Plaintiffs' Memorandum in Opposition to Government's Motion to Intervene

    IN THE UNITED STATES COURT OF APPEALS 

FOR THE PIFTHR CIRCUIT 

  

Nos. 76-3619 and 76-4210 

  

BLACKS UNITED FOR LASTING LEADERSHIP, INC., 2t al., 

0 Plaintiffs-Appellze 

Defendants-Appeliants 

WILEY L. BOLDEN, et 2l., 

H))
 Plaintiffs~Appellee 

on 

CITY OF MOBILE, ALABAMA, et al., 

pellants oO
 

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On Appeal from the United States District Courts 

for the Western District of Louisiana and 

the Scuthern District of Alabama 

  

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 

  

EW S. DAYS, I11 

sistant Attorney General 

BRIAN K. LANDSBERG 

WALTER W. BARNETT 

DENNIS J. DIMSEY 
MIRIAM R. EISENSTEIN 

Attorneys 

Department of Justice 
Washington, D. C. 20330 

     



  

TABLE OF CONTENTS 

Ld 

QUESTIONS PRESENTED ¥en EE 

INTEREST OF THE UNITED STATES al eR RO oP 2 

STATEMENT ,ccceccecccscscscsccscsssscsscssesccsscscscsoocscscscsce 3 

v. BULL. V. CITY OF SHRRVEPORT .esvesisnsvns 3 

A. Procedural HiStOIY ceceeccccecccccccoccse 3 

Be FACES ceeecvvsrsssrsresssiasssssvnesenss 4: 

C. Opinion of the District Court ...ccce.e.. 8 

11. BOLDEN V. CITY OF MOBILE .cvvsenvrsnseeceses 1} 

A. Procedural History ead on 11 

Bei PBOLE ens ensesdesseesrsssssvesnssnnvenss “14 

Cc. Opinion of the District Court ..cceceees 27 

INTRODUCTION AND SUMMARY OF ARGUMENT vse swe thn 29 

ARGUMENT see cnotsionsarsssinssonsensmsnsnssrsiteenenas 35 

I. THE DISTRICT COURTS CORRECTLY HELD 

THAT THE AT-LARGE SCHEMES FOR ELECTING 

CITY COMMISSIONERS IN SHREVEPORT AND 

MOBILE IMPERMISSIBLY DILUTE BLACK VOTING 

STRENGTH IN THOSE CITIES ccccccccccccnscccnne 35 

A. The courts below correctly 

applied the principles of White 

Ve Regester © © © © 9? © 0 9% © © © OO O° OOOO O° OO OOS Oe 35 

  

B. The Mobile court correctly found 

blacks were excluded from the 

political process SN 0998009080069 86099 0 41 

Pd
e 

| ants 

 



  

| PRGE 
II. PROOF OF INITIAL RACIALLY DISCRIM- 

: INATORY INTENT IS NOT AN ESSENTIAL 

ELEMENT IN CASES CHALLENGING AT-LARGE 

VOTING PLANS AS DILUTING MINORITY VOTING 

STRENGTH vive vr vrtarnins sn sot ss osevrvoeey vanes 45 

A. The test under the Fourteenth 

‘Amendment is whether a scheme, 
designedly or otherwise, minimizes 

or cancels out the voting strength 

Of 2a racial Minority cevvessescocesvssnes 45 

B. The Fifteenth Amendment does 

not require proof of official 

racial intent in cases challenging 

at-large voting plans ..cecccccccncccccns 54 

C. If proof of racially discriminatory 

intent is needed, it should be 
inferred from the facts of the 

Shreveport and Mobile cases cceecccccesns 56 

III. THE DISTRICT COURTS' ORDERS WERE COM- 

PELLED BY THE CIRCUMSTANCES OF EACH 

CASE, AND WITHIN THE COURTS' REMEDIAL 

"POWERS tt ccececcccecsesetcscscccncesccscccsnsccnce 61 

CONCLUSION © © © © © © © © © 0 9 0 OO © © © OO 9 OO OO OO TO OO OOOO SO OOO OO 68 

rg 

ii 

 



  

TABLE OF AUTHORITIES 

CASES | : PAGE 
( 

  

  

Allen v. City of Mobile, 331 F. Supp. 
1134 (5.D. Ala. 1971), aff'd, 466 
F.28 122 "(5th Cir. 1972), Cert. ; 
denied, 412 U.8. 909 (1973) vasvsesvsnrenvons : 24 

  

Anderson v. Martin, : 

B15 VeSe IY {19648) cvurvnssnisvssssnsssssnses 43 
  

Atlantis Development Corp. Vv. 
United States, 379 F.2d 818 
(5th Cir. 1967) ® @ @ © oo © © © © © @ © 9° © © O° 0 OO © OO 0 O° OO 37 

  

  

Blacks United for Lasting Leadership 
Vv. City of Shreveport, Loulsiana, 
71 F.R.D. 623 ‘w.D. La. 1976) ® © © © © © © © ® © © © © 8 0 passim 

  

  

Bolden v. City of Mobile, Alabama, 
823 FeSUDD. 38% (S.Ds AlAs 19/0) sievasvssnvies passim 
  

Bradas v. Rapides Parish Police Jury, 
508 F.2d 1109 (5th Cir. 1975) © ee 000000000000. 46 

  

Brown v. Board of Education, 
345 U.Se 294 11955) cowvcviessn Cohesive an deien ns | 64 
  

Burns v. Richardson, 
388 U.Se 3 {1900) wevvesesssnssssossavsosess _ 45 
  
  

Chapman v. Meier, : 

420 U.S. 1 (1975) © © ¢ 0° 0 9° @ O° OO O00 O00 ee 00 eo 45, 51, 56 

  

Connor v. Johnson, 
102 U.S. 690 (1971) ® © © ® © © ®@ © 0 © O OO O° OO OOO OO 0 00 36, 51, 62 

    

  

  
  

Cal v. Boren, 
U.S. 190 (1976) ® © © @ © 9 © © © © © © © 0 © © O&O © 0 © © O° O° 0 0 51 

Dandridge v. Williams, : : 
SY] U.S+i 871 A1940Y evn eeve es 6 nvninoieinise enn 50, 54 

Dunn v. Blumstein, 
505 U.S. 330 (1972) ® ®@ @ ® © @ © © © © © © & © © © @ OO OO 0 © © 0 0 0 5 51 

East Carroll School Bd. v. Marshall, 
424 u.s. 636 (1970) ee eo 00 ® ® e090 ® 00 ee 0°00 00 00 0 0 36,37,47 

. 51 

iii 

 



    

CASES : PAGE 

Ferguson v. Winn Parish Police Jury, 

EZ F.28 537 (SED CIC. 1976) -evevsevoses 
a5 

  
  

  

  

Fortson v. Dorsey, ; . 

379 U.5. 433 (1965) ie i Jee ne EE 
45, 57 

Gomillion v. Lightfoot, 

364 U.S. 339 (1960) eo ee 8 8 © @ © @@ © © © 0 © OO © O° 0° 20 50, 52, GO, 

pi 63-et seq. 

Graves v. Barnes, 

343 F. Supp. /04 (W.D.. Tex. 1972), 

aff'd sub nom White v. Regester, 

412 U.8. 755 (1973) cemecsvesosnvsncnssnss.. 42, 43, 57, 58   

  

Howard v. Adams County Board 

of Supervisors, 4353 F 1 455 

(5th Cit.¥, cert. denied, 405 

U.S. 928 (1972) svesves Te sews ens eens 46 

  

  

  

.Jaffke v. Dunham, 

352 U.S. 280 (1957) © © © 0 0 © 0 © 0 @ 8 8° eo 0 0 00 00 54 

Kendrick v. Walder, | 

527 F.2d 44 (7th Cir. 1973) ececececcenccs 29, 65   

Kirksey v. Board of Supervisors 

of Hinds County, Mississippi, 

No. 75-2212 15th vir., qecided ; 

May 31, 1977) cececenccceccenscccccnccnae 37, 39, 43, 49, 

  

  

  

  

  

  

59, 60 

Lucas. v. Colorado General Assembly, : 

377 U.S, 713 (1Y08) sevsenssensns eesssans 64 

McGill v. Gadsden County Commission, 

535 F.2d 277 (5th Cir. 1970) eeecececccee 37 

Moore v. Leflore County Board > 

of Election Com'rs, 502 r.Zd 

021 (5th Cir. 1974) vie vie vin sine se Hee. 40, 46 

Nevett v. Sides, | 
533 F.2d 13601 (5th Cir. 1975) vivitie a6 4h ee : 37 

Nevett v. Sides, | ial 

appeal pending, No. 76-2951 (5th Cir.) +. cil 

iv 

 



  

  

CASES : PAGE 

Paige v. Gray, : 
B38 F.2d 1108 (5th Cire 1978) evesviarnennina 2, 37, 49-50, 

; 66-67 

Panior v. Iberville Parish School Bd. 
536 F.2d 101 (5th Cir. 19706) ® © © @ ° & o. ® © © & ¢ ‘45 

  

. Perry v. City of Opelousas, 

515 F.20 B39 (OFN Cire 1975) suv nvrvsnenne 40 
  

Reynolds v. Sims, : 

377 U.S 533 (1964) TNE ET Re SR SR Sr to We TR Re 53 

  

Robinson v. Commissioners Court, 

Anderson County, oU0b F.<0 014 : 

(5th Cir. 1974) ® © © © ® ® © © © © © © © © © © © © O&O © © © 0 O° O° 46 

    

  

Sims v. Amos, 336 F. Supp. : 
924 (M.D. Ala. 1972) ® © @ © © © © © © © @ ®@ & 0 OO © O° 0 0 23 

Swann v. Charlotte-Mecklenburg Board 

of Education, 402 UeS. 1 (1971) venus coeds 65 
  

  

Turner v. McKeithen, : | 
§90 P.2d7191 (5th Cir. 1973) veceveenmanasi 40 
  

United Jewish Organizations of 
Williamsburgn, Inc. v. Carey, 
YY UsS.lieW. 422% {U.S. Mar. 1, 1977) wuss’ 42, 48, 55 

  

  

United States v. City of Shreveport, 
7210 F. Supp. 36 (w.D. La. 1962), 

affirmed, 315 F.28 928 (5:h Cir. 1968) . a 7 

    

United States ex rel. Barbour v. 
District Dir. of 1. &% N.S., : 

491 F.2d 573 {5th Cir. 1974) ® © ® ® © @ © © * © © 0° 54 

  

  

Vandenades v. United States, 

523 F.2d 1220 {oth CIT. 1975) ® @ © © © © o @ 0 0° 37 

  

Village of Arlington Heights v. 
Metropolitan Housing Development 
  

  

Corp., 45 U.8.L.W. 4073 (U.S. 

JAN 11, 1977) sneer sessmavsossssnnsroneinse 32, 33, 35, 

: 47, 49, 54, 

56, 57, 59, 53 

 



  

CASES | PAGE 

Wallace v. House, 515 F.2d 
619 (5th Cir. 1975), cert. 

granted, judgment vacated and 
remanded, 425 U.S. 947 (18976) cevevvesconsiesed, 28, 37, 

  

40, 46, 47 

Wallace v. House, 
538 F.2d 1133 (5th Cir. 1976) © ® oa e000 0 00 0 00 oe 37 

Washington v. Davis, 
426 J.S. 229 (1976) © ® © © 0 00 @ @ 0 000 000 ee O00 00 28, 32, 33, 

  

  

    

  

  

  

  

    

  

35, 47, 49, 
50, 54, 56, 

59, 63 

Whitcomb v. Chavis, 
303 T.5." 124 T1771) cnenese PEIN NEI NC ra passim 

White v. Regester, : 
12 U.80 155 1973) avant svnsnsesnisnanenssess passim 

Wright v. Rockefeller, 
370 DSc 527(1964Y vue vvese sasisns se vaeiesreeey 48,:49, 52 

Wright v. Rockefeller, 
211 P., Supp. 460° 
{S.D. N.Y. 1962) ® © & & © oo oo ®@ @ © © &@ © © © @ © © © © © & © © © 0 49 

Yick Wo v. Hopkins, . ; 
T15 U.S. 358 (1586) uc evsnivevs te ein ein eie sen 52 

Zimmer v. McKeithen, 

485 F.2d 1297 (5th Cir. 1973), 
affirmed sub. nom East Carroll 
School Bd. v. Marshall, 424 4.8. 

636 (19706) eee ceo eee FEE ar CO OI MRE GPE passim 

UNITED STATES CONSTITUTION 

First MmenIGMmenlt .eeceess esses sssrsrssnes Cheese 11 

Fifth Amendment SI ON PE NM TNE CE Pi td 54 

Thirteenth Amendment Gees cvsersvsonsrsneoniovns 11 

Fourteenth Amendment ® © @ © © © © © © @ © © O° © © © O © °° 0° °° O° 0 passim 

Fifteenth AMeNAMENE vd vos casnsrssssensvasesves passim 

vi 

  

 



  

STATUTES 
  

28 

42 

- 42 

42 

u.s.cC. 

U.S.C. 

¢.5.C, 

u.s.c. 

u.s.cC. 

