Memorandum for the United States as Amicus Curiae

    UNITED STATES DEPARTMENT OF JUSTICE 

WASHINGTON, D.C. 20530 

  

Address Reply to the 

Division Indicated 
B77 Hi tan] 

and Refer to Initials and Number UV ( | 

DSD:MLG: myw 
DJ 166-3-45 
DJ 166-3-46 

Gilbert F. Ganucheau, Clerk 
United States Court of Appeals 

for the Fifth Circuit 
Room 102 
600 Camp Street 
New Orleans, Louisiana 70130 

Re: Bolden v. City of Mobile, No. 76-4210; Brown v. Moore, No. 77-1583 
  

Dear Mr. Ganucheau: 

Enclosed for filing are the original and seven copies of the Memorandum for the United States, which addresses both of the above-styled cases. Although the Court set no schedule for filing, all of the Parties in each case have filed briefs Or motions addressing the disposition of the cases, which the Supreme Court remanded tO this Court. Our memorandum addresses the same question. 

Sincerely, 

Drew S. Days, IIl 
Assistant Attorney General 

Civil Rights Division 

By: 

Mark L. Gross 
Attorney 

Appellate Section 

cc: J. U. Blacksher, Esq. 
Edward Still, Esq. Ty 
Jack Greenberg, Esq. 
William C. Tidwell, III, Esq. 
William H. Allen, Esq. 
Robert CC. Campbell, 111, Esq. 
James C. Wood, Esq. 
Ralph Kennamer, Esq. 

 



  

' IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

Nos. 76-4210 and 77-1583 

WILEY BOLDEN, et al., 

Plaintiffs-Appellees 

Ve. 

CITY OF MOBILE, et al., 

Defendants-Appellants 

  

LEILA G. BROWN, et al., 

Plaintiffs-Appellees 

Ve 

JOHN L. MOORE, et al., 

: Defendants=-Appellants 

  

ON REMAND FROM THE SUPREME COURT 

  

MEMORANDUM FOR THE UNITED STATES 
AS AMICUS CURIAE 

  

INTRODUCTION 

The Supreme Court has remanded both these cases to this 

Court for further proceedings in light of its decision in City of 

Mobile v. Bolden, 48 U.S.L.W. 4436 (U.S. April 22, 1980). This 

Court must now consider (a) what effect the Supreme Court decision 

has on each case and (b) what disposition is appropriate. We 

file this memorandum to address those issues. 

In our view, the holding of the Supreme Court's decision in 

City of Mobile v. Bolden is that this Court used an improper legal 
  

 



  

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standard when determining that Mobile's at-large electoral 

system was intentionally discriminatory. Under the decision 

in Bolden and the Supreme Court's order in Brown v. Moore, 48 

Uv.S.L.W. 4481 (U.S. April 22, 1980), the record in each case 

should be reconsidered in light of the standard set down by the 

Supreme Court in Bolden. 

INTEREST OF THE UNITED STATES 

Congress has placed upon the Attorney General important 

responsibilities for protecting the voting rights of United 

States citizens. The Attorney General is authorized by 42 U.S.C. 

1971 and 1973j to institute actions to prevent the denial of the 

right to vote on grounds of race or color. Resolution of the 

issues presented in these cases will directly affect cases brought 

by the Attorney General to protect the voting rights of American 

citizens. 

The United States filed a brief as amicus curiae in the 

Supreme Court addressing both City of Mobile v. Bolden and Williams 
  

  

v. Brown. We filed an amicus brief in Bolden v. City of Mobile 
  

when it was last before this Court. 

STATEMENT 

On March 29, 1978, this Court affirmed the district court's 

decision in Bolden v. City of Mobile, 423 F. Supp. 384 (S.D. Ala. 
  

