Motion for Remand Proceedings; Plaintiffs' Brief Supporting Motion for Remand Proceedings

    BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAw 

  

» 405 VAN ANTWERP BUILDING 

P. QO. BOX 1051 

MOBILE, ALABAMA 36601 

JAMES J. BLACKSHER TELEPHONE 

LARRY T. MENEFEE (205) 4323-20000 

GREGURY B. STEIN 

October 13, 1980 

Honorable William J. O'Connor 
Clerk, United States District Court 
United States District Courthouse 
P.O. Box 2625 
Mobile, Alabama 36652 

RE: Wiley L, Bolden, et. al., v. City of Mobile, 
Alabama, et. al.; Civil Action No. 25-297-P 
  

Dear Mr. O'Connor: 

Please file the enclosed Motion for Remand Proceedings 
and Plaintiff's Brief Supporting Motion for Remand 
Proceedings in connection with the above referenced 
case. 

Thank you. 

Best regards. 

Sincerely, 

BLACKSHER, MENEFEE & STEIN, P.A. 

7) { 
\/ 

J. 8.. Blacksher 

JUB :nwp 

Encls 

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, ET. AL., * 

Plaintiffs, * 

vs. x CIVIL ACTION RO, 

*® 75-297-P 

CITY OF MOBILE, ALABAMA, x 

FT. Al. y o 

Defendants. * 

MOTION FOR REMAND 
PROCEEDINGS 
  

Plaintiffs Wiley L. Bolden, et. al., through their 

undersigned counsel, move the Court to enter an order 

establishing the following issues to be addressed on 

remand, for reasons whichare set out in the brief 

accompanying this motion: 

(1) Has the at-large election plan been 

retained for invidious racial reasons? 

(2) Does the at-large election plan violate 

the Voting Rights Act of 1965, as amended? 

(3) What remedy is appropriate in light 

of Wise v. Lipscomb, 437 U.S. 535 (1978)7 
  

Plaintiffs further pray that the Court will 

establish a schedule for discovery and pretrial pro- 

ceedings, then conduct additional evidentiary hearings 

on the aforesaid issues. 

 



  

Respectfully submitted this 3 day of October, 

1980. 

BLACKSHER, MENEFEE & STEIN, P.A. 
405 Van Antwerp Building 
P.O. Box 1051 
Mobile, Alabama 36633 

BY: Y/ IY C,/ 
IT BACKER 
IARRY T. MENEFEE 

  L 

EDWARD STILL, ESQUIRE 

Reeves and Still 
Suite 400, Commerce Center 
2027 First Avenue, North 
Birmingham, Alabama 35203 

JACK GREENBERG, ESQUIRE 

ERIC SCHNAPPER, ESQUIRE 
Suite 2030 
10 Columbus Circle 
New York, New York .00.9 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 
  

- 

1 do hereby certify that on this / 3 day of October, 

19830, a copy of the foregoing MOTION FOR REMAND PROCEEDINGS 

was served upon counsel of record: Charles B. Arendall, Jr., 

Esquire, William C. Tidwell, 111, Esquire, Hand, Arendall, 

Bedsole, Greaves & Johnson, Post Office Box 123, Mobile, 

Alabama 36601; Fred G. Collins, Esquire, City Attorney, 

City Hall, Mobile, Alabama 36602; Charles S. Rhyne, Esquire, 

William S. Rhyne, Esquire, 1000 Connecticut Avenue, N.W., 

Suite 800, Washington, D. C. 20036, by depositing same in 

the United States Mail, postage prepaid. 

  

Shires itor 

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY 1... BOLDEN, ET. AL., * 

Plaintiffs, 

V w CIVIL, ACTION NGC. 

CITY OF MOBILE, ALABAMA, * 75-297-P 
ET. AL. * 

Defendants. * 

  

PLAINTIFFS' BRIEF SUPPORTING 
MOTION FOR REMAND PROCEEDINGS 

  

EDWARD STILL J. UV. BLACKSHER 

Suite 400, Commerce Center LARRY T. MENEFEE 
2027 First Avenue, North F. 0. Box 1051 
Birmingham, Alabama 35203 Mobile, Alabama 36633 

JACK GREENBERG 

ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs 

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, ET. AL., x 

Plaintiffs, * 

V. ’ CIVIL ACTION NO. 

CITY OF MOBILE, ALABAMA, x 75-297-P 
ET, AL.. * 

Defendants. 