2201 

1971 

1973 

19737 

eo @ oe &@ © © © 0° 

® © © 0 © 0 @ © @ @ oO 0 

© © ® © 6 © © 0 © @ © 0 ¢ Oo 0 

® eee @ © 0° © 0° OO 0 0 0 

0.8.C. 1073340) eesvinvrssrrsnserssons 3 

¥.8.C. 11983 4, 
© ® © © © © © © © ® ®@ © © © 9 OO 6 0 ee 0 0 0 00 

42 U.S.C. 1985(3) ceecececcccacccccccccac 

- 

STATE STATUTES 
  

Ala. Act.281 (1911) @e © © © @ © © © © ® © © © O° © © @ 0 O° 0 0 

Ala. Act 823 (1965) 

la. R.S, 18:358 ... “rune 5 

La. Act 302 (1910) 

FEDERAL RULES OF CIVIL PROCEDURE 
  

Rule 52(a) 30, 41 
© ® © 9 © 8 8 © © 9 © 0 OO 0 8 OT OOS OOO 00 ee 000 

RULE ZU DI IY rants eines r cows vnnvassdicnevie 12 

MISCELLANEOUS 
  

U.S. Bureau of the Census, Census of 

Population Characteristics, Final 

Report PC (1) - B2, Alabama, 

Table 24 18 

vii 

   



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  ¥ 

Nos. 76-3619 and 76-4210 

  

BLACKS UNITED FOR LASTING LEADERSHIP, INC., et al., 

Plaintiffs-Appellees 

Ve 

CITY OF SHREVEPORT, et al., 

Defendants—Appellants 

and 

WILEY L. BOLDEN, et al., 

Plaintiffs—-Appellees 

Ve 

CITY OF MOBILE, ALABAMA, et al., 

Defendants—-Appellants 

7 
  

On Appeal from the United States District Courts 

for the Western District of Louisiana and 

the Southern District of Alabama 

  

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 

  

QUESTIONS PRESENTED 
  

1. Whether the district courts correctly ruled that the 

at-large systems for electing the city commissioners of Shreve- 

port, Louisiana, and Mobile, Alabama, unconstitutionally dilute 

black voting strength. 

 



  

- . 

2. Whether the district courts erred in failing to 

require proof that the at-large voting YAS in question 

were adopted with racially discriminatory purpose or motive. 

3. Whether the courts' remedial orders, which effectively 

preclude the use of strict commission governments in Shreveport 

and Mobile, were within the scope of their equitable powers. 

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. Although 

these actions were instituted by private parties, resolution 

of the issues presented will directly Affect ule authority 

of the Attorney General to protect the voting rights 

of Americans citizens. See, e.g., Paige v. Gray, 538 F.2d 

1108 (5th Cir. 1976). 

 



  

- 3 - 

In addition, Section 5 of the Voting Rights Act of 

1965, as amended, 42 U.S.C. 1973c¢c, requires the submission 

of changes in voting laws of covered jurisdictions for the 

purpose of obtaining clearance of such changes from either 

the United States District Court for the District of 

Columbia or the Attorney General. The Attorney General 

is authorized by Section 12(d) of that Act, 42 U.S.C. 

1973j(d), to institute an action to prevent a change from 

being implemented unless it has been cleared pursuant to 

Section 5. In 1976, the Attorney General interposed an 

objection to Mobile's change from at-large elections for 

three undifferentiated city commission “places” to at-large 

elections for three ‘functional commissioners. 

STATEMENT : ; 
  

I. B.U.L.L. Vv. CITY OF SHREVEPORT 
  

A. Procedural History 
  

This action was commenced in March 1974 by black 

individuals and organizations in Shreveport, Louisiana. 

The complaint, which named as defendants various city and 

state officials, charged that the at-large system for the 

election of Shreveport's city commissioners impermissibly 

 



  

* . -4- 

diluted black voting strength in violation of the Four teenth 

and Fifteenth Amendments. PL2intizes wought GeslAratory and 

injunctive relief pursuant to 28 U.S.C. 2201 and 42 U.S.C. 

1983, including an order requiring the defendants to submit 

a oi dbs plan apportioning Shreveport into five single- 

member districts. 

Three days of evidentiary hearing were held in May 

1974. The hearing was postponed pending resolution of 

the question whether a three-judge court was required 

to hear the case. In September 1974 the court ruled that a 

court of three judges was unnecessary. Two more days of 

evidentiary hearing were held in April 1975, On July 16, 

1976, the court issued an opinion in which it declared 

Shreveport's election scheme unconstitutional. Judgment 

was entered July 27, 1976. Defendants appealed. 

On December 27, 1976, Blainsitte-aApgelises filed a 

motion to dismiss the appeal on the grounds of mootness 

and the non-appealability of the district court's order. 

This motion was denied by this Court on February 14, 1977. 

That same day, the Court ordered the case consolidated with 
1/ 

Bolden v. City of Mobile, Alabama.” 
  

B. Facts 

The facts are set forth in detail in the district court's 

opinion (pp. 6-16), in appellants' brief (pp. 8-12), and in 

appellees' brief (pp. 7-13). Essentially, the evidence showed 
  

1l/ The United States learned only recently that the court had 
ordered Nevett v. Sides, No. 76-2951, to be argued in conjunction 
with B.U.L.L. and Bolden. Because we did not have sufficient   

time to prepare a brief for the Nevett case, this brief 
addresses only the B.U.L.L. and Bolden cases. 

  

 



  

“5 

that Shreveport has functioned under a commission form of govern- 

ment since 1910. In 1950 Shreveport adopted a city charter that 

continued the basic commission government under which it had been 

operating. The charter provides for five commissioners, each of 

whom is elected at-large. Each commissioner, including the mayor, 

heads one or more of the city's departments. In addition, the 

commissioners act as the city's legislators. Most of the 

conaleeionsrs! working hours are spent on executive sitters | 

Primary elections in Shreveport are governed by Louisiana's 

"majority primary law" {La. R. S. 18:358)., Candidates must 

run for a designated commissionership, and there is no 

residency requirement (other than city residency). There is 

no official candidate slating process in TI Poten- 

tial candidates usually consult with city leaders before 

4/ 
deciding whether to run. 

5/ 

6/ 
Although blacks constitute 34% of Shreveport's population, . 

Voting in Shreveport is polarized along racial lines. 

no black has ever been elected a commissioner. Only one 

4 
black has run for a commissionership; blacks have been 

discouraged from running for office by the inevitability 

  

2/ T.1 59. {T.1 refers to the transcript of proceedings 
Tor May 2, 3, and 30, 1975; 7.11 refers to the transcript 
for proceedings for April 21 and 22, 1975.) 

3 2.1123, 58, 119. 

4/ T.I 40, 68, 216. 

5 7.1130, 212; T.11 8-11, 157-158, 169-170. 

8/  T.11 32. 

 



  

- 6 = 

8/ 
of defeat. In only a few instances "have blacks been 

able to affect the outcome of an election by tipping the 

9/ 
balance in favor of one of two white candidates. However, 

the support of black voters is sought by candidates for 
10/ 

the office of city commissioner. 
11/ 

Housing in Shreveport is racially segregated.”  0il- 

base streets in black neighborhoods are permitted to lapse 
12/ 

into disrepair; drainage in black areas is poor. Police 

protection and garbage collection in the black community 
13/ 

are unsatisfactory. The city has failed to provide 
. 14/ 
adequate low-cost housing for blacks. 

  

8/ T.1-2), 150-131, 

9/ P.1 6l. 

xo/ T.1.37, 215,.227; 7,11 100-101, ‘120, 201. 

11/ Deposition of Professor Karl E. Tauber. 

12/ T.I 11-12, 80, 92, 100-101, 104-106, 176. However, the 
city recently allocated $500,000 for the improvement of 
drainage in black neighborhoods. T.I 66, 94, 220; T.II 
325, 215, 

13/ T.1 49, 64, 115-116, 142, 149, 169-170, 179, 183, 
203-205; T.II 112. 

14/ T.I 162-163, 193-196. 

 



  

Hk, Ti 

The city's record in minority employment is poor, and 

only recently have blacks been appointed to official 

committees under the city commit 85.9 per cent of 

all nynek lotiv employees earn less than $6000 a year, 

while only 18.7 per cent of all white city employees earn 

less than that amount. 82.7 per cent of all black city 

employees are classified as “service maintenance,” the 

city's lowest job classification; only 13.7 per cent of all 

white employees are. so tasetbist in 

Blacks in Shreveport have been the victims of official 

racial discrimination in the voting Srocess. 1H addition, 

under state statutes and local ordinances, they Have 

been required to attend segregated schools and to. use 

segregated public accommodations, recreational facilities, 

: 18/ 

conveyances, restrooms, and water fountains. . 

  

i5/ 7.1 65, 112-113, 115, 134, 153-154, 225: 2.11 35-40. 

Yeé/ 7. 11 40. 

17/ T.1I 73-74; answers to interrogatories of J. Stanley Pottinger, 

Assistant Attorney General, Civil Rights Division, United States 

Department of Justice. 

18/ See, e.g. United States v. City of Shreveport, 210 
  
  

F. Supp. 36 (W.D. La, 1967), affirmed, 316 F.2d 925 
(5th Cir. 1963) (City of Shreveport and its commission 
council permanently enjoined from operating racially 

segregated rest rooms and dining facilities in the Shreveport 

- Municipal Airport). 

 



  

- 5 

C. Opinion of the District Court 
  

The district court found for the plaintiffs. The court 

peld that "the commission-council form of municipal government 

in Shreveport, requiring thé at-large election of all commissioners, 

within the framework of facts and circumstances peculiar to this 

city, Her AEN impermissibly to dilute the minority voting strength 

of black electors" (Blacks United for Lasting Leadership, Inc.., 
  

{*"B.U.L.L.") v. City of Shreveport, Louisiana, 71 P.R.D. 623, 
  
  

627 (W.D. La. 1976)). 

The court relied principally upon the Supreme Court's 

decision in White v. Regester, 412 U.S. 755 (1973). The 
  

court also cited -- as "giv[ing] us insight into the con- 

trolling principles of law by which we ... are guided” 

(id. at 633) -- two recent cases decided by this Circuit: 

Zimmer v. McKeithen, 485 F.2d 1297 (1973) (en banc), affirmed 
  

on other grounds sub nom. East Carroll Parish School Bd. v. 
    

Marshall, 424 U.S. 636 (1976), and Wallace v. House, 515 F.248 
  

619 (1975), cert. granted, judgment vacated and remanded, 425 

U.S. 947 AT These cases identified a number of factors 

to be considered in determining whether an at-large or 

multi-member district voting scheme impermissibly dilutes 

minority voting strength in violation of the Equal Protection 

Clause. The district court considered each of the 

‘relevant factors. Its findings as to these factors are 

summarized as follows: 

  

19/ The court stated, "[OJur decision today does not stand 

or fall upon the constitutional orinciples axpressed in 

Zimmer, but rather upon those announced in White v. Regester, 
  

D. 

supra, and authorities there cited.” B.U.L.L., supra, 71 PF. 

at 633-634, n.l17. 
  

 



  

“GQ w 

1. Lack of Opehness of the selitical Process. No 

black has ever been elected to the city office in Shzevepdrt. 

Only one black has ever run for a Shreveport commissionership. 

“[B] lack persons plainly have been discouraged from seeking 

office by [the] inevitability of defeat" (id. at 628; foot- 

note omitted). The support of black voters is actively 

sought by candidates in city elections, and black voters 

sometimes have been able "to tip the balance in favor of 

either of two white candidates” (id. at 635). The court, 

however, did not consider this “the sort of meaningful 

access to political processses intended by the Fourteenth 

Amendment as interpreted in White [v. Regester]" (ibid.) 
  

2. History of Racial Discrimination. The court 

found that "official racial discrimination ... long 

[has] affected all aspects of the lives of Shreveport's 

black citizens" (ibid.). “Housing in the city remains 

almost totally segregated[;] residual effects of past 

discrimination linger in public employment[;] [b]lack 

voter registration percentages remain lower than proportionate 

white registration" (ibid.; footnote omitted). 

3. State Policy Underlying Use of At-Large Voting. 

Blacks were disenfranchised in 1910 when at-large voting 

for city commissioners was instituted in Shreveport. 

The court therefore perceived no "tenuous policy" underlying 

 



  

= “10 — 
| 20/ 

the use of at-large voting (ibid.). 

- 4, Responsiveness to the Black Community. The court . 

found that “in the past, local officials clearly neglected 

their responsibilities to the needs of black persons in 

the community. Recreational facilities were completely 

segregated and those in black neighborhoods inevitably 

were inferior. Blacks were not appointed to committees 

and boards of local importance, and the record of black 

employment by the city was, and still is shameful. Finally. 

governmental services and facilities generally were 

disproportionately poor in the black neighborhoods" (id. 

at 635-636). | 

The court perceived “at least some sincere efforts 

to achieve racial fairness in dispensing public benefits” 

(id. at 636). Nonetheless, the court ruled, “the record, 

in clarion tones, bespeaks many still lingering failures 

remaining to be rectified" (ibid.). 

5. Enhancing Factors. The court found that “[t]lhe 

majority primary law, 'place' requirements, [the] absence 

of residency requirements, and racially polarized voting 

all have sracerbated the past almost total foreclosure 

of blacks from truly effective exercise of the ballot" (ibid.). 

  

20/ There is no “strong state policy," Zimmer v. McKeithen, 
  

supra, 485 F.2d at 1305, underlying the use of the commission 

orm of government in Louisiana. State law permits, but 

does not require, the use of this type of government. See 

Act 302 of 1910. 