1976), which held that the at-large system of electing Mobile's 

City Commission unconstitutionally diluted the voting rights of 

the city's black citizens. Bolden v. City of Mobile, 571 F.2d 
  

238. On June 2, 1978, this Court summarily affirmed the district 

court decision in Brown v. Moore, 428 F. Supp. 1123 (S.D. Ala. 

1976), which held that the at-large system of electing Mobile's 

 



  

- 3 

Board of School Commissioners also diluted the voting rights of 

the city's black voters. Brown v. Moore, No. 77-1583. In both 

cases, this Court and the district court relied primarily on the 

legal standard this Court established in Zimmer v. McKeithen, 
  

485 F.24 1297 (5th Cir. 1973) (en banc), aff'd on other grounds 

sub nom., East Carroll Parish School Board v. Marshall, 424 
  

  

U.S. 636 (1976). This Court stated that proof of the factors 

delineated in Zimmer 1/ showed the racially discriminatory effect 

of an electoral scheme and raised an inference that it was adopted 

or maintained with racially discriminatory intent. See 571 F.2d 

at 245-246. 

On April 22, 1980, the Supreme Court issued its opinion 

  

in City of Mobile v. Bolden, No. 77-1844. In a decision with no 

majority opinion, the Court reversed the judgment of this Court 

and "remanded [the case] for further proceedings." On the same 

day, the Court per curiam vacated this Court's Brown v. Moore 
  

judgment and remanded the case "for further proceedings in light 

of" the City of Mobile v. Bolden decision. Williams v. Brown, 
  

  

48 U.S.L.W. 4481. 

DISCUSSION 

l. The Supreme Court's City of Mobile v. Bolden decision 
  

Since there was no majority opinion in the Supreme Court's 

  

_1/ In Zimmer, this Court cited the following factors as establishing 
that a voting plan dilutes the voting strength of the racial minority: 

‘ (a) racial bloc voting, (b) a lack of minority access to the political 
process, (c) public officials who are not responsive to the needs of 
the black population, (d) a history of racial discrimination, and (e) 
a tenuous state policy supporting the electoral scheme. 485 F.2d at 
1304-1305. 

 



- 4 = 

City of Mobile v. Bolden decision, this Court must review the 
  

opinions in order to determine the holding which binds this 

Court on remand. 

Justice Stewart wrote an opinion which was joined by the 

Chief Justice and Justices Powell and Rehnquist. Justice Stewart 

stated that racial dilution was not a violation of the Fifteenth 

Amendment, which prohibits only actions denying or abridging the 

right to vote. 48 U.S.L.W. at 4438. He found that racial dilution 

does violate the Fourteenth Amendment, and agreed with this Court 

that the Fourteenth Amendment prohibits only those plans established 

or maintained by intentional discrimination. Id. at 4439-4440. 

Justice Stewart held, however, that this Court erred in 

relying on the Zimmer factors to determine whether there was 

intentional discrimination. "Although the presence of the 

indicia relied on in Zimmer may afford some evidence of a 

discriminatory purpose, satisfaction of those criteria is 

not of itself sufficient proof of such a purpose." Id. at 4441. 

Justice Stewart's view is that the Zimmer factors do not focus 

directly enough on the actions or motives of the legislators, or 

other government personnel, who are in a position to change or 

prevent change of the electoral scheme (ibid., n. 20): 

Among the difficulties with the District 

Court's view of the evidence was its failure 

to identify the state officials whose intent 

it considered relevant in assessing the 

invidiousness of Mobile's system of govern- 

ment. To the extent that the inquiry should 

properly focus on the state legislature, 

see n. 21, infra, the actions of unrelated 

governmental officials would be, of course, 

of questionable relevance.  