PLAINTIFFS' BRIEF SUPPORTING 
MOTION FOR REMAND PROCEEDINGS 
    

Plaintiffs Wiley L. Bolden, et. al. through 

their undersigned counsel, submit this memorandum 

brief in support of their motion for further proceedings 

on remand. 

 



  

I. 

THE CASE IS NOT OVER: ON REMAND 
THIS COURT MUST DECIDE THE 1S5SUE 
OF INTENT, ADDRESS THE VOTING 
RIGHTS ACT CLAIM, AND REEXAMINE 

THE REMEDY 
  

On remand to the Fifth Circuit, the Defendants 

vigorously contended that under the Supreme Court's man- 

date the case was over. ''Defendants argue that all 

issues in this case have been finally settled and that 

no further proceedings are appropriate.’ 1/ They urged 

the Court of Appeals to remand the case to this Court 

‘with instructions to enter a judgment for the Defendants." 

2 / 
App. A, p. 21. Both Plaintiffs 2.4 and the United States 

3/ 
as Amicus Curiae,= on the other hand, took the position 

that the Supreme Court had left open the question of main- 

tenance intent and the claim under §2 of the Voting Rights 

Act of 1965, 42 U.8.C. 31973. They urged the Pirth Circuit 

  

1/ Defendants' Brief In Opposition To Plaintiffs’ Motion 
For Further Proceedings On Remand, pp. 1-2. A copy of 

said brief is attached to this brief as Appendix A. 

2/ See Appendix B, Plaintiffs’ Supplemental Brief Supporting 
Motion For Additional Proceedings On Remand. 

3/ See Appendix C, Memorandum For the United States As 
Amicus Curiae. 

 



  

to remand the case with instructions for this Court to 

conduct additional proceedings. App. B, p. 24; App. C, 

pp. 16-18. On September 15, 1980, the Fifth Circuit ruled 

as Plaintiffs and the United States had suggested; it 

vacated this Court's judgment and remanded "for further 

proceedings in light of the Supreme Court's opinion in 

Clty of Mobile v, Bolden, 64 1 ud. 24 47. 100 3.Ct. 1490 
  

(1980) ." 

We understand that Defendants will persist in this 

Court with their contention that the case ought to be 

dismissed summarily. They probably will argue that the 

only "further proceedings" permitted by the mandates of 

the Fifth Circuit and the Supreme Court are dismissal 

and restoration of the status quo ante judgment. Plaintiffs 

contend that this argument was squarely rejected by the 

Court of Appeals; otherwise, its mandate would have 

reversed this Court's judgment and directed dismissal 
  

explicitly -- as Defendants had urged. E.g., See cases 

cited App. C, pp. 7-3, 10-11, 

A. The Intent Issue 
  

We will not attempt to paraphrase the extensive 

arguments to the Pifth Circuit of Plaintiffs and the 

 



  

United States concerning the meaning of the Supreme 

Court's mandate. 

the appendices to this brief. App. B, pp. 9-14; App. 

op. 711. 

Justice Powell's recent opinion denying a stay of the A z &E J 

Mobile School Board elections. Moore v. Brown. 49 U. 
? 

1..W. 3162 

  

(Sept. 3, 1980). "That opinion leaves no 

We urge this Court to review them in 

C 

Compare App. A, 2-20. 'In addition, we cite 

8. 

doubt that Plaintiffs, the United States ‘and the Fifth 

Circuit have correctly interpreted the Supreme Court's 

mandate in Bolden: Justice Powell, who was a member 

49 U.S.L.W. at 3162 (emphasis added) 

Last Term, in City of Mobile v. 
Bolden, No. 77-1844 (April 22, 1980) 
this Court considered a constitutional 
challenge to Mobile's system of at- 
large elections for City Commissioners. 
Mr. Justice Stewart wrote for a plu- 
rality of four justices and concluded 
that the plaintiffs were required to 
prove a racially discriminatory purpose 
to show that Mobile's at-large voting 
system violated the Fourteenth Amend- 
ment. The District Court, by contrast, 
had thought it sufficient to show that 
the existing election system had the 
effect of impeding the election of 
blacks. The Court of Appeals for 
the Fifth Circuit had affirmed, 
Because we disagreed with the analysis 
of the District Court and Cour¥T of 
Appeals, we reversed and remanded for 
further proceedings. 
  

