Nevett v. Sides Appellants' Petition for Rehearing and Suggestion for Rehearing En Banc

    Wemo from 

James M, Nabrit, il 

nr ! (= Sil 2c 

; din ip I 
fas 5 

Aa———— 

~~ 

 



SOUTHERN REGIONAL OFFICE Laughlin McDonald (S.C. & Ga.) 
Director 

. f ra A | Neil Bradley (W's. & Ga.) A Ci; FOU N D /\ |ON | NC Associate Director 
3 " H. Christopher Coates (N.C. & Ga 

Staff Counsel 
(A charitable and educational foundation affiliated with, but separate from, The American Civil Liberties Union) Charles Morgan, Jr. (Ala. & D.C.) 

Of Counsel 
52 FAIRLIE STREET, N.W., SUITE 355 
ATLANTA, GEORGIA 30303 
(404) 523-2721 
(404) 524-0386 May 24, 1978 

  

Jim Blacksher 

1407 Davis Avenue 

Mobile, AL 36603 

James M. Nabritt 
Legal Defense Fund 

10 Columbus Circle 
New York, NY 10019 

David F. Walbert 

1210 First National Bank Tower 
Atlanta, GA 30303 

Gentlemen: 

The plaintiffs-appellants in Nevett v. Sides have filed 
for rehearing. I enclose a copy for your infcrmation. 

  

Sincerely, 

- 7 7 ; 

7 / : AA ) ig 

; Cote Al he { rr vor i L. "A 

Neil Bradley / 

NB: pm 
Encl. 

cc: BEd Still 

Contributions tc the ACLU Foundation, Inc. (formerly the Roger Beidwin Foundation of ACLU, inc.) ore deductivle for income tax purzoses 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 76-2951 

REVEREND CHARLES H. NEVETT, et al, 
individually and on behalf of all others 
similarly situated, 

Plaintiffs~Appellants 

vs. 

LAWRENCE G. SIDES, individually and in his 
capacity as Mayor of Fairfield, Alabama, 
et al, etc., 

Defendants~-Appellees. 

  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA 

  

APPELLANTS' PETITION FOR REHEARING 
and SUGGESTION FOR REHEARING EN BANC 

NEIL BRADLEY EDWARD STILL 
LAUGHLIN McDONALD 601 Title Building 
52 Fairlie St. NW Birmingham, Al 35203 
Atlanta, GA 30303 

WILLIAM M. DAWSON, JR. 

2014 6th Avenue North 

Birmingham, AL 35203 

ATTORNEYS FOR APPELLANTS 

 



  

REQUIRED STATEMENT FOR REHEARING EN BANC 
  

I express a belief, based upon a reasoned and studied pro- 

fessional judgment, that the panel decision is contrary to the 

following decisions of the Supreme Court of the United States 

and of the United States Court of Appeals for the Fifth Circuit, 

and that consideration by the full Court is necessary to secure 

and maintain uniformity of decisions in this Court: White wv.   

Regester, 412 U.S. 755 (1973), United States v. Board of Super- 
  

  

visors of Forrest County, slip opinion 3702 (5th Cir. 24 April 
  

1978) and Kirksey v. Board of Supervisors of Hinds County, 554 
  

F.24 139 {5th Cir.) {en banc), cert. denied 98 S8.Ct. 512 (1977). 
  

I further express a belief, based on a reasoned and studied 

professional judgment, that this appeal involves the following 

questions of exceptional importance: 

1. Must the plaintiffs in a voting rights case brought 

under the Fourteenth and Fifteenth Amendments prove an intent to 

discriminate by the defendants or their official predecessors? 

2. If intent must be proven in such cases, what is the 

proper standard for proof of intent? 