  

- 5 = 

Justice Stevens concurred in the decision to reverse, 

but on different grounds. He disagreed with Justice Stewart, 

stating that dilution could be reached under the Fifteenth Amend- 

ment. 48 U.S.L.W. at 4444. A political majority's decision to 

limit the voting strength of one group was not, in his view, a 

question of racial discrimination, but an attempt to gain or 

maintain political power, id. at 4445, and therefore, he would 

apply the same standard to racial dilution as he would apply to 

dilution of the potential voting strength of any identifiable 

minority group, ibid. Justice Stevens stated that a voting plan 

should be invalidated only if it "(l1) * * * was manifestly not 

the product of a routine or a traditional political decision; 

(2) * * * had a significant adverse impact on a minority group; 

and (3) * * * was unsupported by any neutral justification and 

thus was either totally irrational or entirely motivated by a 

desire to curtail the political strength of the minority." Id. 

at 4445. Since in his view, there are legitimate, nonracial 

bases for Mobile's at-large electoral system, Justice Stevens 

stated that he would uphold it even though the record does show 

that "some support for [the plan's] retention comes, directly or 

indirectly, from members of the white majority who are motivated 

by a desire to make it more difficult for members of the black 

minority to serve in positions of responsibility in city govern- 

ment." Id. at 4446. He would apply that analysis under both the 

Fourteenth and Fifteenth Amendments. Id. at 4444. 

 



  

-llp 

The other four justices, in three separate opinions, 

agreed with Justice Stevens that the Fifteenth as well as the 

Fourteenth Amendment prohibit racially discriminatory dilution. 

The four also agreed that this Court's Bolden opinion adequately 

and properly determined that Mobile's retention of the at-large 

system was intentionally discriminatory. Justice Blackmun con- 

curred in the reversal because he viewed the district court's remedy 

as a too-drastic restructuring of Mobile's government. Two 

members of the Court (Brennan, J. and Marshall, J.) held that a 

violation of the Fourteenth or Fifteenth Amendment in a dilution 

case can be established by showing that a plan effectively submerges 

the voting strength of black voters (Marshall, J., 48 U.S.L.W. 

at 4451). 

No five members of the Court agreed on a standard of proof 

for dilution under the Fifteenth Amendment, 2/ or under Section 2 of 

the Voting Rights Act of 1965, 42 U.S.C. 19733. Nor did any justice 

discuss whether there was a private right of action to enforce 

Section 2. 

Since there is no majority opinion, this Court must be 

guided by the narrowest ground on which the case was reversed. 

See, 'e.g., Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976) 
  

(opinion of Stewart, J., Powell, J., Stevens, J.); Marks v. United 
  

  

2/ A majority of the Court disagreed with Justice Stewart that 
dilution does not violate the Fifteenth Amendment. However, no 
five justices agreed on a standard to govern the Fifteenth Amend- 
ment. The standards in Justice Stewart's opinion addressing 
proof of discriminatory intent apply only to allegations that an 
at-large system of election violates the Fourteenth Amendment. 

 



- TF - 

  

States, 430 0.85. 188, 193 (1977). Five justices (Stewart, 

Burger, Powell, Rehnquist, and Stevens) agreed that this Court 

erred in holding that proof of the Zimmer factors alone proved 

that the electoral scheme was adopted or maintained with discrimi- 

natory intent. 

While the five agreed that Zimmer stated an improper 

standard, they did not agree on the standard to govern 

a claim that an electoral plan is unconstitutionally racially 

dilutive. In determining the proper standard, the Court should 

apply the least stringent standard which would command a majority, 

which, in this case, is the standard set forth in the Stewart 

plurality opinion. Presumably, Justices Brennan, Marshall, 

White and Blackmun would agree that proof which satisfies Justice 

Stewart will demonstrate a Fourteenth Amendment violation. 

In a case such as this Justice Stevens' standard would be more 

difficult to meet. 3/ 

2. Issues Left Open By The Supreme Court's Mobile Decision 
  

Defendants in both Bolden and Brown contend that the Supreme 

Court's decision in Bolden requires that both cases be dismissed. 

Bolden Br. 16; Brown Mot. 9. The Supreme Court did not so direct. 
  