JoAfn, omitted). 

of 

Thus, 

 



Justice Powell himself understood the plurality 

opinion as being based solely on an effect-only reading 

of the lower court decisions. He clearly infers what 

fn. 21 makes explicit: that the plurality did not 

reach and decide the question of whether intent had been 

proved by standards other than those in Zimmer. He 

states explicitly that the intent question must be re- 

Nor did the District Court 
explain how the plaintiffs 
would prove a purposeful 

  
plurality's « 
  

49 U.S.L.W. at 3162 (emphasis added). The inescapable 

implication of this statement is that the intent issue 

has Deen left open for consideration in Bolden as well. 

Aside from the language of the Supreme Court's 

mandate, it would be fundamentally unfair to foreclose 

reconsideration of the evidence in this case under the 

new intent standard. 

8 to 1, chat proof of a racial intent in the retention 

of at-large elections under the Arlington Heights - Feeney 
  

standards establishes a violation of the fourteenth amend-  



Ll 
Li " " i gy 7 . - . . ment. of The Court concluded, 5 to 4 .e all justices LA 

but the plurality), that such intent had been proved on 

this record.2/ The only reason this alignment did not result 

in affirmance of the liability issues (with reversal of 

the remedy pursuant to Justice Blackmun's opinion) is 

that Justice Stevens believed race had to be the sole 

motive -- an extreme position rejected by the other eight 

Justices. 

  

4/ City of Mobile v. Bolden, 48 U.S.L.W. 4436, 4438-39 
(Stewart, Burger, Powell and Rehnquist), 4443 (Blackmun) 

4446 (Brennan), 4448 (White), 4458 (Marshall) (1980). 

  

, J 

2/ 48 U.S.L.W. at 4446 (Stevens), 4443 (Blackmun) , 
4446 (Brennan), 4449 (White). 4458 (Marshall). As 

stated in fn. 21, the plurality did not reach this issue. . A  



  

Presumably, if another case identical to Bolden came 

before the Supreme Court now, Justice Stevens would agree 

that a constitutional violation existed, accepting on 

stare decisis grounds the 8 to 1 rejection of his all-or-   

nothing position. Therefore, if this Court accepted the 

Defendants' argument that the case must be dismissed 

without further consideration of the intent issue, facts 

which would establish an unconstitutional condition if 

presented anew to the Supreme Court would escape judicial 

review altogether because of a procedural quirk. For sure, 

the Supreme Court need not have a majority reason for its 

reversal and remand, but the lower courts must be governed 

on each issue by the justices' majority view on each 

issue. It is unthinkable that the mandate of a Supreme 

Court so deeply and disjointedly divided could be construed 

to preclude plenary consideration of at-large elections in 

Mobile under correct legal standards. 

Finally, common sense dictates the anwer to this 

threshhold question. If this Court should dismiss the 

case without further proceedings on the merits, an appeal 

would refer right back to the Fifth Circuit this very 

narrow procedural issue. If the Fifth Circuit had been 

 



  

inclined to read the Supreme Court's mandate as requiring 

such summary disposition it would not have left open this 

possibility; it would have accepted the Defendants’ 

argument and directed dismissal in the remand. 

B. The Voting Rights Act Claim 
  

The Supreme Court did not decide (a) whether pri- 

vate litigants have a cause of action to challenge 

at-large election schemes under §2 of the Voting Rights 

Act of 1965, 42 U.85.C. §1973. or (b) whether §2 demands 

proof of racial intent. Only the plurality opinion 

discussed the statutory issues. 1t did not reach the pri- 

vate cause of action question, 48 U.S.L.W. at 4437 and 

nn. 3 , but, assuming one was available, it concluded 

that §2 required the same proof as does the fifteenth 

amendment. 48°U.5.1..W. at 4437. Because the other five 

justices disagreed with the plurality's narrow construction 

of the fifteenth amendment and made no reference at all to 

the Voting Rights Act, the lower courts must consider 

the statutory issues afresh and without specific guidance 

from the Supreme Court. The only thing that seems certain 

1s the pluralitv's admonition that the statutorv issues P 3 

should be considered before reaching the constitutional 

 



  

claims. 1d. 

