Plaintiffs' Prehearing Memorandum on Remedial Issues; Clark v. Marengo County Prelusion

    » 

: ® 

  

/ J 

BLACKSHER, MENEFEE & STEIN, P.A. GR G/%/ dg / 

ATTORNEYS AT LAW NL L.. // OIC 

JAMES U. BLACKSHER 
GREGORY B. STEIN LARRY T. MENEFEE 

405 VAN ANTWERP BUILDING August 28 / 1986 FIFTH FLOOR TITLE BUILDING 

P.O. Box 1051 300 2187 STREET, NORTH 

MOBILE, AL 36633-1051 BIRMINGHAM, AL 35203 
(205) 433-2000 (205) 322-7300 OR 322-7313 

Honorable Myron Thompson 
Second Floor, Federal Courthouse 
Corner Foster and Troy Streets 
Dothan, Alabama 36302 

Re: John Dillard, et al. v. Crenshaw County, 
Alabama, et al., Civil Action No. 85-T-1332-N 
  

  

Dear Judge Thompson: 

Please find enclosed two "bench copies" of Plaintiffs’ 
Prehearing Memorandum on Remedial Issues. The original has been 
filed with Mr. Caver. Also please find enclosed a recent opinion 
that Judge Hand entered in the Marengo County litigation. The 
issues are virtually identical. Both the Marengo County Commission 
and Marengo County School Board had asked that the Court approve 
a plan of five single member districts plus a chair elected at- 
large. 

Plaintiffs have reached agreement resolving all of the issues 
remaining as to Etowah County. We will describe that to the Court 
at the beginning of the hearing on Tuesday. 

Sincerely; 

    

arry, T. Menhefe 

-LTM:b3jj 

Enclosure 

cc: All Counsel of Record 

 



> 

y 

: ® 

BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAW 

  

JAMES U. BLACKSHER 

GREGORY B. STEIN LARRY T. MENEFEE 

FirTH FLOOR TITLE BUILDING 405 VAN ANTWERP BUILDING August 28 p 1986 Ey TLTLDO% TT BY LOI 

P.O. Box 1051 ’ 

MOBILE, AL 36633-1051 BIRMINGHAM, AL 35203 

(205) 433-2000 (205) 322-7300 0R 322-7313 

Mr. Thomas C. Caver, Clerk 

Middle District of Alabama 

United States Courthouse 

Montgomery, Alabama 36104 

Re: John Dillard, et al. v. Crenshaw County, Alabama, 
et al., Civil Action No. 85-T-1332-N 
  

Dear Mr. Caver: 

Please file the enclosed Plaintiffs' Prehearing Memorandum 
on Remedial Issues. By separate cover, I am sending copies directly 
to Judge Thompson's chambers. Thank you for your assistance.   

Sincerely, 

arry |[T. Mepefee 
LTM:bjj 

Enclosure 

ccs All Counsel of Record 

  — 

 



" Lane 

  

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 
  

JOHN DILLARD, et al.. 

Plaintiffs, 

CIVIL ACTION NO. 85-T7-1332-N VS. 

CRENSHAW COUNTY, ALABAMA, 

et al.., 

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Defendants. 

PLAINTIFFS' PREHEARING MEMORANDUM 

ON REMEDIAL ISSUES 
  

Plaintiffs John Dillard, et al., herewith submit for 

the Court's consideration the following memorandum of law concern- 

ing remedial issues to be heard by the Court on September 2, 1986. 

Contested issues remain concerning Pickens, Lawrence, 

Etowah and Calhoun Counties. The remaining issues are primarily 

framed by this Court's Memorandum Opinion and Order dated May 28, 

1986 and the Order on Pretrial hearing with its attached stipula- 

tion of the parties dated July 17, 1985 and a separate stipula- 

tion entered with Pickens County filed on or about July 24, 1986. 

Pursuant to the provisions of Rule 65(a)(2), Fed.R.Civ.P., 

the evidence received by the Court at the hearing on preliminary 

fnjenction is applicable to this final hearing. Among the find- 

ings already entered by this Court are the following. The Court 

has already determined that each county has majority white popu- 

lations and significant black populations. Each county uses an 

election structure which has at-large elections, with numbered 

posts and majority vote/run-off requirements. Pickens County 

* Settlement was reached with Etowah County on Thursday, August 

28, 1986. 

 



  

employees a "dual system" whereby the party primary elections are 

conducted from districts but the general election is held at-large. 

"The six counties have a clear history of racially polarized elec- 

tions for both state and county officials, and no black person 

has ever been elected commissioner under the at-large systems used 

by the counties." Memorandum Opinion, May 28, 1986, pages 2-4. 