When the Supreme Court intends that a remand be for the purpose 

of dismissing the complaint, it usually makes that direction 

clear. See, e.g., Golden v. Zwickler, 394 U.S. 103, 110 (1969) 
  

  

("The judgment of the District Court is reversed, and the case 

  

~3/ Since none of the parties are arguing that the at-large 

electoral system has absolutely no legitimate governmental basis, 

under Justice Stevens' opinion plaintiff's constitutional challenge 

cannot succeed. 

 



  

- Bi 

is remanded with direction to enter a new judgment dismissing 

the complaint"). See also New York Civil Service Comm'n wv. 
  

Snead, 425 U.S. 457, 459 (1976) (per curiam). In contrast, the 

Court's judgment in Bolden stated only that the case is to be 

remanded "for further proceedings," 48 U.S.L.W. at 4443, and 

in Brown it ordered a remand "for further proceedings in light 

of" Bolden. 48 U.S.L.W. 4481. 

Moreover, the plurality opinion in Bolden anticipates further 

proceedings on remand. The Court did not resolve the question 

whether the Mobile electoral system was maintained with discrimi- 

natory intent. The Court held only that the case was decided on 

an erroneous standard (see pp. 4-7, supra), not that the case must 

fail under the proper standard. 4/ 

The defendant City of Mobile argues that the plurality 

held that the plaintiffs failed to prove discriminatory intent 

under any theory of law (Br. 11-12), and cites language in the 

opinion for support. At page 14 of the plurality opinion Justice 

Stewart stated "the evidence in the present case fell far short 

of showing that appellants ‘conceived or operated [a] purposeful 

device[] to further racial discrimination." 48 U.S.L.W. at 4440. 

  
4/ In addition, the Court did not reach any conclusion at 

all on other issues -- the standard under the Fifteenth Amendment 
or under Section 2 of the Voting Rights Act or a private right 
of action under Section 2 -- presented in these cases. Therefore, 

these issue are open on remand. 

All of the Justices agreed that the Zimmer factors proved that 
the at-large system had a discriminatory effect on Mobile's black 
voters. That issue therefore has been conclusively determined and 
is not open to further review. 

 



  

- 0 - 

However, when viewed in the context of the entire opinion, itis 

evident that the plurality did not intend to foreclose the issue 

whether plaintiffs proved discriminatory intent. 

The plurality opinion assumed that the lower courts viewed the 

record, and made their findings of intent, based solely on the Zimmer 

analysis and it was that analysis which the plurality was rejecting. 

At page 16, Justice Stewart stated, "[tlhe so-called Zimmer 

criteria upon which the District Court and the Court of Appeals 

relied were most assuredly insufficient to prove an unconstitu- 

tionally discriminatory purpose in the present case." 48 U.S.L.W. 

at 4441 After concluding that Zimmer factors do not by themselves 

prove "an unconstitutional discriminatory purpose in the present 

case," Justice Stewart specifically refrained from concluding 

that other evidence in the record could not support a finding of 

discriminatory intent. 5/ As stated, the plurality's main point 

was that the Zimmer factors do not focus directly enough on the 

motives of those governmental officials able to change or prevent 

change of the electoral scheme. 48 U.S.L.W. at 4441 n. 20. 

However, the plurality did not state that the record, when properly 

considered, would not demonstrate sufficient relevant intent. 

In fact, it left open that very question. After reviewing the 

  

_5/ In his dissent, Justice White discussed the quotation cited 

by defendants. He said that the plurality's conclusion was that 

"the evidence [the lower courts] relied upon 'fell far short of 
  

showing' purposeful discrimination." 48 U.S.L.W. at 4448 (emphasis 

added). This Court and the district court relied upon the Zimmer 

evidence to find intent. 