Regarding the availability of a private cause 

of action, footnote 8 of the Bolden plurality opinion 

refers to Allen v. Board of Elections, 393 U.S. 544 (1969); 
  

  

TransAmerica Mortgage Advisors, Inc. v. Lewis, 51 L.Ed. 2d 

1979); and Touche Ross & Co. v. Redington, ‘61 L.Ed 
  

2d 82 (1979). Allen held that there is a private cause 

of action to enforce §5 of the Voting Rights Act. The 

latter two cases applied to non-civil rights statutes 

the standards of the two bellweather decisions on implied 

causes of action, Cannon v. University of Chicago, 60 
  

L.Ed. 2d 560 (1979), and Cort v., Ash, 422 U.8. 66 (1973). 
  

These standards leave little doubt that there is a private 

cause of action toenforce §2 as well as §5 of the Voting 

Rights Act. 

Cannon, which construed §901(a) of Title IX of the 

Education Amendments of 1972, 20 U.S.C. §1681., is indis- 

tinguishable from the instant case. Section 2 of the 

Voting Rights Act, like Title IX of the Education Amend- 

ments of 1972, "presents the atypical situation in which 

all of the circumstances that the Court has previously 

identified as supportive of an implied [private] remedy are 

present.” 60 L.Ed. 24 at 587. Both statutes were 

 



  

enacted for the benefit of a special class, id. at 

371, and both employ "the right- or duty- creating 

language [which] has generally been the most accurate 

indicator of the propriety of implication of a cause of 

action.” .1d. at 571 mn. 12. Indeed, Cannon refers directly 

to the special class of black citizens protected by §2 

and to Allen v. State Bd. of Elections, supra, which found 
  

a private right to relief under its sister provision, 

$5. 1d. ac 5371. Thus, §2 prohibits certain conduct and 

creates federal rights in favor of private parties in 

  

supra. Cannon, 60 L.Ed. 24 at 572, n. 13. 

The availability of private relief under §2 is 

supported by the legislative history of the Voting Rights 

Act. The House Report accompanying the 1965 bill described 

the purpose of $2 as "grant{ing] to all citizens of the 

United States a right to be free from [racially discrimin- 

atory voting practices}. House Rep. No. 439, 89th Cong., 

June 1, 1965, reprinted in 2 U.S. Code, Congressional 
    

and Administrative News 2437, 2454 (1965) (emphasis added). 
  

The Act expressly authorized the Attorney General to enforce 

§ 2. 42 U.S.C. 19733 (4d). The Attorney General was the 

only person expressly authorized to enforce §5 as well, 

but the Supreme Court nevertheless held that a private 

 



cause of action based on 35 was inferred in the statute. 

Allen v. State Bd. of Elections, supra. By direct 
  

analogy, Allen had to mean there was a private cause of 

action under §2 also. Nevett v. Sides, 571 F.2d 201,   

237 (3th Cir. 1978) (J. Wisdom concurring), cert. denied,   

«i H1980)", 

Congress removed all doubt in 1975 As originally 

enacted, the Act's scheme gave primary enforcement responsi- 

bility to the Attorney General. States covered by §4's 

it 
automatic ''trigger' had to seek the Attorney General's 

approval before implementing new voting laws, or else 

seek preclearance in the District Court for the District 

of Columbia, 42 U.S.C. §1973¢c. Other states and sub- 

divisions could be subjected to similar preclearance 

requirements under §3 if the Attorney General obtained 

an injunction in the local federal district court against 

practices the Attorney General proved were violating fede- 

rally protected voting rights. Section 3 was called the 

"pocket trigger’, because it was aimed at "pockets of 

discrimination" not already covered by §4. House Rep. 

No. 439, supra, 2 U.S. Code, Congressional and Admin.   