 



  

- 11 - 

On the basis of these findings, the court held 

that the relevant portions of tie city charter "operate 

impermissibly to dilute the. voting power of the city's 

black electors in violation of the Equal Protection 

Clause of the Fourteenth Amendment” (id. at 636). 

The court did not order specific changes in the city 

charter. Rather, it required the defendants to submit 

within one year proposed revisions to the charter 

“to bring it into compliance with the constitutional 

principles [it had] articulated" (id. at 637). = 

1X. BOLDEN v, CITY OF MOBILE 
  

A. Procedural History 
  

This action was commenced on June 9, 1975, by black 

voting-age citizens of Mobile, Alabana, against the City of 

Mobile and the three incunBent city conn ssioners in their 

individual and official capacitor Shpt elation alleged that 

the system of electing the city commission at-large, to numbered 

places, discriminated against the black voter minor ity, and 

diluted their vote, thus violating plaintiffs' rights under the 

First, Thirteenth, Fourteenth, and Fifteenth Amendments, and 

  

21/ The court did not require that the Mayor be elected 

from a single-member district. It stated, id. at 636, that 

»{o]f course, as Chief Executive Officer of the City, 

‘necessarily the Mayor must be elected by voters in an 
at-large election city-wide." 

22/ R 1. Appellants in Bolden have elected to proceed with a 

deferred appendix. Citations here to the record will be 

made by the designation “R _;" "Tr. " will signify citations 

to the trial transcript. Exhibits will be identified as "Pls. 

Ex. mal and “"Defs. EX. RANG by number and, where relevant, page. 

TE a 

 



  

-12 - ; 

23/ 
42 U.S.C. 1973, 1983, and 1985(3). ‘They prayed the court for 

a declaratory judgment and an order enjoining further 

elections under any plan other than one implementing single- 
24/ 

member districts. After the court denied the defendants’ 

motion to dismiss for lack of jurisdiction and failure to state 

25/ 
a claim, and motion to strike plaintiffs' prayer for in- 

26/ : 

junctive relief, the defendants filed an Answer denying 
27/ 

all material allegations of Complaint, including plaintiffs’ 

class allegations. On January 19, 1976, the district court 

certified the plaintiff class, pursuant go mule 23(b)(2), 

Fed. R. cio Bl, as "all black persons who are now citizens of 

the City of Mobile." 2% | 

After extensive discovery, trial was held in July. 1978, 

At the completion of trial, prior to entering findings, the 

  

23/ R 1-3. The district court subsequently dismissed plaintiffs’ 

T1983 claims against the City defendant, and the 1985(3) (conspiracy) 

claim against all the defendants, R 171-172. 

24/ R 3. | et 

25/ R 19-20 (Motion to Dismiss). 

26/ R 21-22; Motions denied, R 170-173, November 18, 1975. 

27/ R 184-189 (December 3, 1975). 

28/ R 333. 

 



  A 

-l3~ 

district court asked the defendants fo submit alternative single- 

member district mayor-council plans ih case the court should 

: 29/ 

decide in favor of the plaintiffs.” The. plaintiffs submitted 

a nine single-member district plan but "the defendants chose 

| | 30/ 

not to avail themselves of this opportunity." Thercfore, the 

court requested and received recommendations from the parties 

for three persons to constitute a committee to draft and recommend 

3Y/ 

to the court a complete mayor-council plan. - On October 6, 1976, 

the court appointed the three-man committee and asked them to 

: ; 32/ 

complete their recommendation by December 1, 1976. On October 

: 33 

22, 1976, the district court entered judgment for the ovlaintiffs,” 

ordering that the August 1977 city elections be conducted and 

council members elected from nine single-member districts pur- 

suant to a detailed plan yet to be adopted. Defendants filed a 

| 34/ : 

notice of appeal on November 19, 1976. = On March 9, 1977, the 

district court entered its remedial order spelling out the plan 

35/ 

for a new form of government and elections. Because there was 

doubt as to the finality of the court's October 22, 1976, judg- 
36/ 

ment, defendants filed a second Notice of Appeal, March 18, 1977+ 

  

29/ Pr. 1415 (July 21, 1976). Plaintiffs had already submitted 

plans pursuant to the pre-trial order (id., 1414-1415). N 

30/ Bolden v. City of Mobile, Alabama, 423 F. Supp. 384, 404 

(S. D. Ala. 1970). 

31 

  

/: Ibid. 
  

543-544 (Langan, Outlaw, Buskey). 

604-606. 

R 

R 

34/ B® 613, 

R 622-627. 

R 681. Appellees' brief (footnote continued on next page) 

 



  

- 14 - 

Me oY, 
B. Facts 
  

In Alabama, the form of government olch city must 

(or may) adopt is prescribed by state law. Between 1844 and 

1911, Mobile most often functioned under a "hybr id" system of 

at-large coutiol Inentand aldermen elected from multi-member 

Sistrintinl The three person commission-type municipal government 

was adopted in 1911 by Ala. Act. No. 281 (1911)(at p. 330). 

The system requires each commissioner-candidate to run for a 

numbered post and win a majority in a non-partisan election 

(without first winning a primary). There are no residency re- 

quirements other than residency in the City of sopiiel 

While elections to the city commission have always been 

at-large to numbered posts, it was only in 1965 that specific 
40/ 

functions were assigned to each post by statute. After this 

  

(footnote continued from previous page) informs us that on 
April 7, 1977, the district court granted the Commissioners’ 
application for a stay pending appeal, and that a motion to 
dissolve that stay is pending in this Court, brief, pp. 6-7.) 

37/ The facts are spelled out in the district court's opinion, 
423 F. Supp. at 386-394, and in the appellees' brief at pp. 7-24. 

38/ See, generally, appendix A to appellants’ brief, outlining 
the history of Mobile city government. 

39/ 423 F. Supp. at 386-387. 

40/ 423 F. Supp. at 386. 

 



  

-15 ~- 

action was commenced, the City of Mobile submitted Act 823 of 
( 

Alabama (1965), instituting functional posts, to the Attorney 
: 41/ 

General pursuant to Section 5 of the Voting Rights Act of 1965. 

On March 2, 1976, the Attorney General (per Assistant Attorney 

General Pottinger) interposed an objection to the change on the 
42/ 

ground that it tends to lock in the use of at-large elections. 

ee«[Ilncorporating as it does the 
numbered post and majority vote features, 
and in view of history of racial discri- 
mination and evidence of bloc voting in 
Mobile, we are unable to conclude... that 
section 2 of Act No. 823 will not have the 
effect of denying or abridging the right 
to vote on account of race or color. 43/ 

The objection letter explicitly noted that the move to functional 

RE, would make it impossible for the city to change to single- 

member district voting, as it would be inappropriate to give 

one segment of the city exclusive right to elect, €.g9., the 

commissioner of sotice. vo suit has been brought in the 

District Court for the District of Columbia +0 challenge this 

objection. 

It is undisputed that the commission form Bs eanent was 

adopted in what the court labeled a "race proof" context because 

the 1901 Alabama Constitution had already disfranchised blacks. 

  

41/ R 472-477. 

"42/ R 478-481. 

43/ R 479. 

44/ Ibid. 
  

45/ 423 PF. Supp. at 397. 

 



  

“16 ~ 

Plaintiffs' historical expert, Dr. McLaurin, however noted 

that: (1) the reformers who brought about the commission form 

of government to end "corruption" identified corruption with the 

black vote; (2) they were aware that at-large elections would 

diminish the impact of any potential future black vote; and, 

(3) blacks, in any event, were excluded from the decision to 

46/ 
adopt ehts form of city government. 

The city has had the option to discard the commission 

form of government by referendum but, under state law, the 

available alternatives have been a return to the pre-1911 

system or adoption of the so-called "weak" mayor-council 

system. ¥ Referenda to change the form of government in 

Mobile rejected those options in 1963 and 1973.2 

As a practical matter, the power to pass or veto bills 

modifying the form of city government resides in the city's 

delegation to the State Legislature. Mobile has three senators, 

any one of whom can veto proposed local legislation under 

the existing courtesy rule. A majority of Mobile's 

  

46/ Tr. 21-25, 38. The district court made an explicit finding 

as to the second of these points, 423 PF. Supp. at 397: "A 

legislature in 1911 ... should reasonably have expected that 

the blacks would not stay disfranchised. It is reasonable to 

hold that the present dilution of black Mobilians is a natural 

and foreseeable consequence of the at large election system 

imposed in 1911." 

47/ See, generally, 423 F. Supp. at 404; Edington dep. (Pls. 

Ex. 98), pp. 41-43, 68. : 

48/ vr. 335, 734, 737: Ple. Ex. 98, p. 41, 

 



  

- 17 =- 

eleven-menmber House delegation can prevent a local biil 

from reaching the floor for debate. 

After this suit was filed, a bill was introduced to the 

State Senate to make a strong mayor-council Soeted an option 

the City of Mobile could adopt by referendum. It would provide 

for an at-large-elected mayor, seven council members from 

sinalemenbet Alek tots; and two council members at-large. 

The pill has been held up by the "veto" of a single state 

senator. At a meeting of civil leaders, a white Moble 

leader expressed the view that this bill threatened 

“majority" rule. 2Y Similar bills have been intro- 

duced calling for single-member district elections for 

county commission and county school board. Black state 

  

49/ 423 F. Supp. at 397. 

50/. Tr. 726-736 (Roberts); see, also, Pls. Ex. 98, p. 30. 

 



  

--18 ~ 

representative Cain Kennedy testified that-the question most 

often raised in opposition to both wag: how many blacks 
| 51/ : 
might be elected. 

Blacks constitute approximately 35.4% of Mobile's popalation 

of over 190,000. 22/ he black percentage of the City's voting 

age population is 318.2 The percentage of registered voters 

who are black is even Yovor 2 sn black turnout regularly 

lags behind the already low white A, ad 

Extensive evidence was introduced to show the degree to 

which voting in Mobile has been polarized along racial lines. 

. Plaintiffs made use of the correlation analyses done by defen- 
56/ 

dants' expert, Dr. Voyles, .in his doctoral dissertation,” and 

: 51/ 
correlation studies by their own expert, Dr. Cort B. Schlichting. 

  

s 

51/ Kennedy dep. , Pp. 28-29, See, also, 423 F. Supp. at 397. 

52/ 423 F. Supp. at 386. 

53/ U.S. Bureau of the Census, Census of Population Charac- 
teristics, Final Report PC(l)-B2, Alabama, Table 24. 

54/ 423 F. Supp. at 386; 89% of the voting age white population 
1s registered, but only 63.4% of the black voting age population 
is registered. 

S5/ Pls. Exs. 3 through 5. 

56/ Pls. Ex. 9, “An Analysis of Mobile Voting Patterns, 
1948-1970." 

51/ Tr. 92-194 and Pls. Exs. 10-53. 

 



  

-19 - 

The basic scheme of these correlation analyses is as follows: 

if there are two wards, one 100% black and the other 100% 

white, and 100% of the vote in each goes to opposite candidates, 

the correlation between race and voting would be 1.0 and race 

would account for 100% of the voting behavior. No candidate 

ever produces such a correlation, of course, if for no other 

reason than that no ward is 100% black or white. Any correlation, 

city-wide (or county-wide) over .7 is statistically Re 

By an accepted mathematical formula, a "Pearson's R" (like .7) 
3 59 / 

accounts for 49% (R ) of the voting behavior. =~ 

‘ The career of Joe Langan, white, long time finance commissioner 

long identified with black interests, furnished the only significant 

data with respect to city commission elections, for no blacks ran 

for city commission until 1973, and then, as minor candidates. 

Langan ran for the commission and won in 1953 and thereafter, 

every four years until he was defeated in 10892 besos ing to 

Voyles' tables and analysis, Langan began as a New Deal Democrat 

who won, at first, with a coalition of the white and such black 

vote as arated Beginning in 1961, a polarization became 

apparent between the lower and lower middle class black wards on 
: 62/ 

the one hand and the equivalent-class white wards. 

  

58/ See e.g., Tr. 159 (Schlichting). 

S59/ Pls, Ex. 9, Ch. 1V. 

60/ See Pls. Ex. 9, pp. 82-99, 

61/ 1d. at pp. 82-84 and table at p. 87. 

62/ 1d. at pp. 91-93; in 1961, Langan won 94.31% of the yote in 
Fhe lower-black wards and 91.30% of the lower middle black; the 

overall correlation was .71 for race. 

 



  

- 20 ~- 

; 63/ 

The gap widened with each successive election, so that in 

1969 he won 94.39% of the vote in the lower-middle black wards 

but 34.35% in the lower-middle white wards, for an overall 

64/ : 

correlation of .91. Campaign literature openly identified: 

Langan with the so-called "bloc vote" (a code for blacks) 

and with John LeFlore, well known black leader in Mobile. hg 

One flier, challenging the voters: "Bloc Vote or Youz", 

lists five ways in which the bloc vote is obtained, e.g... 

favoring integration and open housing, and using terms of 

66/ 
respect when addressing blacks. 

At trial, there was considerable debate regarding the 

role played in the 1969 Langan defeat by the unusually low 

67/ 

black turnout. No one, however, disputed that this election 

’, 

represented the high water mark of racial polarization. 

  

(o)
] 

bi
o,

 

3 See, id., pp. 93, 99, 

oN
 

~N
 4 Id., p. 99; Pls. Ex. 53. 

65/ Pls. Bx. 61, po. 48, (ad): 55 (flier); 49 

{political ad); 56 (flier); 58 (flier); 59 (flier). 