3. May the plaintiffs in a voting rights case alleging 

dilution of the black vote prevail when the district court makes 

an "ultimate factual" finding that plaintiffs' voting strength 

has been diluted "upon proof that (a) in a city where blacks 

 



constituted a majority of the voters in some of the districts 

but slightly less than 50% of the voters for the city 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, (d) in an all-white 

governing body, (e) whose decisions, 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) in- 

cluding such matters as appointments to other boards and agencies 

of the city"and racially disparate hiring practices? 

ecru SH, 6) 
Edward Still 
  

Zed Eel 
Neil" Bradley 
  

ATTORNEYS OF RECORD FOR APPELLANTS 

 



UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 76-2951 

REVEREND CHARLES H. NEVETT, et al., 

individually and on behalf of all others 
similarly situated, 

Plaintiffs-Appellants, 

—\T 

LAWRENCE G. SIDES, individually and in his 
capacity as Mayor of Fairfield, Alabama, 
et al., etc., 

Defendants-Appellees. 

APPELLANTS' PETITION FOR REHEARING 
AND SUGGESTION FOR REHEARING EN BANC 
  

The following is appellants' combined petition for rehearing 

and suggestion for rehearing en BERG. The first three pages 

address a factual mistake, addressed more particularly to the 

panel. The balance is addressed to en banc consideration. 

This is the second appeal in this litigation. In both in- 

stances, the opinions of the district court are included as 

appendices to the appellate opinions. 

 



TABLE OF CONTENTS 
  

Factual Error 

The Manner in Which Zimmer Was Applied Here 
Conflicts With Both White and Kirksey 

The Panel Decision Applied Zimmer in a Manner 
Inconsistent with Kirksey 

The Panel Decision is in Conflict with United 
States v. Board of Supervisors of Forrest 
County, = PFP.2d . , (Nos. 75-3707 and 76-1638, 
April 24, 1978) Slip Opinion, 3702 

  

Intent 

The Decision Should be Vacated and Remanded to 

Allow the District Court in the First Instance 

to Make a Finding on Intent 

The Interpretation of "Unresponsiveness" De- 
services En Banc Consideration 

Conclusion 

 



  

PETITION FOR REHEARING 
AND SUGGESTION FOR REHEARING EN BANC 
  

Factual Error 
  

Because black candidates were successful one time, in the 

1968 elections, the actual makeup of the black/white populations 

of Fairfield (which are within a few percentage points of each 

other) has taken on pivotal importance. In ruling on this matter 

this Court has erred in relying upon a prior incorrect reading 

of the facts. The Court cites its own earlier opinion for the 

statement that "blacks constituted ... at least 50 percent of its 

registered voters [in 1970]." Nevett II, slip opinion at 3378 n. 6, 
  

citing Nevett v. Sides [Nevett I1,:533 7.24 1361, 1365 n. 3. while   
  

the district court did state that blacks may have been a majority 

of the voters in 1968, Nevett I, at 1367 (district court opinion),   

it noted that the voting strength was down to 48 percent at the time 

of its order, Nevett I, at 1371 (district court opinion). But this   

Court stated: 

The [district] court attributed the marked disparity 
in these results [of the 1968 and 1972 elections] not 
to any invidious racial discrimination but rather to 
the failure of blacks to turn out a higher percentage 
in 197225 

25. As the district court stated in its opinion 
on remand, "[t]lhe failure to elect any blacks to 
the thirteen member council in 1972 was not the 
result of past discrimination, but rather the 
consequence of (a) a failure to turn out a higher 
percentage of black voters than of white voters, 
(b) bloc voting, and (c) at-large voting for 
numbered places." 

Nevett II, slip opinion at 3393. 
  

 



This Court seems to be saying that blacks were a majority 

in 1972 but lost the election because they did not try hard enough 

-- harder than whites. Its language, "a higher percentage," is 

different from the district court's language, "a higher percentage 

of black voters than of white voters". The latter language im- 

plicitly recognizes that if the same percent of blacks and whites 

turn out to vote, blacks will lose the election. The district 

court again found on remand that "blacks constituted ... slightly 

less than 50% of the voters for the city as a whole," Nevett II, 
  

slip opinion at 3398 (district court opinion). 