The stipulations entered into by the parties are in all 

substantive respects identical. The parties stipulated, inter 

1. The Defendants stipulate that the 

present overall form of county government, 
which includes election of associate commis- 
sioners and a commission chairman at-large, 
currently results in dilution of black voting 
strength in violation of Section 2 of the 
Voting Rights Act of 1965, as amended, 42 
U.S.C. 8 1973. Defendants further stipulate 
that a different form of government must be 
instituted to redress this violation. Defen- 
dants do not admit or stipulate, however, that 
the at-large election of a county commission 
chairman, in and of itself, necessarily is 
violative of Section 2 or any other law. 

The Defendants reserved the right to demonstrate that violation 

of Section 2 can adequately be remedied by an election plan that 

contains one at-large position. The parties agreed that Defen- 

dants would submit plans to the Department of Justice in a prompt 

_ fashion and commit themselves to elections beginning November 4, 

1986. If by September 30, 1986, the Section 5 submission 

 



  

of any county in still pending, the parties agree that the district 

court should take action to approve an election plan on an interim 

remedial basis. 

PICKENS COUNTY 

Pickens County is currently governed by a five-member 

county commission. Four of the members are elected from a "dual" 

system wherein party nominations are determined in a system of 

district elections and the general election is conducted at-large 

from numbered posts. The fifth member of the county commission 

is the probate judge, who also served as county administrator, 

and is elected at-large. The four county commissioners serve four 

year staggered terms. The form of government was provided for 

in Act No. 141 of the 1967 regular session of the Alabama legis- 

lature. 

Plaintiffs will propose a plan for Pickens County to 

be governed by five commissioners elected from single member 

districts in both the primary and general elections. 

CALHOUN COUNTY 

- 

Calhoun County is governed by a three-member commission. 
» - 

The three commissioners are elected at-large by a majority vote 

pinbened place system. Two of the commissioners, known as assoc- 

iate commissioners, have residency requirements in either the 

Northern District or the Southern District. The third commissioner, 

known as- the chairman, may live anywhere in the county. 

The Plaintiffs and Calhoun County Defendants are in 

agreement as to a five-district plan which will be presented to 

the Court. The Defendants contend, however, that an additional 

 



  

sixth member should be elected at-large to serve as chairman. 

LAWRENCE COUNTY 

Lawrence County 1s governed by a county commission con- 

sisting of five members. The commissioners run at-large with 

designated places and majority vote-run-off requirements. Four 

of the Commissioners are known as "associate" commissioners and 

run from four residency districts. The fifth commissioner is 

designated the "chairman" and has no residency requirements. The 

associate commissioners serve on a part-time basis while the 

chairman serves full-time. The chairman presides over meetings 

of the commission and functions as the chief executive officer 

of the county. -- 

Lawrence County proposes and has submitted to the 

Department of Justice for preclearance a plan to elect five 

commissioners from single member districts plus a sixth non-voting 
- 

chairman elected at-large. Such a chairman would be the adminis- 
oy 

- 

trative officer of the county. The Plaintiffs propose a plan 

consisting of five single member districts with a rotating chair 

position with the county being empowered to hire whatever admin- 

istrator they need. 

 



  

APPLICABLE LEGAL STANDARDS 

In any court-ordered redistricting plan, unless there 

are pursuasive, unique reasons for doing otherwise, the Court must 

use single-member districts exclusively, must avoid more than de 

minimis population deviation among the districts, and must ensure 

that the plan is free from any taint of arbitrariness or discrim- 

ination. Connor v. Finch, 431 U.S. 407, 414-15 (1977), citing 
  

Chapman v. Meier, 420 U.S. 1, 26-27 (1976); Roman v. Sincock, 377 
  

  

U.S. 695, 710 (1964). A district court cannot justify deviation 

from these requirements when there is an alternative plan 

available that more nearly satisfies these requirements. Connor 

v. Finch, supra, -431 U.S. at 420. 
  

The issues are presented to this Court in the posture 

of a determination having been made that the current election 

systems are violative of Section 2. Both the findings of this 
- 

Court in its opinion of May 28 and the stipulation of the parties 

of July 17 recite that fact. That finding of a violation of Section 

2 is buttressed by findings of the Court and evidence which 

“include a history of polarized voting, lingering effects of 

past discrimination, failure of minority supported candidates 

to win election, and depressed socio-economic status in the black 

 



  

community. Thus, the Court judges these plans in light of a 

determination that the election systems violate Section 2 and not 

in the context where a governmental entity has submitted a pro- 

posed change for preclearance pursuant to Section 5 and received 

an objection from the Department of Justice pursuant to one aspect 

of the proposed change. 

Congress was clear in amending Section 2 of the Voting 

Rights Act as to the appropriate remedial standard: 

The Court should exercise its traditional equit- 
able powers to fashion the relief so that 
it completely remedies the prior dilution of 
minority voting strength and fully provides 
equal opportunity for minority citizens to 
participate and elect candidates of their 

choice. 

S.Rep. No. 97-417, 97th Cong., 2nd Sess., p. 31 (1982). 