66/ Id., p. 56. The flier also lists black ward votes for 

Langan in the past. 9 

67/ Tr. 295-305 (Langan); 481-482, (Voyles). 

 



  

- 21 - 

Indeed, the winners in the 1969 city commission race, 
68/ 

generally, carried no black wards, and though Langan carried 

some white wards, he failed to carry any group (e.g., lower, 
69/ 

lower-middle) of white wards. 

In 1973, by contrast, blacks ran for two of the three 

city commission slots. They were relatively unknown and 

underfinanced, and garnered relatively few votes even in the 

predominantly black wards. On the other hand, they received 
70/ 

their only votes in the black wards. Race was not manifestly 

‘a factor in 1973 as between the white candidates. Doyle had run 

unopposed. Mims had prevailed without a run-off, with a Pearson's 
71/ : : 72/ 

R of .71, and Greenough beat Bailey with a Pearson's R of .59. 

The black vote, however, went more heavily to loser Bailey than 
73/ 

winner Greenough. 

  

68/ Tr. 460 (Voyles). 

69/ Tr. 491 (Voyles). 

70/ Pls. Exs. 48 and 53 (Taylor's R); Pls. Ex. 47 
(Smith's R). Cooper dep., Pp. 15 (Pls. Ex. 99). 

11/ Pls. Ex. 53, (Voyles' Pearson's R). 

12/ Pls. Ex. 53, using Voyles' data. . Pls. Ex. 46 
shows a correlation of only .51. 

73/ Defs. Ex. 29; Tr. 1133-1134. 

 



  

om 22 - 

The city commission races of 1961 and 1965 other than 

the ones trvolving Langan show only moderate correlations 

between voting and race, at least by compar ison to the Langan 

races. The only consistent feature is that the majority of 

| 74/ 
the black vote went to losers. 

Significant correlations between race and voting appeared, 

however, in five county school board primary run-off 
: : 75/ 

elections in 1962, 1966, 1970, 1972, and 1974. In four of these 

elections, a black candidate ran against a white. In the fifth, 

the 1972 race, a white woman, Koffler, who was highly identified 

with desegregationist interests, was defeated by a white man 

with opposing stevens The highest correlation was that in 1966, 

where a black, Russell, lost to 2 White fa a contest polarized 

.96 by race. 

Finally, in 1972, Langan made a run for the Democratic 

nomination for County Commission, and lost in a run-off in 

18/ 
- a heavily polarized vote (.86). As in 1969, Langan's opposition 

publicized in detail the candidate's popularity with the “bloc 

  

74/ Defs. Ex. 33; Pls. Fxs. 9 and 53. Note that Voyles' 
findings of high correlations by race are offset by almost 
equal correlations based on income. Schlichtings' correla- 
tions for Mims v. Luscher (Pls. Exs. 16 and 18) is only .6753. 

15/ Pis.:Px."10, 18, 34, 36, and 52. 

76/ Tr. 374-378 (Koffler). 

17/ Pls. Ex. 19. 

-18/. Pls. Ex. 43. 

 



   - 23 = 

vote," his identification with John LeFlore's Non-partisan 
72/ 

Voting League, and his anti-Wallace stances in the 1960s.” 
Ca " 80/ 

There was no.black boycott in this election, though the 
81/ 

black turnout was very low. 

No black or candidate identified with blacks (other than 

Langan) has ever won an at-large election in the City or Ccunty of 
82/ : 

Mobile™ and many witnesses, black and white, testified that they 
83/ 

believed it would be futile for a black even to attempt to run. 

Moreover, witnesses experienced in local politics indicated that 

while Non-partisan Voting League (i.e., black) endorsement could 

be helpful to a sandidater te conspicuous black support has 

been and will continue to be a "kiss of death" to a Gantt iat 

Blacks can be, and were elected to the State Legislature after 

single-member districts were introduced, but even as late as 

1974, black candidate Buskey lost to a white in a closely con- 

tested, highly polarized State Senate race. This campaign, like ~ 
, B86/ 

others before it, featured racially oriented publicity. 

  

79/ Pls. Ex. 61, pp. 10, 14, 16. 

80/ Tr. 311. 

8l/ pris. Ex. 3. 

82/ State legislature elections were alsc at-large until Sims 
Vv. Amos, 336 F.Supp. 924 (M.D. Ala. 1972). 

83/ Pr. 209-210 {Bolden):;237, 246-7 (Buskey) ; 410 (Hope); 594 

{Alexander); Pls. Ex. 98, p. 38; Tr. 566-567 (Wyatt). 

84/ Tr. 213-214 (Bolden); 275 (Buskey); 567 (Wyatt); 322-323 
(Langan). 

85/ Tr. 141, 193 (Schlichting); 460-463 (Voyles); 227-230, 235-6, 
253 (Buskey); Edington dep., pp. 8, 10, 15-17; Kennedy dep., Ppp. 
8-11, 20. i 3 

86/ Tr. 223-229, 236 (Buskey, re Buskey-Parloff campaign). 
The district in question is evenly divided between black and 
white with blacks possibly having a slight majority, Tr. 226. 

 



  

- 34 

It is undisputed that between the turn of the century and 

1965, blacks suffered from extensive official .and unofficial 

discrimination and ‘intimidation, inhibiting their rights 

to vote. This history is reviewed in the district court's 

opinion and need not be repeated here. 

In addition, the city government of Mobile has been unresponsive 

to the interests of blacks. Desegregation of such public facilities 

as public transportation, the golf course, and the airport, have 

all been achieved by federal court ot8eis 2 sintunt in, it required 

a federal suit to end Pacial discrimination by the police depart- 

parti a City had segregated fire departments until the late 

1960's, and at the time of trial, of 439 firemen, 27 were b1ack=" 

The City's EEO-4 reports to the federal Sevdpnneni sho that 

blacks represent about 26% of the City's work force, but they 

are heavily concentrated in the lowest service and maintenance job 

categories. 

  

87/ 423 Pp. Supp. at 387, 393. 

88/ 1d. at 389. 

89/ 1bid. {Allen v. City of Mobile, 331 PF. Supp. 1134 (Ss. D. 
Ala. I971), B2cTq., 408 F.2d 122 (oth Cix. 1972), cert. denied, 
412 U.S. 909 (1973)). 

    

  

90/ Tr. 1403-1405 (Edwards). 

91/ As analyzed in Pls. Ex. 73. 

 



  

- 25 - 

Blacks have minimal representation on the many boards 

and committees appointed by the Commission to help run the | 

city, amounting to about 10% of the total membership at the 

time of WORE a on many of these boards requires 

a certain technical expertise or skill. Yet, Commissioner Mims, 

on Cross examination, said that the commission limits the field 

from which such appointments are made even when not required by 

statute to do so. Moreover, in most instances, he was able to offer 

no explanation for the absence of blacks from boards, and denied 

believing there were no blacks qualified to sete ln, one in- 

stance, that of the now-defunct citizens advisory committee 

on the Donald Street Freeway, Mims testified that the large black 

representation was probabably due to federal regulations regarding 

board membership in federally assisted highway oregon 

In 1973, the local NAACP complained to the United States 

Department of Treasury that federal revenue sharing 

  

92/ Pls. Ex. 64. 

93 Tr. 942-997. 

94/ Tr. 948-949 and Pls. Ex. 103. 

 



  

- 26 ~ : 

lh 
; 95/ 

funds were being allocated in a discriminatory fashion. 

The Office of Revenue Sharing (ORS) made an investigation, and 

reached the conclusion that there were a number of inequities in 

the allocation of revenue sharing funds, particularly in park im- 

provements, paving, resurfacing, drainage, and swimming pools. 

After. considerable negotiation, ORS was satisfied that Mobile 

had rectified the inequities, or at least had made commitments 

to doing 0.” 

In the spring of 1976, two major racial incidents 

occurred. | One was a “mock lynching” of a black burglary 

suspect carried out by a group of policemen; the second 

was an outbreak of cross-burnings. The speed with which the 

city rdacted to the first of these was a matter of debate 

ria Police Commissioner Doyle advised that while 

he deplored such activities, he felt he had no obligation 

to say so publicly. 2%/ Public Works Commissioner Mims 

testified that he, too, deplored cross-burnings, thought people 

could do what they pleased on their own property, and would not 

  

95/ Pls. EX. 111 *“D." 

96/ Pls. Ex. 111 "X" (January 1974 letter). 

97/ Tr. 7155-761, 794-805 (Doyle). The district court concluded, 

423 F. Supp. at 392, that the city's reaction was “timid and 

slow.” 

98/ Tr. 767-768, 804-806. 

 



  

. i JT 

oppose an ordinance to probibit burning anything, crosses or 

199/ of 

trash, on public property. The district court concluded, 423 

( 

F. Supp. at 392: 

The lack of reassurances by the city commission 

to the black citizens and to the concerned white 

citizens about the alleged "mock" lynching and 

and cross burnings indicates the pervasiveness 

of the fear of white backlash at the polls and 

evidences a failure by elected officials to take 

positive, vigorous, affirmative action in matters 

which are of such vital concern to the black people. 

C. Opinion of the District Court 
  

On October 21, 1976, the district court entered detailed 

findings of fact and conclusions of law, now reported at 423 F. 

Supp. 384. Following the lines of factual and legal analysis 

prescribed by White v. Regester, supra, and this Court's opin- 
  

jon in Zimmer v. McKeithen, supra, the court found: 
  

1. The history of racial discrimination in Alabama 

generally, and Mobile, specifically, combined with polarization 

of the vote along racial lines and the at-large structure of 

city elections have left blacks with no reasonable expentaLion 

of electing blacks or persons identified with plack interests 

to the city commission, and have discouraged qualified black 

candidates from entering city commission races, 423 F. Supp. 

at 389, 393, 39%; 

2. The Mobile City Commission has been and continues to 

be unresponsive to the needs of black citizens. This has 

manifested itself in the city's resistance to desgregation of 

public employment and public facilities, reluctance to ap- 

point blacks to the City's governing committees, and making 

  

99/ Tr. 1021-1022. 

 



  

- 28 

only a “sluggish and timid response" (id. at 392) with respect 

to cross-burnings, police brutality, and other issues of par- 

ticular concern to the black community, id. at 389-392, 400; 

3. The potential for dilution of the black vote is enhanced 

by the size of the city as a multi-member district, lack of a 

residency requirement (other than city residency), and the majority 

vote requirement for each place on the city commission, id. at 

401-402; 

4, State law has evidenced no strong preference for 

commission government, id. at 393, 400-401. 

On the basis of these findings, the district court 

concluded that, id. at 402, 

«..[Tlhe electoral structure, the multi- 

member at-large election of Mobile City 

Commissioners, results in an unconsti- 

tutional dilution of black voting strength. 

It is “fundamentally unfair," Wallace [v. 

House], 515 F.2d [619,] at 630 [vacated 

on other grounds, 425 U.S. 947 (1976)] 

and invidiously discriminatory. 

The court also held, as a matter of law, that the Supreme Court's 

decision in Washington v. Davis, 426 U.S. 229 (1976), had not 
  

overruled, superseded, or modified the standards for proving unlaw- 

ful dilution set forth in White, supra, Zimmer, supra, or Whitcomb 
  

  
  

v. Chavis, 403 U.S. 124 (1971), and that initial discriminatory 

purpose is not an essential element in dilution. See, generally, 

423 F. Supp. at 394-399. Alternatively, the court found racial 

motivation in the perpetuation of the at-large commission system 
  

to have been adequately demonstrated, id. at 391. 

 



  

- 29 - 

INTRODUCTION AND SUMMARY OF ARGUMENT 

i : 
100/ 

These cases resent. for the first time in this Circuit 

the question of the validity of the use of the commission 

form of municipal government in circumstances where other 

at-large systems of representation would unconstitutionally 

dilute the black vote. The violation here is not the fusion 

of legislative and executive functions, but the maintenance 

of a system which deprives blacks of an equal chance for 

legislative representation on the commission. The rationale 

of the decisions below does not foreclose cities such as 

Mobile and Shreveport from maintaining some of the attributes of 

a commission system of government, so long as blacks are 

not effectively frozen oul of the legislative body. Since 

no such system has been proposed by the defendants here, these 

are not appropriate cases in which to explore the possibility 

of adapting commission government so as to eliminate dilution. 

It is, however, important to leave open that possibility, to 

be considered in other cases, in the remedy proceedings in the 

Shreveport case, or in evaluating any future Mobile plan. The 

remedy must be directed at eliminating unlawful dilution, 

not at eliminating commission government. 

  

100/ The Court of Appeals for the Seventh Circuit has held 

that a state's interest in maintaining the commission form 

of government does not justify otherwise unconstitutional 

dilution of the black vote. Kendrick v. Walder, 527 F.2d 

44 (Ith Cir. 1975). 
  

 



  

-30- 

II 

In our view, the decisions of the courts below should be 

affirmed. Both courts properly interpreted the principles of 

  

White v. Regester, supra, and correctly applied those principles 

to the facts before them. 

: The district Sours found: that blacks lacked effective 

access to Shreveport's and Mobile's political processes; 

that blacks in both cities suffered from the effects of 

extensive official racial discrimination; that officials 

in both cities were unresponsive to the interests of blacks 

in employment and other areas; and that the cities' majority- 

vote requirements, “place” requirements, rand the lack of | 

residency requirements (other than city residency) had 

the effect of minimizing black voting ESOT. These findings 

are supported by substantial evidence and are not clearly 

erroneous. Therefore they may not be set aside on appeal. 

