Defendants Propose Findings of Fact and Conclusions of Law Following Hearings on Detroit-Only Remedy
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March 24, 1972

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Case Files, Bolden v. Mobile Hardbacks and Appendices. Defendants' Trial Memorandum, 1976. beb86f54-cdcd-ef11-b8e8-7c1e520b5bae. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/06f6cd21-c0d9-4715-9391-34ee2d7fe9f6/defendants-trial-memorandum. Accessed August 19, 2025.
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WILE CITY OF MOBILE, et al., IY. 11. IV. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Y L. BOLDEWN, et al., Plaintiffs, 75-297-~P CIVIL ACTION NO: “ N N N N Defendants. DEFENDANTS' TRIAL MEMORANDUM Contents Procedural Stance, . . . 0 0 Ji Form of City Government. A. In General «, 0. . iin se a, B, Act 823.7%. ov Lo C. Validity of Act 823 Under 1965 Voring RIshis ACL. . vv vie vie vss Three-Judge Court Need Not be Convened . A. Under 1965 Voting Rishts ACL . . vv iv B. Under 28 U.S.C. §2281. Applicable Law . A. Necessity of Discriminatory Purpose. . . B. Burden of Proof and Standing . 1. Plaintiffs Must be an Identifiable Segment of the Population. 2. Mere Showing of Adverse Impact Has Never Met the Burden . ... . . 3. No Constitutional Right to a Black District C. Evidentiary Factors to be Considered in Deciding Whether Political Processes Open > LJ Ed Ld Ld LJ - LJ LJ * LJ Ld Ld * * Ld Ld * . 14 16 a ; . I. VPrimary PactorS. . . J va vine : . 16 2. "Enhancing Pactors. . . hi. sii, eid in 7 V. Defendants! Contentions of Fact . . , vii isis" 18 A. Tdentifiasble Segment. i. '« . ivi ie vie 18 B. Discriminatory Purpose. . . . iv 4 0 a wie 19 C. Effect: The Zimmer Criteria. ., . ... . .-. 5.2% 1, Npeimaey Paeckors » . i. ov vind een (a) No "lack of access to the process of slating candidates’, , . , .. . Vo... 21 (b) No "unresponsiveness of legislators to [blacks'] particularized interests'. 23 (1) Clty Services . . i. tv vie 2 una 23 (il) Boards & Commissions. . . . . . . . 26 (iii) Disparity in Employment SEACISELCS, vw vue 0 iia ara 26 (c) No "tenuous state policy underlying the preference for multi-member or gtelaree districting LiL. Lu. 27 (d) No "existence of past discrimination in general preclud[ing] the effective participation in the electoral system'. 28 (e) Summary of "Primary" Factors. . . . . . 30 2. Enhancing” Factors « '. u,v a. 0530 (a) Large Districts. . .. ih Jd, 0.52, 30 (b) Majority Vote Requirement . . . . . . . 30 (¢) Anti-Singleshot Voting Provision. . . . 30 (d) Lack of Residence Requirement . . . . . 31 (e) Summary of "Enhancing' Factors and VAgoregate' of ‘All Factors. . ... J. .,.32 VI. Defenses and Other Pertinent Considerations . . . 33 A. Traditional Tolerance of Various Forms Of Local.Bovernmentk. . , i, ou Ja, Jit ipnionas 33 B. Necessity for Change in Form of City Government if Single-~Member Districts OrQeradi, oir hy Fie ie i i pa Bh Cel Swing Vote. vv so ov ons set Sly, LR [BS D. Banzhaf theory. RR TTR RB SR | FE." Ciry~wide Perspective . . .. v.ofe 4 v4 vi vv's 36 F. Increased Polarization and Possible "Minority Freeze-out' Under Single- Member Plan. or. ve ere ay 0B G. Single~Member Districting and New Constitutional Proplems . . i. . oo + iv vin uw 38 1. Reapportionment... . . . ... . 5 uiis Joe . 38 2. CorrymanderIng., . + 4 se ois ive a. v0 wrria 39 H. Flexibility of Federal Equitable Relief . . . . 40 VII, Available Political Remedy . . , ic. "ue vivian hl A. Legislative RemeBy. i. oi vst oie sv iniviviehy Be AD ONAONNBII i, i ie ee aT ee aT NE AD Appendix: City of Mobile Governance (18l4-present) ear A RE RR ST nt 0 SE BN A BS SB 3 Ty Re RE i A i i A a eli” I. PROCEDURAL STANCE Plaintiffs,! as named representatives of a class com- posed of black citizens of the City of Mobile,” brought suit in this Court? claiming that the system of at-large election of the three Commissioners of the City of Mobile abridges the rights of plaintiffs and the class they rep- resent, guaranteed to them under the First, Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution of the United States. The plaintiffs' claims are asserted under 42 U.S.C. §§1973 and 1983.4 > and each of the Defendants are the City of Mobile, : 6 Commissioners of the City of Mobile, Gary A. Greenough, Robert B. Doyle, Jr., and Lambert Mims. Lhe remaining named plaintiffs are Wiley L. Bolden, R. L. Hope, Janet O. LeFlore, John L. LeFlore, Charles Maxwell, O. B. Purifoy, Raymond Scott, Sherman Smith, Ollie Lee Taylor, Ed Williams, Sylvester Williams, and Mrs. F. C. Wilson. Plaintiffs Johnson and Turner voluntarily dismissed their claims, and Scott and Williams have moved to do so. Plaintiff John LeFlore died during the pendency of this cause, but his death was not suggested upon the record. 2 he complaint alleged a class claim under Rule 23(b) (2) of the Federal Rules of Civil Procedure. The action was cer- tified as a class action by order dated January 19, 1976. 3The jurisdiction of this Court was invoked under 28 U.S.C. §§1331-1343, ba claim originally asserted under 42 U.S.C. §1985(3) was dismissed for failure to state a claim upon which relief can be granted. 5 The City of Mobile is sued only under 42 U.S.C. §1973. Claims against it based upon 42 U.S.C. §1983 and 1985(3) were dismissed by order of the Court on November 18, 1975. 6 The three Commissioners are each sued in their indi- vidual and official capacities. C. WRIGHT, LAW OF FEDERAL COURTS §48 (1970). Plaintiffs seek a declaratory judgment that the at- large election of City Commissioners violates the Consti- tution of the United States, and seek also an injunction against any city election under the present plan. Plain- tiffs also seek to have defendants enjoined "from failing to adopt" a single-member city government plan.’ IT, FORM OF CITY GOVERNMENT A. In General. The City of Mobile, over its history (at least since prior to the statehood of Alabama) has had, in its city government, at least some feature or form of at-large election. A chart tracing in brief the governance of the City since 1814 is attached hereto as "Appendix A" for the convenience of the Court. Since 1911, the City has been governed by a com- mission form of government established by the Legislature of the State of Alabama. Ala. Acts No. 281 (1911) (pre- sently codified principally as ALA.CODE tit. 37, §89, et.seq.) Under the commission form of government as it obtains in Mobile, three commissioners are elected to numbered posi- tions. Each come dionas engages in specific administrative tasks involving certain city departments under his control. One commissioner also serves as the Mayor, a largely cere- monial post. All commissioners are elected at-large by the entire City; that is mandated by the provisions of ALA.CODE tit. 37, §89. While the at-large requirement is part of a Defendants moved to strike this claim for relief upon the ground that they had no power to adopt a single-member plan, since only the state legislature has that power. The motion was denied at that stage of this case. . statute general in nature and not by its terms limited to Mobile, this is not, as will be discussed infra, a Three- Judge Court case. B. Act 823. In the course of the trial, referecice may be made to Act 823 of the 1965 Alabama Legislature, a general act of local application® enacted solely for the benefit of Mobile. As will be discussed infra, a question has been raised outside this Eom; respecting the validity of this statute under the 1965 Voting Rights Act, which need not be decided in this case. If Act 823 is valid, each commissioner is elected to a post which has assigned to it by that statute certain specific administrative duties. The mayoralty is rotated among the three commissioners in a statutorily~-ordained fashion. The City of Mobile has been operating under Act 823 since 1965,% and remains of the view that it is valid 8 he meaning of this term is explained in Adams, Legislation by Census: The Alabama Experience, 21 ALA. 1. REV. 401(1969). The Three-Judge Court implications of that practice are discussed, infra. The administrative and mayoral-rotation features of Act 823 were by no means new to the Mobile Commission gov-~ ernment in 1965, but had come and gone from time to time in ; earlier decades of the twentieth century. In 1939, Act 289 was introduced by Mr. Langan and passed, providing for elec- tion of the Mayor for that specific office, and also provid- ing a specific apportionment of the tasks of administration among the two associate commissioners. It was declared un- constitutional the next year for repugnancy to legislative requirements (procedural in nature) under the Alabama Consti-~ tution. State v. Baumhauer, 239 Ala. 476, 195 So. 869(1940). Almost immediately thereafter the same basic provision was re-enacted in the general codification of 1940. ALA. CODE tit. 37, §95(1940). One associate commissioner was assigned the fire, police, health, and sewer departments, while the other was assigned parks, docks, streets, public buildings, and the city airport. The majority of the Board of Commissioners assigned to each associate commissioner one set of tasks. In 1945, this procedure was abandoned. Ala. Acts No. 295(1945). . without the approval of the Justice Department under the Voting Rights Act of 1965. If Act 823 is covered by the Voting Rights Act and is therefore invalid until made the subject of a declara- tory judgment action in the District of Columbia, then the same commissioners are still elected to the same numbered posts under Act 281 as amended, and one of their number still serves as Mayor. ALA.CODE tit. 37, §§94-95. The difference would be that the majority of the commissioners would se- lect the largely ceremonial mayor (rather than by a set rotation), and the majority of the commissioners would appor- tion among themselves the various administrative tasks (rather than under a SEatutony apportionment of tasks). The commissioners would still be elected to numbered posts. Id. at §94. Whether or not Act 823 is valid, the commissioners are elected at-large. ALA.CODE tit. 37, §96. 1It is of course the at-large feature of the plan which is under constitu- tional attack in this case; not the method of apportioning the administrative tasks or the method of rotating the largely ceremonial mayoralty among the commissioners. C. Validity of Act 823 Under 1965 Voting Rights Act. Act 823 presents a problem of the coverage of §5 of the Voting Rights Act of 1965, but that is a problem which need not be decided in this case. The validity of that statute has not been called into question in this case by plain- tiffs, either under the pleadings or pretrial order, despite the specific invitation of defendants in the course of proceedings in the Justice Pepavtment. 1° If the validity of Act 823 is called into question in this case, and if it is also necessary to decide that issue, it will of course be necessary to convene the special statutorily-mandated Three- Judge District Court to decide that issue. _Allen v. Bd. of Elections, 393 U.S. 544, 563(1969). Even if the validity of Act 823 should be called into question in this case, though, it will not be necessary to decide the issue. Since plaintiffs cannot successfully prove a discriminatory purpose in the enactment of the 1911 statute, as required under a very recent Supreme Court case ~ (discussed infra), and since plaintiffs cannot even prove a discriminatory effect under the Fifth Circuit Standards 100k 823 was enacted shortly after passage of the 1965 Voting Rights Act, and was not at the time submitted to the Department of Justice. On May 14, 1975, the City of Mobile submitted to the Justice Department five statutes of the 1971 Regular Session of the Alabama Legislature for approval under §5 of the Voting Rights Act. On July 14, 1975, the Justice Department wrote the City to ask that Act 823, which had been minimally amended by one of the 1971 enactments, be submitted for approval under §5. On December 30, 1975, the City sub- mitted Act 823 "without prejudice to the right of the City to continue to insist upon its position that Act 823 is not within the scope of the Civil Rights Act of 1965". On March 2, 1976, the Department of Justice interposed objection to portions of Act 823, upon the rationale that since the City was contending in this litigation that Act 823 made the impo- sition by this Court of single-member districting inappro- priate, Act 823 was invalid since it ''rigidifies use of the at-large system''. On March 5, 1976, counsel for the City wrote the Department of Justice reiterating the City's position that Act 823 was without the coverage of §5, and specifically by copy inviting plaintiffs in this action "to bring an appropriate legal action to determine the matter, if they are disposed to contend that it is unenforceable'. Neither plaintiffs herein nor the Department of Justice have done so; nor has the City instituted a declaratory judgment action under §5 in the United States District Court for the District of Columbia. There is, of course, a serious ques- tion as to whether or not Act 823 is covered by §5 of the 1965 Voting Rights Act. See generally Beer v. United States, U.S, +47 L.24.2d 629(1976). prevailing prior to the new Supreme Court 'purpose' test, plaintiffs cannot prove their case. Since the issues raised by the pleadings and pretrial order are all single-judge issues upon which the case can be decided without reference to any three-judge issue (validity vel non of Act 823), the Court can proceed to a decision on the merits of this case without a Three-Judge Court's decision on the validity of Act 823. MTM v. Baxley, 420 U.S. 799, 806-07(1975) (concur~- ring opinion); Hagans v. LaVine, 415 U.S. 528(1974). III. THREE~JUDGE COURT NEED NOT BE CONVENED No party in this case has suggested that a Three-Judge Cours be convened, nor has the Court raised the issue sua sponte. However, because of the complexity of the issue, a paragraph on that problem may be appropriate. A. Under 1965 Voting Rights Act. As has been pre- viously discussed, it is not necessary to convene a Three- Judge Court under the special provisions of the Voting Rights Act of 1965, since this case can be decided upon the basis of single-judge issues. B. Under 28 U.S.C. §2281. A Three-~Judge Court need not be convened in this case under the provisions of 28 U.S.C. §2281, the general Three-Judge Court statute. Plaintiffs seek, in effect, an injunction against the enforcement of parts of ALA.CODE tit. 37, §89, et.seq., the present codification of Act 281 of the 1911 Alabama Legislature, as amended. Specifically, the at-large feature is contained in ALA.CODE tit. 37, §96. Mobile has been gov- erned by the provisions of Act 281 (as amended) since 1911. “10 Hartwell v. Pillans, 225 Ala. 685, 686, 145 So. 148(1949). While Act 281 purports to be a general act, Baumhauer v. State, 240 Ala. 10, 12, 198 So. 272(1940), it is impossible to tell what cities other than Mobile, if any, have elected to be governed by the statute. There are indications that Act 281 (or at least parts of it) constitute a general law of local application. Cf. State v. Baumhauer, 239 Ala. 476, 196 So. 869(1940). While the statute purports to be general in nature, no Three-Judge Court need be convened because (1) an injunction is sought only against local officials, and (2) the statute is of local impact, solely (or at least prin- cipally) in Mobile. Bd. of Regents v. New Left Education Project, 404 U.S. 541, 544(1972); Moody v. Flowers, 387 U.S. 97(1967). This case is much more fundamentally "local" than Holt Civic Club v, City of Tuscaloosa, 525 F.2d4.:653 (5th Cir. 1975), where plaintiffs were a class of all "Alabama resi- dents" who lived in police jurisdictions surrounding cities, where the statute was genuinely state-wide in application, and where local officials were sued only because they were the only officials who could enforce the statute in the various Alabama cities. IV. APPLICABLE LAW A. Necessity of Discriminatory Purpose. The United States Supreme Court quite recently decided Washington wv. Davis, U.S. s 04 U.8.L..W., 4789 {U.8S. June 7, 1976), making clear that before a court can declare a statute un- constitutional by reason of its being ''racially discrimina- tory', the statute must first be proved to have a ''racially discriminatory purpose'l, U.S. aL , 44 U.8.L.W, at 5 4792 (emphasis added). Washington v. Davis thus clarified an issue which a number of cases--including multi-member dis- tricting cases--had left as ''somewhat less than a seamless web". Beer v. United States, U.S. s 47 L.Ed.24 269, 643 n.4(1976) (dissent) . Lt While Washington technically involved equal protection analysis only, 12 the Court made quite clear that it was announcing a broad principle of constitutional law, including the Fifteenth Amendment as well. Writing that "[tlhe rule is the same in other con- texts", Washington specifically reaffirmed Wright v. Rocke- feller, 376 U.S. 52(1964), a case requiring proof of discriminatory purpose where voting districts were alleged to have been racially gerrymandered in contravention of the Fourteenth and Fifteenth Amendment rights of black plain- Ci€fa, U.S. at s O4 U.8.L.W. at 4792, Mine holdings of several courts were unclear on the necessity of showing of discriminatory purpose. The Supreme Court in Chavis v. Whitcomb, 403 U.S. 124, 149(1971), seemed to require proof of discriminatory purpose (''purposeful’, ""designed'"). See Graves v. Barnes, 378 F.Supp. 640, 665 (W.D. Tex.1974) (dissent), opinion on remand of White v. Regester, 412 U.S. 755(1973). The Fifth Circuit in 1974 wrote that "[i]t is unclear whether dilution of a group's voting power is unconstitutional only if deliberate..." Reese v. Dallas County, Ala., 505 F.2d 879, 886(5th Cir.1974), rev'd other grounds, 421 U.S. 744(1975). But the Fifth Cir- cuit earlier had seemed to say that effect had greater rele- vance than did purpose. Zimmer v. McKeithen, 485 F.2d 1297, 1304 n.16(5th Cir.1973) (en banc), aff'd. sub.nom. East Carroll Parish School Bd, v. Marshall, Uu.s. , (March 8, 1976) (where the Supreme Court stated that its affirmance was "without approval of the constitutional views expressed by the Court of Appeals'). 