The 1975 amendments to the Act substituted 

"Attorney General or an aggrieved person' for "Attorney  



  

General' everywhere it appeared in §3. The Senate 

Report explained that this change was intended to create 

a ''dual enforcement mechanism,' that is, "to afford to 

private parties the same remedies which §3 now affords 

only to the Attorney General." Sen. Rep. No. 94-295, 94th 

Cong., July 22, 19735, reprinted in 2 U.S. Code, Conzressional 
  

and Admin. News, 774, 806-07 (1975). The proponenets of 
  

this amendment made it clear that a private action was 

to be available under §2 for the purpose of providing 

: tly i LLG 
the special §3 remedies. 

Finally, at least one district court has squarely 

held that §2 of the Voting Rights Act affords black 

voters the right to seek judicial relief. McMillan v.   

Fscambia County, No. PCA 77-0432 (W.D.FPla. 1978) (J. Arnow), 
  

appeal pending, No. 78-3507 (5th Cir.). 
  

Whether §2 requires proof of racial intent need not 

be decided at this time. If this Court holds that the 

at-large City Commission election system has been retained, 

at least in part, for racial reasons, a clear violation of 

§2 will have been established. United States v. Uvalde 
  

  

6/ Congressman Drinan, for example, noted that private 
~ actions could be "based ... upon statutes pursuant to 
[the fourteenth and fifteenth amendments], such as 42 U.S.C. 
$1971, 1973, 1983." 121 Cong. Rec. H 4734 (daily ed. June 
2, 1973), 

-1]1- 

 



  

consolidated Indep. School Dist., 625 F.2d 347 (1980). 
  

If no such purpose is found, Plaintiffs will still con-~ 

tend that the at-large elections violate §2 based solely 

on their previously determined adverse racial effects. 

For the time being, we will limit our arguments on this 

point to the following brief statements. 

While the Voting Rights Act employs a variety of 

procedures and remedies, it has but a single substantive 

standard. It is most explicitly stated in $5, which 

prohibits states covered by §4's automatic trigger from 

enforcing a new law unless the state proves that it "does 

not have the purpose and will not have the effect of 

denying or abridging the right to vote on account of race 

or color." Section 2, which contains broader but similar 

language, should be read in pari materia with this part   

Of §5. See Erlenbaugh v. United States, 409 U.S. 239, 
  

243-44 (1973). The only difference between actions brought 

under §5 and those based on §§2 and 3 is that the (auto- 

matically covered) state has the burden of proof under 

the former section, while the Attorney General or private 

plaintiff has the burden of proof under §§2 and 3. As 

Senator Scott of Virginia stated: 

Substantially all the rights that 

 



  

are in the temporary legislation 
are in the permanent legislation 
of the Voting Rights Act. The 
principal difference refers to the 
burden of proof. Under the perma- 
nent provision of law, the Govern- 
ment must prove its case. Under 
the temporary provision of the law 
there is a presumption of wrong- 
doing that has to be overcome by 
the state covered by the temporary 
provisons.// 

If §§2 and 5 contained different substantive 

standards, a number of clearly unintended anomalies 

would result. Practices forbidden in §5 jurisdictions 

would be permissable in other states, even if they had 

the same discriminatory purpose or effect. Even within 

a state covered by §4 the same election law with the 

same purpose or effect could be unlawful in one town 

but not in another based solely on when each put it 

in operation. See Perkins v. Matthews, 400 U.S. 379, 
  

394-95 (1971). Congressional moderates who supported 

the Voting Rights Act because the sponsors assured them 

  

7/ 121 Cong. Ree. 513549 (Daily ed. July 24. 1975); see 

=~ also id. S 13601 (remarks of Sen. Scott) (82 is the 

permanent provision referred to); S$13376 (remarks of 

Sen. Brock) (§5 establishes a different "procedure’ than 

exists in non-covered jurisdictions). 

 



that the Southern states were being singled out only 

in the sense of requiring close procedural scrutiny 

of them, and that the Act provided the same underlying 

voting rights to all U. S. citizens, would be appalled 

if the courts were to conclude that §5 states had to 

meet a tougher substantive standard then did other   

states. 

That the use of at-large elections may have the 

effect of denying or abridging the right to vote under 

the substantive standard of §5 has been repeatedly 

recognized by the Supreme Court. City of Rome v. United   

States, 100 8.Ctc. 1348, 1559 (1980); City of Richmond   

United States, 422 U.S. 338, 371 (1975); Georgia v.     