 



“ 10 

evidence relating to the Zimmer factors, Justice Stewart said 

(48 U.S5.L.W. at 4441 n. 21): 

There was evidence in this case that several 
proposals that would have altered the form 

of Mobile's municipal government have been 
defeated in the state legislature, including 
at least one that would have permitted 
Mobile to govern itself through a mayor 
and city council with members elected from 
individual districts within the city. Whether 
it may be possible ultimately to prove that 
Mobile's present governmental and electoral 
system has been retained for a racially 
discriminatory purpose, we are in no position 
now to say. (emphasis added) 

  

  

  

  

  

In addition, the three dissenting justices recognize that 

the plurality opinion contemplates that the record will be reviewed 

by the lower courts (opinion of White, J., at 48 U.S.L.W. at 4449; 

opinion of Marshall J., joined by Brennan J., 48 U.S.L.W. at 4459 

Ne 39). 

Finally, this reading of Bolden is consistent with the Supreme 

Court's usual practice. When it decides that the lower courts 

used an erroneous standard of proof in a case it generally remands 

the case to permit the lower courts an opportunity to examine 

the evidence under the correct standard. For example, in Maggio 

Vv. Zeitz, 333 U.S. 86 (1948), the Supreme Court found that the 

courts below applied certain unwarranted presumptions. "When 

such a misapprehension of the law has led both courts below to 

adjudicate rights without considering essential facts in the 

light of the controlling law," the Court will remand the case for 

"further proceedings consistent with the principles laid down 

in the Court's opinion.” 333 U.S. at 77. See also Buzynski v.    



«NY - 

Luckenbach 8.8. Co., 277 U.S. 226, 228-229 (1928) (case reversed 
  

and remanded for further proceedings); Manufacturers' Finance Co. 
  

v. McKey, 294 U.S. 442, 453-454 (1935); Ramsey v. Mine Workers, 
  

401 v.85. 302, 308 n. 5 (1971)." In Dayton Board of Education v. 
  

Brinkman (Dayton I), 433 U.S. 406, 419 (1977), the Supreme Court, 
  

after holding that the lower courts failed to determine constitu- 

tional violations by proper standards, remanded the case for 

further findings and, if necessary, the taking of additional 

evidence. 

In Bolden, the Supreme Court's decision permits this Court 

to reconsider whether Mobile's at-large City Commissioner election 

system was discriminatorily maintained. In Brown v. Moore, this 

Court's decision was simply vacated and remanded for reconsidera- 

tion in light of Mobile, without consideration by the Supreme Court. 

For that reason the Brown record concerning the election of the 

school board is clearly open for reconsideration in light of the 

standard of proof developed in City of Mobile v. Bolden.   

3. Disposition On Remand 
  

The United States suggests that both cases be remanded to the 

district court to allow it to make findings of fact directed at 

whether the at-large systems were maintained by intentionally 

discriminatory action or inaction. 

As noted above (see pp. 4-7, supra), the plurality held that 

both this Court and the district court relied only on findings 

concerning the Zimmer factors to raise an inference of -discrimina-  



  

- 10 

tory intent. Although both the district court and this Court 

relied primarily on the Zimmer evidence, both courts also relied on 

other evidence to support the findings of discriminatory intent. 

Nevertheless, a plurality of the Supreme Court appears to believe 

that the Zimmer factors provided the only basis for those findings. 

Therefore, we think it most appropriate to make additional findings 

directed at the standard articulated by the plurality. 

The plaintiffs have set out a detailed recitation of the 

evidence which we will not repeat here (Br. 14-22). The facts 

put forth by plaintiffs, if accompanied by proper findings, in 

our view, would support an ultimate finding of discriminatory 

intent. 

A. Bolden v. City of Mobile 
  

The plurality stated that the evidence of discriminatory 

intent in this case must be measured by the Court's decision in 

Village of Arlington Heights v. Metropolitan Development Housing 
  

  

Corp., 429 U.S. 252 (1977). Although, as the plurality recog- 

nized, the discriminatory effects which were proved under Zimmer 

"may afford some evidence of a discriminatory purpose," 48 U.S.L.W. 

at 4441, the record must be viewed under the type of factors set out 

in Arlington Heights in order to determine whether the system 
  

has been discriminatorily maintained. 