120he case involved the operation of the police department of the District of Columbia, which is not a ''state' bound by He strictures of the Fourteenth Amendment. However, as the ashington Court noted, it was held shortly after Brown v. 5 of Educ. "that the Due Process Clause of the Fifth Amend- ment contains an equal protection component prohibiting the United States from invidiously discriminating between indi- viduals or groups. Bolling v. Sharpe, 347 U.S. 497(1954)". U.S. at , 44 U,8.L.W, at 4792, rr. 12 That the rule of Washington v. Davis obtains in a multi- member district voting dilution case has also quite recently been recognized in the United States District Court for the Northern District of Alabama, in Rev. Charles H. Nevett v. Lawrence G. Sides, et al., C.A. 73-P-529-S (Order of June 11, 1976). While that case will be discussed in more detail infra’? it is informative here that after Judge Pointer made specific factual findings for the defendant City, he also added that "It may be noted that there has been no evidence that the claimed 'dilution' was the result of any invidious discriminatory purpose. Cf. Washington v. Davis..." Id. Therefore, the Alabama statute attacked by plaintiffs in the instant case is not due to be held unconstitutional unless its enactment was motivated by a racially discrimina- tory purpose. 1? Whatever may pave been the dicta, or even the holdings, of Fifth Circuit and lower court cases that pre-~date Washington, it is now certain that evidence of discriminatory 13priefly, that case involved a suit quite similar to this one, involving multi-member districting in the City of Fairfield. After the District Court found for the plaintiff in an unreported decision, the United States Court of Appeals for the Fifth Circuit reversed for more specific factual find- ings on the factors outlined in Zimmer v. McKeithen, 485 F.2d 1297(5th Cir.1973). Nevett v. Sides, F.2d (5th Cir. June 8, 1976). On remand, the District Court found for the City the day after receipt of the mandate. Nevett v. Sides, F.Supp. (N.D. Ala. June 11, 1976). Copies of the decision of the Fifth Circuit and of the District Court on remand are attached hereto for the convenience of the Court. Ye fact that the city government statute is said to violate 42 U.S.C. §1973(c), as well as the Constitution it~ self, does not change the result. That statute tracks the language of the Fifteenth Amendment and is ''constitutional in nature". Wallace v. House, 515 F.2d 619, 634 n.17 (5th Cir.1975), vacated on other grounds, B.S. > 47 L..Ed.2d4 2956(1976). ® 1s » effect is relevant and admissible only for whatever light, if any, it may cast upon purpose-~-the decisive issue. B. Burden of Proof and Standing. The plaintiffs, of course, have the burden of proof: The plaintiff's burden is to produce evi- dence to support findings that the poli- tical processes leading to nomination and election were not equally open to parti- cipation by the group in question--that its members had less opportunity than did other residents in the district to parti- cipate in the political processes and to elect legislators of their choice. White v. Regester, 412 U.S. 755, 766(1973). 1. Plaintiffs Must be an Identifiable Segment of the Population. As an initial matter, plaintiffs have the burden of proving that they constitute under the present facts an identifiable class for Fourteenth Amendment purposes. While dilution cases such as this are most commonly brought by blacks, membership in the Negro race is not talismanic; nor is the doctrine reserved exclusively for blacks. The Supreme Court in one recent case held that blacks as such did not constitute an identifiable class; under the circum-~ stances of that case blacks were held to be not dissimilar from non-black Bemocrats. for example: [Tlhe interest of the ghetto residents in certain issues did not measurably differ from that of other voters. Whitcomb v. Chavis, 403 U.S. 124, 155(1972) (claim of dilu- tion '"'seems a mere euphemism for defeat at the polls", Ié. at 153). The Supreme Court has long suggested that the dilu- tion doctrine extends to political as well as racial elements of the population id and has suggested strongly that blacks 15Burns v. Richardson, 384 U.S. 73, 88(1966); Fortson v. Dorsey, 379 U.8. 733, 739(19653). a — A AS TIS S ER SU as OF TT ATI EE med Bt eis 1k need not necessarily fare better in a dilution case under the Constitution than, for example, "union oriented workers, the university community, or religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas". Whitcomb v, Chavis, 403 U.S. 124, 156(1971).. In order to invoke the benefit of the dilution doctrine, blacks must prove more similarity than mere blackness. As one post~-Chavis commentator wrote, After all, if Republicans could have elected someone more sympathetic to their views in the absence of a multi- member district, are they not suffering the same harm blacks suffer...? Certain- ly in the case of de facto racial submer- gence, where racial intent is not shown, blacks are not suffering because they are black. Carpeneti, Legislative Apportionment: Multi-member Districts and Fair Representation, 120 U,.PA.L.REV. 666, 698(1972). 2. Mere Showing of Adverse Impact Has Never Met the Burden. Even prior to the decision of the Supreme Court in Washington v. Davis, a plaintiff could not meet his bur- den by showing a mere adverse impact, but had to prove more: The critical question under Chavis and Regester is not whether the challenged political system has a demonstrably adverse effect on the political fortunes of a particular group, but whether the effect is invidiously discriminatory, that is, fundamentally unfair. Wallace v. House, 515 F.2d 619, 630 (5th Cir.1975), vacated & remanded on other grounds, u.8s. , 4721.54.24 296(1976) (per curiam) (emphasis added). 3. No Constitutional Right to a Black District. Plaintiffs have no constitutional right to a politically safe black district. The Fifth Circuit has recently reiter- ated that the Supreme Court's pronouncements reject such a "ouaranteed district" concept: -15 Chavis and Regester hold explicitly that no racial or political group has a con- stitutional right to be represented in the legislature in proportion to its num- bers, so it follows that no such group is constitutionally entitled to an apportion- ment structure designed to maximize its political advantages...Neither does any voter or group of voters have a constitu- tional right to be included within an electoral district that is especially favorable to the interest of one's own group, or to be excluded from a district that is dominated by some other group. Wallace v. House, 515 F.2d 619, 630 (5th Cir.1975), vacated & remanded on other grounds, U.8. . 47 1..84.24 296(1976). Accord, Vollin v. Kimbel, 519 F.2d 790, 791 (4th Cir.1975) (''black voters are not constitutionally enti- tled to insist that their strength as a voting bloc be pre=- served"), cert.den., U.S. (1976); Cherry v. County of New Hanover, 489 F.2d 273, 274 (4th Cir.1973) (blacks "do not have a constitutional right to elect members of their race to public office'). The Court of Appeals for the Fifth Circuit in the Fairfield case, in reversing the holding of the District Court, recently sphineized that blacks are not to be guaranteed a politically-safe district of their own: The trial court's findings may be read as indicating that elections must be somehow so arranged-~-at any rate where there is racial bloc voting-~that black voters elect at least some candidates of their choice regardless of their percentage turnout. This is not what the Constitution requires. Nevett v. Sides, F.2d FR {Sth Cir, June 8, 1976). Plaintiffs in order to prevail have always had to show, as Wallace v. House indicates, that the system is "fundamentally unfair'. 515 F.2d at 630. Now, after Washington v. Davis, they must show (1) that the system is «16« "fundamentally unfair", and (2) that it was intended to be so. C. Evidentiary Factors to be Considered in Deciding Whether Political Process Open. Cases decided prior to Washington developed a number of evidentiary criteria to be considered upon the principal issued raised by White--wheth- er "the political processes leading to nomination and election" are "equally open'. White v. Regester, 412 U.S. 766. These criteria (being pre-Washington) relate to effect only, and have been wariously stated from time to time and from case to case, and even from Court to Court. As formulated in Zimmer, these indicia of discrim- inatory effect comprise "a panoply of factors'. Proof of "an aggregate of these factors' may suffice to prove effect, 485 F.2d at 1305; the factors do not include intent, since Zimmer preceded Washington. These factors were in Zimmer divided further into what may be termed 'primary'" and "enhancing' factors. Id. 1. "Primary'' Factors. The following factors from Zimmer were held in that case to be indicia of dilution of the votes of blacks (Id. at 1305): (a) "Lack of access to the process of slating candidates; (b) "Unresponsiveness of legislators to their 16Ccommentators analyzing the Fifth Circuit's en banc de- cision in Zimmer v. McKeithen have suggested that a civil rights plaintiff may more easily prevail under the Zimmer criteria than under the Supreme Court cases which Zimmer pur- ported to follow. See, e.g., Note, 87 HARV.L.REV. 1851, 1858 (1974) ; Note, 26 ALA.L.REV, 163, 170(1973) . Support is lent to this by che pointed remark of the Supreme Court in Zimmer that it was affirmed "without approval of the Constitutional views expressed by the Court of Appeals'. East Carroll Parish School Bd. wv. Marshall, U.8. (March 8, 1976), aff’ =. Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc). i Tp [blacks'] particularized interests'; (c) "A tenuous state policy underlying the preference for multi-member or at-large districting''; (d) "The existence of past discrimination in general precludes the effective participation in the election system'. 2. "Enhancing' Factors. Zimmer also says that proof of dilution made out by a showing of the above-enumer- ated factors may be "enhanced by" (Id. at 1305) the following factors: (a) "The existence of large districts''; (b) "Majority vote requirements''; (¢) "Anti-singleshot voting"; (d) "The lack of provision for at-large can- didates running from particular geographical subdistricts'. Because these factors have been explicitly followed 17 in later (but pre-Washington) Fifth Circuit decisions, they probably ought, out of an abundance of caution, to be the basis here of factual findings on effect, notwithstanding any differences between Zimmer and Supreme Court precedent. 8 17Nevett v. Sides, F.24, {5th Cir. June 8, 1976); Perry v. City of Opelousas, 515 F.2d 639 (5th Cir.1975); Wallace v, House, 515 F.24 619 (5th Cir.1975); Turner v. IcKeithen, 490 F.2d 191(5th Cir.1973). Nevett was decided the day after Washington, but contains no mention of it. “See note 16 supra. The Three-Judge District Court on the remand of White v. Regester formulated the factors in- volved in a different and slightly less Procrustean fashion than appeared in Zimmer and its progeny. See Graves v. Barnes, 378 F.Supp. 640, 643 (W.D. Tex.1974), on remand of White wv. Regester, 412 U.S. 755(1973). <15~ Therefore, the findings of fact we will propose to the Court, in order to insure a complete record, will address the dic- tates and factors stated in both Washington v. Davis (intent) and Zimmer v. McKeithen (indicia of effect), keeping in mind that "unless [the Zimmer] criteria in the aggregate point to dilution..., then plaintiffs have not met their burden, and their cause must fail''. Nevett v. Sides, F.2d Sera ——— (5th Cir. 1976). V. DEFENDANTS' CONTENTIONS OF FACT A. Identifiable Segment. The evidence which will be adduced in this case will indicate that blacks in Mobile have interests and needs which, as in the Chavis case, '[do] not measurably differ from that of other voters". 403 U.S. 19 there would be a factual basis at 155. That being so, for a finding that blacks do not in fact, except for their blackness and a common racial history, constitute an "'iden- tifiable segment'. While defendants do not ask that this Court make such a finding on the standing issue, it will be useful in considering the merits of this case to remember the fact (and it is a fact) that the needs of blacks on most issues do not appreciably differ from those of whites. Bror example, the testimony of Dr. James E. Voyles, an expert for defendants, indicates that black/white political scisms of the 1960's were an aberrant product of the civil rights struggle during that period, and that black/white scismatic voting trends have been significantly (if not yet entirely) reduced. Similarly, the answers of the named plaintiffs to interrogatories indicate many examples of identity of black/white views, thus reducing the number of issues upon which the blacks have '"particularized needs". See, e.g2., Answers of Plaintiffs to Defendants' Interroga- tories 67-114. “~10~ B. Discriminatory Purpose. Under Washington wv. Davis, plaintiffs must prove that the statute involved was enacted or instituted to further a discriminatory purpose. The statute under attack here was enacted in 1911, Since blacks in 1911 constituted a political cipher both in Mobile and state-wide, having been overtly eliminated from the electorate shortly after the adoption of the Ala- bama Constitution of 1901,%° any contention that the adop- tion of Act 281 was racially motivated is unsupportable. The Fifth Circuit has several times held (apparently judicially noticing the fact) that many if not most Southern election statutes of the late nineteenth or early twentieth century were totally neutral racially, since blacks had been directly and overtly disfranchised by direct means. For example, the Court of Appeals for the Fifth Circuit in Wallace v. House held that when the at-large election system was first passed in Louisiana in 1898, 'there could have been no thought that the device was racially discriminatory, because very few blacks were allowed to vote in Louisiana during that period. 515 F.2d at 633. Judge Wisdom made a similar observation in Taylor v. McKeithen, finding that prior to the 1965 Voting Rights Act, blacks could not be elected to [public office] -~to be blunt--because there were no black voters. It is as simple as that. Since adoption of the Louisi- ana Constitution of 1898 and until re-~ cently, the legislature disfranchised blacks overtly; it was never necessary for the legislature to resort to covert 20h [Alabama] Constitution of 1901...eliminated the Negro voter". M. McMILLAN, CONSTITUTIONAL DEVELOPMENT IN ALABAMA 354 (1955). «20 ~ disenfranchisement (sic) of blacks by manipulating [apparently neutral elec- toral devices]. 499 F.2d 893, 896 (5th Cir. 1974) ,quoted in Wallace v. House, 515 F.2d at 633. Additionally, we expect the evidence to show that the commission form of government was adopted in Mobile for reasons completely unrelated to race. This Court should make a finding in this case that Act 281 was enacted for a non-discriminatory purpose and, under Washington v. Davis, that finding should end the inquiry, with judgment for defendants being mandated. However, defendants recognize the position of this Court in the present case. Washington v. Davis, clear. though it is, did not expressly overrule the Zimmer case and its pro- geny (which grew like Topsy notwithstanding apparent conflict with White v. Regester and other pre-Washington cases?ly and no Fifth Circuit case has yet considered to what extent ” : 22 (if at all) the Zimmer case survives Washington. Because the Zimmer case stands unreversed to date, ‘and also since Washington leaves some room for admissibility of evidence of effect as it might bear on purpose in an appro- priate case, defendants recognize that the Court may want to make factual findings upon the Zimmer criteria of discriminatory 21lgee n.16, supra. 22. : he The Supreme Court, even before Washington, seems in its narrowly-grounded affirmance of Zimmer to have suggested the invalidity of the constitutional holding of Zimmer under prec- edent prevailing even at that time. East Carroll Parish School Bd. v. Marshall, U.S.. © (march §, 1976) (aff'd. "without approval of the constitutional views expressed by the Court of Appeals'). -21- effect, for whatever residual value they may have after Washington. C. Effect: The Zimmer Criteria, 1. "Primarv' Factors. (a) No "lack of access to the process of slat- ing candidates'. Blacks in the City of Mobile have not been deprived of access to the slating of candidates to the City Commission; in Mobile there is no such slating. This fact parallels the finding of Judge Pointer in the Fairfield 2 Ld > Ld Ld » case. 3 However pernicious the operation of slating organi- zations might be in other cities,?? they do not exist in Mobile city elections. In fact, not only are there no non- partisan slating organizations for the City Commission in Mobile, the elections are non-partisan and the Democratic and Republican parties themselves do not serve as slating organizations fiche City Commission. All that is necessary is for a potential candidate to qualify and to run. A few other, more general observations concerning 231 The plaintiffs, blacks residing in the City of Fair- field, have not demonstrated any lack of access to the process of slating candidates for city elections; for in Fairfield there has been no such slating'". ©Nevett v. Sides, F. Supp. (N.D. Ala. June 11, 1976). 24 In Dallas City Council elections, a slating organiza- tion styled the "Citizens Charter Association', or C.C.A., "enjoyed dominance" in city elections. Lipscomb v. Wise, 399 F.Supp. 782, 786 (N.D. Tex.1975). A similar group, called the "Dallas Committee for Responsible Government' or DCRG operated in elections from that county to the state legislature. White v. Rezester, 412 1.8. 755, 766-67(1973). In other cases, political parties or party organizations with racial solidar- ity served the same function. E.g., Turner v. McKeithen, 490 F.2d 191, 195(5th Cir.1973) (one-party parish where black vote solicited only after nomination). There is no such monolithic political organization in Mobile City Commission elections. wm Mobile political affairs may be in order in view of the suggestion of the Supreme Court in White that these cases call for an "intensely local appraisal...in the light of past and present reality, political and otherwise. 