United States, 411 U.S. 526, 532-35 .(1973): Perkins   

Marthews, 400 U.S. 379, 383-91 (1971). Thus, the bur~-   

den on §2 plaintiffs as well is to prove that an at-larg 

system ''create[s] or enhances] the power of the white 

majority to exclude Negroes totally from participation 

in the governing of the city through membership on the 

city council.” The legislative history of the Voting 

Rights Act reveals that early versions of some sections 

referred solely to discriminatory "effect" or only to 

e 

 



  

discriminatory ''purpose', 8/ but that in every case 

Congress redrafted the section to cover both purpose 

and effect. Whenever Congress spelled out the relevant 

evidentiary standard under the Voting Rights Act, it re- 

fused to exclude either discriminatory purpose or discrimin- 

atory effect. Since each of these subsequent sections 

is intended to enforce the broadly worded, basic guarantees 

of §2, their purpose or effect standards clearly express 

  

8/ As originally drafted §5 applied to practices with 
a discriminatory effect, but not a discriminatory 

purpose... S, 1564, § 8, 111 Cong. Rec. 28358... It was 
broadened to include both by the Senate Judiciary Committee. 
111 Cong. Rec. 28360. 

Section 4, which describes when a jurisdiction 
can remove itself from coverage of §5, initially referred 

to denials of the right to vote '"by reason of race”. §. 1564, 
111 Cong. Rec. 28358. It was changed by the Senate Committee 
to refer to tests or devices used "for the purpose’ of denying 
the right to vote "on account of race”, $5. 1564, §4(a), 
111 Cong. Rec. 28360, but was modified on the floor to 
include discriminatory effect. 111 Cong. Rec. 28365. 

The pocket trigger in §3(b) referred to discriminatory 
purpose in the Senate version, 111 Cong. Rec. 28360, but 
the House bill included discriminatory effect as well 
and that version was adopted by the Conference Committee. 
111 Cong. Rec. 28370; H. Rep. No. 711, 89th Cong., lst Sess,., 
PD. %. 

Challenges by the Attorney General to the use of 
tests or devices by jurisdictions which had bailed out 
under §4 at first were required to show discriminatory 
purpose, 111 Cong. Rec. 28360, but this too was amended 
to cover discriminatory effect. Id. at 28365, 28370. 

 



  

Congress' understanding of the §2's evidentiary require- 

ments as well. 

IL. 

ADDITIONAL EVIDENTIARY HEARINGS 
SHOULD BE CONDUCTED ON THE ISSUE 

CF INTENT 
  

This Court should reopen the record and receive 

such additional evidence as the parties may wish to pre- 

sent on the issue left open by the Supreme Court: whether 

Mobile's at-large election system has been retained, at 

least in part, for racially discriminatory reasons, 

As previously discussed, the Supreme Court plurality 

declined to consider what Plaintiffs had argued were 

findings of racial intent by this Court over and beyond 

its Zimmer analysis. To avoid redundancy, we attach 

to this brief as Appendix {B] Plaintiffs’ remand brief 

to the Fifth Circuit, which summarizes at pages 14-22 

the evidence we thought this Court had relied on to con- 

clude that the legislature had refused to change from 

at-large voting for racial reasons. The City, on the 

~ 

other hand, told the Supreme Court that this Court's 

intent findings were based entirely on its Zimmer analysis 

 



  

and on an erroneous legal theory that foreseeability 

2/ 
alone proves motive. 

The evidence of racial intent 
upon which the District Court below 
ordered a new City administrative 
structure and on which the Court of 
Appeals affirmed the disestablishment 
of Mobile's Commission form of govern- 
ment, was that the Alabama Legislature 
had on two occasions rejected authori- 
zation of a mayor-council, part single- 
member district system for Mobile, 
and had been conscious of the likeli- 
hood that such a measure would have 
enhanced black candidates' chances of 
election. 