When we compare these potential electorates with the actual 

47.2% of the vote received by one black candidate and the 43% re- 

ceived by four black candidates (see Appellants' Brief at 8), we 

can see that a higher percentage of eligible blacks voted than did 

whites. The only conclusion is that blacks lost the election simply 

  

1. This is supported by the 1976 special census of Fairfield which showed 
a population of 5830 blacks and 7146 whites. Using two different methods of esti- 
mating the number of persons in the voting age population (VAP), blacks continue 
to be in the minority: 

whites blacks 

population = 1976 census 7146 5830 
percentage of population 55% 45% 

VAP - estimate A¥* 5360 3498 
percentage of total VAP 60.5% 39.5% 

VAP - estimate B** 4788 3731 
percentage of total VAP 56% 44% 

*This estimate is based upon 75% of the whites being of voting age and 60% of 
the blacks being so. These figures represent the ratio found in all of Jefferson 
County, AL. 1970 Census of Population, Vol. 1, Part 2 (Alabama), Table 35. 

**This estimate is based on the ratio of VAP to total population found in Fairfield 
in 1970: 67% of whites were in the VAP and 64% of blacks. 1570 Census of Population 
and Housing, Final Report PHC(1)-26, Birmingham, AL SMSA Tables P-1 and P-5. 

  

  

   



because there were less of them of voting age than of whites. If 

it were ever true that blacks were once a majority of the voters, 

that brief moment has passed. 

The registration percentage appears to be a pivotal fact in 

this Court's decision. Certainly this Court did not mean to hold 

that even a majority element in a jurisdiction can not have its 

voting strength diluted, for this is the exact position rejected 

in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973). But even 
  

that is not present here, because an erroneous conclusion in Nevett 

1, led this Court into a factual error. 

The Manner In Which Zimmer Was Applied Here Con- 
flicts With Both White and Kirksey 

This action has an unusual history in that there has been 
  

only one fact-finding hearing, yet the district court has come to 

two differing conclusions based upon its understanding of the pre- 

cedents. In its first opinion, the district court carefully made 

findings under each of the Zimmer criteria, but then held that 

the various standards and indicia that have been 
prescribed by the appellate courts are not help- 
ful 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. ... I rule in favor of the 
plaintiffs. 

Nevett I, 533 F.2d at 1371 The "basic standards" referred to by 
  

the district court were set out in White v. Regester, 412 U.S. 755 
  

(1973). The Nevett I Court remanded for explicit fact finding under 
  

Zimmer.  



  

On remand, three days after this court's first opinion, 

the district court made explicit findings under both Zimmer and 

White. Nevett II, slip opinion at 3397-8. The district court   

outlined six factors it thought important and concluded: 

The court was of the view that such evidence demon- 
strated that the black plaintiffs "had less oppor- 
tunity than did other residents in the district to 
participate in the political processes and to elect 
legislators of their choice." White wv. Regester, 
412 U.S. 755, 768, 93 'S.Ct. 2332, 2339, 37 I,.0d.2d4 
314 (1973). The Court thought that the factors 
outlined in Zimmer were to be taken as indicia of -- 
but not necessarily the determinants of -- "dilution." 

  

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 obtain relief." 

Nevett II, slip opinion at 3398. 
  

In Nevett I, this Court reversed because of the district 
  

court's failure to make findings under Zimmer, even though it had 

found the "ultimate fact" of dilution. In the second district 

court opinion, the district court clearly utilized an incorrect 

standard of law when it stated that its earlier approach was error 

and that it must use only the Zimmer criteria. 

The district court was reading the Nevett I opinion as 
  

mandating the use of Zimmer and nothing else. The district court 

did not have the advantage of this Court's discussion of the use 

  

of the Zimmer criteria "or similar ones" in Kirksey v. Board of 

Supervisors, 554 F.2d 139, 143 (5th Cir.) (en banc), cert. denied, 
  

  

 



  

98 S.Ct. 512 (1977), and Nevett II, slip opinion at 3393 n. 23 
  

("not all of the criteria may be relevant, and additional factors 

may have probative force."). 