412 U.S. at 769, Unlike many southern polities in which nomination by the Democratic Party is tantamount to election, that is not necessarily so in Mobile, even in races which (unlike the City Commission races) are conducted on partisan tickets. There is no longer any racial impediment of whatever nature to prohibit or hinder in any way a black (as such) from registering to vote, voting, qualifying to seek office, running for office, or paling elected to office. In sum, Mobile has an intensive, active, vigorous political life, one which, at the present time, is as open to blacks as to whites. As the Siprene Court wrote in Chavis: ~~ The mere fact that one interest group or another concerned with the outcome of... elections has found itself outvoted and without legislative seats of its own provides no basis for invoking constitu- tional remedies where, as here, there is no indication that this segment of the population is being denied access to the political system. £03 B.S. 15. 154-55, To whatever degree (if any) White v. Regester differs 25 ‘ : a from and therefore controls Zimmer, this finding alone should compel judgment for defendants. The Supreme Court in that case wrote, as noted above, that the burden was on plaintiffs to prove that their segment of the population 255ee n.l6, supra. ~23- "had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice'. 412 U.S. at 766. The finding of openness under this single Zimmer criterion appar- ently, under White, answers the entire question: if the political process is open to blacks, there is no dilution. (b) No "unresponsiveness of legislators to [blacks'] particularized interests'. As an initial matter, it may be noted that the evidence will reflect that on many issues of importance to citizens in Mobile there are no "particularized interests' of blacks. A significant segment of the proof adduced by plain- tiffs on the responsiveness issue is expected to be in the form of testimony concerning isolated instances of citizen complaints about, for example, drainage or paving in a par- ticular area inhabited largely or entirely by blacks. As Judge Pointer pointed out in the Fairfield case, it should be noted that the inquiry is directed to '"unresponsiveness', referring to a state, condition or quality of being unresponsive, and is not established by isolated acts of being unresponsive. Nevett v. Sides, F.Supp. (N,D. Ala, June 11, 1975), Defendants expect the evidence to show that the City of Mobile has not, in recent years, evidenced unrespon- siveness to particularized needs of blacks. (i) City Services. The Court will doubtless hear a considerable quantity of testimony from both sides regarding the nature and extent of various city services in the black areas. This is not a case in which the "streets and sidewalks, sewers and public recreational facilities provided by the town for its black citizens are Dl clearly inferior to those which it provides for its white citizens," Wallace v. House, 515 F.2d at 623 (emphasis added), or one in which the City has evidenced "inexcusable neglect of black interests'.Id. Instead, the evidence in this case will show good faith efforts to extend public services to both black and white. A number of serious drainage problems exist in many sections of Mobile, including several black areas; the City has attempted and is attempting in good faith to remedy such problems inherent in a low-lying area such as Mobile. The evidence will further reflect that street paving, maintenance, and repair and cleaning and the like--to the extent that those activities are conducted by the City rather than by private do¥slopersss ~=ois performed by the City of Mobile in a non-discriminatory fashion. The evidence will further reflect that in several instances of unpaved streets in black neighborhoods, the condition is due to the fact that the cost of paving non-~thoroughfare streets in Mobile is normally assessed to abutting property owners, and that they had been unable or unwilling to be assessed for street paving. As Judge Johnson has noted, that unwill- ingness or inability to sustain a paving assessment does not rise to constitutional levels: The evidence...reflects that the reason that a larger percentage of the white resi- dents are residing in houses fronting paved streets is due to the difference in the re- spective landowners' ability and willingness 26 Not all paving of streets in the City of Mobile is per- formed by the City with City funds. A significant amount of street construction is performed by real estate developers in the construction of new subdivisions. There is no allega- tion of any improper complicity between the City and such developers with respect to such street paving. 25. to pay for the property improvements. This difference in the paving of streets and the establishment of sewerage and water lines does not constitute racially discriminatory inequality. The equal pro- tection clause of the Fourteenth Amendment to the Constitution of the United States was not designed to compel uniformity in the face of difference. Hadnott v. City of Prattville, 309 F.Supp. 967, 970 (M.D. Ala, 1970). To the extent {if at all) that a difference in quality of city services exists, it is in part attributable to vandalism of public property which, the evidence will show, is significantly worse in black areas of town. To the extent that vandalism in black sections causes a differ- ence in the quality of services, the difference is not a constitutional deprivation. Beal v. Lindsey, 468 F.2d 287, 290-01 (2d Cir.1972). It is also worth noting that, to the extent there is any inequity in the respective quality of city services in black and white areas, plaintiffs have a direct pin- point remedy in a suit for equalization under Hawkins v. Town of Shaw, Miss., 437 F.2d 1286(5th Cir.1971), aff'd on rehearing en banc, 461 F.2d 1171(5th Cir.1972), at least to the extent that any difference in service levels was purposeful. Washington v. Davis, U.S. , 4b Smtr? U.S.L.W. 4789, 4793 n.12 (U.S. June 7, 1976). To the extent that any such inequity may be of significance to Mobile's black citizens, the remedy might more appropriately be the limited one of equalization rather than the severe one of changing the entire form of the city government. Whitcomb v, Chavis, 403 U.S. 124, 160(1971); Note, 87 HARV.I.REV, . ol » 1851, 1859 n.50(1974). (ii) Boards and Commissions. Plaintiffs will probably introduce evidence reflecting that blacks are not represented on the City's various boards and commissions in proportion to their percentage of the population. Defend- ants concede that to be so, and there is no dispute over that fact. The discretionary appointments to city boards and commissions are, as a matter of comity, either entirely beyond federal judicial review, or very nearly so. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 614-15(1974) (suit to insure bi-racial array of city appointees); James v. Wallace, F.2d (3th Cir. June 21, 1976) (suit to compel Governor of Alabama to appoint more blacks). That being so, back-door judicial relief in the form of a finding of lack of responsiveness based on appointments seems particularly inappropriate. There are, in any event, several black board members, and an increase in their number cannot be instantaneous under any form of government. The Commissioners are ''powerless to appoint blacks to boards and commissions until the appearance of vacancies". Yelverton v. Driggers, 370 F.Supp. 612, 619 (M.D. Ala. 1974). Additionally, the overwhelming majority of these boards are simply irrelevant to the ''particularized needs of blacks. (iii) Disparity in Employment Statistics. The city employment statistics expected to be introduced will indicate a disparity between the percentages of white and black employed on the one hand, and their respective 2 percentages in the population on the other. The City of Mobile is limited in its ability to employ those whom it might otherwise choose; strictures are placed upon its hiring freedom by the fact that the Mobile County Personnel Board (which is not a department of the City) presents employment lists to the City from which hiring is effected. To the extent that there might have been impropri- eties in hiring, plaintiffs have and have had a direct remedy in this Court, in the form of lawsuits directly aimed at remedying those violations rather than at a change in the form of government. Additionally, the Supreme Court has recently noted in Washington that mere disproportionate hiring by the city, without more, does not indicate a Constitutional violation. U.S, at , 44 U.8.1L.W, at 479%. ‘that being so, it mt p—— seems inappropriate to find a constitutional violation by a back~door approach which instead holds the form of govern- ment unconstitutional upon the theory that there is a dis- parity in employment which is, in itself, constitutional. A holding changing the form of government ought not to be based upon such gossamer, backward logic. In sum, there has been no significant, general "lack of responsiveness'' of the city government in Mobile in recent years to the particularized needs of blacks. (¢) No "tenuous state policy underlying the 27 oe! : ‘ See Allen v. City of Mobile, Civ. No. 5409-69-P(S.D. Ala.) ; Anderson v. Mobile County Commission et al., Civ. No. 7383-72-0(8. 0. 41=.7. «28 preference for multi-member or at-large districting'. There is no clearcut state policy either for or against multi-member districting in the State of Alabama, considered as a whole; hence, the "ambivalent state policy in this re- gard must be considered as a neutral factor in our consid- eration’. Yelverton v. Driggers, 370 F.Supp. at 619. Just as in Yelverton, however, it is appropriate to look at the state policy, as expressed by the state Yag~ islature, with specific reference to Mobile. A summary of each form of government obtaining in the City of Mobile since prior to Alabama statehood is attached as Appendix A. As that Appendix suggests, the gov- ernment of the City of Mobile throughout its history for more than a century and a half has contained, at least in part, some multi-member feature. For sixty-five years the City Commission form of government with at-large elections has been in effect in Mobile. Therefore, whatever the policy of Alabama has been with respect to other municipalities in the state, its mani- fest policy as to the City of Mobile has been, for a sig- nificantly long period, multi-member districting. (d) No "existence of past discrimination in general precludes the effective participation in the election 1" system. The City of Mobile in this litigation candidly ad- mits at the outset that in the past, there were significant 28 \10ng the lines of the "intensely local appraisal" suggested in White, it may be noted that Mobile has long been considered a political island outside the mainstream of Ala- bama politics. That fact makes particularly appropriate the consideration of the policy of the City itself regarding these districts, in addition to that of the State as a whole. ~29. levels of official discrimination by the City. There is, of course, no doubt about that as Mobile's history in this regard is similar to that of Southern cities generally. The question, however, is not whether there was discrimination in the City's history [admittedly there was], but whether that discrimination today ''precludes the effec- tive participation in the election system''. Accord, Bradas v. Rapides Parish Police Jury, 508 F.2d 1109, 1112(5th Cir.1975). The history of discrimination does not presently preclude effective participation in the political system. Every phase of the processes of registration, voting, qual- ification, and running for a position on the City Commission is just as open to blacks as to whites. Past discrimination does not ''preclude effective participation' in Mobile City political affairs, nor in, for example, legislative races where blacks have been elected. As in the Fairfield case, the plaintiffs cannot prove ''that past discrimination pre- cludes the effective participation by blacks in the election system'". Nevett v. Sides, F.Supp. SUN. Du Ala, June 11, 1976). To the extent that blacks do not register, vote, or run for office to the same degree as whites, it is : a product of their own choice in the matter. Virtually every Southern city or county (and many Northern ones) has a sad history of racial discrimination; Mobile is not unusual in that respect. The concern is with present facts; in this case we should avoid if possible a result controlled by "legal standards...heavily weighted in favor of past events'. Yelverton v. Driggers, 370 F.Supp. at 619. ~30~ (e) Summary of ''Primary' Factors. It is there- fore seen that, for whatever value the Zimmer criteria may be after Washington, none of the four "primary" criteria of Zimmer are present in this case. Even under Zimmer, these negative findings should mandate judgment for defendants. However, to complete the record, the Court may wish to make findings herein on the "enhancing'' factors. 2. '"Enhancing'' Factors. (a) Large Districts. The multi-member dis- trict in this case constitutes the City of Mobile as a whole. As Judge Pointer ruled in the Fairfield case, "the election district must be considered 'large', at least in a relative sense. The district is as large as it can be'. Nevett wv. Sides, F.Supp. (N.D. Ala. June 11, 1976). The same is obviously true in Mobile. However, the district in Chavis which passed constitutional muster was much larger than Mobile, contain- ing 300,000 voters in 1964. 403 U.S. at 133, n.11l. The two at-large counties in White v. Regester were also much larger, containing populations of 1,300,000 and 800,000. Graves v. Barnes, 343 F.Supp. 704, 720(W.D. Tex.1972), aff'd in part & reversed in part sub.nom. White v. Regester, 412 U.S. 755(1973). While Mobile is not 'large'" in comparison to those districts, it is probably large enough to be con-~ sidered "large" within the meaning of this enhancing factor. (b) Majority Vote Requirement. Under Act 281, a majority vote is required for election. (c) Anti-Singleshot Voting Provisions. There “31 . is in Act 281 no "anti-singleshot'" voting provision; neither is there one in its current codification [ALA.CODE tit. 37, §89 et.seq.] or in Act 823. ? In a sense, as Judge Pointer held in the Fairfield dase, the numbered-position provision of Act 823 {[ov, iE Act 823 is invalid, tit. 37, §94] may have to some extent the same result. At least in part, then, the practical result of an anti-singleshot provision obtains in Mobile. (d) Lack of Residence Requirement. Act 281 does not contain any provision requiring that any commis- sioner reside in any portion of town. If Act 823 is valid, a residence requirement would be at a minimum anomalous and probably even unconstitutional, as it would require that the Commissioner in command of each particular function (for 29An "anti-singleshot' provision obtained in all city elections in Alabama from 1951 to 1961: A ballot commonly known or referred to as "a single shot'" shall not be counted in any municipal election. When two or more candidates are to be elected to the same office, the voter must express his choice for as many candidates as there are places to be filled, and if he fails to do so, his ballot, so far as that particular office is concerned shall not be counted and recorded. ALA.CODE tit. 37, §33(1), repealed September 15, 1961. Judge Pointer held that: (3)There is no anti-single shot voting pro- vision since candidates run for numbered positions. The numbered position approach does have some of the same consequences how- ever as an anti-single shot, multi-member race; because a cohesive minority is unable to concentrate its votes on a single candidate. The numbered position approach does, however, eliminate the problem caused when a minority group 1s unable to field enough candidates in anti~single shot, multi-member races. Nevett v. Sides, _ F.Supp. at C{R.D. Ala. June 11, 1974), Sh s————— -32- example, Public Safety) reside in and be elected from one particular side of town, accountable only to one third of the population notwithstanding jurisdiction over the entire City. If Act 823 is not valid, on the other hand, similar problems could likely ensue. In that event, the majority of the Commissioners could apparently assign what- ever tasks it wanted to the third commissioner, ALA.CODE tit. 37, §§95-96, or even perhaps no administrative functions, leaving the district which he represents effectively unrep~ resented in the administrative affairs of the City. There are no apparent, explicit state law limits upon such a practice contained in the optional commission form of gov~ ernment statute. ALA.CODE tit. 37, §89 et.seq. In sum, it appears that the enhancing factor dealing with residence requirements is intended to be con~ sidered in cases involving city councilmen or the like with identical duties, and is irrelevant to cases which, like this, involve the city commission form of government. If this factor should be deemed relevant, however, there is none. (e) Summary of Findings on "Enhancing Factors," and "Agcregate' of All Factors. There are in this case no "primary" factors present, but each relevant "enhancing" factor is present, for whatever value the Zimmer factors may have after Washington. Even prior to Washington, under Zimmer criteria alone, defendants would be entitled to judgment in this case. Since none of the "primary' factors are present, plaintiffs “33 : cannot be said to have proved an "aggregate'' of the Zimmer factors, and their claim must therefore fail on that ground alone, even under cases formulated prior to Washington v. Davis. But there are also other considerations which, for purposes of completeness of the record, merit consideration. VI. DEFENSES AND OTHER PERTINENT CONSIDERATIONS A. Traditional Constitutional Tolerance of Various Forms of Local Government. It may be appropriate to note that as a matter of constitutional law, the more "local" a government, the greater the leeway which has been given to it in constitutional/political cases. See, e.g., Abate v. Mundt, 403 U.S. 182, 185(1971). The Supreme Court has been particularly alert to avoid inflexible federal limitations upon the form of local government: Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet chang- ing urban conditions. We see nothing in the constitution to prevent experimentation. Sallors v, Bd, of Educ;, 387 U.S. 105, 110~-11(1967). The city commission form of government was itself an experiment, the evidence reflects; doubtless every form of local govern- ment was once in some degree experimental. To the extent that it is possible, cities should be allowed some measure of freedom in their attempts to solve or mitigate govern- mental problems. The Constitution should be flexible enough to allow that experimentation: Frequent intervention by the Courts in state and local electoral schemes would 3 - seem to run counter to the Supreme Court's...concern for innovation and experimentation at the local level. Note, 87 HARV.L.REV, 1851, 1860(1974). The second, third and fifth defenses raised by defend- ants reflect this policy of comity and federalism; oT as in Mayor of Philadelphia, "[tlhere are...delicate issues of federal~state relationships underlying this case'. 