  

App. B, p. 11 (emphasis added). Moreover, the City 

argued, only the motives of city commissioners are rele- 
- : ; : / 

vant in this case, not those of the legislators—2 App. B, 

P. 13. In the remand proceedings, this Court should 

clarify its earlier findings on intent and consider all 

the evidence anew under the Arlington Heights - Feeney 
  

  

Y/ Attached to this brief as Appendix D is a copy of 
- the City's reply brief in the Supreme Court. 

10 In this respect, the City's position is directly 
~~ the opposite that of the School Board, who contends 
that only the legislators' motives are relevant, not 
those of the school commissioners. Plaintiffs contend 
that the proper inquiry addresses the intent of all 
state officials who substantially influenced the legis- 
lative decision to block change to district elections. 

Wl 

 



  

standards developed subsequent to this Court's ruling. 

We will not now elaborate on our prior discussion of the 

existing evidence. But there is one point that should 

be reemphasized: the Arlington Heights - Feeney analysis   

does not require or even encourage the trial court to 

focus on any single legislative event; rather, invidious 

intent should be found or not found only after careful 

consideration of the whole series of events, historical 

and contemporary, that underlie the present electoral 

scheme. 

111. 

THE REMEDY SHOULD BE RECONSIDERED     

If on reconsideration this court determines that 

the City's at-large election scheme is unlawful or unconsti- 

tutional, it should also reconsider the relief ordered 

in light of the intervening Supreme Court decision, 

Wise v. Lipscomb, 437 U.S. 533 (1978). Briefly put,   

the legislature should be given a reasonable opportunity 

to devise its own timely remedy. If no legislative plan 

is forthcoming, the Court must order its own single-member 

district plan into effect. In the latter event, this Court 

-18- 

 



  

should notice Justice Blackmun's criticisms (with which 

none of the other justices disagreed) of a judicially 

ordered change in the form of government. If district 

elections can be imposed on the commission form, the 

Court should defer to Mobile's preference for commission 

form of government. Such relief is made more plausible 

in view of Justice Blackmun's opinion and because the 

Supreme Court and Fifth Circuit made it clear that Mobile 

can no longer conduct elections for predesignated executive 

functions under the 1965 law, which the Justice Department 

refused to preclear. 48 U.S5.L.W. at 4437 n.6; 571 FP. 248 

ar 241, un.2. 

CONCLUSION 

The Fifth Circuit's mandate does not permit this 

Court to dismiss the case without first reconsidering 

the issues left undecided by the Supreme Court: 

(1) Has the at-large election plan been 

retained for invidious racial reasons? 

(2) Does the at-large election plan violate 

the Voting Rights Act of 1965, as amended? 

(3) What remedy is appropriate in light of 

Wise v. Lipscomb? 
  

 



  

The Court should receive such additional evidenc 

on these issues as the parties may offer 

Respectfully submitted this los day of October, 

BLACKSHER, MENEFEE & STEIN, P.A. 

405 Van Antwerp Building 
P. 0. Box 1051 
Mobile, Alabama 36633 

) //] NY: f 
BY, YL \/ p 4 lz {.. 

v jd reste fiffecti 
Za ARRY T. MENEFEE 

EDWARD STILL, ESQUIRE 

Reeves and Still 
Suite 400 Commerce Center 
2027 Fi st AVenue, North 
ri Wel Alabama 35203 

JACK GREENBERG 
ERIC SCHNAPPER 
Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs 

 



  

CERTIFICATE OF SERVICE   

I do hereby certify that on this [/.3 day of 

October, 1980, a copy of the foregoing PLAINTIFF'S 

BRIEF SUPPORTING MOTION FOR REMAND PROCEEDINGS was 

served upon counsel of record: Charles B. Arendall, 

Jr., Esquire, William C. Tidwell, III, Esquire, Hand, 

Arendall, Bedsole, Greaves & Johnson, Post Office Box 

123, Mobile, Alabama 36601; Fred G. Collins, Esquire, 

City Attorney, City Hall, Mobile, Alabama 36602; Charles 

S. Rhyne, Esquire, William S. Rhyne, Esquire, 1000 

Connecticut Avenue, N. W., Suite 800, Washington. D. C. 

20036, by depositing same in the United States mail, 

postage prepaid. 

/ 

J 

} 

0 4 9) TA { I» {LH 
(/RKTTORNEY FOR P PLA INTIFFS 
  

Zl