments s 85 (1) (e) , (2) (r9g0) , though

the former had not been parties to, nor persons otherwise
subject to being bound by, the action at any time prior to entry
of the adverse judgment. rd. Aside from the serious
constitutional due process questions thereby raised, see

Hansberry v. Lee, 31I U.S. 32 (1940), this ruling cannot stand

as an appropriate exercise of trial court oiscretion. rt
constitutes at least an abuse of oiscretion in application of
the class action rules and must on that basis alone be reversed.

Whatever the power of courts to certify class actions after
judgment on the merits favorinq a classr compdr€ peritz v.
Libertv Loan corp. , 523 F.2d 349 (7th cir. rg75)
(impermissible), with, €.9., Alexander v. Aero Lodge No.735,
rnt'r Ass'n of Machinists & Aerospace workers, AFL-cro, 565 p.2d

1364 (6th cir. L977) (permissible), there can be no comparable

power to certify a class action only after, or contemporaneously

with, judgment on the merits against a class at teast where,

as here, there has been no notice to the putative class members

34



r.rith consequent opportunity to be heard on the certification
question, and possibly not even under those circumstances.

The bald power conferred in Fed. R. Civ. P. 23 (c) (I) to
alter or amend an earlier certification ruling "before the

decision on the merits" (emphasis added) obviously cannot be

drawn upon as a source of povrer for this ruling, The district
courtrs announced perception when it denied certification before

triar that "no practical benefit wourd be served by certifying a

class, since all citizens of Columbia would be affected equally

by any action of the court" was in accord with circuit
precedent, see Sandford v. R. L. Coleman Realtv Co., 573 F.2d

L73 (4th Cir. L978), but it simply recognizes that so far as the

interests of the putative class members in this type 23 (b) (2)

class action seeking only injunctive relief are concerned, non-

certification as a class action is Iikely to be of no practical
consequence. If judgment on the merits goes for the individual
praintiffs, the members of the putative crass wilr be fully
benefitted by it in practical, if not technicarly rega1, termsl

if judgment goes against the individual plaintiffs, the members

of the putative class will not be legalty bound by it.
obviously, however, the same irrerevance of consequences does

not attend a subsequent determination to certify the class and

thus bind it to an unfavorable judgment.

However fictive may be the assumption that class members,

either actual or putative, actually rely upon judicial rulings

- 35



that actions potentially affecting their interests may proceed

or may not proceed as class actions, it is a necessary

assumption - recognized in varrous ways in the administration
of the class act ion device. Ee , € . e. r susman v. Lincoln
American Corp., 587 E.2d 866,869 (7th Cir. I97g), cert. denied,

445 U.S. 942 (1980). Here the putative class members were

entitled to rely upon the district court,s pre-trial ruring that
the action would not proceed as a class action. They are

entitled to protection against detrimental reliance on that
ruring. This requires setting aside the order certifying the

action as a class action.

VI

The judgment dismissing the individual claims on the merits
is affirmed. The order certifying the action as a class action
is reversed.

IT IS SO ORDERED.

36