Rule 52{x), FP. Re. Civ. Pu. 

The findings of the district courts are sufficient 

to establish violations of the Equal Protection Clause of the 

Four teenth Amendment, as interpreted by the Supreme Court in 

White v. Regester, and of the Fifteenth Amendment. The facts 
  

of these cases are closely analogous to the facts of White 

Vv. Regester, in which the Court held unconstitutional multi- 
  

member district plans for Dallas and Bexar Counties, Texas, 

and are different from the facts of Whitcomb v. Chavis, supra, 
  
  

 



  

| m3 Lm 

in wich the Court upheld the use of a multi-member district 

for Marion County, Indiana. Moreover, the facts of the 

instant cases are similar to those of several other cases 

in which this Court has held that at-large or multi-member 

district voting schemes unconstitutionally dilute minority 

voting strength. The district courts did not base their de- 

elsions on the mistaken notion that racial minorities have a 

right to proportional representation. Rather, the constitutional 

violation lies in maintaining a form of representation which 

perpetuates the effects of past official racial discrimination 

and which maximizes the adverse impact of private racial bias. 

Because the conclusions of the district courts represent "a 

blend of history and an intensely local appraisal of the de- 

sign and impact" of the at-large plans in question, they are 
’s 

  

entitled to special deference frcm this Court. White, supra, 

412 U.S. at 769-7740. 

111 

The district courts were correct in not requiring 

plaintiffs to demonstrate that the voting plans in 

question were adopted with an intent or purpose to 

discriminate against blacks. The test is whether 

“designedly or otherwise" an at-large or multi-member 

plan operates to minimize or cancel out minority 

 



  

=32- 
| 

  

  voting strength. In .neither White v. Regester nor Whitcomb v. 

Chavis aid tne cupreme Court say that the Equal Protection 

rs-wce Of the Fourteenth Amendment resuires proof of official 

racial intent in cases such as these. Neither Washington v. 
  

Davis, supra, nor Village of Arlington Heights v. Metropolitan 
    

  

Housing Development. Corp., 45 U0.S.L.W. 4073 (U.S. Jan. 11, 1977), 
  

dealt with at-large or multi-member district plans. Neither 

case made any reference to White v. Regester, Whitcomb v. 
  

  

Chavis, or any lower court decision dealing with such 

voting plans. In these circumstances, Washington v. Davis 
  

and Arlington Heights cannot properly be interpreted as 
  

overruling or modifying the White and Whitcomb criteria. 
  

  

. In several decisions rendered after Washington v. Davis 

and Arlington Heights, this Court has ruled that the, 
  

White standards, as interpreted and applied by the Court 

in Zimmer v. McKeithen, supra, still govern in this 
  

Circuit, 

| Even if the Equal Protection Clause of the Fourteenth 

Amendment does require proof of racial intent in the enactment 

of an at-large or multi-member district plan, the Fifteenth 

Amendment does not. Washington v. Davis and Arlington Heights 
    

. apply only to violations of the Equal Protection Clause, and 

the Supreme Court has never held that proof of racial effect 

 



  

“33 
ir 

is insufficient to establish a Fifteenth Amendment violation. 

That proof of official racial purpose is not required under 

the Fifteenth Amendment is supported by Congress's determination, 

in enacting Section 5 of the Voting Rights Act, that it can 

implement the Fifteenth Amendment by proscribing laws which have 

the effect of ony lng or abridging the right to vote on account 

of race, regardless of the purpose or sotive behind such laws. 

Even if proof of racial purpose is required by both 

the Fourteenth and Fifteenth Amendments, such purpose may 

be inferred from the facts of both the instant cases. Direct 

evidence of racial purpose is not required; rather, racial 

purpose may be shown by circumstantial evicence. forsover , such 

purpose need not be present in the enactment of the voting 
  

plan under review. Findings of cur posstul maintenance of the 

discriminatory scheme - such as those made in both the instant 

cases - are sufficient to establish the‘requisite discriminatory 

purpose. When plaintiffs establish - as they did in the instant 

cases - the White v. Regester factors of past discrimination, 
  

racially polarized voting, and the present unresponsiveness 

of elected officials, they have made a sufficient showing 

of invidious racial purpose under the criteria of Washington 
  

  

v. Davis and Arlington Heights, supra. An at-large voting 

‘plan, itself racially neutral, is unconstitutional if it 

carries forward intentional and purposeful discriminatory denial 

of access to the political process. 

 



  

asa 

IV 

~ The orders of the district SOUL LY 2s to relief 

were! vell within the courts' broad remedial powers. 

The structure of the cities' governments is not inmone 

from federal judicial review and must give way to the re- 

quirements of -the Constitution. In Mobile, the district 

court was forced to design an interim plan after the defend- 

ants failed to respond to the opportunity to submit their 

own proposals. In Shreveport, the precise contours of. the 

remedy have not yet been established. The cities' attacks 

upon the relief granted by the courts below, essentially 

pleas that no relief at all should have been granted, are 

without merit. 

 



  

- 35 = 

ARGUMENT 

I 

THE DISTRICT COURTS CORRECTLY HELD THAT THE AT-LARGE 
SCHEMES FOR ELECTING CITY COMMISSIONERS IN SHREVEPORT 
AND MOBILE IMPERMISSIBLY DILUTE BLACK VOTING STRENGTH 

IN THOSE CITIES 

A. The courts below correctly applied the principles 
of White v. Regester. 32 
  

  

White v. Regester teaches that at-large or multi-member 
  

district voting plans are not per se unconstitutional. Such 

plans, however, may violate the Constitution, if they "are 

being used invidiously to cancel out or minimize the voting 

strength of racial groups,” 412 U.S. at 765. "The plaintiffs’ 

burden is to produce evidence to support findings that the politi- 

cal processes leading to nomination and election were not equally 

open to participation Be the group. in question ~-- that its members 

had less opportunity than did other residents in the district to 

participate in the political processes and to elect legislators 

of their choice." White v. Regester, supra, 412 U.S. at 766, 
  

    

citing Whitcomb v. Chavis, supra, 403 U.S. at 149-150. 

To determine whether an at-large or multi-member 

district voting plan unconstitutionally dilutes minority 

voting strength, a court must consider a number of factors. 

Compare White v. Regester with Whitcomb v. Chavis. This 
    

Circuit, en banc, discussed these factors in Zimmer v. 

McKeithen, 485 F.2d 1297 (1973), affirmed on othér grounds 
  

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

    

 



“36- 

  

: 101/ 

U.8. 636 (1976). The Court stated: 

The Supreme Court has identified a panoply 
of factors, any number of which may contribute to 
the existence of dilution. Clearly, it is not 
enough to prove a mere disparity between the 
number of minority residents and the number of 
minority representatives. Where it is apparent 
that a minority is afforded the opportunity to 
participate in the slating of candidates to 
"represent its area, that the representatives 
slated and elected provide representation respon- 
sive to minority's needs, and that the use of a multi- 
member districting scheme is rooted in a strong state 
policy divorced from the maintenance of racial 
discrimination, Whitcomb v. Chavis, suora, would 

require a holding of no dilution. Whitcomb would 
not be controlling, however, where 
the state policy favoring multi-member 
or at-large districting schemes is rooted 
in racial discrimination. Conversely, 
where a minority can demonstrate a lack of 
access to the process of slating candidates, 
the unresponsiveness of legislators to their 
particularized interests, a tenuous state 
policy underlying the preference for multi- 
member or at-large districting, or that the 
existence of past discrimination in general 
precludes the effective participation in 
the election system, a strong case is made. - , 
Such proof is enhanced by a showing of 
the existence of large districts, majority 
vote requirements, anti-single shot voting 
provisions and the lack of provision for .at- 

    

  

  

101/ The district court in the East Carroll litigation adopted 
a reapportionment plan calling for the at-large election 
of members of both the police jury and the school board of 
East Carroll Parish, Louisiana. In Zimmer, this Court 
reversed, finding clearly erroneous the district court's 
ruling that at-large elections would not dilute black 
voting strength in the parish. The Supreme Court affirmed, 
“but without approval of the constitutional views exvressed 
by [this Court] ," 424 U.S. at 638. The Supreme Court ruled 
that the district court had erred under Connor v. Johnson, 
402 U.S. 690 (1971), in endorsing a multi-member plan. 
Connor requires federal district courts to give preference 
to single-member districts when devising reapportionment 
plans to replace invalid state legislation. Since the 
Supreme Court did not reach the constitutional issue, its 
affirmance in East Carroll indicates neither approval 

  

  
nor disapproval of the constitutional views expressed by 
this Court in Zimmer. 

 



  

| 57 
ir 

large candidates running from particular - 
geographical subdistricts. The fact of 
dilution is established upon proof of the 
existence of an aggregate of these factors. 
The Supreme Court's recent pronouncement in 
White v. Regester, supra, demonstrates, however, 

“that all theses factors need not be proved in 
order to obtain relief. (485 F.24 at 1305; 

footnotes omitted.) 

  

This Court reiterated these principles in Wallace Vv. 
102/ 

House, supra, 515 F.2d at 623. See also Kirksey 
  

v. Supervisors of Hinds County, Mississippi, No. 75-2212, 
  

(5th Cir., decided May 31, 1977) (en banc). In our view, 

"this language is a correct explanation of the principles 

  
  

of White v. Regester and Whitcomb v. Chavis. 

  

102/ In Wallace, the district court held that the at-large 
scheme for the election of the five aldermen in Ferriday, 
Louisiana, unconstitutionally diluted black voting power. 

. It ordered the implementation of a plan calling for the 

election of the aldermen from single-member districts. 
This Court reversed, holding that the lower court should 
have ordered the implementation of a plan proposed by the 
city providing for the at-large election of one of the 
five aldermen. The Supreme Court vacated this Court's 
judgment and remanded the case "for further consideration 
in light of East Carroll Parish School Board v. Marshall ..." 
(see note 101, supra). Thus in Wallace the Supreme Court 
took issue with the form of relief sanctioned by this 
Court, not with the constitutional principles it had 
articulated. See Wallace v. House, 538 P.24 1138 (5th Cir. 
1976). In cases decided after the Supreme Court's actions 
in East Carroll and Wallace, this Court has held that the 
constitutional principles of Zimmer still apply in this 
Circuit. See Paige v. Gray, supra, 538. P.24 at 1110-1111 n. 4; 
McGill v. Gadsden County Commission, 535 F.2d 277, 280 (1976); 
Nevett v. Sides, »33 F.<a 1361, 1364 (1976). ‘This panel, there- 
fore, is bound by the en banc decision in Zimmer. Cf. Vandenades 
v. United States, 523 F.2d 1720, 1223 {3th Cir. 1975); Atlantis 
Develooment corp. v. United States, 379 F.24 818, 828 (5th Cir. 

  
  

  

  

  

  

  

  
  

    

1967). 

 



  

«33.» 

With due regard for those standards, the district 

courts found that blacks lacked effective access to 

Shreveport's and Mobile's political processes; that 

blacks had long suffered from, and continued to suffer 

from, the effects of extensive official racial discrimina- 

tion The courts also found that the city officials in 

Shreveport were unresponsive to the interests of blacks, 

particularly in the areas of housing and employment, and Ehak 

in Mobile, the city commissioners had been unresponsive to 

black interests in employment, appointments to boards and 

desegregation of public facilities. The Bolden court further 

found that the Mobile city commissioners' “sluggish and timid" 

(423 F. ‘Supp. at 392) response to racial incidents in 1976 

demonstrated the “low priority given to the needs of black 

citizens..." (ibid.). In addition, both courts found that the 

cities’ majority-vote requirements (majority primary, in 

Shreveport), "place" requirements, and lack of residency 

requirements for candidates for city commissioner operated to 

  

103/ The district court in B.U.L.L. did not cite any statistics 
In support of its statement that black voter registration per- 
centages remain lower than registration percentages for whites, 
and the record does not appear to contain such statistics. 
However, proportionately lower black voter registration is less 

significant in a case such as this, where blacks constitute a 
minority of the population, than in a case such as Zimmer v. 
McKeithen, supra, where blacks constituted a majority of the 
  

population, but a minority of the registered voters. Where 
‘blacks constitute a distinct population minority, it is unlikely, 
given racial bloc voting and an at-large system, that they will 
be able to play a decisive role in any election even if the 
percentage of blacks who are registered voters equals the 

. white percentage. 

 



  

- 30 

submerge black voting strength. Those findings are 

sufficient, in both cases, to sSeppont the con- 

clusion that the at-large schemes «in Shreveport and Mobile 

were "formulated in the context of an existent intentional 

denial of 53688 by minority group members to the political 

process, and ... perpetuate that denial." Kirksey v. 

Board of Suvervisors of Hinds County, supra, slip. op. p. 9. 
  

The facts found by the district courts in these 

cases are more closely analogous to the facts of White v. 