However, Plaintiffs contend that even if there had been no prior 

determination of a Section 2 violation, this Court would be 

required to assess the lawfulness of a plan proposed by the Defen- 

dants under appropriate Section 2 standards. Edge v. Sumter County 
  

  

School District, 775 .F.24:1509, 1510: (11th Cir. 1985). 
- 

Explicit standards for evaluating claims of racial vote 
>» 

dilution under Section 2 of the Voting Rights Act have been 

elaborated by the Supreme Court in Thornburg v. Gingles, 54 
  

U.S.L.W., 4877 (June 30, 1986). Application of the Thornburg 
  

standards to the Defendants' proposal for electing an at-large 

chair or executive demonstrates that it would likely violate 

Section 2 of the Voting Rights Act. 

Although the Thornburg opinion addresses primarily claims 
  

against multi-member districts, the general rule of unlawful vote 

56 

 



  

dilution it states is applicable to any electoral practice: 

The essence of a Section 2 claim is that a 
certain electoral law, practice or structure 
interacts with social and historical condi- 
tions to cause an inequality in the opportun- 
ities enjoyed by black and white voters to 
elect their preferred representatives . . . 
The theoretical basis for this type of impair- 
ment is that where minority and majority 
voters consistently prefer different candi- 
dates, the majority, by virtue of its numer- 
ical superiority, will regularly defeat the 
choices of minority voters. 

  

54 U.S.L.W. at 4882 (citations omitted) (emphasis added). 

Given the findings of this Court and the stipulation of 

the parties, the selection of one member of the county commission 

by the out-large method of election would violate the Section 2 

standard. 

All five of the critical findings of fact made by the 

trial court in Thornburg and approved by the Supreme Court are 
  

duplicated in the instant case: 

1. A long-standing history of official dis- 
crimination against black voters displays its 
lingering effects in a relatively depressed 
black voter participation, 54 U.S.L.W. at 4879; 

2. resulting in a lower socio-economic 
status for blacks as a group than for whites, 
54 0.S5.L.W: at 4880; 

3. a majority vote requirement that enhances 
the ability of the white majority to submerge 
black voting strength, 54 U.S.L.W. at 4480; 

4. the appearance appeals to racial preju- 
dice and political campaigning, 54 U.S.L.W. 

at 4880; 

5. black candidates are at a disadvantage 
in terms of relative probability of success 
in at-large voting, 54 U.S.L.W. at 4880. 

 



% 

  

The most critical factor relied on by the Supreme Court 

to find a Section 2 violation was severe and persistent racially 

polarized voting in the jurisdiction-wide elections. 54 U.S.L.W. 

at 4880. This Court has already made such a finding with regard 

to all four of the counties before the Court. Memorandum Opinion, 

p. 4. Where the election of a county commission chair is by 

at-large/majority vote requirement, the at-large voting would 

result in a denial of equal opportunity for black citizens to elect 

candidates of their choice. The county must demonstrate compelling 

and unavoidable circumstances requiring this particular electorial 

method of selecting a chair. 

Some of the Defendants suggest that the chair or chief 

executive must be elected at-large because they are like the 

probate judge, the sheriff and the district attorney. The compar- 

ison is inapposite, however, because the probate judge, sheriff 

and district attorney are among those "single-position" offices 

which perform judicial and executive functions solely. The chair 

of the county commission, on the other hand, is a member of a body 
— 

that performs both legislative and executive functions, and which 

makes decisions only by voting as a Body. An at-large. elected 

Aenber would increase the voting membership of the county commis- 

sion, would participate as a member of the commission, and would 

exercise enhanced powers enjoyed by no other member of the com- 

mission. To that extend, the members elected by a racially fair 

district election method would have their voting strength and 

influence diluted. 

 



  

Some of the Defendants ask that the chair be a non- 

voting member of the commission or to remove the chair from member- 

ship on the commission entirely. This proposal fundamentally 

alters the form of government for the county in a way that is 

unprecedented elsewhere in Alabama. It would also dilute black 

voting strength by depriving the other commissioners of the 

practical political powers that commissioners normally enjoy. 

Just at the time that the Voting Rights Act affords blacks an equal 

opportunity to elect candidates of their choice to the county 

commission, the persons they are able to elect would end up with 

less practical political influence than that of their previously 

at-large elected counterparts. Important day-to-day political 

power would be transferred to a single person, who would be 

elected by the very at-large majority vote system that has been 

declared unlawful because it dilutes black voting strength. 

In Alabama, county commissioners and school board members 

are by state policy different from strictly executive or judicial 

officials, and they are different from officials elected under 
- - 

- 

a mayor-council municipal form of government. In a mayor-council 
i 

form of government, the executive and legislative functions are 

almost entirely separated: The mayor is the executive and the 

council members are the legislators or policy makers. The city 

commission form of government, where the commissioners exercise 

both executive and legislative powers, is more like county commis- 

sions and school boards. If this Court were to adopt a remedial 

plan that created a chair or president for the county commission 

whose sole functions were to preside at meetings and carry out 

 



  

administrative or executive duties, it would be establishing a 

form of government virtually unprecedented among county commis- 

sions in Alabama. 