The record does contain the type of evidence which is neces- 

sary under Arlington Heights to prove discriminatory intent. For 
  

example (see p. 8 n. 4, supra) as recognized by both lower courts 

and the Supreme Court, the at-large electoral system does effectively 

 



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submerge the potential influence of Mobile's black voters. In 

addition, under the at-large electoral system no blacks have 

ever been elected. 571 F.2d at 243. Arlington Heights recognizes 
  

that "[t]he impact of the official action * * * may provide an 

important starting point" toward determining whether there has 

been intentionally discriminatory action. 

There is also evidence concerning actions of state legis- 

lators which would be relevant under Arlington Heights. 
  

The record establishes a long history of racial discrimination 

against black voters by the same Alabama legislature which enacted, 

and has maintained, Mobile's at-large electoral system. The 

record also shows that there has been recent legislation (Act 

823, passed in 1965) affecting the at-large system. See 571 

F.2d at 24 n. 2. Act 823 established specific city-wide responsi- 

bilities for the three City Commissioners for the first time. It 

followed, by approximately two months, Congress' enactment of 

the 1965 Voting Rights Act, Pub. L. NO. 89-110, which promised to 

enable many blacks to register and vote in Alabama for the first 

time. 6/ Arlington Heights states that both "historical background" 
  

  

6/ Mobile did not submit Act 823 to the Attorney General for 

preclearance in 1965. The Act was not submitted until December, 

1975, and then only after the Attorney General, after noticing 

from another submission that the 1965 statute should have been 

submitted, requested that Mobile submit Act 823 for preclearance. 

571 F.2d at 241 n. 2. Mobile submitted Act 823 in 1978 for pre- 

clearance under Section 5 of the Voting Rights Act. The Attorney 

General, in March of 1976, objected because Act 823 "locks the 

city into use of the at-large system." Ibid. It appears that the 

issue of possible racial motivation behind this Act, or behind 

other efforts to maintain the at-large system, were not exten- 

sively reviewed at trial because the parties concentrated on 

Zimmer evidence. This part of the record should be reexamined 

on remand. 

 



  

- 14 - 

and the "specific sequence of events" are relevant when determining 

whether actions have been taken with discriminatory intent. 

429 U.S. at 267. 

Finally, there is evidence (a) that the Mobile delegation 

to the state legislature controlled all local legislation affect- 

ing Mobile, (b) that whenever a redistricting plan for Mobile 

was introduced, the concern of the legislators from Mobile was 

whether blacks would be elected under the plan, and (c) that 

none of the plans was ever enacted. 423 F. Supp. at 397, 571 

F.2d at 245-246. In addition, at least one member of the 

legislature stated that the local delegation vetoed single-member 

plans for racial reasons. See Appendix in 76-4210 at 944. This 

evidence is analagous to the "contemporary statements" which 

Arlington Heights holds are "highly relevant" when determining 
  

whether the motivation for maintaining the at-large method of 

electing the City Commission is racial discrimination. 

B. Brown v. Moore 
  

Several of the same factors present in Bolden =-- the effect 

of the at-large system, the absence of blacks from the school 

board under the at-large system, the history of discrimination 

in voting by the Alabama legislature, the reaction of the Mobile 

delegation through the years to single-member districts -- are 

present in Brown as well. In addition, the long history of 

racial discrimination by the elected school board, see 428 F. Supp. 

at 1129-1131, offers some evidence of the legislature's intent 

in retaining the system under which these representatives were 

continuously elected. 