Regester than to those of Whitcomb v. Chavis. Facts present 
    

in both White and the instant cases include the following: 

(1) a history of official racial discrimination; (2) the 

unresponsiveness of elected officials to minority interests; 

(3) few or no minorities elected to office; (4) a "majority 

primary" law, a "place" rule, and the absence of a residency 

requirement. By contrast, in Whitcomb black candidates were 
  

 



  

- 40 -~ 

| 104/ 

regularly slated by both political parties and on several 

occasions were elected (403 U.S. at 150-152 n.30). Moreover, 

in Whitcomb elected officials were not shown to be unrespon- 
  

sive to black interests (id. at 155), and there was no history 

of official racial discrimination. The facts of these cases 

are analogous to those of other cases in which this Court has 

found that at-large or multi-member voting schemes unconstitu- 

tionally dilute minority voting power. See, £.9.. Wallace Ve 

House, supra, 515 F.2d at 622-624; Perry v. City of Opelousas, 
  

  

515 F.24 639, 641 (5th Cir. 1975); Moore v. Leflore County 
  

Board of Election Com'rs, 502 F.2d 621, 624, 627 (5th Cir. 1974); 
  

Turner v. McKeithen, 490 F.2d 191, 193-197 (5th Cir. 1973): 
  

Zimmer v. McKeithen, supra, 485 F.2d at 1304-1307. 
  

  

104/ In White v. Regester, supra, the Supreme Court appeared 

To base its conclusion that blacks in Dallas County,” Texas, 

were denied access to the political process in part upon 

the finding that blacks were effectively excluded from 

participation in the Democratic Party primary selection 

process for that County. 412 U.S. at 766-767. In neither 

Shreveport nor Mobile is there a candidate slating process 

like that in Dallas County. The absence of a candidate 

slating process in the instant cases is not determinative, 

however. In holding that Mexican-Americans were excluded 

from the political process in Bexar County, Texas, the 

Court in White v. Regester made no reference to any 

candidate slating process in that county. 412 U.S. at 

767-770. Exclusion from a candidate slating process is 

therefore not an. essential element. It makes no difference 

at which stage of the political process blacks are 

excluded. The practical effect is the same, whether they 

are denied effective participation in orimary or general 

elections. This is particularly true in Mobile, where, as 

the district court found, black support for a candidate 

could have a negative impact on the candidate's chances 

to be elected. 423 F. Supp. at 388, and see p. 44, infra. 

  

  

 



  

- 4] - 

With the possible exception of Mobile's brief, pp. 35-43 

(addressed in part “B" of this section), the appellants do 

nos expressly challenge the district court's factual findings 

as clearly erroneous. 10% not clearly cerroneous, they may 

not be set aside on appeal, Rule 52(a), Fed. R. Civ. P. The 

district courts' conclusions, based upon these findings, are 

entitled to deference, "representing as [they do] a blend of 

history and ... intensely local appraisal/(s] of the design [s] 

and impacts] of [at-large voting in Mobile and Shreveport] 

in light of past and present realit[ies], political and 

. otherwise.” White v. Regester, supra, 412 U.S. at 769-770. 
  

B. The Mobile court correctly found blacks were 
excluded from the political process. 
  

  

Though it is undisputed that no black candidate has 

ever won an at-large election in Mobile, appellants claim that 

the district court's ultimate finding of exclusion from the 
106/ 

political process is in error, Brief for Appellants, pp. 1, 

  

105/ Shreveport's discussion of the evidence, Brief, pp. 32-45, 
fails to demonstrate that any of the district court's findings are 
plainly wrong. Rather, the soundness of the court's factual findings 

is illustrated by the discussion at pp. 5-13 of the Shreveport 
plaintiffs-appellees' brief. 

106/ Since the Mobile appellants take issue with the district 
court's ultimate finding, necessarily a combination of fact 
and law, the "clearly erroneous" rule probably is inapplicable 

here. 

 



  

- a3 

35-43. The basis for this claim ABpasis to be: (1) blacks 

have voted in Mobile, particularly ‘since 1965; (2) most 

candidates solicit the endorsement:of the Non-partisan Voting 

League; and, (3) some candidates for whom some blacks vote 

sometimes win. In so arguing, the Mobile appellants fail to 

credit the impact of racially polarized-voting when it is 

combined with at-large, numbered place elections. | 

In Graves v. Barnes, 343 F. Supp. 704, 719, (W.D. 

  
  

Tex. 1972), aff'd. sub nom. White v. Regester, supra, the 

court said: 

The underpinning of the apportionment cases is 
the Fourteenth Amendment right to an effective 
vote within the general constructs of what 1s 
essentially a majoritarian system of representa- 
tive government [citations omitted; emphasis 
added]. 

  

Racially polarized voting, by itself, does not necessarily 

deprive minorities of fair representation. As the Supreme 

Court noted in United Jewish Organizations of Williamsburgh, 
  

Inc. v. Carey, 45 U.S.L.W. 4221, 4227 (U.S. Mar. 1, 1377), 

when fair and neutral single-member districts are drawn, 

a racial minority may lose in any given district, but 

the overall system of representation will generally reflect 

fairly the approximate voting strength of majorities and 

minorities. Thus, so long as whites controlled a majority of 

Brooklyn's legislative districts, whites could not be heard to 

complain that they were a minority in the district encompassing 

Williamsburgh. Where, as in Mobile, the electoral system, 

y implements and encourages racially polarized voting, and sub- 

 



  

-43- 

merges a racial minority in a ‘manner that renders its votes 

impotent, the system is, in effect, "state action" 

effectuating a racial classification. Cf. Anderson v. 
  

Martin, 375 U.S. 399 (1964). Where there is a history of 

racial discrimination and unresponsiveness to black interests 

as well as polarized voting, a court may well make the prog- 

nosis that the at-large system will perpetuate this adverse im- 

pact upon the racial-minority voter. Cf. Kirksey v. Board 

of Supervisors of Hinds County, Mississippi, supra. 
  

It should be stressed that this is not a political context 

in which there is occasionally an issue upon which voters 
  

divide along racial lines, or a coincidence of black and 

working class voting, e.g., Whitcomb v. Chavis, supra. The 
    

White-Zimmer formula is pre-eminently applicable to the sit- 
  

uation in Mobile in which race has demonstrably been, and retains 

’ 

the potential for being, the single most divisive issue. 

One indication that this is so is the failure of blacks to 

be elected in any city-wide or county-wide election. As the 

Graves court said, 343 F. Supp. at 732: 

It is not suggested that minorities have a 
constitutional right to elect candidates of 
their own race, but elections in which minority 
candidates have run often provide the best evi- 
dence to determine whether votes are cast on 
racial lines. All these factors 107/ confirm 
the fact that race is still an important issue 
in Bexar county and that because of it, Mexican- 
Americans are frozen into permanent political 
minorities destined for constant defeat at the 
hands of the controlling political majorities. 

The Mobile appellants' reliance upon the Langan elections 

(Brief, p. 42) to show black participation in the political process 

  

107/ The reference is to the preceding pages, 343 F. Supp. at 

127-1732. 

 



  

- 44 - | 

is misplaced. The evidence showed, and the district court 

found, that Langan's white support diminished as his 

black suppor t increased. Indeed, expert testimony tended 

to show that black impact on the results of elections 

declined in direct proportion to their increase in regis- 
  

tration and turnout because the heavier the black vote, the 

greater the "backlash," i.e, the polarization. Nor is this 

a matter of mere statistical correlation. The campaign 

literature in Langan's 1969 and 1972 campaigns (see pp. 20, 22-23, 

supra) demonstrated that nis opposition intended to stimulate 

and encourage polarization along racial Lines. 

To be sure, there are pitfalls in attempting 0 analyze 

the election returns, where both racial and non-racial factors 

may be present. But the Mobile appellants have not shown that the 

district court's analysis of the Langan elections (432 F. Suppo. 

at 388) was clearly erroneous. Nor have they addressed the 

defeat, in racially polarized run-offs, of black or black 

identified candidates for other at-large posts in the county. 

The district court's ultimate finding that blacks are ef- 

fectively excluded from the political process rests upon 

a firm factual and legal foundation. 

  

108/ The Mobile apvellants say that Commissioner Greenough 
“was elected in 1973 on the margin of the black ‘'swing' vote," 
(Brief, pp. 42-43). While blacks can be a "swing" vote when 
they vote as a bloc, but the whites do not, in the Greenough- 
Balley election (see p. 21, supra), both the black and white 
vote split, though more blacks voted for Bailey than for 
Greenough. Dr. Voyles offered this election to prove voting 
was becoming less polarized (Tr. 1123-1136). .In fact, all the 
1973 run-off showed was that neither candidate addressed the 
particularized needs of the black community. 

 



  

- AB 

PROOF OF INITIAL RACIALLY DISCRIMINATORY 

INTENT IS NOT AN ESSENTIAL ELEMENT IN 

CASES CHALLENGING AT-LARGE: VOTING PLANS 

AS DILUTING MINORITY VOTING STRENGTH 

  
‘A. The test under the Fourteenth Amendment 

: Is whether a scheme, designedly or otherwise, 

minimizes or cancels out the voting strength 

OF 3 tacial minority. 

  

  

  

Defendants—-appellants contend- that the standard 

applied by the district courts was incorrect because it 

failed to include proof of initial racial motive or intent 

as an essential element. But the test is whether "designedly 
  

  

or otherwise, a multimember constituency apportionment scheme, 

under the circumstances of a particular case would operate 

to minimize or cancel out the voting strength of racial 

or political elements of the voting population." Burns v. 

Richardson, 384 U.S. 73, 88 (19606) (emphasis added); Fortson 

109/ 

v. Dorsey, 379: U.S. 433, 439 (1965). The inclusion of the term 

  

“or otherwise" in the standard indicates that a legislative intent 

to discriminate is not necessary for a constitutional violation. 

This Court itself has repeatedly stated a voting plan is unconsti- 

tutional if it "designedly or otherwise" operates to minimize or 

cancel out minority voting strength. See, €.9., Panior v. 
    

Iberville Parish School Bd., 536 F. 24 101, 104-105 (1976); 
  

  
  

Ferguson v. Winn Parish Police Jury, 528 F. 24 592, 597 (1976); 

  

109/ The Supreme Court in White v. Regester and Whitcomb v. 

Chavis omitted the phrase "designedly or otherwise” in de- 

scribing the standard. This omission was without significance, 

however, because in the subsequently decided case of Chapman 

v. Meier, 420 U.S. 1, 17 (13975), the Court described the 

  

  

  

  

standard in the language quoted above, including the phrase 

"designedly or otherwise.” 

 



  

- AB 

Wallace v. House, supra, 515 F.2d at 622-623; Bradas v. 
  

Rapides Parish Police Jury, 508 F.2d 1109, 1113 (1975); 
  

Robinson v. Commissioners Court, Anderson County, 505 F.2d 674, 
  
  

678 n. 3 (1974); Moore v. Leflore County Board of Election 
  

Com'rs, supra, 502 F.2d at 623-624 (1974); Zimmer v. McKeithen, 
    

supra, 485 F.2d at 1304; Howard v. Adams County Board of 
  

Supervisors, 453 F.2d 455, 457-458, cert. denied, 405 U.S. 
    

925 (1372). - 

  

In neither White nor Whitcomb did the Supreme Court state that 

proof of a legislative intent or motive to discriminate was 
110/ 

required. The Supreme Court's decision in White v. Regester does 
  

not suggest: that the reapportionment scheme there being attacked was 

enacted by the Texas Legislature with improper racial motive 

and intent. Rather, the Court discussed the effect of the 

reapportionment plan upon minorities in Bexar and Dallas 

Counties; the Court found it unnecessary to address the 

question whether the plan was racially motivated. 

- 

  

110/ In Whitcomb, Justice Douglas, concurring in part and dis- 
senting 1n part, stated in an opinion concurred in by Justices 
Brennan and Marshall: 

  

A showing of racial motivation is not 
necessary when dealing with multi-member dis- 
tricts....[Tlhe test for multimember districts 
is whether there are invidious effects. 403 U.S. 
at. 177. 

 



  

wi RF - 

Following this principle, in Wallace v. House, supra, 
  

this Court sustained the district court's finding that an 

at-large system of electing city aldermen unconstitutionally 

diluted the black vote. This Court was aware that Louisiana 

had a policy favoring at-large aldermanic elections that was 

adopted in 1898 without racial motivation, but EEE 

fact as irrelevant to a finding of unlawful dilution. 

Defendants base their intent argument upon Washington Ve. 
  

Davis, supra and Village of Arlington Heights v. Metropolitan 
  

  

  

Housing Develooment Corp., supra. These cases, however, do 
  

not require proof of legislative racial intent in cases 

challenging the constitutionality of at-large or multi- 

member districts. 

  

In Washington v. Davis the Supreme Court sustained the 

use of a pre-employment test which had a disproportionate 

adverse impact on black job applicants. In ruling 

  

111/ This Court did, however, consider the long duration of 

The policy as a factor leading it to modify the relief 

entered by the district court so that one at-large alderman 

would remain. Wallace v. House, supra, 515 F.2d at 633-634. 

The Supreme Court vacated this modification of relief and 

remanded in light of East Carroll Parish School Board v. 

Marshall, supra, requiring all sing le-member districts in 

  

  

  

court reapportionment absent special circumstances. See 

note 102, supra. 