There is no compelling state policy for the creation 

of such a radically different and racially dilutive form of govern- 

ment in this action. Many county commissions in Alabama operate 

satisfactorily under systems where they appoint or adopt some other 

mode of selecting their presiding officers and chief administra- 

tors. These Defendants cannot advance reasons why a similar 

system would not operate satisfactorily in their counties, particu- 

larly at a time when elections finally have become racially fair. 

REMEDIAL STANDARDS UNDER SECTION FIVE 

In addition to the remedial standards discussed above, 

an additional set of standards come into play if the Attorney 

General interposes objections to any features of the plans sub- 

mitted for preclearance. In the event that the Attorney General 

interposes any objections to the plans submitted by these Defen- 

dants, the Court has a duty to "cure any constitutional or statu- 

tory defect." Upham v. Seamon, 456 U.8,437; 43,.:102 :8.Ct. 1518, 
EP 

  

1522 (1982). In other words, this Court lacks authority to approve 

features of a county's remedial plan that has been objected to 

in a Section 5 submission. Under the scheme of Section 5, only 

the district court for the District of Columbia and the Attorney 

General of the United States have jurisdiction to reconsider argu- 

ments by the Defendants that a particular feature will not have 

the purpose or the effect of diluting black voting strength. The 

-10- 

 



  

burden is on the Defendant to obtain preclearance, and this Court 

may not defer to or enforce such a proposal until it has been 

1/ 
approved by the appropriate authorities ungsy Section 5.- 

Respectfully submitted this 23 day of August, 1986. 

BLACKSHER, MENEFEE & STEIN, P.A. 

Fifth Floor Title Building 
300 Twenty-first Street North 
Birmingham, Alabama 35203 

sh en a 
Jarry [T. ra 
  

James . Blacksheér 

Wanda J. Cochran 

Terry G. Davis 
SEAY & DAVIS 

Post Office Box 6215 
Montgomery, Alabama 36106 

Deborah Fins 

Julius L. Chambers 

NAACP LEGAL DEFENSE FUND 

99 Hudson Street, l6th Floor 

New York, New York 10013 

Edwart Still 
REEVES & STILL 

714 South 29th Street 

Birmingham, Alabama 35233-2810 

or g Reo Kirkland, Jr. 

3 Post Office Box 646 

Brewton, Alabama 36427 

ATTORNEYS FOR PLAINTIFFS 

1/ Except in the case of a plan used for interim use only. Upham 

Vv. Seamon, 456 U.S. 37 (1982); Burton v. Hobbie, 543 F. Supp. 235 

(M.D. Ala. 1982), aff'd U.S. . 103 S.Ct. 286 (Nov. 1, 1982). 
  

  

~11l- 

 



  

CERTIFICATE OF SERVICE 
  

i 

I do hereby certify that I have this 23 day of August, 

1986, served a copy of the foregoing on the following counsel of 

record: 

H. R. Burnham and Burt Jones W. OO. Kirk, Jr. 

BURNHAM, KILNEFELTER, HALSEY, CURRY & KIRK 

JONES & CARTER Post Office Box A-B 

Post Office Box 1618 Carrollton, Alabama 35447 

Anniston, Alabama 36202 (Pickens County) 
(Calhoun County) 

Jack Floyd D. L. Martin 
FLOYD, KEENER & CUSIMANO 215 South Main Street 

816 Chestnut Street Moulton, alabama 35650 

Gadsden, Alabama 35999 (Lawrence County, Smith & Ligon) 

(Etowah County) 

David R. Boyd 
BALCH AND BINGHAM 

Post Office Box 78 
Montgomery, Alabama 36101 
(Lawrence County, Smith & Ligon) 

by placing same in the United States Mail, properly addressed and 

first-class postage prepaid offend Ep ese 

P 

IRE 
OF Conse 
  

WR Le 

 



  

* Cu pm 
IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

NORTHERN DIVISION 

JAMES B. CLARK, ) 

Plaintiff, ) 

vs. ) CIVIL ACTION NO. 78-455-H 
MARENGO COUNTY, ) 

Defendant. ). 

UNITED STATES OF AMERICA, ) 

Plaintiff, ) 

vs. : ) CIVIL ACTION NO. 78-474-H 
MARENGO OOUNTY COMMISSION, et al., :) 

Defendants. ) 

PRELUSION 
  

The Order that follows is enteré&d- by this Court pursuant to the 

Mandate of the Court of Appeals directing this Court to district Marengo 

County for election purposes as to the County Cammission and the School 

Board. In complying with this Mandate, the Court does so because it 
legally must under our system, and not because it believes it is consti- 

tutionally required. The appellate courts have apparently concluded 

that the Constitution has been amended in proper form to authorize the 

federal government's intervention in the state election process. So be 

it. 

