Dillard v. Crenshaw County, AL Brief for Plaintiffs-Appellees John Dillard

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Dillard v. Crenshaw: Redesigning the Political Map of Alabama

    IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT

NO. 86-7799

JOHN DILLARD, ET AL., 
Plaintiffs-Appellees,

V.
CRENSHAW COUNTY, ALABAMA, ET AL., 

Defendants-Appellants.

Appeal from the United States District Court 
_____For the Middle District of Alabama_____

BRIEF FOR PLAINTIFFS-APPELLEES 
JOHN DILLARD. ET AL■

Lani Guinier
Pamela KarlanJulius ChambersNAACP LEGAL DEFENSE FUND
99 Hudson Street, 16th Floor
New York, NY 10013
W. Edward Still 714 South 29th Street 
P.O. Box 2810 Birmingham, AL 35233

Larry T. MenefeeBLACKSHER, MENEFEE & STEIN, P.A. 
Fifth Floor Title Building 300 Twenty-First Street, North 
Birmingham, AL 35203 
(205) 322-7300
James U. Blacksher
BLACKSHER, MENEFEE & STEIN, P.A.
405 Van Antwerp Building
P.O. Box 1051
Mobile, AL 36633

Terry G. Davis 
SEAY & DAVIS 732 Carter Hill Road 
P.O. Box 6125 Montgomery, AL 36106

Reo Kirkland, Jr.
307 Evergreen Avenue 
P.O. Box 646 Brewton, AL 36427

ATTORNEYS FOR PLAINTIFFS-APPELLEES JOHN DILLARD. ET AL.
NON-PREFERENCE



IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

NO, 86-7799

JOHN DILLARD, ET AL., 
Plaintiffs-Appellees,

V.
CRENSHAW COUNTY, ALABAMA, ET AL., 

Defendants-Appellants.

Appeal from the United States District Court 
-----Eor the Middle District of Alabama_____

BRIEF FOR PLAINTIFFS-APPELLEES JOHN DILLARD. ET AL.

Lani Guinier
Pamela Karlan
Julius Chambers
NAACP LEGAL DEFENSE FUND
99 Hudson Street, 16th Floor
New York, NY 10013
W. Edward Still 
714 South 29th Street 
P.O. Box 2810 
Birmingham, AL 35233

Larry T. Menefee BLACKSHER, MENEFEE & STEIN, P.A 
Fifth Floor Title Building 
300 Twenty-First Street, North 
Birmingham, AL 35203 
(205) 322-7300
James U. Blacksher
BLACKSHER, MENEFEE & STEIN, P.A405 Van Antwerp Building
P.O. Box 1051
Mobile, AL 36633
Reo Kirkland, Jr.
307 Evergreen Avenue 
P.O. Box 646 
Brewton, AL 36427

Terry G. Davis 
SEAY & DAVIS 
732 Carter Hill Road 
P.O. Box 6125 
Montgomery, AL 36106

ATTORNEYS FOR PLAINTIFFS-APPELLEES JOHN DILLARD, ET AL.
NON-PREFERENCE



CERTIFICATE OF INTERESTED PARTIES

Pursuant to Rule 22(f)(3), the undersigned counsel of 
record for appellees certifies that the following listed parties 
have an interest in the outcome of this case. These 
representations are made in order that the Judges of this Court 
may evaluate possible disqualification or recusal pursuant to 
Rule 22(f)(3).

Defendants: Calhoun County, Alabama; Arthur Murray, 
Probate Judge; Roy Snead, Sheriff; Forrest Dobbins, Circuit 
Clerk; Gerald Wilkerson and Clarence Page, past members of the 
County Commission; Charles Fuller, James Dunn, Mike Rogers,
Donald Curry, Ralph Johnson, members of the County Commission of 
Calhoun County; Leon Bradley, Chairman-Elect of the County 
Commission.

Herbert D. Jones, Jr. and H. R. Burnham, Attorneys for 
Calhoun County, Alabama, et al., members of the firm of Burnham, 
Klinefelter, Halsey, Jones S’ Cater, P.C., of Anniston, Alabama.

Plaintiffs: Earwen Ferrell, Ralph Bradford and Clarence 
J. Jairrels, individually and as representatives of a plaintiff 
class of all black citizens of Calhoun County, Alabama.

Counsel for the Plaintiffs-Appellees: Larry T. Menefee, 
James U. Blacksher of Blacksher, Menefee S’ Stein, P.A.; Edward 
Still, Birmingham, Alabama; Terry Davis, Seay S’ Davis,
Montgomery, Alabama; Reo Kirkland, Brewton, Alabama; Julius 
Lavonne Chambers, Lani Guinier and Pamela Karlan of the NAACP



Legal Defense and Educational Fund, New York City.
Trial Judge in this case was the Honorable Myron C. 

Thompson of the United States District Court for the Middle 
District of Alabama.

BLACKSHER, MENEFEE 5? STEIN, P.A. 
Fifth Floor Title Building 
300 Twenty-First Street North Birmingham, AL 35203

ATTORNEYS FOR PLAINTIFFS-APPELLEES JOHN DILLARD, ET AL.

ii



STATEMENT REGARDING PREFERENCE

This case is not entitled to a preference.