This error by the district court is ameliorated by its 

alternative findings under the White v. Regester standard. But 
  

this Court affirms only the half of the district court opinion 

making fact finding under Zimmer but completely ignores the find- 

ings of fact under White and thereby avoided ruling on any possible 

inconsistency in the application of Zimmer in view of White and 

Kirksey. The district court clearly reads Zimmer and White as estab- 

lishing such different standards of proof that they yield completely 

different results. 

This reliance upon Zimmer to the exclusion of White con- 

flicts also with this Court's en banc decision in Kirksey v. Board 
  

  

of Supervisors, supra. The Kirksey Court held that "[bly proof 

of an aggregation of at least some of these factors, [H or similar 

ones, a plaintiff can demonstrate that the members of the particular 

group in question are being denied access." 554 F.2d at 143. Yet 

when a district court clearly finds that "similar factors" support 

its "ultimate factual" finding that the voting power of blacks was 

diluted by the at-large voting system in Fairfield, this Court 

reversed once and now affirms a district court opinion which only 
  

1. "These factors" could mean either the Zimmer factors or the White v. 
Regester indicia. The Court had just cited Zimmer, but had summarized the indicia 
utilized in White. The better reading might be that "these factors" refer to White. 

 



reluctantly follows its reading of Zimmer and sets up an alternative 

holding based upon its reading of White. 

  The Kirksey Court acknowledged the supremacy of White wv. 

Regester, but this Court continues to require litigants and 
  

district courts to "genuflect to Zimmer and to go through [a] 

formalistic ritual," BULL v. Shreveport, slip opinion at 3427 
  

(Widsom, J., dissenting). 

This Court should hold that Judge Pointer has correctly ap- 

plied factors "similar" to Zimmer factors when he relied upon the 

underlying precedent of White v. Regester. The judgment should 
  

be remanded for entry of appropriate relief. 

The Panel Decision Applied Zimmer in a Manner 
Inconsistent with Kirksey. 
  

This Court lightly treated the issue of past discrimination. 

The district court did not have Kirksey's ruling that recent past 

discrimination shifts the burden of proof -- therefore it never 

made the finding of recent past discrimination. While the Court 

says "the appellants failed to supply the court with any substantial 

evidence of past discrimination", slip opinion at 3394, it 

overlooks the source of that conclusion. See Nevett I at 1370 

  

1. Despite this Court's language in footnote 26, Kirksey in no way 
suggests that the pervasiveness and purposefulness of recent past discrimination 
is the key to burden shifting.  



(district court opinion): where the district court noted the 

request to take judicial notice and proceeded to do so to this 

extent -- 

Certainly the Court isn't blind to things that 
have happened in Jefferson County or in Fair- 
field or in Alabama. I do not think, however, 
it is appropriate to belabor questions of judi- 
cial notice in this area. 

533 F.2d at 1370. The district court went on to mention some dis- 

crimination. Presumably it would have listed others if Kirksey 

had been decided at that time. The court was clearly saying "there's 

plenty of it, but I don't see the need to beat it to death.” I+ 

clearly thought only present denial of access relevant, and that this 

was the only way for plaintiffs to meet their burden. 

There is plenty of evidence, contrary to this Court's as- 

sumption, of denial of access of blacks to the political process 

as compared to the factors found in Kirksey. 

l. Evidence was introduced of low black voter registration 

and that federal registrars registered 883 persons, "virtually all 

of whom were black." 533 F.2d at 1367. 

2. No black was elected to the city council until 1968. Ibid. 

3... A high rate of bloc. voting. 533 7.24 at 1368. 

4. The poll tax in Alabama was in force until 1966 when 

it was invalidated by a federal court, United States v. State of 
  

Alabama, 252 F.Supp. 95 (M.D. Ala. 1966) (three-judge court) as a 

violation of the Fifteenth Amendment. The finding was that Ala- 
  

bama's poll tax was enacted with the intent to disfranchise blacks.  