 



  

( ( aE | 

The resolution of the perceived problem requiring the federal 

courts to district for election purposes so as to give an indentifiable 

minority the right to elect is, in the opinion of this Court, ill 

conceived and short sighted. The Court might concede the argument that 

in the short term it may serve as a quick fix to the problem of past 

discrimination, but, quick fixes are not always lasting solutions, nor 

the best solutions. This quick fix fixes in concrete the segregation of 

the races in Marengo County in the name of the election process, and 

requires that the County be partited for, the purpose of establishing 

majority districts of the minority race so that they can elect. In sO 

doing, it necessarily follows that same members of either race are 

thereby fixed in a minority position in other districts. By the logic 

of the argument advanced, [which says that to deprive the minority of 

the right to elect transgresses their constitutional right to elect], it 

thus creas a disenfranchisement of the minority that remains locked in 

that capacity in such district. Otherwise stated, if there is a consti- 

tutional right vested in the members of an identifiable minority to 

elect, then if you take that right awaygfram any individual member of 

that minority, you have denied him nis cometitutional right. There is 

no provision in our Constitution for a group Franchise, 55 when you 

partite for election purposes you necessarily fix some minority elements 

into districts where this logic espoused dictates that they are unable 

to elect. It must follow then, by such argument, their constitutional 

 



  

right of access to the ballot for the purposes of electing has been 

abridged. 

Not only does this approach suffer as stated, but it also suffers 

another vice. It indelibly brands any such minority as an identifiable 

minority and impedes its assimilation into the fabric of American 

society, as others have done. In order to elect, these minorities will 

be required to remain in their "Soweto's", otherwise referred to as 

ghettoes. This is contrary to the American ethic which presumes and 

encourages all people to believe they arg equal before the law. But 

more important, it denies the dream Martin Luther King expressed when he 

opined that he longed for the day that you can look at the nation and 

not see black or vhite.? 

It yet suffers another vice, and that is if an identifiable minority 

in this instance can be found to have a constitutional right to elect, 

then er. mails minority will be entitled to the same consideration. 

Our constitutional fabric will thus be ripped asunder and our Nation so 

campartmentalized that the genius of our system will be destroyed. 

For these reasons I disscent, but & my duty. 

- 
-— 

ad 

  

Dr. Lichtman tried to explain this away, but his argument does 

not hold water. 

2 "I have a dream my four little children will one day live in a 

nation where they will not be judged by the color of their skin, but by 

content of their character. I have a dream today!" Lincoln Memorial 

Address on 28 August 1963. 

  

 



  

— — G— — — 

This cause came on for hearing before the Court on July 29, 1986 

for the purpose of addressing the parties’ objections to the Court's 

June 23, 1986 districting plan and determining whether said plan 

camplies with Section 2 of the Voting Rights Act, as amended, 42 U.S.C. 

S 1973. 
ie 
- 

Plaintiffs interpose no objection to the Court's plan of five 

single-member districts and concur in this Court's finding that: 

The Court's presently proposed plan, which has the 

smallest maximum population deviation of all the 

plans proposed to date (5.13%), produces: two 

districts with substantial black voter majorities 

of 72.5% and 69.1%; one district with a substantial 

white voter majority of 73.6%; one district with a 

slight white voter majority of 57.0%; and one 

district with a slight black voter majority of 

56.5%. This plan eliminates the at-large seat 

incorporated in the Court's earlier proposed plan. 

In contrast to the Clark Plaintiffs' plan of 

February 25, 1986 which split two enumeration 

districts and their alternate-plag of April 17. 

1986 which eliminated these split enumeration 

districts, but results in an unacteptable 

maximum total population deviation of nearly : 

13%, the Court's plan Splits only one enumeration 

district in a readily definable manner and reduces 

the ‘population deviation to a maximum of 5.13%. 

This Court's order of June 23, 1986 (footnote amitted). 

The defendants, Marengo County Commission (Commission) and Marengo 

County Board of Education (School Board), object to the Court's proposed 

plan on the sole ground that the plan "makes no provisions of any nature 

for the Chairmanship of [the Commission Or School Board)" and "if the 

Chairman or president is to be selected from one of the five single-member 

 



  

. @ 

district posts, the said President would not be elected by the qualified 

electors of the entire county." (Defendant's Response to Court's 

June 23, 1986 Order at p. 2). The defendants strenuously assert the 

existence of: 

[A] State Legislative policy respecting both 

defendant entities which has consistently called 

for the provision of a chairman of the Marengo 

County governing body and the Board of Education 

of Marengo County who is elected by the qualified 

electors of the entire County. 