 



  

- 15 - 

However, since 1975, the facts in Brown v. Moore differ 
  

significantly from the Bolden record. 1In 1975, the Alabama 

House of Representatives had been recently redistricted by federal 

court order, and three of the eleven members from Mobile County 

were black (428 F. Supp. at 1138). One of the black members 

proposed a single-member plan for the school board (see Appendix 

in 77-1583 ("A") at 428). After the bill was introduced, the 

school board succeeded in getting the bill amended (A. 429, 

623-625). After the bill passed, the school board challenged 

the bill in state court and argued that the amendments caused 

the bill's passage to be procedurally defective. The state 

court invalidated the legislation (428 F. Supp. at 1133). A 

similar bill was introduced in the 1976 legislative term, but 

was not passed (A. 473-475). 

We believe these facts must be probed further to determine 

which government officials were responsible for the continued 

existence of at-large elections and whether they were dis- 

criminatorily motivated. For example, did the legislators intend 

to pass a defective act? Did the school board influence the local 

delegation? Did the school board members bring about that result 

for discriminatory reasons? A finding that the school board's 

actions in setting aside the legislation were racially motivated 

could support a holding that the at-large electoral system has 

been maintained for discriminatory reasons. Since the board 

action is state action such a finding would support a constitu- 

tional violation. In a recent case from the Ninth Circuit, the 

 



- 16 - 

court found that a racially motivated protest by a city official 

to a Mexican-American's application for a liquor license violated 

the Fourteenth Amendment regardless of the motivations of the 

board which upheld the city's protest. Flores v. Pierce, No. 

77-2903 (9th Cir. May 7, 1980), slip op. at 3044. 

Plaintiffs state that the district court has found that 

the school board's actions since 1975 were intentionally dis- 

criminatory. Although the evidence could support such a finding, 

we do not believe such a finding has been made, nor has there been 

any finding regarding whether the school board brought about the 

passage of the defective legislation or why legislation was not 

reenacted. Assuming findings are made on these issues which 

support a conclusion of discriminatorily motivated official 

action in maintaining at-large elections, we think an affirmance 

would be in order. 

C. Remand to the District Court 
  

A finding of discriminatory intent necessarily requires 

a careful review of the actions of both local and state officials. 

This sort of finding often requires "a blend of history and an 

intensely local appraisal of the design and impact of the * * * 

[at-large electoral scheme] in the light of past and present reality, 

political and otherwise." White v. Regester, 412 U.S. 755, 769-770 
  

(1973). See also opinions in Bolden of White, J., 48 U.S.L.W. 

at 4448-4449, and Marshall, J., 48 U.S.L.W. at 4457. The district 

court -- the one closest to the situation =-- should be the first 

court to review the record.  



“17 

The parties in both cases tied their proof primarily to 

the Zimmer factors, which were then the basis for proving that 

an at-large electoral system was unconstitutional. When it 

becomes apparent on appeal that a case was tried to standards 

not now entirely applicable, this Court usually remands the case 

to permit the district court to take whatever steps it feels 

will permit the parties to address the proper standard. See, 

€e.9g., Empire Life Insurance Co. v. Valdak Corp., 468 F.24 330, 
    

334 (5th Cir. 1972). See also Chicano Police Officer's Ass'n 
  

v. Stover, 552 F.24 918, 921 (10th Cir. 1977)... This Court has 

remanded one voting dilution case for reconsideration in light 

of the Supreme Court's Bolden opinion. See order in Brown v. 

Reames, No. 78-1221 (May 21, 1980). 7/ 

The Bolden plaintiffs agree that the case should be 

remanded to the district court. However, because this Court 

may decide not to remand the case but to address the record 

itself, the Bolden plaintiffs argue (Br. at 14-21) that the 

record is sufficient to sustain a finding that the at-large 

system has been maintained through intentionally discriminatory 

  

_7/ A remand would also enable the district court to consider 

any other relevant issues the parties may wish to address. As 
stated above, there is no majority on the Supreme Court addressing 
the standard of proof under either the Fifteenth Amendment or 
Section 2 of the Voting Rights Act. The district court apparently 
never considered whether either issue should be decided under 
standards different from those which it applied to allegations 
of discrimination under the Equal Protection Clause. To the 
extent that the standards may not be the same, the district 
court should initially determine what evidence supports the 
differing standards of proof.  