415 U.S. at 615. The federalism problem is made most acute by the fact that, if this Court were to impose single-member dis- tricts, in all probability the Court would have to order that the very form of government be changed, from a commis- sion form to another and different form, such as mayor/council. B. Necessity for Change in Form of City Government if Single-Member Districts Ordered. As enacted in 1911, as already noted, the Commissioners of the City of Mobile appor- tioned among themselves the duties of City government. In 1965, Act 823 was passed, providing that Commissioners be elected to specific posts for specific jobs. As previously discussed, since plaintiffs have not pre- vailed under either Zimmer alone or Zimmer as modified by Washington, it is not necessary that a Three-Judge District Court be convened to consider the validity of Act 823. Whether or not Act 823 is valid under §5, the Procrustean imposition of single~-member districting, as already noted, would bring on absurd and unconstitutional results caused 3lrechnically, these federal/state relations cases do not involved the''political question' doctrine, because that doctrine concerns relations between co-ordinate branches of the federal government. Jackson, The Political Question Doc- trine: Where Does It Stand After Powell v. McCormack, O'Brien v. Brown, and Gilligan v. Morgan? 44 U,COL.L.REV. 477,508-510 Twa (1973), “35 by the fact that city commissioners, unlike aldermen or councilmen, each perform different administrative functions. In order to avoid such an anomaly attendant on the imposition of single-member districting upon the commission form of gov- ernment, the Court would have to change the form of the City government. The problem is fraught with difficulty, and would clearly militate against the imposition of single- member districting as a remedy even assuming that plaintiffs had prevailed on the merits. C. "Swing Vote". Testimony in this case will show that blacks in Mobile not infrequently comprise a "swing" vote able to decide close elections to a degree significantly beyond their percentage in the population. While the actual effect is local in nature, it is a phenomenon which is not uncommon in multi-member district situations. E.g.,Lipscomb v. Wise, 399 F.Supp. 732, 793(N.D. Tex. 1975) (multi-member election permitted Mexican/Americans ''as a group to operate in a 'swing-vote' manner and give them opportunity they might not otherwisehave had"). As one legal CommenEatoY has written: A group of voters that influences many legislators in a small way is not in- herently less desirable than a group that has a large impact on one legisla- tor. Indeed, when other voters in a district in which the blacks constitute a minority are in a state of political equilibrium, it may be that the black group will wield political clout dis- proportionately large for its numbers. Carpeneti, Legislative Apportionment: Multi-Member Districts and Fair Representation, 120 U.PA.L.REV, 666,692-93(1972). The swing vote factor is entitled to evidentiary weight in support of multi-member districting. «35~ D. Banzhaf Theory. Defendants also expect to offer proof upon the statistical propriety of the Banzhaf theory, explained fully in Whitcomb v. Chavis, 403 U.S. 124, 145 n. 23(1971) ; Banzhaf, One Man, ? Votes: Mathematical Analysis of Voting Power and Effective Representation, 36 GEO. WASH. L.REV. 808(1968); Banzhaf, Multi-member Electoral Districts-- Do They Violate the '"One Man, One Vote'' Principle, 75 YALE L.J. 1309(1966). The thrust of the theory is that if votin power is defined as the chance that a voter will be able to cast a decisive vote, then individual voters in multi-member districts have more voting power than do individual voters in single-member districts. The theory is purely a statis- tical one, necessarily severed from the hard facts of poli- tical life, and is separate and distinct from the issue respecting the black vote as a swing vote, supra, which is factually based upon the Mobile political experience. The Supreme Court in Chavis declined to base its decision on the Banzhaf theory, noting that it was ''theoretical', 403 U.S. at 145, but did not deny that the theory was entitled to some (if not decisive) evidentiary weight. The theory is entitled to be accorded some evidentiary weight in favor of the retention of multi-member districting in the City of Mobile. E. City-wide Perspective. Evidence to be adduced by defendants will suggest that the City of Mobile has a legit- imate governmental interest in having commissioners with a city-wide, non-parochial view of city affairs. The evidence will further suggest that such a city-wide perspective would be in significant measure lost with the imposition of single- “37 member districting. The city-wide perspective has been found to be a legitimate governmental interest by both courts and commentators, In Lipscomb v. Wise, the District Court found a "legitimate governmental interest" in having some city council members with a "city-wide view on those matters which concern the city as a whole", 399 F.Supp. at 795, and suggested correctly that [bl]udget and services certainly do not stop at district boundaries'. Id, at n.15. One commentator has similarly written that: The district wide perspective and alle- giance which result from representatives being elected at-large, and which enhance their ability to deal with district wide problems, would seem more useful in a public body with responsibility only for the district than in a statewide legislature. Note, 87 HARV.L.REV, 1851, 1857 (1974). The desire of the City for a city-wide geographic per- spective is a factor entitled to some evidentiary weight in this case in favor of the present form of government. F. Increased Polarization and Possible "Minority Freeze-out'' Under Single-Member Plan. Defendants expect to adduce testimony showing that if a single-member plan of city government representaticn were adopted, the degree of racial /political polarization would in all likelihood at least stay at the same level, and perhaps increase, with the result that the white majority in the City would likely be able to elect a majority of the Commission. That, along with the fact that a single '"black' Commissioner and each "white" Commissioner would in a single~member situation probably espouse narrow, parochial views of principal interest to constituents of their single, racially homogeneous districts, ® ~35- ® would cause highly visible clashes in city government which, inevitably, would be seen as principally racial in nature. The probable result would be a virtual freeze-out of the single black Commissioner and his constituents. The same problem was found by the Court in Lipscomb: The Court is particularly concerned with the prospect of district sectionalism which usually occurs in an exclusive single~-member district plan. The Court is convinced that no matter how many single-member districts are drawn in Dallas, black voters in all probability would never elect more than 25% of city council so long as the present pattern of voting exists. With all single~-member dis- tricts and the present voting pattern, it would be possible for a majority of council to "freeze out" this 25% and for all practi- cal purposes ignore minority interests. 399 F.Supp. at 795, n.1l6 (emphasis in original). The sig- nificant possibility of such a minority freeze-out is en- titled to evidentiary weight against a single-member districting plan. pe G. Single-Member Districting and New Constitutional Problems. Single-member districting would import into Mobile city government two new and different constitutional problems which the City has so far been able to avoid: reapportion- ment and gerrymandering. 1. Reapportionment. One very significant factor in favor of multi-member districting is that, with the ex- ception pro tanto presented by the Banzhaf theory, multi- member districting without a residence requirement presents perfect numerical apportionment. Regardless of where a voter lives, his vote will exactly equal every other vote, even up to the end of each decade when post-census population shifts have malapportioned most single-member districts. «3485 Because of the notorious unwillingness of governmental bodies 32 there is in Alabama and elsewhere to apportion themselves, a significant chance that a United States District Court would ultimately be called upon to reapportion the City. The possibility or even likelihond of that decennial neces- sity certainly should give pause when considering whether to impose single-member districting as a constitutional require- ment. That possibility is properly to be considered when determining the propriety of single-member relief. 2. Gerrymandering. A multi-member district does not and cannot present the problem of gerrymandering of in- ternall> district lines. The imposition by this Court of single-member districting would for the first time in many ‘decades introduce into Mobile the problem of gerrymandering. Whether dttmarely brought into Federal Court as a constitu- tional matter or not, see Wright v. Rockefeller, 376 U.S. 52(1964), the problem would be a significant one. And it is entertwined with the problem of reapportionment, since the difficulty of political line drawing after each decennial census inevitably suggests inaction by incumbent officeholders. The related problems of reapportionment and gerry- : mandering have so far not been imported into the City of Mobile. The imposition of single~-member districting by this Court would do so for the first time in recent history. 32 : For the record of Alabama in that respect, see Stewart, Reapportionment With Census Districts: The Alabama Case, 24 ALA. L.REV., 693, 694 n.56(1972). | It is of course always possible for any city to attempt to draw its perimeter so as to include or exclude certain per- sons, see Gomillion v. Lightfoot, 364 U.S. 399(19560), but a multi-member district by definition has no internal district lines, fi (= That is a factor of evidentiary weight tending against the imposition of single-member districting. H. Flexibility of Federal Equitable Relief. Even if the plaintiffs were to have made out a claim for equitable relief, that would not necessarily entitle them to a change in the form of government, or to the imposition by this Court of single-member districts. Chavis makes clear that the Court, upon finding for plaintiffs in a case of this nature, ought to attempt if possible to remedy the wrong by action less drastic than the wholesale imposition of single-member districting: [I]t is not at all clear that the remedy is a single-member district system with its lines carefully drawn to ensure rep- resentation to sizeable racial, ethnic, economic or religious groups and with its own capacity for overrepresenting parties and interests and even for per- mitting a minority of the voters to con- trol the legislature and government of a state... Even if the District Court was correct in finding unconstitutional discrimination against...[plaintiffs,] it did not explain why it was constitutionally compelled to disestablish the entire county district and to intrude upon state policy any more than necessary to ensure representation of ghetto interests. The Court entered judgment with- out expressly putting aside on supportable grounds the...possiblity that the Fourteenth Amendment could be satisfied by a simple re- quirement that some of the at-large candidates each year must reside in the ghetto. Whitcomb v. Chavis, 403 U.S. 124, 160(1971). Certainly, even if plaintiffs prevail in the in- stant case, relief on less-than-a wholesale scale would accord with the precepts of equity, encompassing '[f]lexi- bility rather than rigidity". Hecht v. Bowles, 321 U.S. 321, 329~30(1944). Judge Johnson, for example, in an eT analogous but pre-Washington case, upon finding for plain- tiffs, merely ordered periodic reports to be made upon the issues of trial (street paving, ete), upon the ground that the City was making good-faith efforts and "the applicable legal standards are heavily weighted in favor of the consid- eration of past events'. Yelverton v. Driggers, 370 F.Supp. at 619. In sum, single-member districting is not necessarily the proper equitable remedy even if a constitutional vio- lation exists. VII. AVAILABLE POLITICAL REMEDY While the availability of a political remedy for plain- tiffs' alleged wrongs by no means mandates abstention, iL is certainly worth consideration for whatever significance it may have, A. Legislative Remedy. The form of city government presently obtaining in Mobile was, of course, passed by the Alabama Legislature in 1911. The evidence in this case will show that under the prevailing custom in the Legisla- ture called "legislative courtesy', that body will enact virtually any local government provision agreed upon by the local delegation. The Alabama Legislature is elected under a court- ordered plan approved by the Supreme Court, from single- member districts of near-perfect numerical apportionment. Several of the members of the Mobile legislative delegation are black and, plaintiffs would no doubt admit, represent 345ims v. Amos, 336 F.Supp. 924(M.D. Ala. 1972) (3-judge court), aff ¢,..-409 1,8. 942(1973). 2li2 « any 'particularized interests' of Mobile blacks in that body. In the course of the never-ending process of munici- pal government experimentation in Alabama and elsewhere, it does not seem inappropriate to suggest that ''relief' from a legislatively-imposed government may well be available to 35 plaintiffs and their class from the legislature. B. Abandonment. There is also available to the citi- zenry of Mobile a state procedure styled "abandonment', pursuant to which the voters can abandon the commission form of government and return to the aldermanic system obtaining prior to the adoption of the commission form of government. ALA.CODE tit. 37, §120 et.seq. That abandonment may be initiated by signatures of only three percent of the regis- tered voters of the City. Id. at § 120. It may be noted that the aldermanic form of government obtaining in Mobile prior to 1911 had a residence requirement for councilmen, so that a return to this form of government would provide the very relief (residence requirement) the imposition of which the Chavis Court said should be considered as quite possibly the appropriate form of relief if plaintiff pre- vails in a case of this nature. 403 U.S. at 160. Certainly the availability of this political relief to plaintiff under state law, while not determining the result here, should be of evidentiary weight in this case. 35 * - * The legislature, for example, recently provided for the City of Monteomery (which voted acceptance) a Mayor / hi J FZ Council form of government to replace its commission form. oS Ala. Acts No. 618(1973). See also Robinson v. Pottinger, 512 F.2d 775 (5th Cir.1973) (validity of that statute under state law) . 53 - / : y Ao Ty / ra # / ’ a "i EIT TI C. B. ARENDALL, JR.7 30th Floor, First National Bank Bldg. Mobile, Alabama 36602 Attorney for Defendants OF COUNSEL: HAND, ARENDALL, BEDSOLE, CREAVES & JOHNSTON AM Merged § 01.6. S. R, Cian City Hall Mobile, Alabama 36602 Attorney for Defendants OF COUNSEL: LE-AL DEPARTMENT OF THE CITY OF MOBILE CERTIFICATE OF SERVICE I do hereby certify that I have on this Cae of Joly , 1976, served a copy of the foregoing brief on F4 § cottadl for all parties to this proceeding, by mailing a copy of the same by United States mail, properly addressed and first class postage prepaid. APPENDIX A: CITY OF MOBILE GOVERNANCE [contains basic organizational statutes only] 1. 1814 [At-large]: Seven Commissioners were elected at-large for the town of Mobile; they elected a President from their number. Act of Legislature of the Territory of Mississippi, January 23, 1814. (Source: Toulmin's Digest p.780). 2. 1819 [At-large]: City of Mobile was incorpor- ated, governed by a Mayor and six aldermen to be elected at-large annually. Ala. Act No. (1819) (passed December 17, 1819). (Source: Toulmin's Digest, p.784) (Alabama became a state in 1819). 3. 1825 [neither at-large nor single-member dis- tricts]: A Mayor and six aldermen were to be elected at- large, after which they were to divide the City into three or more wards, from each of which two or more aldermen would be elected, not to exceed a total of nine aldermen. Ala. Acts No, (1826) (passed January 9, 1826). 4. 1833 [no change]: The Legislature provided for election of commissioners whose only duty it would be to divide the City into wards. No change was otherwise made in the form of government. Ala. Acts No. 68 (1833). 5. 1840: The change made in 1840 cannot be located. Apparently a form of government identical to the 1844 stat- utory form was adopted. 6. 1844 [mixed plan]: This statute consolidated a number of prior statutes. It provided that the City would be governed by a Mayor and seven-member Common Council, to be elected at-large, with a provision that one Common Council- man reside in (but not be elected from) each ward. There was also a Board of Aldermen, to consist of three members elected by the voters of each ward, or, a total of twenty-one alder- men. Ala. Acts No. (1844) (January 15, 1844). [Source: CODE OF MOBILE (1858)]. | 7. 1866 [mixed]: The number of wards was increased from seven to eight, but the form of government was not changed, Ala, Acts No. (1866). 8. 1868 [At-large]: This statute provided that the Governor was to appoint a Mayor, twenty-four aldermen, and eight Common Councilmen until their successors were elected. The statute did not limit appointments to geographic areas and was therefore apparently an at-large form. Ala. Acts So. © CWssAY. (p.4Y, 9. 1868 [At-large]: This repealed the earlier 1868 act. It provided that the Governor was to appoint twenty- four aldermen and eight common councilmen who would then assemble in convention and elect the Mayor. The statute explicitly provided that "under this act the Governor may appoint any inhabitant of the City of Mobile, without refer- ence to the ward in which he may reside." Ala. Acts No. 71 (1868). 10. 