5. Alabama was, of course, the state where discriminatory 

literacy tests for voting were held violative of the constitution. 

Davis v. Schnell, 81 F.Supp. 872 (M.D. Ala.) (three-judge court), 
  

aff'd, 336 U.8.:933 (1949). 

6. Segregation was the official policy of the Democratic 

Party of Alabama from before the time it supported the Boswell 

Amendment, see Davis v. Schnell, supra, until 1966 when 
  

it finally abandoned the phrase "White Supremacy" as part of its 

ballot symbol. 

7. A majority vote was required in primary and nonpartisan 

elections. 

8. Blacks were systematically excluded from juries in the 

Bessemer Division of Jefferson County (in which Fairfield is located), 

until this practice was halted by Salary v. Wilson, 415 F.2d 467 
  

{5th Cir. :1969). 

9. A dual school system was maintained until a change was 

mandated by this Court. United States v. Jefferson County Board 
  

of FPducation, 372 P.24 B36 (5th Cir. 1%66), aff'd, 380 r.24 385 
  

(5th Cir. en banc 1967). 

10. Disparities in education, employment, income and living 

conditions are evident in the census statistics summarized in Annex 

1 to this Brief. These figures show that there are more female- 

headed families, less schooling, more unemployment, lower family 

income, lower home values, and more sub-standard homes among blacks 

than among the population in general.  



Like Kirksey, such evidence allows for no other conclusion 

but that recently blacks were denied equal access to the Fair- 

field political process. 

The Panel Decision is in Conflict with United 
States v. Board of Supervisors of Forrest 
County, F.2d __r (Nos. 75-3707 and 76-1638, 
April 24,1978) sip Opinion, 3702. 

  

  

Rehearing is also necessary to resolve the conflict with 

another panel of this Court which has read Kirksey and Zimmer as 

establish[ing] a multi-step inquiry for determining 
whether a districting plan unlawfully dilutes a 
minority's participation in the political process. 
The testing seeks to determine whether the plan 
either is a racially motivated gerrymander or per- 
petuates an existent denial of access to the political 
process. (Emphasis added.) 

United States v. Board of Supervisors of Forrest County, slip opinion 
  

3704 (Nos. 75-3707 and 76-1638, Apr. 24, 1978). While the Forrest County 
  

Court would allow plaintiffs to demonstrate either intent or effect, 

this Court has established a standard in Nevett II of requiring 
  

proof of intent and effect. 

Intent 
This Court ruled that discriminatory intent is an element 

of proof plaintiffs must show in a dilution suit brought under 

the Fourteenth and Fifteenth Amendemnts. 

  

In malapportionment litigation, such as Reynolds v. Sims, 

377 U.S. 533 (1964), plaintiffs have no such burden: this much 

the Court concedes. Nevett 1I,.81ip opinion at 3380. Intent is, 
   



however, deemed by this Court to be necessary in dilution suits. 

Two arguments for this appear in the Court's opinion. The Court 

held that Washington v. Davis, 426 U.S. 229 (1976), requires 
  

intent to be shown in equal protection claims, and that Davis and 

Village of Arlington Heights v. Metropolitan Housing Development 
  

Corp., 429 U.S. 252 (1977), cited Wright v. Rockefeller, 376 U.S. 
  

52 (1964), and said the rule (of having to prove intent) is the 

same in other contexts, specifically, election suits. The second 

factor is that the Court held that a claim of dilution goes to 

the quality of representation, citing Whitcomb v. Chavis, 403 U.S. 
  

124, 142 (1971), terming Reynolds a "quantitative" reapportionment 
  

suit. Nevett II, slip opinion at 3380. 
  

Reliance on Wright is grasping at an extremely thin reed. 

Davis and Arlington cited Wright as an example of "other contexts." 
  

The Court did not go so far as to say intent is required in all 

election suits. Wright concerned allegations of single-member dis- 

trict gerrymander. If it were read to mean intent must always be 

proved in such cases, then it was sub silento overruled (by this 
  

Court's interpretation, at least) in Reynolds v. Sims, supra, 
  

decided four months later. 