 



  

=-48- 
LJ 

the plaintiffs had failed to demonstrate the discriminatory 

purpose necessary for a constitutional violation, the Court 
112/ 

cited Wright v. Rockefeller, 376 U.S. 52 (1964), for the 
  

proposition that invidious intent is necessary to demon- 

strate a constitutional violation in legislative redistrict- 

ing. But the Court did not refer to White v. Regester, supra, 
  

or Whitcomb v. Chavis, supra, the leading cases involving 
    

multi-member districts. And, in citing with disapproval a 

number of lower court decisions finding constititutional 

violations on a showing of discriminatory effect alone 

"(426 u.s. 244-245, n. 12), the Court included no cases 

involving at-large voting or multi-member districts, 

  

112/ In Wright v. Rockefeller, supra, plaintiffs alleged that 

‘the New York legislature, 1n designing Manhattan's Congressional 

district, had deliberately created a.single white Seventeenth 

District by drawing peculiarly shaped dividing lines. Plaintiffs, 

however, failed to prove that anyone's vote was unlawfully diluted. 

On the contrary, intervening black plaintiffs contended that 1n 

view of the high degree of residential racial concentration in 

Manhattan, any district lines that attempted to diffuse the 

voting power of Harlem's non-white population might, itself, be 

“dilutive.” Thus, even if the district lines in fact Followed 

racially defined neighborhood lines (which the Court doubted), 

they were so drawn pursuant either to a neutral or a benign pur- 

pose, neither of which make out a constitutional violation. Cf. 

United Jewish Organizations of Williamsburgh, Inc. v. Carey, supra. 

  

  
  

 



  

- 49 - 

even though Zimmer v. McKeithen, supra, and many other 
; 113/ 

similar cases had been decided. 

  

In Village of Arlington Heights, supra, the Supreme 
  

Court held that a village's refusal to rezone property 

for the construction of racially integrated low and moderate 

income housing did not violate the Equal Protection Clause 

because the plaintiffs had failed to prove that racially 

discriminatory intent or purpose was a motivating factor in 

the rezoning decision. In its discussion of the application 

of Washington v. Davis, the Court cited Wright Vv. Rockefeller, 
    

but again failed. to mention White v. Regester, Whitcomb v. 
    

Chavis, or any other cases dealing with at-large or multi- 

member district voting schemes. 

This analysis supports this Court's conclusion in 
’ 

Kirksey, supra, (slip op. p. 19), that Washington v. Davis 
  

  

and Arlington Heights do not alter the principles of White 
    

Vv. Regester and Whitcomb v. Chavis. See also Paige v. 
    

  

113/ Plaintiffs-appellees in the B.U.L.L. case state 
In their brief {(p. 20 n. 33) that “Washington v. Davis 
expressly disapproved a number of Fourteenth Amendment 
effect cases.... Conspicuously absent from this list 
were White, its predecessors or progeny, or any Fifteenth 
Amendment cases." However, Wright v. Rockefeller, supra, 
cited in Washington v. Davis, was decided uvon the bases 

  

  

  

of both the Fourteenth and Fifteenth Amendments. See 376 
U.S. at 53, 54, 36. See also Wright v. Rockefeller, 211 F. 
Supp. 460, 469 n.5 (S.D. N.Y. 1962). 

  

 



  

50 

  

  

Gray, supra, where, after suggesting that Washington v. 

Davis required proof of unlawful motive in cases based 

. ; 114/ 

upon Gomillion v. Lightfoot, 364 U.S. 339 (1960), 
  

  

this Court stated at 538 F. 2d 1110: 

[A]bsent an express finding of discriminatory 

purpose, the application of Comillion to the 

assessment of an at-large election plan's 

validity may be incomplete. Since we conclude 

that any evaluation of. the 1947 law should 

be made under more recent and less ambiguous 

precedents, we do not reach the question of 

whether the sequence of events leading to the 

passage of the 1947 Act was sufficiently 

suspect to compel a finding of racial motivation. 

  

The validity of Albany's change from a 

ward to an at-large system can best be handled 

by applying the mutifactor test enunciated 

in.the recent dilution decisions of the 

Supreme Court and this circuit, notably 

White v. Regester...and Zimmer Vv. McKeithen... 

[footnote omitted]. 
  

By implication, then, this Circuit has recognized that 

proof of official racial intent is not required under the 

White v. Regester and Zimmer v. McKeithen rationale. 
  

  

It is not unusual that proof of official racial intent 

should not be required in all cases under the Equal Protec- 

tion Clause alleging racial discrimination. Application of 

the Equal Protection Clause may require a court to apply 

different standards in different contexts. Compare, €.9-r 

Dandridge v. Williams, 397 U.S. 471, 485 (1970) (classifi- 
  

  

cations for the administration of public welfare benefits 

  

14/ Plaintiffs-apoellees in the B.U.L.L. case incorrectly 

assert in their brief (p. 21, n. 35) that “Gomillion 
  

was a Fourteenth Amendment case." See 364 U.S. at 346, 349. 

 



  

-5]1- 

ir 

need only have some “reasonable basis"); Craig v. Boren, 

429 U.S. 190 (1976) ("classifications by gender must serve 

important governmental objectives and must be substantially 

related to achievement of those objectives"); and Dunn 

v. Blumstein, 405 U.S. 330, 342 (1972) (durational residence 
  

requirements for voting must be necessary to promote a 

“compelling governmental interest"). 

In Whitcomb v. Chavis, supra, the Supreme Court commented 
    

upon the inherent “tendency” of multi-member districts to 

dilute minority voting strength. 403 U.S. at 143-144. Be~ 

cause of this, and because of other "practical weaknesses 

inherent in such schemes," Chapman v. Meier, supra, 420 U.S. 
  

at 15, multi-member districts are disfavored in court-drawn 

reapportionment plans. "[W]hen United States district courts 

are put to the task of fashioning reapportionment plans to 

supplant concededly invalid state legislation, single-mem- 

ber districts are to be preferred absent unusual circum- 

stances." East Carroll Parish School Bd. v. Marshall, supra, 
  

  

424 U.S. at 639. See also Chapman v. Meier, supra, 420 U.S. 
  

  

at 18; Connor v. Johnson, supra, 402 U.S. at 692. 

The normal result of neutral single-member districting 

is that some districts will be majority black and others 

"majority white. The percentages of: each race will vary from 

district to district. In this circumstance, bloc voting 

assumes a significance which, overall, does not skew the 

 



  

-52- ‘ 

natural voting strength of minority groups. But the normal 

result of atolavee elections with numbered posts is to 

submerge minority groups when there is bloc voting. Thus, 

the racially discriminatory voting patterns of the majority 

are given much greater force in an at-large, numbered 

post scheme than in a neutral single-member districting 

scheme. Because of this dilutive effect of at-large or - 

multi-member district voting schemes in such circumstances, 

it is reasonable that the Supreme Court would not require 

proof of official racial intent in cases challenging such 

  

schemes, e.g., White v. Regester. On the other hand, since 

fairly drawn single-member district schemes normally do not 

tend to submerge minority voting power, it is reasonable 

that the Court would require proof of racial intent in 

cases challenging such schemes, e.g., Wright v. Rockefeller, 
115/ ig 

supra. 

The Supreme Court has characterized “the political 

  

franchise of voting" as "a fundamental political right, 

because [it is] preservative of all rights." Yick Wo 

v. Bopkins, 118 U.S. 356, 370 (1886). "The right to vote 

freely for the candidate of one's choice is of the essence 

  

115/ Wright v. Rockefeller and Gomillion v. Lightfoot, supra, 
        
involved only claims of deliberate racial discrimination; 
neither involved an at-large or multi-member district scheme. 
Neither case, therefore, is authority against the proposition 
that multi-member or at-large schemes may be unconstitutional 
on the basis of their effects alone. 

 



  

53 

of a democratic society, and any restrictions on that right 

strike at the heart of representative government. And 

the right of suffrage can be denied by at debasenent or 

dilution of the weight of a citizen's vote just as ef- 

. fectively as by wholly prohibiting the free exercise of the 

franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964) (foot~- 
  

note omitted). The Equal Protection Clause requires all votes 

to be weighted equally; it is consititutionally immaterial 

whether a multi-member district plan dilutes minority 

voting strength by the design of legislators or by the 

operation of other racially discriminatory factors. 

   



  

- 54 - 

B. The Fifteenth Amendment -does not 
require proof of raclal intent in 

cases challenging at-large ‘voting 
plans. 

Even if this Court should hold that proof of official racial 

  

  

  

intent is required to establish a violation of the Equal Protec- 

tion Clause, it does not follow that the decisions of the courts 

below must be reversed. The failure of the lower courts to 

require proof of racial intent may be sustained on the basis 

of the Fifteenth Spendiani er 

Washington v. Davis and Arlington Heights pertain only to 
  

  

cases arising under the Equal Protection Clause of the Fourteenth 

Amendment (and the Due Process Clause of the Fifth Amendment). 

Since neither case involved a denial or abridgment of the 

right to vote on account of race, neither can be regarded 

as establishing a requirement for the Fifteenth Amendment. 

The Supreme Court has never held that proof that a voting 

plan which maximizes the impact of private racial bias and 

has a racially disparate effect is insufficient to establish a 

Fifteenth Amendment violation. That proof of official 

  

116/ The complaints in both cases alleged a violation of the 

Fifteenth Amendment. See 71 F.R.D. at 626; 423 F. Supp. at 

385. The court in B.U.L.L. expressly based its decision on 

the Fourteenth Amendment alone. 71 F.R.D. at 636 n. 21. The 

Bolden court based its decision principally upon White v. Regester 

and Zimmer v. McKeithen, both of which were Fourteenth Amendment 

cases. An apoellate court, however, may affirm the ruling of 

a lower court on any ground that finds support in the record, 

even where the lower court reached its conclusion from a 

different or even erroneous course of reasoning. Jaffke v. 

Dunham, 352 U.S. 280, 281 (1957); Dandridge v. Williams, suvora, 

397 U.S. at 475 n. 6; United States ex rel. Barbour v. 

District Dir. of 3. & NN. 5. 491 F.2d 573, 577 {5th Cir. 1974). 

  

  

  

  

  

 



  

“Bp i. 

C. If proof of racially discriminatory intent 

is needed, it should be inferred from the facts 

of the Shreveport and Mobile cases. 

  

  

  

  

Even if the Court should hold that both the Fourteenth 

and Fifteenth Amendments require proof of racial intent, 

the decisions of the lower courts need not be set aside. 

The requisite intent, we Ss hrtE. may be inferred from the 

facts of both of these cases. 

  

  

In Washington v. Davis, supra, the Supreme Court 

stated: 

Necessarily, an invidious discrimina- 

tory purpose may often be inferred from 

the totality of the relevant facts, in- 

cluding the fact, if it is true, that the 

law bears more heavily on one race than 

another [426 U.S. at 242]. 

In Village of Arlington Heights, supra, the Supreme Court 
  

identified a number of "subjects of proper inquiry in deter- 

mining whether racially discriminatory intent existed" (45 U.S.L.W. 

at 4077-4078). The court stated that "“[d]etermining whether 

invidious discriminatory purpose was a motivating factor 

demands a sensitive inquiry into such circumstantial and 

direct evidence of intent as may be available" (id. at 4077). 

It is clear, then, that neither Washington v. Davis nor 
  

 



  

- 57 - 

Arlington Heights requires direct evidence of racial intent. 
: t 

The "totality of the relevant facts" of the instant cases 

  

justifies the inference that race has been a “motivating 

factor" in the use of at-large voting in Shreveport 

and Mobile. Enactment of the schemes in question, moreover, 
  

need not be the manifestation of intent upon which the 

decision must turn. 

In Graves v. Barnes, supra, the court struck 
  

down multi-member district schemes of long standing in 

Dallas and Bexar counties. While the court made no | 

finding that the multi-member systems, as such, had 

been adopted with racially diserininatory intent, the court 

did make extensive findings with respect to racial bloc 

voting, past official racial discrimination, and current 

unresponsiveness of the state legislative delegations to 

minority interests. These findings furnish the necessary 

element of intent in a racial-dilution case. 

In Fortson v. Dorsey, supra, the Supreme Court said that 
  

an apportionment scheme may be unlawful if it operates to min- 

imize or cancel out the voting strength of racial or political 
  

  

elements of the. voting population. Whitcomb v. Chavis, how- 

ever, made it clear that political minorities have 

 



  

- 88 

no constitutional right to be represented despite the 

fact that they are repeatedly out-vated. What kind of 

scheme is invalid, then, for cancelling out political 
  

elements of the population remains very much an open question. 

In the racial area Graves v. Barnes, supra, stands at 
  

least for these propositions. Where (1) race has been 

the basis for otticlal action and inaction in the past; 

and, (2) continues to be a significant factor affecting 

voting behavior and official action in the present; (3) 

an appor tionment scheme that relegates the racial minority 

to political invisibility is necessarily suspect. 

Assuming that the racial minority in question lives 

in contiguous and segregated areas, single-member districts, 

fairly and neutrally drawn, could be expected to lead to 

some minority representation. At-large apportionmeht, 

however, incorporates and implements the racial animus manifested 

in racially polarized voting. It encourages that polarization. 

by assuring that whites united against black interests will always 

prevail. Official discrimination, past and present, tends 

to show both that the exclusion of blacks from effective 

political participation has been shcoesatul } and that the 

system has built in, structurally determined political 

hazards to responding to black interests. Thus when courts 

find, as they did here, the White - Zimmer factors 
  

 



  

-59- 

of past discrimination, polarized voting, and present 
: { . a 

unresponsiveness, they have made findings of invidious, 

racially discriminatory intent. 

The reasoning of this Court in Kirksey v. Board of 
  

Supervisors of Hinds County, Mississippi, supra, is appo- 
  

site here. In setting aside a court-ordered single-member 

district plan for electing the officials of Hinds County, 

this Court acknowledged that there was no improper racial 

motive on the part of the draftsman of the plan and that 

the motives of the county supervisors were neutzdl vi th 

respect to the drawing of the plan (slip. op. p. 153). 