1870 [At-large]: This statute repealed the former act, declaring the former offices vacant. It provided that the Governor would appoint the Mayor, twenty-four aldermen, and eicht members of the Common Council, and also provided 2 that the Governor might appoint these officials without ~1ii- reference to which ward the appointee resided in. Ala. Acts No. 97(1870). 11. 1871 [no change]: This repealed section 3 of the 1868 act, which appears to have been already repealed in any event. Ala. Acts No. 148 (1871). 12, 1874 [At-large]: This statute provided that all of the City officials would be elected at-large, with a re- quirement that the aldermen and common councilmen must be residents of the wards for which[but not by which] they were elected. Ala. Acts No. 365 (1874). 13. 1879 [At-large]: This statute abolished the City of Mobile, and provided that the Governor, with the advice and consent of the Senate, would appoint three commissioners to liquidate the City. Ala. Acts No. 307 (1879). The sor session of the Legislature [Ala. Acts No. 308 (1879)] incor- porated the "port of Mobile". The Port of Mobile was to be governed by eight commissioners elected at-large, one for each ward who must reside in that ward. The Commission would then elect a President. 14. 1886 [At-large]: This statute, re-establishing Mobile as a city, provided a Mayor, a Board of Aldermen, and a Board of Councilmen, all of whom were elected at-large, [Id. at §12}, although one councilman had to reside in, but not be elected by, each ward. The Mayor, Board of Aldermen, and Board of Councilmen met together as "The Mayor and General Council", in which legislative power was vested. Ala. Acts No. 152 (1866). 15. 1897 [At-largel: No change significant to this case; same form of government was retained. Ala. Acts No. 214 (1897). -iv~ 16. 1901 [At-large]: No change significant to this case; same form of government was retained. Ala. Acts No. 1039 1/2 (1901). 17. 1911 [At-large]: The Commission form of govern- ment was established in 1911, the at-large feature of which has been continually in effect. Ala. Acts No. 281 (1911). 18. 1940 [specific duties]: This amendment provided that a Mayor would be elected specifically to that position, and a division of the administrative tasks was made by statute between the two associate commissioners, one of whom was assigned by the majority of them to each set of tasks, ALA.CODE, tit. 37, 895 (1940), 19. 1945 [numbered posts, no apportionment]: In 1945, the apportionment of administrative tasks by statute was re-~ pealed, but numbered posts were initiated. Ala. Acts No. 294 (1945), | 20,195 [ specific duties]: Specific duties were assigned to specific commission posts, and a system of rotation of the mayoralty was established. Ala. Acts No. 823 (1963). FILED IN CLERY'S OFFICE w STRICT OF ALABA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF . NORTHERN DISTRICT OF ALABAMA Southern Division JUN 11 1976 VANDEGRIFT, CLERK AMES E. s TRICT COURT, " UNITED STATES DIS BY: REVEREND CHARLES H. NEVETT, -. : Plaintiff, ) ) ~~, aL Yen, 0A 73. P=-520<8 ) LAWRENCE G. SIDES, et al., ) Defendants. ) . : 4 o MemorANDUM OF OPINION This court, under the mandate received June 10, 1976, 1s to Yeconsider its earlier decision in the light of the principles stated in the opinion of the Court of Appeals. Due to imminent deadlines for conplianie with election law procedures, oral 3 argument was, with consent of the parties, immediately scheduled. © This memorandum supplements (and, to the extent inconsistent, supersedes) the earlier findings and conclusions of the court, o> The first task is to make specific findings with respect to the four principal factors outlined in Zimmer v. HceKedlfhen, 485 F.2d 1297, 1305 (CA5 1973), as the criteria for determining "dilution®. {1) The plaintiffs, blacks residing in the City of Fairfield, have not demonstrated any lack of access to the brocess of siating candidates for clty elections; for in Fairfield there has been no such slating. Perhaps nor to the point, the evidence has not shown that blacks in recent years have been denied access to participation in any ‘parts or phases'of the election processes in Fairfield, €.8., Quallfying as candidates, campaigning, voting. -« (2) It has not been demonstrated that there has been unresponsiveness?” by city officials to the "particularized needs’ of blacks. This dis not, of courss, merely a question Of whether the city officials have listened to, and given : some. answer to, the special requests ol the black citizens . of ‘theicity, Noriis it a question of whether those officials have always complied with those requests. Rather, the standard involves an inquiry into whether the officials have reacted to those needs with sympathy and concern--such 28 vould ho expoeied of persons holding a public trust for : all the citizenry of a community, who are ultimately account- able to all the voters at the next election. Vhile the evidence has shown that blacks have fared less well durlng : an all-white city administration than during a racially- mixed administration or than under the laws of chance, it has . not established "unresponsiveness" under this standard. In this respect, it should be noted that the inquiry is directed to "unresponsiveness", referring to a state, conditlon or quality of being unresponsive, and is not established by isolated acts of being unresponsive. (3) Under state law, cities of the size of Fairfield are permitted to divide the city into wards and to decide upon the number of such wards.. If more than seven wards are created, then each ward, by vote of the ward, will elect 2 single member to the city council (with the president of the council, and perhaps other members being elected from the city at-large). If less than eight wards are Se then 21] members of the council will be elected by at-la vote, with two members being resident of each ward. “In view of this optional dichotomy, it cannot be sald that there is a state policy favoring at-large or multi-member districvus for city council in preference to single-member ward-elected districts. (Proof that there is no such state policy should suffice to establish that any such state policy is “tenuous” * S o u ’ (4) The plaintiffs have not proved that past dis- -erimination precludes the effective participation by blacks in the election system. The discrimination made known tO the court pre-dated the elections in 1968, in which six of the 13 persons elected to the council were black. The { to elect any blacks to hiv thirteen member council in 1 was not the result of past discrimination, but rather © consequence of (a) a AEA fo turn-out. 2 ‘higher perce of black voters than of .white voters, (b) bloc voting, and (c) at-large voting for numbered places. Next, the court is to make specific findings on the "enhancing p factors" outlined in Zimmer v. Ke iZh en, 4upra, 485 F.24 at 1305. (1) Since the past at large, the election 4i at least in a relative se it can be : elections have been from the city trict must be considered Ylarge®, se. The district is as large as (2) There 1s a Befonity vote requirement. Where, : “however, as. in the -1972 election, there are but two pecple running for virtually a1 positions, a majority vote require- ment is Tor practical purposes no different from a plurality vote requirement. (3) There is no anti- single ‘shot voting provision since candidates run for numbercd positions. The numbered position approach does have some of the same consequences however as an anti-single shot, multi-member race; because a cohesive minority 1s unable to concentrate its votes on a single can- didate. The numbered position approach does, however, ell- minate the problem caused when a minority group is unable to field enough candidates in antl-single shot , multi-member races. ! nN { Av EP . wh r p 5 (4) There 1s a provision, a requirement, that the at-large candldates for the city council (excepting the position of President) be residents of particular geogra- phical subdistricts. When this court cleaves its earlier decision, 1t 4ld so an the bellef that Ei Tuk ion” was established upon proof that (2) in a hm where blacks constituted a majority OF the voters in some of the districts but slightly less than 50% of the voters for the clty as a whole, (b) where voting rather strictly followed racial lines, (c) a "winner-take-all" election system by at-large voting for numbered places resulted in practice (da) in an all- white governing body, (e) whose declsions, though without indication of fraud or bad faith, quite understandably tended to reflect their own perspectives and the attitudes of those who elected them, to the relative detriment of the black minority, (f) including such matters as appointments to dbher Lenk and SuShlen Of the city. The court was of the view that such evidence demonstrated that the \ black plaintiffs "had less opportunity than did other residen cr in the district to participate in the political processes and to elect legislators of thelr choice." White v. Regesten, 212 U.S. 7585, 766 (1973). The court thought that the factors outlined in Zimmer vere $0 De taken as indicia of--but not necessarily the determinants of--"dilution". : : ne : The court now understands that its approach was in error and that "dilution" is to be defined as the "aggregate" of the factors outlined In Zimmer, bearing in mind that "all of these factors need not be proved in order to obitain relief." 485 ¥.2d4 at 1305. It appears that only one of the four primary factors--number (3)-- has been established by plaintiffs. Factors (1) and (4) have clearly not been proved. The evidence respecting factor (2) is nixed, but, using what the court believes to be the appropriate meaning of "unresponsiveness", thls factor has likewlse not been proved to the court's reasonable satisfaction. Ca Even when "enhanced" by two or possibly three of the Yaxtral factors, proof of factor.{(3) is insufficient “in the aggregate” under these criteria to establish a case-of “dilution.” According- . . ly, the court finds and concludes that there has not been proved an impermissible dilution of black votes under the existing Falrfleld system. It may be noted that there has been no evidence that the claimed "dilution" was the pesult of any invidious discriminatory purpose. Cf. Washington v. Davis, U.S. _ , 4h 1,.W. 4789 (June 75.1576), | Judgment in favor of the defendants will be entered by © - separate order. =~ this the [/[ ~~ day of June, 1576. Lam 0 i r : 1 / filed States Pistrice Tek FILED IN CLERX’S OFFICE : MNORTHERN DISTRICT OF ALABAMA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA Southern Division UN 11 1976 "REVEREND CHARLES H. NEVETT, ) JAMES E. VANDEGRIFT, CLERK UNITED STATES DISTRICT COURT ae Pleinbifs,: } py; -VS.- be -') No. CA 73~FP~529~8 5 ) LAWRENCE. G. SIDES, et al., ) Defendants.) . : {y] ORDER Upon the findings and conclusions contained in the Memoran- dum of Opinion filed concurrently herewith (supplementing and superseding those previously dictated into the racord), it is hereby ORDERED that this cause be dismissed, ‘with prejudice, a ) } h costs taxed against the plainti ( This the 7/4 doy of dune, 1575. ns United States District Fugen . “Ty Ye » - S E R — NEVETT v. SIDES 4231 Reverend Charles H. NEVETT et al., In- dividually, and on behalf of all others similarly situated, Plaintiffs-Appellees Cross Appellants, VY. Lawrence G. SIDES, Individually, and in his capacity as Mayor of Fairfield, Al- abama, et al, Defendants-Appellants Cross Appellees. No. 75-1864. United States Court of Appeals, Fifth Circuit. June 8, 1976. Black citizens brought action alleg- ing that state statute governing munici- pal elections in particular city operated to unconstitutionally dilute voting pow- er. The United States District Court for the Northern District of Alabama, at Birmingham, Sam C. Pointer, Jr., J., en- tered judgment from which all parties appealed. The Court of Appeals, Rives, Circuit Judge, held that to hold merely that an at-large election plan uninten- tionally “simply does act to inhibit and has inhibited voting strength” of blacks and that “in practice it has worked that way” is not enough; before court can devise a remedial plan, it must first have found a constitutional violation on the basis of findings of fact fitting the prop- er standards; and that if district court on remand properly found unconstitu- tional dilution, it should reconsider its addition of one at-large member to an otherwise single-member district plan, and should reconsider its denial of attor- ney’s fees to plaintiffs. Vacated and remanded. 1. Constitutional Law &=215.3 To hold merely that an at-large elec- tion plan unintentionally “simply does act to inhibit and has inhibited voting strength” of blacks and that “in practice it has worked that way” is not enough; before court can devise a remedial plan, it must first have found a constitutional violation on the basis of findings of fact fitting the proper standards. Voting Rights Act of 1965, § 2 et seq., 42 U.S. C.A. § 1973 et seq. 2. Constitutional Law <=225.3(1) A successful constitutional attack on an at-large voting plan must be based on findings in a particular case that the plan in fact operates impermissibly to dilute a voting strength of an identifia- ble element of the voting population. 3. Municipal Corporations <=80 Unless the criteria developed by the Court of Appeals point in the aggregate -to dilution of the voting strength of an identifiable element of the voting popu- lation, i. e., if the criteria “don’t really help,” then plaintiffs have not met their burden in attack on at-large voting plan, and the cause must fail. 4. Constitutional Law <=215.3 Even where there is evidence of ra- cial bloc voting, the Constitution does not require that elections be arranged so that black voters elect at least some can- didates of their own choice regardless of their percentage turnout. 5. Constitutional Law ¢=225.3(1) If district court properly finds con- stitutional dilution of voting strength of an identifiable element of voting popula- tion by at-large voting plan, it should reconsider its addition of one at-large member to an otherwise single-member district plan proposed by plaintiffs and adopted by the court. Synopses, Syllabi and Key Number Classification COPYRIGHT © 1976, by WEST PUBLISHING CO. The Synopses, Syllabi and Key Number Classifi- cation constitute no part of the opinion of the court. INDEXED I » i B I T T I P R L R A Y SR S it S P A a GA T A iv e is ik e 6. Federal 2743 If district court properly finds un- constitutional dilution of voting strength of an identifiable element of voting pop- ulation by at-large election plan, it should reconsider denial of attorney’s fees to plaintiffs in light of Voting Rights Act Amendments of 1975, and if fees are awarded on remand to the dis- trict court, they should be for all services of plaintiffs’ attorney, including his serv- ices on initial appeal. Voting Rights Act of 1965, § 14(e) as amended 42 U.S.C.A. § 19731(e); 42 U.S.C.A. § 1983. Civil Procedure &=2731.6, Appeals from the United States Dis- trict Court for the Northern District of Alabama. I. Ala.Code tit. 37, § 426 (Supp.1973): “Election of president of council and alder men.—In cities having a population of twelve thousand or more, there shall be elected at each general municipal election the following officers, who shall compose the city council for such cities, and who shall hold office for four years and until their successors are elected and qualified, and who shall exercise the legislative func- tions of city government and any other pow- ers and duties which are or may be vested by law in the city council or its members: A president of the city council, and in cities having seven wards or less, two aldermen from each ward, to be elected by the quali- fied voters of the several wards voting sepa- rately in every ward: except in cities of less than twenty thousand population, in which two aldermen from each ward shall be elect- ed by the electors of the city at large; in cities having more than seven wards, one alderman from each ward, and a sufficient number of aldermen from the city at large to make the total number of aldermen fourteen exclusive of the president of the council; and in cities having fifty thousand popula- tion or more the city council may create not exceeding twenty wards. The president of the council shall have the right to vote on all questions the same as any other member of the council Provided however, that the City council of any city having a population of NEVETT v. SIDES Before RIVES, GOLDBERG and GER Circuit Judges. RIVES, Circuit Judge: Three black citizens who presently re. side in Fairfield, Alabama, brought this action on behalf of themselves and all other black citizens residing in Fairfield. The defendants are the City of Fairfield. a municipal corporation, the Mayor of Fairfield, the members of the Fairfield City Council, the City Clerk, and the State Attorney General. The plaintiffs charge that, as applied, the state statyte which governs municipal elections ip Fairfield! operates to unconstitutionally dilute voting power. After answers of the defendants, and further refinement of the issues by the twelve thousand or more may by ordinance or resolution, if adopted by two-thirds vote of the city council more than six months prior to any general municipal election, pro- vide that the city council of said city shall consist of five aldermen to be elected from the city at large. And provided further, that the city council of any city having a popula- tion of more than thirty thousand, according to the last or any subsequent federal decen- nial census, or according to any census of such city made pursuant to article 3 of chap- ter 10 of this title, or Act No. 845 of the Acts de ti a S ordinance or resolution adopted by two- thirds vote of the city council, at least six months prior to a general municipal election, provide that the city council shall consist of a president and five aldermen. If such an ordinance or resolution is adopted one alder- man shall reside in each of the respective wards of the city, the president and all the aldermen shall be ele the city at large, and t only in case of a tie.” (emphasis added) The complaint seeking declaratory and in- junctive relief was filed May 30, 1973. Without dispute, the population of Fairfield is between 12,000 and 20,000. For purposes of conducting municipal elections, the City is divided into six wards, each containing an approximately equal number of voters. Two y the voters of dg a te ma EAE pre-trial order, voluminous evidence was introduced. The evidence consisted of documents, testimony from witnesses, and interrogatories and answers thereto by the parties. After each of the two hearings was conducted, the district court dictated into the record the court’s findings of fact and conclusions of law. On February 20, 1975, after the con- clusion of the first hearing, the district court “Ordered and Adjudged that par- ties present a plan to the Court, by May 1, 1975, consistent with the Court’s di- rections as dictated in the Court’s find- ings of fact and conclusions of law.” Pursuant to that order, six different plans were presented, four by the plain- tiffs and two by the defendants. The second hearing was on those plans, and the hearing concluded May 24, 1975. On June 6, 1975, the fistrie court entered its final judgment ¢ It. is ORDERED, ADJUDGED and DECREED as follows: fr... ¥ ct * s follows: 1. The defendants’ motion for recon- Lal of the court’s order of Feb- ruary 20, 1975, requiring modification of the existing system of election of members o the City Council of the City of Fairfield, is hereby denied. 