The pleadings of Wright led to intent being the issue. The 

claim was that four single-member congressional districts had been 

racially gerrymandered. One district was 86.3% Negro and Puerto 

Rican. They were far in the minority in the other three. The  



four-district area was 37% Negro and Puerto Rican. Beyond that, 

the plaintiffs' grievance is not apparent. While the districts 

were malapportioned, the plaintiffs did not raise this issue. The 

relief they sought would likely have led to the four districts all 

having majority white constituencies. It is not surprising that 

the black congressman had intervened as a defendant. 376 U.S. at 
  

53. Plaintiffs' only claim was intent to segregate and they failed 

in their burden of proof. 

While Supreme Court citation of this case may lend credence 

to the broader conclusion that intent must always be shown, to so 

conclude must also assume that the Supreme Court inadvertently 

omitted the element of intent when it wrote in White v. Regester, 
  

412 U.8., 755, 766 (1973); 

The plaintiffs burden is to produce evidence 
to support findings that the political pro- 
cesses leading to nomination and election were 
not equally open to participation by the group 
in question -- that its members had less op- 
portunity than did other residents in the 
district to participate in the political Dro- 
cess and elect legislators of their choice. 

That the Court would have omitted such an element is inconceivable-- 

more so when it is recalled that Justice White authored both 

White v. Regester and Washington v. Davis . 
  

  

We turn now to the distinction the Court sees between single 

and multi-member district cases. Terming one qualitative and the  



  

other quantitative answers nothing. Reynolds and well as Whitcomb 
  

  

concerns the dilution of the franchise. "Debasing" and "diluting" 
  

are impermissible, 377 U.S. at 567, whether by districts of un- 

equal size or by submerging votes. 

Simply stated, an individual's right to vote 
... is unconstitutionally impaired when its 
weight is in a substantial fashion diluted... 

Reynolds v. Sims, supra, 377 U.S. at 568. 
  

This Court is, of course, wrong in stating that, in single- 

member district cases, mathematical comparisions are the issue and 

"no showing of discrimination along racial, ethnic, or political 

lines need be shown." Nevett II, slip opinion at 3380. Single 
  

member district malapportionment is discriminatory, and indeed it 

must rise to a level termed "invidious discrimination" before it 

is actionable. The plaintiffs' burden in all Fourteenth Amendment 

cases, under Supreme Court precedent if not this Court's, is to 

make out a "prima facie case of invidious discrimination." Gaffney 

Vv. Cummings, 412 U.S. 735, 745 (1973). And at least in single-   

member districts, invidious discrimination can be shown solely by 

population variances. 

It is clear, however, that at some point or level in 
size, population variances do import invidious de- 
valuation of the individual's vote and represent a 
failure to accord him fair and effective representation. 
(Emphasis original.) 

  

White v. Weiser, 412 U.S. 783, 792-93 (1973). 

12 

 



  

Variations may be so small as not to be prima facie evidence 
  

of discrimination. Gaffney v. Cummings, supra. If large enough, 
  

the burden of proof then shifts to the defendants. They may be 

able to show that the variations are justified either because, 

through no lack of good faith efforts on their part, the variations 

cannot be diminished or the variations are justified by other 

considerations. Mahan v. Howell, 410 U.S. 315 (1973). Plaintiffs 
  

have no burden of showing lack of good faith or intent to discrimi- 

nate -- they need show only the effect, an effect invidiously dis- 

criminatory. 

There is no apparent reason for changing the rules of proof 

for multi-district submergence cases. Nor is it possible to see 

how such a distinction could be drawn within the equal protection 

clause. If plaintiffs' show that the effect of an at-large system 

is submergence of the black minority vote, they have made out a 

prima facie case of invidious discrimination and the burden of 

proof should shift to defendants to justify their electoral scheme. 