Id. at p. 4. Defendants further assert, as the rationale for such 

FS 
- 

policy that: 

[The duties of the chairman, both in presiding 

over the Board and with regard to Administrative 

duties involves the government of the entire County, 

or governance of the County public education system 

and not just the affairs of the operation of said 

governing body or school system in any one portion 

of the County. 

Upon careful consideration of the defendants' objection, arguments 

of counsel and the record in this action, the Court concludes that the 

Court's June 23, 1986 districting plan, as hereinafter amended to 

provide for the selection of a ran ow elected members of the 

respective defendants’ entities, is due to be adopted and implemented by 

this Court. 

The Court agrees with the defendants that, while single-member 

districts have been held to be preferable to multi-member districts, the 

“Court is not mandated to order single-member districts in all instances. 

Recently, the Eleventh Circuit Court of Appeals clearly rejected such a 

premise in Edge v. Sumter County School District, 775 F.2d 1509 (11th 
    

Cir. 1985) stating: 

In Upham v. Seamon, 456 U.8..37, 102 8: Ct. 1518, 
  

 



  

® @ 

71 L.Ed.2d 725 (1982), the Supreme Court clearly 

stated that although Conner [v. Johnson, 402 U.S. 

690, 91 S. Ct. 1760, 29 L.Ed.2d 268 (1971) ] 

suggested single-member districts are preferable 

to multi-member districts, at-large districts 

that do not offend either the Constitution or 

the [Voting Rights Act] should not be rejected 

in the court-ordered remedy. 

  

775 F.2d at 1511-12. The Court further agrees that judicial precedent 

directs this Court to consider and, if appropriate, to defer to state 

legislative policies, such as those promulgating at-large election 

schemes, when fashioning an election plan. Upham v. Seamon, 456 U.S. 
  

un 

37, 102 S. Ct. 1518, 71 L.E4.2d 725 (1982) ; Edge v. Sumter County School 
  

  

District, supra; Cook v. Luckett, 735 F.2d 912 (5th Cir. 1984). The 

Supreme Court has previously qualified this directive, however, stating: 

Among other requirements a court drawn plan 

should prefer single-member districts over 

milti-member districts, absent persuasive 

justification to the contrary. 
  

  
  

Wise v. Lipscamb, 437 U.S. 535, 540, 98 S. Ct. 2493, 2497, 57 L.Ed.2d 
  

411, 417 (1978). (Emphasis added) (Citations omitted) . 

Plaintiffs counter defendants' attack on the Court's plan by 

iL. 
contending first that the Findings of®act and Conclusions of Law 

  entered in this_action by the Eleventh “Circuit, United States v. Marengo 

County Camission, 731 F.2d 1541 (11th Cir.); cert denied, 105 S. Ct. 
  

  

375 (1984), and subsequently by this Court on September 5, 1985 pursuant 

to remand, establish that the at-large election scheme employed in 

Marengo County unlawfully dilutes the voting strength of black citizens 

in violation of Section 2 of the Voting Rights Act, as amended, 42 

U.S.C. § 1973. Plaintiffs next content that this liability ruling 

formed the basis of the Attorney General's February 10, 1986 refusal to 

 



  

. EL 

preclear the defendants' proposed election plan as evidenced by the 

following objection specifically get forth in the rejection letter: 

[Tlhe proposal insists on retaining an at-large 

position, notwithstanding the conclusion that 

black citizens of Marengo County do not have 

a fair opportunity to participate effectively 

in the at-large structure. 

Based on the above, plaintiffs argue that the legislative policy asserted 

and relied upon by the defendants, to the effect that the Chairman of 

their respective entities must be elected at-large, cannot be said to be 

a policy which "[does] not offend eithex the Constitution or the [Voting 

Rights] statute." Edge, 775 F.2d at 1511012. 

The Court rejects plaintiffs’ invitation to hold that a liability 

ruling such as was entered in his case automatically dictates the 

eradication of all at-large seats for governing bodies. Such an inter- 

pretation of the exception set forth in Edge, supra, would inihilate a 

court's ability to examine on an ad hoc basis the totality of the 

circumstances presented and thereby to fashion an equitable remedy which 

does not intrude upon state policy any more than is necessary to meet 

the specific constitutional violations @nvolved. Upham, supra, 456 U.S. 
  