2. Subject to possible modification under 3 conditions set forth in para- graph 3 below, the City of Fairfield, Alabama, beginning with the City Council elections of August, 1976, shall institute the following system of selec- tion of a nine-member City Council to replace the system currently in effect council members residing in each ward are elected at-large by the voters. The Mayor of Fairfield whose duties and functions are out- lined by state law, is also elected by the voters of the City as a whole. In addition, there is a president of the city council elect- NEVETT wv. SIDES 4233 pursuant to Title bama Code: 37, § 426 of the Ala- (a) Eight members of the council shall be elected from single member districts whose boundaries shall fol- low the outline of districts sub- mitted by the plaintiffs in their plan for eight districts, each member to be elected solely by the voters of his or her respective district. (b) A city council president, having the powers and duties specified by the laws of the State of Alabama, shall be elected at large by the vot- ers of the City of Fairfield 3. In the event there is conducted an official special census of the City of Fairfield, the City Council may within two months after the completion of the special census, but not later than May 1, 1976, request modification of the system of election set forth above, in which event the parties may submit to the court new proposals for the se- Yr Ad aww at Dye rere Fai mes gal ; i VE lection © embers of the city council + ju i ele at aay rd from districts apportioned according to the results of the special census. 4. There lay, this ju ing no just reason for de- ent shall constitute a final judgment in this case, though the court retains jurisdiction of the case for the limited purpose of possible fu- ture reconsideration of this judgment under the conditions specified above. 5. Costs are hereby taxed against the defendants. Plaintiff's motion for award of attorney’s fees is denied. Done this the 6th day of June, 1975. ed by the City voters at-large. The legisla- tive Powers ang i vested in unctions are 1 has a total s, the twelve rearing council piv of the City Coun 4234 Sam C. Pointer, Jr. UNITED STATES DISTRICT JUDGE The defendants filed a notice of appeal from each of the orders and judgments; the first entered on February 20, 1975, and the second on June 6, 1975. The plaintiffs moved for reconsideration of the district court’s denial of their motion for award of attorney’s fees, and on June 20, 1975, the district court refused to reconsider and again denied plaintiffs’ motion for attorney’s fees. The plain- tiffs filed notices of appeal from the or- der of June 9, 1975, and from the order of June 20, 1975. The relevant fact findings were either intermingled with or preceded Judge Pointer’s conclusions of law. None of the findings of fact, considered separate- ly from the intermingled conclusions of law, can be set aside as clearly errone- 52(a) F.R.Civ.P. We attach this opinion the findings of fact and conclusions of law made a or 4 the hear- ing which concluded February 20, 1975, as Appendix A, and those which conclud- ed after the hearing of May 24, 1975, as Ap B. ous. Rule The appeals and cross appeals of the parties cat for this court’s disposi- tion the following issues: (1) Did the district court err in deciding that the Fairfield City Council was malapportion- ed? (2) Did the district court err in re- jecting the two plans presented by the defendants or in accepting one of the plans presented by the plaintiffs? (3) Did the district one at-large member to the intiffs’ sug- gested single-member plan? (4) Did the district court err in refusing to grant plaintiffs an award of pl court err "in adding pla 9 5 we attorney’s fees? but without approval of views expressed by the School 2. Affirmed the constitutional 2arish Court of Appeals” East Carroll I NEVETT v. SIDES We vacate the judgments and remand the case for further proceedings not in. consistent with this opinion as more spe. cifically outlined in the concluding pars. graph. jis In Zimmer v. McKeithen, 485 F 94 1297 (5th Cir. 1973) (en banc)? after recognizing that multi-member district ing schemes are not per se Beans tional, id. at 1304, we stated t hat there is no claim of a racially gerrymander, plaintiff has the burden of proving that a plan operates to the voting strength of racial elements ip the population in order to establish the existence of a constitutionally impermis- sible redistricting plan, and we outlined the factors that prove dilution: when Rotini xi aiute [Where a minority can Somaptaaie a lack of access to the process of sl candidates, legislato ests, the preference at-large districting, or that the exist- ence of past « jsorimination in al precludes the effective participation in ystem, a Such proof, Fy 7” the unresponsiv €ness o rs to their particularized inter- a tenuous state policy for multi-me underl ny mber Or Pp gL 1 i Strong case 18 1S enh al unced by a vote vouiile ements, i majority shot voting provisions and oi provision for at ites running from part 1551511 3 +4 - " N m fo *» 7 3 Ai. listricts. The fact of di 1 - -large can- teria Ictiiial rE=- L graphical sub iIstencs an aggregate of these fac- ele] < forg.: Co os TAH need not be proved relief. Id. at 1305. See also Wallace 515 I'.2d 619, 623 (bth Cir. 1975) vacates ) ] and remanded or v. Marshall, = 1.8, 98 §.Ct. 1083, 4 L.Ed.2d 296 (1976) | | | a . s e T L r i A k a l l y R R A Cs S a l a : U.S. ———, 96 S.Ct. 1721, 48 L.Ed.2d — (1976) (per curiam). As indicated in Ap- pendices A and B to this opinion the district court made several findings of fact ® and then treated each of the stan- dards prescribed in Zimmer, finding that the political process is relatively open now, though not in the past? Having dutifully followed Zimmer, the trial court concluded as follows: “The Court finally ends up with the proposition that the various standards and indicia that have been prescribed by the appellate courts are not helpful .one way or the other in this case. And it ends up with this Court having to decide under the basic standards, does the present system, regardless of purpose, operate to minimize or cancel the voting strength of the blacks in the City of Fairfield. After belabor- ing, as 1 feel I must under these deci- sions with the principles that are in- volved and finding that they don’t re- ally help, I come to that question, which 1s the one I started off with, and I rule in favor of the plaintiffs. I believe that this plan [though not by Fairfield’s Setant PE ER Ty ply does operate to inhibit and has in- hibited the voting strength. 15 . It is possible and has been that at 3. The court determined that blacks represen 489, of the population in Fairfield and have at least 509; of the registered voters—while the figures show that blacks have 500 fewer regis- tered voters, the lower court found that since federal registrars registered 585 voters under the Voting Rights Act, most of those presuma- bly black, blacks have at least as many, if not more, registered voters now; that blacks had won six of the thirteen council positions in 1968, which was the first time, with one ex- ception, that any black had wom a position on the council; that no blacks won in 1972, but that if blacks had voted in the same percent- age as whites, they would have elected nine council members (assuming bloc voting); and o/h» NEVETT v. SIDES 4235 some particular election that could be reversed, but in practice it has worke that way, and as I view what the Su- preme Court has said, that means the system 1s due to be changed. is [1-6] While we sympathize with the trial court’s dilemma in light of its in- conclusive findings, we cannot affirm the ultimate conclusion of a dilution without findings of fact to fit proper standards. To hold merely that the plan unintentionally “simply does act to inhib- t and has inhibited voting strength” and that “in practice it has worked that way” is not enough. Before a court can devise a remedial plan, it must first have found a constitutional violation. As the Supreme Court said in Dallas County v. Reese, 421 U.S. 471, 95 S.Ct. 1708, 1708, 44 1.Ed.2d 312, 315 (1975): [A] successful attack raising such a constitutional question must be based on findings in a particular case he at a plan in fact operates impermissibly to dilute the voting strength of an Sent fiable element of the voting popula- tion Such findings must be based on the cri- teria that the Zimmer and Wallace courts dist rom White v. Regester LS f 412 11.8. 765-767, 93 S.Ct. 2332 72 that there has been substantial bloc voting. The foregoing is paraphrased from the Ap- kl pendices. 4. The court said: sible for blacks to prevail under the existing system. But that has not bee tion.”; the that there has! ) past, but that parently there has been none in recent years; that the political process has been far more resp the city council, but not totally unresponsive when blacks were not represented. The fore- going is paraphrased from the Appendices. it with one excep- court further concluded racial discrimination in the onsive when blacks were on o 423 2339-2340, 37 L.Ed.2d (1973) and in accordance with all later cases. Unless those criteria in the aggregate point to dilution, i e, if the criteria “don’t really help”, then plain- tiffs have not met their burden, and their cause must fail. Specifically, the trial court’s findings may be read as in- dicating that elections must be somehow so arranged—at any rate where there is evidence of racial bloc voting-—-that black voters elect at least some candi- . dates of their choice regardless of their percentage turnout. This is not what the constitution requires. Therefore, we remand to the district court to reconsider its findings according to the indicia of dilution stated in Zimmer and other cases and to redetermine the ultimate question of dilution vel non in light of its conclusions with respect to these cri- teria? If fees are awarded by the dis- trict court on remand they should be for all of the services of plaintiffs’ attorney, including his services on the present ap- 314, 324-325 Costs of appeal are taxed against the defendants-appellants. The mandate of 5. If the district court on remand properly finds unconstitutional dilution, then the district court should reconsider its addition of one at- larce member to an otherwise single-member district plan in light of the intervening Su- preme Court decision in East Carroll Parish School Bd. v. Marshall, —— U.S. ——, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam), aff’g Zimmer v. McKeithen, 485 F.2d 1297 (1973) (en banc), which reaffirmed the rule that when district courts must fashion a reapportionment plan to replace state legislation found constitu- tionally infirm, it should adopt a single-mem- ber-district arrangement unless there are “spe- cial circumstances.” Id. — U.S. at ——, 96 S.Ct. at 1085, at 299. See also Wallace v. House, U.S. == 96 S.Ct, 1721, 47 L.Ed.2d 296, 44 U.S.L.W. 3607 (1976) (granting certiorari from our decision, 515 F.2d 619 (5th Cir. 1975) which fashioned a “mixed” plan with one of five aldermen elected at-large) va- NEVETT v. SIDES this court shall issue forthwith. pw A.P. Rule 41(a). 5 VACATED AND REMANDED. APPENDIX A THE COURT: The Court at this time will enter find, = ings of fact and conclusions of law based on the evidence that has been presented in this case. This evidence consists of testimoae from witnesses, interrogatories and ag SAA ET swers thereto filed by the parties, ard certain documentary evidence in addi tion. The case is brought into court under the provision of Title 28 for jurisdict al purposes, and Title 42, Section 193% for purposes of the cause of action. ’ charge essentially is that the defendants, acting under color of law, have deprived or are depriving certain citizens, namely the plaintiffs, or rights and privileges inder the Constitution of the Unite States. There is no doubt but that defendants in what they are doing cating the judgment, and remanding for re sideration in light of East Carroll; United States, — U.S. ——, —— = ——, L.Ed.2d 2986, 639-40 (1976). tion, the lower court should also reconsider 5 lenial of attorney’s fees in light of section #& of the Voting Rights Act amendments of I P.L. 94-73, which adds a new section l4{(&} 18 Voting Rights Act, 42 U.S.C. § 1973I(e) 124 gives the district court discretion to autho: recovery of attorney's fees by prevailing in any action to enforce voting rights cr by the fourteenth and fifteenth amendmen: For the statute’s application to reapporucs ment suits under 42 U.S.C. § 1983 (1970), 121 Cong.Rec. 4735 (daily ed. 2 os If it finds dis June. 2, (remarks of Congressman Drinan); id. at iat (remarks of Congressman Edwards): S.Re3 No0.94-295, 94th Cong. U.S.Code Cong. & 1st Sess. 40 (1933 Admin. News. 1975, p. ¢¢5 A T A A R OT W E “i e i i a M i i d e d a m m a E E . APPENDIX A—Continued and about the election process are acting under color of law. Indeed they are act- ing as directed by state law, and they do not deny that. The City of Fairfield is a municipal corporation which falls in the classifica- tion of between twelve thousand and twenty thousand population. Its legisla- tive powers and functions are vested by law in a city council. The city council has plenary power over a variety of ac- tivities, including the raising and spend- ing of funds generally, the passage and enactment of ordinance, including im- provement ordinances, the awarding of or approval of certain contracts for im- provement, the appointment of a number of boards and agencies of the city, and indeed the selection of certain persons to simply be employees of the city on sub- mission or of recommendation from the Personnel Board of Jefferson County. Under the state law which goes back to 1909, the city of the size of Fairfield is directed to elect its councilmen or per- haps the terminology would be council persons which I will reject insofar as this opinion is concerned—to elect those by voting at large Depending upon the number of coun- cilmen to he elected, the law permits or directs that they have residency require- ments according to wards that are drawn up or that they be elected at large without regard to particular resi- dences within the city. Fairfield within the statute has elected to have six wards, and under this provision of law this means that there are two council- men to be elected with respect to each of the six wards, though they are elected by the city as a whole. In addition, there is a president of the council ele cted by the city at large without regard to within the city. And there is a mayor whose duties and functions of residency NEVETT v. SIDES 4237 course are outlined in state law. Some of the remarks I made about the powers and functions of the city council are, of course, subject to certain companion rights and duties that are given to the mayor by state la WwW The City of Fairfield is not that dif- ferent from many other cities in the State of Alabama, at least in the sense that until quite recently blacks were not elected to public office within that city and shared very little of the decision- making processes of the city. Apparent- ly until 1964 there were no blacks ap- pointed to the city boards and agencies of Fairfield, but there have since that time been appointments of black men and women to various ali of lead- ership within the city. Until 1968 no hioek, howerey) had been elected to a ge Fairfield. In 1967 bl office, one being for the ard to resic dency, f president of the city council, and the other six running for ward positions. All six of those who ran for ward it] re elected by the voters at | The council then from 1963 into 1972 was comprised 1. Els Ea 200 ana six ble 1eKs. In 1972 there were again blacks and whites quali ing to run for office for the city off A larger number of blacks qualified than had in 1968. Few- er whites, 1 bel lified to run in 1972, no doubt as at least in part the consequence of i tize or split the whit (1114 geil . : +h 1 and I think perhaps only in one instance was there a vote for a n from a ward in which there was more than one white in 1 ] rioinal race nl fam a hlaclk the original race and facing a black. In the ’72 election elected. And since 1 }- r the blacks were then we have a situation that there is a city council of 4238 APPENDIX A—Continued thirteen whites and no blacks white mayor. and a The thing that may make the case a little but unusual is the relatively high proportion of blacks with respect to pop- ulation in the city. In the 1950 or 1960 census, perhaps both, blacks constituted a majority by a very slim margin of the population of the City of Fairfield. In the 1970 census, black constituted ap- proximately 48 percent of the population of the City of Fairfield. Well, the Court does not have information as to the per- centage of registered voters which were black back in the 1950’s or even earlier. The Court has been provided by evi- dence with information about the num- ber of blacks or percentages of blacks on the registration lists in the City of Fair- field for the past seven years or so. It appears that at least by 1968 there were or there was as high a percentage of blacks who were registered as voters within the City of Fairfield as there was ‘of whites. Indeed the evidence present- ed by the Do