Additionally, the Court should consider en banc the holding 

that intent is an element of proof required under the Fifteenth 

Amendment. This narrow amendment concerns race and the elective 

franchise, "a fundamental political right ... preservative of all 

rights." Reynolds v. Sims, 377 U.S. 533, 562 (1964). This is an 
  

important issue, not controlled by Washington v. Davis, 426 U.S. 
  

229 (1976). 

13 

 



  

The Decision Should be Vacated and Remanded to 
Allow the District Court in the First Instance 
to Make a Finding on Intent. 
  

If intent is to be superimposed as the critical element of 

the ultimate fact, the district court should be provided the 

opportunity to make this finding. The district court deemed 

intent irrelevant on the first go-round, 533 F.24 at 1371, and 

only mentioned intent the second time because Washington v. Davis 
  

was decided four days earlier. See, slip opinion 3399. 

This case was tried a year before intent was deemed a necessary 

part of plaintiffs' proof. In the interim, besides Kirksey, the 

law of intent has been further explicated. 

Village of Arlington Heights v. Metropolitan Housing Develop- 
  

ment Corporation, 97 S.Ct. 555, 564-5 (1977), said there are several   

ways to prove intent: historical background, specific sequence 

of events leading to the change, substantive departures, or legis~- 

lative history may show intent. "The foregoing summary identifies, 

without purporting to be exhaustive, subjects of proper inquiry 

in determining whether racially discriminatory intent existed." 

97 S.Ct. at 565. Likewise, Castaneda v. Partida, 430 U.S. 482 
  

(1977), establishes a three-part test for jury discrimination actions 

(which we believe to be more analogous to voting cases than Washing- 

ton v. Davis, 426 U.S. 229 (1976), see Appellants' Supplement Brief).   

  

1. The Seventh Circuit recently held that intent may be proved by a "wide- spread and persistent practice," Sangmeister v. Woodard, 565 F.2d 460, 467 (7th 
Cir. 1977).   

14 

i 

 



  

As the panel noted in a companion case, Blacks United v. 
  

City of Shreveport, _ F.2d , (No. 76-3619) (Mar. 29, 1978),   

the process of determining intent and dilution 

is grounded in an experimental, intuitive 
assessement of the likelihood that the [dis- 
tricting] decision was designed to further 
one or another objective. 

Slip opinion at 3424. This assessment should be the district court's, 

The Interpretation of "Unresponsiveness" De- 
serves En Banc Consideration. 
  

And finally we suggest that en banc consideration be given 

to this case because this Court affirmed a finding of responsive- 

ness based on the district court's conclusion that while the defen- 

dants were not as responsive to blacks as they were to whites, 

they were not totally unresponsive. 533 F.2d 1370; slip opinion 

3394, 31397. 

CONCLUSION 
  

For the foregoing reasons this Court should grant rehearing 

en banc. 

Respectfully submitted, 

FASE 

601 Title Building / 
Birmingham, AL 35207 

NEIL BRADLEY 

LAUGHLIN McDONALD 

52 Fairlie Street, NW 
Atlanta, GA 30303 

WILLIAM M. DAWSON, JR. 

2014 6th Avenue North 

Birmingham, AL 35203 

ATTORNEYS FOR APPELLANTS 

15 

 



ANNEX 1 

Characteristics of Population of Fairfield 
  

Blacks as 
Characteristic % of Total 

  

  

Population 48% 
No. of families 53% 
No. of families w/ female head 69% 

Persons 25 or older 44% 
No. school completed 79% 
2 High school graduates 
Median school years completed 

Civilian labor force 

Unemployed 

Median family income 
Below poverty level - families 
Below poverty level - 
unrelated individuals 
Below poverty level - 
households 

Median value of home ] $13,700 
No. lacking some plumbing - 

owner : 20 18 
No. lacking some plumbing - 

renter : 152 141 

Source: 1970 Census of Population and Housing, Report PHC (1l)-26: 
Census Tracts, Birmingham, AL, SMSA, Tables P-1 and 5 (first group); 
P-2 and 5 (second group); P-3 and 6 (third group); P-4 and 6 
(fourth group); H-1 and 3 (fifth group).