Nevertheless, this Court concluded, " twlhete a plan, though 

itself racially neutral, carries forward intentional and 

purposeful discriminatory denial of access that is already 

in effect, it is not constitutional” (id. at 15). 

This Court held that Washington v. Davis and Arlington 
  

  

Heights did not require proof that the drafting of the plan 

was racially motivated. This Court assumed, without deciding, 

that “these cases are to be applied ™ racial minorities’ 

claims of exclusion from the democratic process" (id. at 18). 

This Court commented that nevertheless, these cases "would 

be of particular significance in the present case if the only 

issue were whe ther the racially neutral plan created such 

exclusion in Hinds County" (ibid.; emphasis by the Court). 

Moreover, this Court indicated that the “intent” requirement 

of these cases is fulfilled if the voting plan, "though 

 



  

-60- 

neutral in design, was the instrumentality for carrying 

forward patterns of purposeful and intentional discrimination 

that already existed in violation of our Constitution" (ibid.). 

Thus, this Court observed, "the Dallas and Bexar County 

plaintiffs in White v. Regester were successful, even though 
  

they did not prove that the plan in question was a Gomillion 
  

v. Lightfoot type of racial gerrymander, because they es- 
  

tablished the requisite intent or purpose in the form of the 

existent denial of access to the political process” (id. at 19). 

The same is true here. There can be no doubt that blacks 

in Shreveport and Mobile have been the victims of a “legis- 

lative and administrative history of official resistance to 

black efforts to move into the full stream of the democratic 

process. . ." (ibid.). At-large voting in these cities, even 

if neutral in design, perpetuates these patterns of- purpose- 

ful and intentional discrimination by minimizing the effect- 

jveness of black voting power. Under the Kirksey rationale, 

therefore, plaintiffs in the instant cases have made a suf- 

ficient showing of racial purpose. 

In addition, racially discriminatory purpose may be in- 

ferred when a scheme is perpetuated after its effects have 

become apparent. Findings of purposeful maintenance of the 

discriminatory scheme were made by both district courts in 

the instant cases. In Shreveport, in 1970, a proposal to 

change the city charter was presented to the electorate. 

 



  

-61~ 

It was widely known among voters that, under 
the proposed revision, council members would 
be elected from single member districts, some 
of which would have a predominantly black 
constituency. Notwithstanding strong support 
by blacks at the polls, the proposal soundly 
was defeated in a city-wide referendum. 71 
F.R.D. at 629. 

Similarly, the Bolden court noted that Mobile's state 

legislative delegation can prevent a local redistricting 

bill from reaching the floor of the state legislature, and 

that : 

.« «Whenever a redistricting bill of any type 
is proposed by a county delegation member, a 

. major concern has centered around how many, 
if any, blacks would be elected. 423 F. Supp. 
at 397. 

Later (id. at 398), the court held that “there is a 

‘current' condition of dilution of the black vote resulting 

  

from intentional state legislative inaction . . .+" [emphasis 

by the court]. | 

We submit, therefore, that even if proof of racial motive 

or intent is required, plaintiffs in the instant cases have 

met their burden. 

III. THE DISTRICT COURTS' ORDERS WERE COMPELLED 
’ BY THE CIRCUMSTANCES OF EACH CASE, AND WITHIN 

THE COURTS' REMEDIAL POWERS 

In both the instant cases, the courts' orders enjoining 

the use of at-large elections were necessary consequences of 

their findings that such elections unconstitutionally ‘diluted 

black voting strength in Shreveport and Mobile. A strict 

 



  

wf 2= 

commission -form of government is incompatible with single- 

member district elections. E( Neither Shreveport nor 

_ Mobile demonstrated a state or local interest either in 

at-large elections or a strict commission form of govern- 

ment sufficient to justify that system's dilutive effect. Nor 

has either city thus far proposed a form of government de- 

signed to retain the primary feature of commission government-- 

fusion of executive and legislative roles--while eliminating the 

racially dilutive effect of the present systems of represent- 

ation. Thus, Shreveport's claim that the relief exceeded the 

scope of the violation (Br., 46-49), and Mobile's claim that 

the court gave too 1ittle weight to its longstanding interest 

in commission government (Br., 47-48), are at bottom contentions 

that the commission system is immune from judicial alteration. 

These contentions lack merit. p 

First, both courts properly weighed the cities' alleged 

stake in the commission form of government. They found that 

state laws in Louisiana and Alabama permit but do not 

compel Shreveport and Mobile to be governed by commissions, 

and therefore state policy, in both cases, is neutral on the 

  

118/ B.U.L.L. v. Shreveport, supra, 73.F.R.D. at 637; 

Bolden v. City of Mobile, supra, 423 F. Supp.at 387. 

Commission governmant 1S theoretically compatible with 

pure at-large elections, without place requirements, a system 

less dilutive than place elections; see Zimmer, Supra, 435 FPF. 

2d at 1305. Pure at-large elections were not, under Connor Vv. 

Johnson, supra, among the district courts' remedial altern- 

atives in these cases. 

  

  

  

  

  

   



  

-63~ 

subject of at-large elections. Bolden, supra, 423 PF. Supp. 

119/ 
  

at 401; B.U.L.L., supra, 71 F.R.D. at 627, 635. 
  

The only evidence of Mobile's strong interest in its 

commission system appears to be the fact that it has not 

been abolished. The record also reflects that a major reason 

it has not been abolished is that the gliv's. Sesto legisla- 

tive delegation has refused to endorse a suitable substitute, 

and that reluctance to permit blacks an effective voice has 

played a role at least in the most recent senatorial veto 

of a city government bill. 

In Zimmer, supra, 485 F. 2d at 1305, this Court acknow- 
  

ledged that minorities have a better oppor tunity to affect 

the outcome in pure at-large elections than they do in a 

system of “place” elections. In pate at-large elections 

(which permit single-shot voting), blacks can throw their 

weight behind a single candidate and withhold their vote 

from all the others, thus enhancing the possibility that 

at least one candidate of their choice will come out among 

the top three. In 1965, Mobile took a step away from the 

less dilutive, pure at-large system; by introducing 

functional posts, the city strengtnened and locked in its 

original "place" requirements. (This change could not have 

  

119/ Similarly, in Zimmer v. McKeithen, supra, state law 

permitted, but did not require, at-large elections for 

police juries and school boards. See 485 F.2d at 1301-1302, 

  

gl | Pesae ; 

   



  

been onc: ced in the 1977 elections in ary event because of 
the outstanding Attorney General objection.) To the extent 

that duration, alone, can evidence ga more-than-tenuous 
governmental interest in a particular electoral system, 
however, Mobile's current System can claim only: 11, 
net 66 years, of continuous existence, 

Manifestly, the fact that an apportionment 
i 

Plan is adopted in ga popular referendum is insufficient to sustain its constitutionality Or to induce a court of equity to refuse to ACL. + «i A citizen's constitutional right can hardly be infringed simply because a 

legislative apportionment plan was approved 
; 

by the electorate is without federal con- stitutional significance, if the scheme adopted fails to satisfy the basic require- ments of the Equal Protection Clause. . .. 
Lucas v. Colorado General Assembly, 377 0.8. 713, 736~ 737 (1964). 

| 

    

Second, equitable powers of federal courts to remedy 
: Past wrongs are broad. “Traditionally, equity has been 

Public and Private needs." Brown v. Board of Education, 
  349 u.s. 294, 300 (1955) (Brown 11). "Once a right and   

I
 

Er
 m
_
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_
—
—
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—
_
_
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3 
Ao 

 



  

-65- 

a violation have been shown, the scope of a district court's 

equitable powers to remedy past wrongs is broad, for 

breadth and flexibility are inherent in equitable remedies... 

[T]he nature of the violation determines the scope of the 

remedy." Swann v. Charlotte-Mecklenburg Board of Education, 
  

402 U.S. 1, 15,.16 (1971). Here, the nature.of the violation 

was the dilutive effect of the at-large, numbered post 

feature of the commission form of government. 

The Seventh Circuit recognized that the commission form 

of government may not be used to circumvent the requirements 

of the Equal Protection Clause in Kendrick v. Walder, supra. 
  

  

Plaintiffs in Kendrick, black residents of the City of Cairo, 
  

Illinois, brought a class action charging that the at-large 

system for electing city councilmen under the cormtosion form 

of government in Cairo diluted black voting strength in 

violation of the Fourteenth and Fifteenth Amendments. 12 

The district court granted the defendants' motion to dismiss 

the complaint. The court of appeals reversed, holding that 

the complaint stated a cause of ‘action under the Equal 

Protection Clause of the Four teenth Amendment. The court 

of appeals stated at 527 F.2d 50-511 

[T]he need for citywide solutions to the 

problems in Cairo is counter-balanced by 

the plaintiffs' allegations that their 

interests are not synonymous with those 

  

120/ Cairo adopted the commission form of government in 1913. 

Sea 527 FP. 24 .at 51. 

 



  

-66- 
ie 

of the white majority and are frustrated 

by the use of at-large elections which 

guarantee the election of those who are 

unresponsive to their needs.... 

The citizens of Cairo cannot, therefore, 

by adopting the commission form of govern- 

ment dilute the plaintiffs' votes. 

The commission form of government is not immune from 

judicial alteration, then, when it proves unlawfully to 

dilute the voting strength of a racial minority. Once ; 

at-large elections are enjoined, some form of government 

employing single-member districts must be adopted. In 

neither case has the city been left without some choice 

as to what the substitute will be. Shreveport was given a 

year to devise a plan; Mobile failed to come up with a 

single-member district plan and so the court adopted a 

temporary plan for the August 1977 elections, effective 

only until an acceptable substitute is enacted. 

In a commission system, the commissioners exercise both 

executive and legislative powers. The district court de- 

cisions in these cases preclude at-large elections of the 

cities' only legislative bodies. Not necessarily precluded, 
  

however, are mixed plans. For example, it is possible that 

Mobile could be governed by an ll-member council, 8 members 

elected from single-member districts and exercising only 

legislative power, and three elected at-large and functioning 

as both legislators and executives. Such a system might be 

justified because of “special circumstances," Paige v. 

 



  

-57~ 

Gray, supra, 538 F. 24 at 1111, ‘i.e., that the latter three 
121/ 

  

would be fulfilling executive as well as legislative roles, 

if the net effect is not substantially to dilute the impact 

of the black vote. The validity of any mixed plan might, 

additionally, depend upon the degree to which the vote tends 

to be polarized and the degree to which residential patterns 

permit equal and nondilutive Slstrlosing: For example, it is 

conceivable that in a severely polarized environment, any 

system of representation that offers blacks the possibility 

of electing less than one third of the total governing body 

would necessarily be dilutive. These are matters which a dis- 

trict court would have to consider in evaluating substitute 

plans, with all the facts before them. All that we urge, 

here, is that in evaluating a 2737, the district courts give 

ok weight to the values represented by the dual-role facet 

of the commission form of government. To the extent that 

the cities' attacks upon the relief granted by the courts 

below, however, are essentially pleas that no relief at all 

should have been granted, they are without merit. 

  

121/ We take it as given that officials fulfilling only 
executive roles may, and probably should be, elected at 

large. 

 



  

 -68- 

CONCLUSION 

For the foregoing reasons, the judgments of the 

district courts should be affirmed. 

Respectfully submitted, 

DREW S. DAYS, III 

Assistant Attorney General 

Vv 
  

BRIAN K. LANDSBERG v 

WALTER W. BARNETT 

DENNIS J. DIMSEY 

MIRIAM R. EISENSTEIN 

Attorneys 
Department of Justice 
Washington, D.C. 20530 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the 

foregoing Brief for the United States as Amicus Curiae 

on the parties to these cases by mailing two copies to 

their respective counsel, postage prepaid, guaranteed 

overnight delivery, as indicated below: 

Neil Dixon 
425 Lane Building 
Shreveport, Louisiana 71101 

Robert E. Piper, Jr. 
800 Petroleum Tower 
Shreveport, Louisiana 71101 

Eric Schnapper 
Suite 2030 
10 Columbus Circle 
New York, New York 10019 

BHilry Huckaby, 111 
Suite B 
2600 -Jewella Avenue ; 
Shreveport, Louisiana 71109 

C.B. Arendall, Jr. 
William C. Tidwell, III 
Travis M. Bedsole, Jr. 
P.O. Box 123 
‘Mobile, Alabama 36601 

Fred G. Collins, City Attorney 
City Hall 
Mobile, Alabama 36602 

J.U. Blacksher 
Larry T. Menefee 

Crawford, Blacksher, Figures and Brown 
1407 Davis Avenue 
Mobile, Alabama 36603 

Edward Still 
601 Title Bldg. 
Birmingham, Alabama 35203 

#% 

(continued) 

 



  

I further certify that I have this day served the 

foregoing Brief for the United States as Amicus Curiae 

upon the counsel named below by personally delivering two 

copies to them at the address indicated: 

Charles S. Rhyne 
William S. Rhyne 
Donald A. Carr 
Martin W. Matzen 
400 Hill Building 
Washington, D.C. 20006 

This (th day of June 1977. 

Abn). Khimass 
  DENNIS {/ DIASEY (/ 
Attorney 
Department of Justice 
Washington, D.C.” 20530