indicated that blacks in the year 1968 constituted a higher percentage of registered voters within the City of Fairfield than they did a percentage of population within the City of Fairfield. This assumes for the type of calculation that the population ratio in ’68 was approximately that which was reflected in the census information of 1970, and also assumes that of the 883 persons who were enrolled under the Federal Registration Voters Procedure, virtually all of those were black. The registration of blacks as voters has con- tinued to be relatively high, at least, or I should say, relatively at the same rate as the registration of whites in comparison with population. I should again empha- size this is only speaking to what the situation has been over the last seven years. The Court is not If < blinding itself fe NEVETT v. SIDES to the likelihood that fifteen yenrq .. or at some point blacks were qualifie Ph vote at a much lower percentage th. were whites. And indeed there has pe evidence of that presented. The voting in the 1968 and 1970 al tions has been presented to Court by : series of exhibits. The Court has sub jected those to some scrutiny and studs It particularly has made comparisons he tween the votes received by various eas. didates in various wards and the DOD ie tion within those wards, and particular the racial composition of the ; within those wards. The statistics make clear what has been implicit in the testi Citizens mony, namely, that in the years loss and 1972, race has been a major factor in aT ng the way people voted within the City of Fairfield at city e tions. And there is a very correlation between in effect the race of voters and the persons for whom those votes were cast or these past two elections. very Le Fav 1S have been cast The Court has also determine for purposes of population is, and the racial ) hiv A Cli what the s composition is in the various wards {4 based on 1970 census. As pointed out by the plaintiffs in the presentation, there are difficulties be cause there are cross ward lines, wards, namely, fact that there are census blocks ward has dore is to take the minimum popula- tion figures, that is, those are totally within a used that as a starting point, als determin i turn he are not covered by an allocation on hese wards totally or these totally within wards. I then have appr : 1 bl S1X census blocks tha but one of the vard 2 is affected by the and all 1 $1 . a i \ lines. wnat the ( cross the blocks that particular ward, ig re ros ed the number of citizens 1 " 2431 tna black citizens thal based , number of RA A S S ig, | ac cc ob mn ia sc s APPENDIX A-—Continued tioned those so-called excess persons, ex- cess only from a statistical standpoint obviously, among the five wards where there are overlaps, that each of those five wards wards has a possible differ- ence between minimum and maximum I have done the same thing with respect to the number of blacks by wards. The figures I come out with are that Ward 1 has a projected population as of 1970 census of 1859 persons of whom 69.77 percent are black, namely, 1297. Ward No. 2 has 1912 persons pop- ulation in 1970, of whom 88.39 percent or 1690 are black. Ward No. 3 has 1365 persons of whom 52.75 percent or 720 are black. Ward No. 4 has 2590 persons population of whom 59.27 percent or 1535 are black. Ward 5 has 3501 persons in- the 1970 population of whom 47.84 percent or 1675 are black. And ward Number 6 has 3142 persons of the 1970 population of which 0.10 or 3 persons are population. The deviation in population between the several wards is to be done by com- the optimum of what the popula- tion of the wards would be if they were divided on a numerical basis and then seeing how each ward stands as a per- centage of that optimum. If that caleu- lation is done, it appears that Ward No. 3 is only 56.99 percent of the optimum size, while ward No. 5 is 146.18 percent of optimum size, and ward No. 6 is 131.- 19 percent of optimum size. This fur- ther means that there is a- maximum deviation by percentage point between the smallest and the largest of the wards of 89.19 percent. That also means that the treat ward by population size is 2.56 times as large as the smallest. Hitt ino puiing I, after having made the calculations, I'm not sure that they are that signifi- cant in the total context of this case. If this were a case in which the residents NEVETT v. SIDES 4239 of Ward 5 and Ward 6 were coming be- fore this Court saying that they were adversely affected or having their vote diluted by reason of the ward arrange- ments, os would have a much stronger case under Reese v. Dallas County, Ala- bama, on standards enunciated by the Fifth Circuit in December of last year in that case. That case really involved a situation where the identifiable group was totally confined within a single ward or division, and though it repre- sented approximately 50 percent of the vote in the population or total popula- tion, it could only elect 25 per cent of the representatives. In this case the identifiable groups that the Court is in essence being asked to look at are whites and blacks; and they are not confined to one or two wards, but indeed are spread throughout the wards, though of course rarying as I have indicated already in terms of the different wards. mi. 10e White Court de gion or of >s Supreme Court in has indicated for this Jon of election by erates to dilute or cancel the voting stre avarth of a racial or political group, then under the Constitu- tion of the United States, Fourteenth Amendment, it is in doubt here have been a series throughout the cou niry and many in the So sathonstery United ¢ att er mpted in the xxrid 3 A gk + a jay ) dn ® wl «! = ~~ a jo = He ao st two years to ot ement by the United The Fifth Cir- 8 in" Zimmer v. St: tates Sails me Co urt cuit Court of Appea McKeithen, has given the standards for this Court to apply to the pronounce- ment of the Supreme Court. And this decision by the Fifth Circuit has in turn been applied to a situation for the City of Dothan, Alabama, in February of last year In the case 2) Yelverton v. Driggers [M.D.Ala.1974, 370 F.Supp. 612 — — — — ™ ” ” , T T C — _ — — — — " — . , | | | ¢ 4240 NEVETT v. SIDES APPENDIX A-—Continued The principal issue for the Court to decide is, does the plan, though required by the state legislature, does it operate to minimize or cancel the voting strength of blacks in the City of Fair- field. It is not for this purpose critical to say that it was intentionally designed for that purpose. Blacks who bring this suit need not prove that. The question is whether it operates to do that. The question is not whether some political group or scientist thinks that individual districts rather than at large multi-mem- bered districts are better and in part counsel for plaintiffs argument suggest- ed that approach. That is not enough, though certainly the Supreme Court has indicated that if a Court is to replace or order some new plan, then there must be unusual circumstances for not ordering one that is based upon individual single districts. Four standards or indicia have been set forth as guidelines, if you will, in making or assisting the Court in arriving at a decision. One is the question of whether the existing system has resulted in a lack of openness to the political process by the complaining group, here blacks in the City of Fairfield. The Court has heard mixed evidence on that point. It is clear that blacks have pre- vailed in six or seven races which they entered in 1968 under this very system. It also seems probably that had more blacks qualified for ward positions in 1968, there would have been a majority of blacks elected to the city council. On the other hand, it is clear that with that one exception, all other election years under this system for variety of reasons has meant that blacks did not attain rep- resentation in the form of another black being elected to the city council. What the Court is left with then on this partic- ular point, and I so conclude, is that it is possible for blacks to prevail existing system. But it is alse tm that has not been the result exception. I should mention that Wit nese I Relp Wild +3, think, have heen quite candid, the that was asked, in saying that there oe no difficulty in qualifying to run # city council. It was essentially fm ai candidate’s standpoint a matter of mi ting out the vote, of getting r 10a § than the opponent or Opponents There is clear evidence that thers & polarization of votes by those whe vote in the City of Fairfield on ¢ tions. It is clear that enough [Opi not vote who were qualified to vy have elected nine out of twelve candidates in 1972 of their OWN rus black, if they could have been aged and helped or assisted to vote. also clear that there is some hesitanes i expressed by one of the witnesses, jres ficiently encouraging blacks to themselves in the electoral cause of some prior difficulty, particule ly in terms of difficulties of registra: ' 4 3 3 i 5 ery ¥ " Suan, OCHRE - ay HA vole: The Court is given a second indicia factor for this Court to determine. 1a 1 hictaryr ££ alie liar: RTT 18, tne history of radial discrimination 1 . . . have already indicated that until there were no blacks on th boards of the city. The during e fact on the city council, of almost fifty cent there were a series of pointed to various boards and 1 Y Id of having blacks on council. It also makes some rendering of the prior situation in wh= anise TIRE 1% on Bayi? * a blacks essentially did not serve on boards. Only on one occasion been a black majority on any agency of the city, and that 3 2] a8 68 to 72 when there were hist er y B F E s G E p r y a BE — _ — NEVETT v. SIDES 4241 APPENDIX A-—Continued the financing arrangement for a black or predominantly black college. It was sig- nificant to the Court that in describing the method for appointment or for re- placement of persons 4 terms ex- pired on various boards over the last sev- eral years, one of the witnesses identi- fied the positions being vacated and the questions of who would be reappointed in terms of there being a white vacancy or a black vacancy, indicating some con- scious characterization by city officials to the effect that boards would not become majority dominated by blacks, but only minority. There is little evidence that has been presented to this Court on as to history of racial discrimination, and little evidence presented by the defendants as to tack of racial discrimination. I suppose the Court is being baked to take judicial knowledge or notice of a lot of thing Certainly the Court isn’t blind to things that have happened: in Jefferson County or in Fairfield or in Alal yama. 1 do not think, however, that ppropriate to belabor notice in this area. It is certain- dence shows that —t questions” of Judicial ly true, and the evi there have been disparities in employ- ment of blacks within the City of Par: field, black policemen, black firemer blacks in civil service type jobs or classi- fied service, where only three out of some sixty are black. Only one on occa- Two out of some twenty police- men have hoon black, pny none of the {irc 1 have evidence i d Court’s t some discerim sions. een bla cmonstrates to the tha ther 2 WA in times satisfaction ination past. Of course there the city has brought out about some of are problems that its ‘hiring policies, and many of them are E 1 pv very dependent upon what some other rent, namely, civil service, may do. 4 I; VR ghey oq ’ > Evidence 1ndaicated oniy in one instance has there been a black on the qualifica- tion list who has been passed over in recent years in favor of a white There is much of the evidence that has been focused here on whether or not Fairfield has been responsive to the needs of the black community. And I find it very difficult to deal with this subject matter, though the courts have sald to me, that is, the appellate courts have said, this is a key factor in deciding this kind of question. I think it is clear that blacks have gotten far more respon- siveness from city council when there were blacks on the city counsel. It’s also clear that when there were blacks on the city council, they were more effective in perhaps persuading whites to join them in getting blacks on other city boards. And that way there were blacks on other city boards, though in a minority such as wo out of five. They on occasions were successful in hay ving one whiz te join with them to cons on some particular issue or issues. Q C> y— 3 ~ @ — i Q be t ? y, following this type of ap- proach, one can say that the lack of councilmen who are ba k certainly con- tributes to a lack of responsiveness to the needs of the blac vy community. But it 1s also true, and the evidence shows this, t hat blacks have not had the door tely Sloe in their faces insofar +h { L complet as expressing their opinions at city coun- cil meetings, in seeking assistance, presentin g petiti ons, being heard, and on some being given amounts to private audioneey for the presentation of the ] the witnesses have not been 00 SR to 1 1 1 } Sc AAT OL at anys admit it, the Court has sensed that some en answers, oC casions of these requests have gott not to the same degree that the witness- es or that the black communities as a , but there has not been a whole wantec total responsiveness merely be- lack of i i i f ; i H T H E e L E GRR CH ET FY T Y E T T oy ! 13 1% Is by ie P i 4242 NEVETT v. SIDES APPENDIX A—Continued cause there were no blacks on the city council. The state policy insofar as at large versus district voting is concerned is to this Court’s mind rather clear. There is a state policy, and has been for in excess of sixty years, against voting by smaller sub districts in those cities that were less than twenty thousand population. The policy seems clear to the Court that only if a city were larger than twenty thou- sand was there an opportunity to have district elections as such. What is not clear to the Court, and neither side has introduced evidence, is whether this ini- tial policy of the state legislature back in 1909 was in any way grounded upon ra- cial consideration or not. Now other courts have found and taken judicial no- tice of the fact that the 1901 Constitu- tional Convention in the State of Ala- bama was almost prim: arity directed and related to questions of racial concern and of assuring or wh to insure that whites would be able to control the polit- ical processes in the state. Whether the Court can in any way assume that a 1909 act passed by the legislature which is only eight years after a racially orient- ed Constitutional Convention has any re- lationship, I'm not sure. I think that a reasonable hypothesis is that this partic- ular matter dealing with at large elec- tions in cities of less than twenty thou- sand had no racial overtones, but there is no evidence really for the Court one way or the other. It would be pure guess- work as to what might have been the considerations for that passage. Finally, the Court has been told by a series of appellate decisions to look at a variety of additional factors such as the fact that people run for positions and hence there can be no single shot vote in a multi-member race that might be uti- lized by a minority to elect someone The Court finally ends up with proposition. that the various Standams, and indicia that have been presrib the appellate courts are not helpful way or the other in this case. And i ends up with this Court having to decide under the basic standards, does 1a present system, regardless of Purpose, operate to minimize or cancel t strength of the blacks in the ( : Fairfield. After helabering, as 1 feel} must under these decisions with the prin. ciples that are involved and finding thas they don’t really help, 1 come to ths: question, which is the one 1 started off with, and I rule in favor of the plain. ffs, wt Fe Ah 8% 3% I believe that this plan—and this is not that the City of Fairfield has inten tionally designed it; it came from the state legislature-—simply does operate inhibit and has inhibited the voting strength, which has been from 53 per cent to the present 48 per cent or in rate of 42 per cent, ly diminish that voting strength. It is possible and has been that at some par- ticular election that could be reversed, but in practice it has worked that way, and as I view what the Supreme Court has said, that means the system is due to be changed, is due to be changed giving the preference as the Supreme Court has directed to a Single member smaller dis trict which will be elected merely hy 8 is people of = particular district where the size of those particular tricts is consistent with the one-man-one- vote principle, which means pretty near- ly the same population in each of the districts. ££ *¥ ty* 22 LO eifectives {nere It is not clear to the Court that is a need for the Court to direct that there be thirteen or fourteen or six seven districts. I think the question how many wards would then be electing i g s ” APPENDIX A-—Continued groups is a matter to some degree of playing with what you have got, the size of areas and the population and configu- ration. Although the state statute com- prehends typically fourteen councilmen, it also comprehends, for example, a sys- tem of five councilmen in another way. And I'm not sure that in forms of for- mulating some plan to arry out the Court’s direction, the parties should nec- essarily be hound to fourteen districts. The question may arise as to whether there may be some councilmen elected by district, and then others elected at large. I would say that no more than one could be elected at large. Whether one can be elected at large or not is I think an open question, and I would be willing to see. I think that is the way we ought to handle it, depending on ii there is a request under a plan for there to be one such as council presi- dent to be elected at large. There hav e been some Hg re a variety of courts that have struck down a system, even where there are only two at large, and the rest are by smaller districts. The elections are due in August of 1976. There should be prese nted, I think, by the parties, and each party Ea ue as interest in this, a plan to accomplish direction of the Court. I would think that the plans should be presented by June 1st. I don’t want to put it off too long, but I think there should be ¢quate amount of time to look at it YI }£ study it and perhaps to use the re- curces of different groups in the com- unity Ly as well as perhaps outside assist- ¢. 