  

at 42, citing Whitcamb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858, 29 

L.Ed.2d 363 (1971). 3 

The Court has, therefore, carefully considered the defendants’ 

characterization of the rationale underlying the legislative provision 

_ for an at-large chair, to-wit: that the duties of the Chairman are 

critically distinctive from those of the members of the entities, the 

former involving the entire county as opposed to a single portion 

thereof. The Court finds that in this case such a characterization is 

inaccurate. Excepting the duty to preside over the meetings of the 

 



® yl 

  

respective entities, the Chairman or President of the Camission and the 

School Board each have "the same rights, privileges, powers and authority 

and [shall] perform the same duties" as the other members of the respective 

entities. 1923 Ala. Acts 311; 1955 Ala. Acts 184. The defendants' sole 

witness, Marcus Walters, Marengo County Superintendent of Education, 

testified that if a serious problem confronted him, he would first 

contact the Chairman of the School Board. Mr. Walters admitted, however, 

that the entire Board sets the policies under which the Superintendent 

‘operates the school system; that the Chairman has the same rights, 

privileges, powers and authority as the other members of the School 

Board; and that there was nothing to prevent the Superintendent fram 

contacting the other members of the School Board or vice versa. The 

defendants have, therstcre, failed to establish any persuasive justi- 

fication for adding a sixth member to the County Comission or the 

School Board, sald member to be elected at-large to serve as the 

Chairman/President of the respective entity. Absent special circum 

stances, it is clear that this Court must employ the five single-member 

districts it has designed. -€ 

For the reasons set forth above, it is ORDERED, ADJUDGED and 

DECREED as follows: Te 

1, ‘That the defendants, the Marengo County Comission: Aubrey L. 

Giads, Dresident, and Members D. W. Holt, Grey Etheridge, Jimmie Brame, 

_ Wiley G. Stephens; the Marengo County Board of Education: Thamas N. 

Miller, President, and Members Joe C. Mason, Robert Tucker, Wallace 

Flowers, Moses Lofton; Marengo County Judge of Probate, Hon. Sammie 

Daniels; Clerk of the Circuit Court for Marengo County, Dwaine Sealey; 

Sheriff W. H. (Billy) Smith; J. C. Camp as Chairman of the Marengo 

 



  

  

o » 
( 

County Democratic Executive Committee; and Starkey Armstead as Chairman 

of the Marengo County Republican Executive Cammittee are hereby ORDERED 

to conduct the elections for the members of the Marengo County Commission 

and the Marengo County Board of Education for the districts set forth in 

this Court's order of June 23, 1986, as amended by order of July 18, 

1986 and herein, infra at paragraph 7, and in accordance with the 

schedule set forth in Appendix A. 

2. The elections referred to in paragraph 1 of this order shall 

consist of a Primary Election to be held on September 23, 1986, a 

Primary Runoff Election to be held on October 14, 1986 and the General 

Election to be held on November 4, 1986. The dates set forth in 

Appendix A shall control the deadlines which must be established for the 

aforementioned Seotion. In the event that State officials schedule 

another Democratic Gubernatorial Runoff Election, defendants are granted 

leave to move the Court for an alteration in this election schedule and 

the pertinent deadlines set forth in Appendix A. ; 

3. All steps necessary to the administration of these elections 

shall be taken by the responsible parties named in paragraph 1 of this 

Order. - eet 

4, In order £0 \nsure that the electorate will be fully appraised 

of the districting plan herein ordered by the Court and of pertinent 

election deadlines, the Marengo County Commission and the Marengo County 

- Board of Education are hereby ORDERED to publicize the same in a manner 

insuring the widest circulation in the County, including but not limited 

to the following: 

A. A map outlining the five single-member districts 

is to be posted at the United States Post Office 

and the county buildings and/or other locations 

highly accessible to public review in the 

 



  

“ ie # 
{ 

{ 

concentrated areas of Demopolis, Linden, 

Thomaston, Dixon Mills, Sweet Water and 

Mertylewood. 

b. An advertisement/news release which delineates 

the boundaries of the single-member districts and 

informs of the pertinent election deadlines is 

to be published in a newspaper of general 

circulation in Marengo County, as well as in the 

Democrat Reporter, a weekly publication circulated 

in Linden, and the Demopolis Times, a biweekly 

publication circulated in Demopolis. This pub- 

lication shall continue for two consecutive weeks 

fram August 11 to August 25 inclusive. 

  

  

C. Announcements of the locations of maps outlining 

the single-member districts ang lists of the 

pertinent election deadlines are to be made 

frequently during each day on radio stations 

available in Marengo County. Such announcements 

shall continue for two consecutive weeks from 

August 11 to August 25 inclusive. These 

announcements will be reinstated for the benefit 

of the electorate and shall continue for a one 

week period prior to each election - Primary, 

Primary Runoff and General. 

5. The expense of the publication and notice ordered in paragraph 

4 shall be borne by the Marengo County Cammission and the Marengo County 

Board of Education. 

6. The Marengo County Commission and the Marengo County Board of 
. 

Education, together with the County election officials, are hereby 

ORDERED to take all necessary. steps to insure that voters are identified 

and assigned appropriately to polling places prior to the September 11 

and 18,.1986 publication of the list of qualified electors. In particu- 

lar, it is ORDERED that the Hon. Sammie Daniels, Marengo County Judge of 

“Probate and the official who is responsible for the actual conduct of 

the elections or the general supervision thereof, be and is hereby 

AUTHORIZED to redesignate and establish the precincts in Marengo County 

in accordance with the Court's districting plan and to establish within 

said new precincts such polls as will provide, in his opinion and in 

10 

 



K Hn. 