STATEMENT REGARDING ORAL ARGUMENT

Solely because of the somewhat complicated procedural 
history of this case, Plaintiffs-Appellees believe oral argument 
would be of assistance to the court.

iii



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ....................... i-ii
STATEMENT REGARDING PREFERENCE .......................... iii
STATEMENT REGARDING ORAL ARGUMENT ....................... H i
TABLE OF CONTENTS........................................  iv-v
TABLE OF AUTHORITIES.....................................  vi-viii
STATEMENT OF THE ISSUES ................................. 1
STATEMENT OF THE CASE....................................  2-12

A. Course of Proceedings and Dispositions inthe Court Below.................................  2-3
B. Statement of the Facts.......................... 3-11
C. Statement of the Standard or Scope of Review.....  11-12

SUMMARY OF THE ARGUMENT..................................  12-15
STATEMENT OF JURISDICTION................................  15
ARGUMENT.................................................  15-35

I. the DISTRICT COURT PROPERLY REJECTED THE AT-LARGE
CHAIR POSITION PROPOSED BY CALHOUN COUNTY ...... 15-29
A. The Proper Standard of Review.............  17-19
B. The District Court Followed the Correct

Procedure for Developing a Court-Ordered Redistricting Plan.........................  19-20
C. The Proposed At-Large Chair Position Was

Actually Inconsistent with State Policy, and the District Court Did Not Abuse Its 
Equitable Powers By Rejecting It...........  21-25

PAGE t S]

iv



TABLE OF CONTENTS

PAGE(S)

D. The District Court Correctly Held That the
County's Proposal Failed to Remedy Fully the 
Violation of Section 2....................  25-28

E. The District Court Correctly Found From the
Totality of Evidence That Calhoun County's 
Proposed At-large Chair Would Itself Violate 
Section 2's Results Test..................  28-29

II. THIS COURT SHOULD REJECT THE E£R NUMERICAL RULE
PROPOSED BY THE DEPARTMENT OF JUSTICE.......... 29-35

CONCLUSION...............................................  35-36
CERTIFICATE OF SERVICE....................................  37

v



TABLE OF AUTHORITIES

CASES:
Chapman v, Meier,420 U.S. 1 (1976).....................................  20
Clark v. Marengo County. Nos. 85-7634 and 86-7703

(11th Cir., Jan. 27, 1987) (unpublished).......... 24-25
Connor v. Finch.

431 U.S. 407 (1977)..............................  20, 21
Dillard v. Crenshaw County.640 F.Supp. 1347 (M.D. Ala. 1986)................  4
Dillard v, Crenshaw County.649 F.Supp. 289 (M.D. Ala. 1986).................  passim
Edge y. .Sumter County School District,775 F. 2d 1509 (11th Cir. 1985)...................  20, 28
Franks v. Bowman Transportation Co..

424 U.S. 794 (1976).............................  17
Fullllove y , Klutsnlck,448 U.S. 448 (1980).............................. 17
Gomllllon v, Llghtfoot,364 U.S. 359 (1960).............................. 30
Green v. County School Bd. of New Kent County.391 U.S. 430 (1968).............................. 16
Louisiana v. United States.380 U.S. 145 (1965).............................. 15
McDaniel v. Sanchez.452 U.S. 130 (1981).............................. 19
Paige v. Gray-538 F. 2d 1108 (5th Cir. 1976)....................  20

PAGE(S)

vi



TABLE OF AUTHORITIES

CASES:
Rogers v. Lodge.

458 U.S. 613 (1982).............................  18, 31
Roman v. Slncock.

377 U.S. 695 (1964).............................  20
Swann v,_Charlotte-Meoklenburg Bd. of Education.402 U.S. 1 (1971)...............................  17-18
Thornburg v. Gingles.

478 U.S. ___, 92 L .Ed.2d 25, 106 S.Ct. 2752
dose)...........................................  ii, i6,

18, 30-34
United States v. Paradise.

107 S.Ct. 1053 (1987)............................  17-18
Unham v. Seamon.

456 U.S. 37 (1982)..............................  12
White v, Regester,

412 U.S. 755 (1973).............................  18, 31
Knight v. City of Houston.

806 F. 2d 635 (5th Cir. 1986).....................  28
STATUTES AND RULES:
28 U.S.C. sec. 1291....................................  15

Section 2 of the Voting Rights Act of 1965,
as amended, 42 U.S.C. section 1973...............  passim

Section 5 of the Voting Rights Act of 1965,
42 U.S.C. section 1973o..........................  19

Ala. Code sec. 11-3-11 (1975).........................  22
Ala. Code sec. 11-3-20 (Supp. 1986)...................  13
No. 420, 1939 Local Acts of Alabama, Reg. Sess........ 3-4

PAGE(S)

vii



TABLE OF AUTHORITIES

STATUTES AND RULES:
Rule 52, F.R.C.P......................................  11

Rule 65, F.R.C.P......................................  4

OTHER AUTHORITIES:
H.R.Rep.No. 97-227 (1982).............................  26-27
S.Rep. NO.97-417 (1982)...............................  16, 18, 20,