1 think June 1st would be ade- ‘uate and still leave plenty of time after for consideration and decision, if ‘here is no agreement by the parties, I'still be able to have that in plenty of ‘me prior August, 1976 election. to the NEVETT v. SIDE Perhaps there are questions by the parties that I should pause for. MR. BARNES: May it please the Court, the question naturally arises about questions on ap- peal from the Court’s decision today, and I'm in doubt whether this is a final judg- ment. THE COURT: This would not be a final decision. However, since that only deals with the next election, and does not in any way disenfranchise the present council, and there is nothing appealable immediately, it sought to ba appealable after a new plan is developed. For example, there could be an appeal from the Court’s re- quirement for a plan and for what the Court finally determines in direction of the plan, one appeal instead of two. We still have plenty of time, if we do it that way. It may be, since you mentioned it, we ought not to put it off until June 1st to present a plan. Would the parties feel that May 1st is adequate time in which to develop a plan consistent with the direction of the Court? Your Honor, we can have a plan ready fort the Court hy the first of May. THE COURT What will be the position of the de- fendants? MAYOR ¢ SIDI ES: 1 think we can have it ready by May 1st. THE COURT: Let’s push that date back then to May Ist as the time for submittir ng ne with suggested plan or plans. It’s possi ble there could be more than one that will be presented as an option. ‘Ave there other questions by the par- 4244 NEVETIT v. SIDES APPENDIX A—Continued MR. STILL: No, sir. THE COURT: Then the case will stand on this deci- sion, thoug h it does not constitute an appeal: wble judgment, that will have to await approval of a. plan so that tha will be appealable also. (Whereupon, proceedings were adjourned at 4:04 P.M., Febru- ary 20, 1975) END OF PROCEEDINGS APPENDIX B THE COURT: The Court will now indicate certain findings and conclusions. These are based upon the evidence that has been produced in this case today together with the plans that have been submitted and received by the Court from the par- ties prior to today. Additionally, the court, of course, has before it the matters that were produced and heard in evidence back in February, for what bearing such evidence may have on the adoption of an appropriate plan. The Court has already indicated that though it considered the matter close, it was adhering to its conclusion announced in February. Namely, that the existing plan for election of alderman unconstitu- tionally dilutes the voting rights of black citizens in the City of Fairfield. The Court in February indicated that there should, therefore, be presented appropri- ate plans to alter for future elections the election method for alderman for the City of Fairfield. It indic ated at that time that the basic approach should be through the creation of wards or election districts from which in the future per- sons would be elected solely by the vot- 4 ers residing in such districts. The Court in February indicated t in devising such district plans the pa should be aware that such "i would have to comply not merely with the problems of avoiding dilution of vot- ing rights by particular groups of citi- zens, but also avoiding running afoul of the so-called one man-one vote principles as announced and enforced by the Su- preme Court and other appellate courts. The Court has received six different plans, four by the plaintiffs and two by the defendants. The Court should adopt one of the plans proposed by the defend- ants, if possible. The Court finds that it is not possible to adopt either of the plans proposed at this point by the defendants. The Court’s. conclusion is that the plans as submitted run afoul of the one man-one vote requirement. The plans as submitted by the City Council—that 5 the plan as submitted by the City Co cil utilizin the 1970 census Hourin ie and (b) those figures as adjusted by cer- tain proposed changes submitted here to- 1 day, nevertheless reflect that there is a deviation as points between the two districts as nav- ing the highest and lowest number of people in them, which insofar as the 1970 census is concerned, reflects a vari ation of 62 percent. Even with credi justments suggested by the defendants 2X (pressed in percentage SR iting atl = oflop 2 NOY OL xre 3 ex NL “NY 8 reflect a 37 percent variance or span of deviation. Jl The Mayor's plan, which has nol Deen elaborated upon in this 13 morning is one that would ull [ive separate districts. It likewise has been evaluated in terms of the 1970 3 and the 70 census as modified by ¢ in proposed adjustments. It wou 1d reflect viewed upon the 1970 census, 4 maxi- mum percentage deviation span of some APPENDIX B—Continued 51 percent, or considering the proposed adjustments, a maximum deviation per- centage span of 27 percent. These per- centages are far beyond that which is acceptable under the one-man one-vote doctrine. At least that is so where there are not clear historical reasons for iden- tifying and eating the districts unique- ly, as might be the case for example, in recognizing that counties have certain unique qualities. These rather are sim- ply parts of cities which have no unique special governmental characteristics inso- far as wards are concerned. The fact that the deviation is unac- cepta ible 1s also supported by the facts that plaintiffs have indicated that that range of variation can be avoided by other configurations. The plaintiffs have come forward with four plans. The maximum variation un- der these four plans is less than three percent variation between the largest and smallest. That three percent is to be contrasted as to above twenty percent as reflected in the one plan submitted by the mayor, which has the least amount of deviation in any plan submitted by the defendants. = it is cert inly possible find ar- rangements that do not have the kind of variation as reflected in the defendants’ plans. The plaintiffs’ figures do not reflect changes since 1970 in population, If full credit be given to the evidence presented by the defendants today as to certain changes i population, it would indicate that there would be significant varia- n population under the plans sub- possible and proper in an appropriate case to consider changes in popiatien from a preceding census. such changes should only be consider ed . who 1 “7. eye SOO EO a y « > 3 where they are reasonably accurate and NY nes ] Neverthele 288, i 1 mitted by the plaintiffs. I think it is ] ) i NEVETT v. SIDES 4245 reliable in terms of indicating the present population or the population in some particular point in time. With all due respect for the witness, Mr. Ellison, I do not believe that the projections as to population changes from 1970 as suggested by his testimony are such as to be reasonably reliable There are simply too. many variables that have not been taken into account. Indeed, some matters that have been broug ght out suggest that there are infir- A by the approach developed by him in an attempt to find out what the present population is. As will be indicated in a few minutes, there may be a special census yet to be taken by the city. That special census may justify changes from any plan the Court, in effect, puts into effect now. I do not fault the defendants in any way for suggesting changes in popula-. > tion or for being unable to show results of a special census. I think all the par- ties were agreed, however, that it was desirable to go forward now with the adoption of some Trans plan so that that might be reviewed upon rp il, and that it was not wise to simply defer this type of proceeding until some fre after a special census might be obtained dur- ing the summer. {(ie8iras ec el I find that I cannot accept the plans suggested by the defendants. I turn my attention to whether the plans, one or more of them, by the plain- tiffs, should be at least tentatively man- dated by the Crint subject to San adjustments that I will talk about. I do find that these plans do meet the one-man one-vote test insofar as the 1970 census is concerned. Though, it might turn out hat they would not, were a special census to be taken. NE — — — — — — | t i i 4246 NEVETT v. SIDES APPENDIX B—Continued In looking at the several plans that the plaintiffs have suggested, the court has attempted to follow certain sugges- tions that, in effect, both sides seem to present. One is that the total voting members on the Council should be an odd number so as to minimize chances of ties. Another is that it is probably pre- ferable to have the number of districts of something less than ten, for example. Even though this would reduce the num- ber of Council members, this seems to me to be rather implicit in certain of the matters that the plaintiffs have suggest- ed as well as being implicit in what the defendants have suggested. The Court has been troubled in that it did not want to be involved in mandat- ing if it could be avoided, a significant reduction in the number of elected alder- men contrary to the wishes of the people of Fairfield. There is a Supreme Court decision involving changes or reappor- tionment of a state legislature in Minne- sota that, in effect, indicated drastic or significant reduction in size of an elected body should not be mandated by the court under the guise of reapportion- ment if there were other alternatives available, That was Minnesota State Senate versus Bean. In this particular case, however, the State law leaves open to the individual cities a fair amount of freedom in deter- mining the size of its city council. It. would appear that probably the State law is broad and flexible enough to per- mit a city to choose to have a city coun- cil composed of four, six, eight, nine, ten, eleven, twelve, thirteen, or fourteen members plus a council president. The city council and the mayor, by responding to the Court’s request for a plan here, by suggesting five or six dis- trict plans, have indicated, as I view it, to the Court, that if there is to be a district type election that they would prefer not to have, for example, twelve districts, even though they recognized, according to the council president, that it would be easy enough under their own plan to simply subdivide their six pro- posed districts, and to come up with a twelve district plan. They have chosen not to do so. So, I take it that there is no policy, from the standpoint of the defendants, to suggest that a large coun- cil, that is, something in excess of ten, be established through a large number of districts. Accordingly, I do not feel that the Court is restricted in this particular case from adopting or approving a plan with something less than twelve distriets, even though that would mean a reduc- tion in the total number of aldermen on the City Council. 1 take it that is, In effect, the preference if there is going to be a district plan, that there be some reduction. One of the principal problems is whether or not there should be any at large elections, that is, other than mayor. I believe ti g facts of this case, an at large election of a president of the City Council. Under Alabama law, the president of the city council does have some unique powers +1 at there should be, given the and responsibilities different or in addi- tion to those possessed by the other council memoe powered, In effect, to act as mayor dur- rs. He is or she 1s em- » ing the absence o1 disability of the may- ., 4 or. The provisions of Section 428 of Ti- tle 37 along with certain opinions of the Attorney General of the State of Ala- bama indicate the president of ti Co imei) h: a © rorial role i ,OUnCil 18S a special role government. Of course, if to have such an at large election would result . i something tl dilution of the voting of a particular mi- wat would dilute or cause E E — _ — — — — — _ T E E T E R SE S E E S S B S — — NEVETT v. SIDES 4247 APPENDIX B—Continued nority group that might be precluded, but if it can be done in such a way as to preserve an at large election of a presi- dent, I believe that is preferable given State policy consideration. I believe that the eight member plan as suggested by the plaintiff, coupled with the at large election of a president of the City Council is a very meaningful and satisfactory resolution of this situa- tion. The maximum deviation range ex- pressed in percentage points for the eight persons who would be elected to the council is only 1.89 percent, and the average percentage deviation is point fifty-eight of one percent. Assuming that the voters were, by and large, to follow racial lines in selecting aldermen it would in effect insure that of the total nine member council, that is, counting the president as a member of the council, it would in essence assure that whites would have at least three members on the total voting council and oO that blacks would have at least three voting members on the council. In ef- 1 ‘ three additional membe rs would be LO» { de ee up tor go abs lepending i oO ’ oO voter turn out, interest and voter n If there were the same per- centage of whites and blacks registering to vote and then turning out to Vv a particular election, if they lowed voting racial patterns in how Ao voted, it would mean there would be five whites and five blacks elected, which is relatively A to the population lon within the city. If he whites, again assuming there were this racial pattern in voting, if Ce whites effect got out their vote in a particular election, then, presumably six seats on the council woul j e —~ >) —— = ® r— — (D D es h y ts whites. If the blacks, in effect, got. out their vote to a greate fogroa than the r | whites, the blacks could elect six out of nine seats. I don’t think it is required that the Court, and I would not do this, come up with some plan or the parties come up w ve a plan that would guaran- tee that whites or blacks have a certain number of seats. In selecting between several plans that are available, perhaps some credence should be given to the extent to which the expected voter par- ticipation might be generally reflective of the population characteristics. I think, then, and will so indicate by separate judgment that really just re- flects the ultimate conclusion, that for the next election there should be an eight member ward elected city council following the outlin e of those districts as contained in t he plaintiffs’ plan, together with an at large election of ‘a president of the oy council. however, should be modified, that is, the in jurisdiction if and as if there is a special the City Council should, or city government should have the opportunity to come in and request some modification from this plan based subject to Court should necessary So census undertake upon the results of such a special census. I would suggest hat I WwWoul SUP ETEST, that =d must take greater of the one-man one-vote princi- was true in the plans that the esented to it prior to defendants. Further- hin 13 well to indicate that if pions that are su who are all white shows increase of white positions over that ir would be expected on a pure- 1111 a 1m i 3a on 7 , ly popula basis, there may be some need to sort of justify that the plan they are coming up with is not in any way calculated or motivated in that Y> x a1 ain or ‘ rind : I am not saying that any such i in, for espect. example, would have to follow to any Be tt a oi re E T > i | } i H 4248 mathematical degree the voter popula- tion figures. If, for example, only there were to be a special census and a plan suggested to the Court which would show that probably 72 percent of the Council members would be white where- as only 53 percent of the population was white, 1 think the Court would be at least somewhat skeptical and suspicious as to whether there was some other ar- rangement that would be a little bit more compatible with the legitimate vot- ing interest of the minority. I say that only by way of indicating a type of atti- tude and not by way of saying there is any requirement as to any particular plan or lack of it. So, the Court will enter a final judg- ment as indicated. Of course, that judg- ment will be subject to appeal. I take it there will be an appeal of it. Upon a resolution of an appeal, should there be an affirmance, in effect, the Court will have retained jurisdiction over the case so as to be able to give consideration to some other plan that might be developed out of information obtained from a spe- cial census. Do counsel have any questions as to the nature of the Court’s ruling? [No response.] THE COURT: The costs will be taxed against the defendants. No attorneys’ fees will be awarded pursuant to the Supreme Court’s decision of last week. MR. STILL: Your Honor, if I may make one state- ment on that. We would appreciate an opportunity to make a motion for attor- neys’ fees and present a brief as to why we believe the Wilderness Society versus Morton is inapplicable in the present sit- uation. NEVETT v. SIDES THE COURT: Well, I am going to take it that you have orally made a motion at this time to that effect. I find that there is no common trust fund produced by your ef- forts, that there is no recalcitrant atti- tude or punitive measure that is due to be taken against the defendants that might otherwise, perhaps, be a basis for attorney’s fees. That while there might be justification for a claim based on the private attorney general theory, that that has effectively been knocked out by the Supreme Court’s decision. MR. DAWSON: Your Honor, we might further ask that to be included in the cost to be taxed here would be a reasonable sum for the assistance provided to the Court in the drawings of these various plans. THE COURT: The questions of cost are dealt with separately and are not matters that af- i? rik sllant’ae re Jr fect appellant’s remedy. You may present in an application on the cost bill such matters. I would have to say that I will be very skeptical as to the allowability of any expenses. MR. BARNES: May I ask that if a census should show a substantial change that that might af- its of either party to ask for a change in the number of districts. ‘HE COURT: Yes. in effect saying or approving at this point as being subject to modification, whether it is as to number of districts or size and location of them. I 1 wails ey 3. SRR EL I see the plan that the Court 1s Are there any other questions? [No response.] END OF PROCEEDING. Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.