  

accordance with the law, for an orderly election process and to hire 

such additional personnel and to take such other actions as maybe 

necessary and proper to effectuate this order. The cost of such addi- 

tional personnel and other expense, if not voluntarily assumed and borne 

by the defendant entities, shall be taxed as costs in this litigation 

and thereby paid by said entities. 

7. Following the election outlined above, the members of the newly 

constituted Marengo County Cammission and Marengo County Board of 

Education shall elect among themselves:a Chairman/President of their 

respective entity. The Court shall not intrude further into the legis- 

lative functions of the Commission and School Board and shall leave to 

the devises of each entity the responsibility to determine what, if any, 

rotation in the chair shall occur, | 

DONE this iow of August, 1986. 

VS Arlo ch 
Chief Judge 
  

- 

&€ 
“z 

11 

U. S. DISTRICT COURT 

SOU. DIST. ALA. 
FILED AND ENTERED THIS THE 

_ 5” DAY OF Coops: . 
19_ 8 JUDGEMENT ENCRY 76237 

NO._ (B93) 
JO! Cres CLERK 

BY. CU in 
(Dipury CLERK 

  

  

  

  

  

 



  

August 11 

August 22 
12:00 noon 

August 23 

August 29 - 
September 17 

September 3-8 

September 11 

September 12 

September 17 

September 18 

September 23 

APPENDIX A 
  

IMPORTANT DEADLINES IN 1986 FOR 
  

COUNTY COMMISSION AND SCHOOL BOARD ELECTIONS 
  

Candidate qualification time begins. 
  

Deadline for candidate qualification. 
  

le 

Last date for Sheriff to give notice of elections. 

Ala. Code § 17-7-5. Notice should include publications 

in both the Demopolis Times and the Democrat Reporter. 

  
  

  

  
  

Dates to apply for Absentee Ballots for Primary Election. 

Dates on which the qualified voters may apply to the 

clerk for absentee ballots. Ala. Code § 17-10-3. It 

would be convenient to print forms containing the 

information that is required of the applicants pursuant 

to Ala. Code § 17-10-4. 

  

  
  

Selection of Poll Workers. Ala. Code § 17-6-1, et seq. 

List of Qualified Electors to be published. 

The list of qualified voters, including information 

regarding where each is to vote, shall be published 

(on or about this date according to publication 

cchedules) in both thegemopolis Times and the 

Democrat Reporter newspapers and such other notice 

3s is required. Ala. Code § 17-5-10 and § 17-5-13. 

  

  

  

  

Last date to register as a qualified elector before 

the Primary Election. Last day any person can register 

as a qualified voter prior to the Primary Election. 

Ala. Code § 17-4-4. 

  
  

  

Last date to apply for Absentee Ballot for the 

Primary Election. Last day voter can apply for 

absentee ballot. Ala. Code § 17-10-3. 

  
  

  

Supplemental List of Qualified Electors to be published. 

This list shall indicate any corrections, additions or 

deletions. See September 11 above for instructions 

regarding publication and notice. 

  
  

  

Primary Election. 
  

 



  

October 9 

October 14 

October 15-30 

October 24 

October 29 

October 30 

November 4 

December 4 

* . 

Dates to apply for Absentee Ballots for the Primary 

Runoff Election 
  

    

  

Last date to register as a qualified elector before the 

Primary Runoff Election. 
  

  

  

Deadline for filing Statement of Campaign Expenditures. 
  

  
  

Candidates and/or their committee must file with the 

Office of Probate Judge a campaign disclosure statement 

associated with the Primary Election in accordance with 

the Alabama Corrupt Practices Act. Ala. Code §§ 17-22-9, 

17-22-10 and 17-22-11. 

  

Last date to apply for Absentee Ballot for the Primary 

Runoff Election. 
  
  

  

Election. 

  

Primary Runoff Elections 

Dates to apply for Absentee Ballots for the General 
  

  

Last date to register as a qualified elector before 

the General Election. 
  

  

Deadline for filing Statement of Campaign Expenditures. 

    
  

Candidates and/or their committee must file with the 

Office of the Probate Judge a campaign disclosure 

statement associated with the Runoff Election in 

accordance with the Alabama Corrupt Practices Act. 

Ala. Code §§ 17-22-9, 17-22-10 and 17-22-11. 

  

Last date to apply for Absentee Ballot for the 

General Elections 
    

  

  

General Election ~~ ‘g 
  

Deadline for filing Statement of Campaign Expenditures. 

Candidates and/or their committee must file with the 

Office of Probate Judge a campaign disclosure statement 

associated with the General Election in accordance with 

  

  

  

the Alabama Corrupt Practices Act. Ala. Code §§ 17-22-9, 

17-22-10 and 17-22-11.