  

- 18 - 

action. The plaintiffs in Williams v. Brown suggest that there 
  

should be no remand in that case because (a) the record establishes 

proof of discriminatory intent, and (b) prompt action clarifying 

the status of the Board of School Commissioners is essential. 

As stated above, we urge that both cases be remanded. 

In the event this Court decides not to remand the cases, we 

suggest that the Court establish a schedule for oral argument. 

The issue of intentional discrimination, particularly under the 

plurality opinion, is complex and deserves plenary consideration. 

We note that in neither Bolden nor Brown have the defendants 

responded to plaintiffs' factual arguments. In addition, if 

this Court decides the case without remand, it may wish to address 

the Fifteenth Amendment or Voting Rights Act issues that the 

parties have not addressed in depth. These issues deserve full 

briefing and argument. If this Court decides the Fourteenth 

Amendment issue without remand we believe this Court must make 

the necessary findings of fact. If this Court reviews the records 

and makes the proper findings of fact the district court's judgments 

should be re-affirmed. 

CONCLUSION 

We urge that this Court to remand both Bolden v. City of 

Mobile and Brown v. Moore to the district court for reconsideration 

 



  

- 10 

in light of the Supreme Court's opinion in City of Mobile v.   

Bolden. 8/ Should this Court review the record itself, we recom- 

mend that it affirm the judgment of the district court. 

WILLIAM KIMBROUGH DREW S. DAYS, III 

United States Attorney Assistant Attorney General 

JESSICA DUNSAY SILVER 

MARK L. GROSS 

Attorneys 

Department of Justice 
Washington, D.C. 20530 

  

  

8/ The record in Brown also differs from Bolden in that in 
Brown the court's remedial order requiring single-member districts 
was implemented. There are at least two district court orders 
(which plaintiffs have attached to their brief) setting out 
instances where the school board tried to circumvent the intent 
of the court order. Both plaintiffs (Br. 12-13) and defendants 

(Mot. 10-11) suggest that the school board's situation is somewhat 
chaotic due to the now-unsettled status of the district court's 
remedial order. If it decides to remand the case, this Court 
may wish to direct the district court to enter an order retaining 
the status quo until the district court determines whether to 
keep its order in effect pending a decision on the merits. 

 



® | 4 

  

CERTIFICATE OF SERVICE 

I hereby certify that I served that foregoing Memorandum 

for the United States as Amicus Curiae on counsel of record by 

serving one copy to the following addresses: 

J. U. Blacksher, Esq. 
P.O. Box 1051 
Mobile, Alabama 36601 

Edward Still, Esq. 
Suite 400, Commerce Center 

2027 First Avenue, North 
Birmingham, Alabama 35203 

Jack Greenberg, Esq. 
Suite 2030 
10 Columbus Circle 
New York, N.Y. 10019 

William C. Tidwell, III, Esq. 

3000 First National Bank Bldg. 
. P.O. Box 123 

Mobile, Alabama 36601 

William H. Allen, Esq. 

Covington & Burling 
888 Sixteenth St., N.W. 

Washington, D.C. 20006 

Robert C. Campbell, III 
Sintz, Pike, Campbell & Duke 
3763 Professional Parkway 

Mobile, Alabama 36609 

James C. Wood, Esq. 

1010 Van Antwerp Bldg. 
Mobile, Alabama 36601 

Ralph Kennamer, Esq. 

405 First Southern Bldg. 
Mobile, Alabama 36609 

This 7th day of July, 1980. 

  

MARK L. GROSS 
Attorney 

Department of Justice 

Washington, D.C. 20530