26, 28-33Carney, J. , Nation Cl Change: The AmericanDemocratic System (1972)..............................  22
Cummings, Jr., M., and Wise, D., Democracy Under Pressure (1977).......................................  22
Dye, T., Greene, L., Parthemos, G., Governing
the American Democracy (1980).........................  22
Watson, R., and Fitzgerald, M., Promise and
Eerformance el American Government (3d ed. 1978)...... 22
U.S. Commission on Civil Rights, The Voting Rights
Act: Ten Years After (1975)............................  26

NOTE TO CITATIONS

Brief of the Appellants Calhoun County, et al. App.Br. p. ___
Brief of United States As Amicus Curiae U.S. Br. p. ___
Brief of United States in United States v. U.S. Marengo
Marengo County Commission , No. 86-7703, Br. p. ___Court of Appeals for the Eleventh Circuit

PAGE(S)

viii



STATEMENT OF THE ISSUES

1. Whether the district court abused its equitable 
discretion by rejecting for inclusion in its court-ordered plan 
to remedy an existing Section 2 violation Calhoun County's 
proposal for an at-large elected chairperson.

2. Whether the district court made clearly erroneous 
findings of fact when it determined, based on the totality of 
circumstances in Calhoun County, that the proposed at-large chair 
position would result in dilution of black voting strength, in 
violation of Section 2 of the Voting Rights Act?

1



STATEMENT OF THE CASE

A. Course of Proceedings and Dispositions In the Court Below

Appellees adopt the statement of the Course of 
Proceedings Below as contained in Appellant's Brief, pp. 2-5.

Appellees, however, add the following portion of the 
Stipulation entered into by the parties:

STIPULATION

The parties Plaintiff and Defendant in Calhoun, Etowah, 
Talladega and Lawrence Counties stipulate as follows:

1. The Defendants stipulate that the present 
over-all form of county government, which includes 
election of associate commissioners 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. 
section 1973. Defendants further stipulate that a 
different form of government must be instituted to 
redress this violation. Defendants 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.

2. The Defendants reserve the right to demonstrate 
that the present Section 2 violation can adequately be 
remedied and black citizens afforded full and equal 
access to the political process by remedial election plans that may contain a chair, administrator or county 
executive elected at-large by voters of the entire 
county.

Any such remedial plan presented by the Defendants 
shall be considered and evaluated by the Court without 
any presumption against the inclusion of a chairman

2



elected at-large simply because the present systems, stipulated herein to be violative of the Voting Rights 
Act, contain a chairman elected at-large. In other 
words, the fact that the present form of government has 
as one component a chairman elected at-large shall not, 
in and of ifself, constitute a basis for rejecting or 
accepting a proposed remedial plan which includes a chairman elected at-large.

Nothing in this paragraph or stipulation shall be 
construed to change the allocation of the burden of 
proof at the remedy stage of this litigation under 
applicable law or procedure, and nothing in this 
paragraph or stipulation shall be understood to allow 
or require the Court, at the remedy stage, to deviate 
from applicable law or procedure regarding deference, 
if any, which must be given a remedial plan submitted by the Defendants.

3. It is understood that the Plaintiffs reserve 
the right, and intend, to present evidence of the 
dilutive effect of at-large voting with respect to all 
positions, including associate commissioner positions 
as well as the chairman position, when challenging any 
remedial plan submitted by the Defendants which 
includes as a component a chairman elected by the voters of the county at-large.

R. 6-201-1-2.

B. Statement of the Facts

Calhoun County has, since 1939, been governed by a 
three-member county commission elected at large. Local Act No. 
420 of the 1939 Regular Session of the Alabama Legislature 
divided Calhoun County into two residency districts, provided for 
the election of all three commissioners at large, and provided 
that the commission member without any residency requirement 
should be denominated the "chairman". The salary of the chairman 
was twice that of the other two commissioners. There was no

3



further distinction whatsoever made between the duties and 
responsibilities of the three members of the commission. The Act 
provided that:

There is hereby conferred upon said County Commission 
all the jurisdiction and powers which are how [sic] or 
may hereafter be vested by law in courts of County 
Commissioners, Boards of Revenue, or other like 
governing bodies of the several counties of this state.

1No. 420, section 2, 1939 Local Acts of Alabama, Regular Session.
2In its opinion on plaintiffs' Motion for Preliminary Injunction,

the district court found that the State of Alabama had maintained
a policy of systematically discriminating against black citizens
and their right to vote by the utilization of at-large elections
with numbered posts. 640 F. Supp. at 1360-61. The court also
found that the results of this invidious discrimination are
manifest today in the racially polarized voting and lack of
success of candidates supported by the black communities. Id.
Pursuant to the provisions of Rule 65 Fed.R.Civ.P.. the district
court in its opinion of October 21 relied upon evidence submitted

3
at the hearing on preliminary injunction. It found that

1
A copy of the Act is attached as an appendix to this

brief.
2 Dillardsy ,_Crenshaw County. 640 F.Supp. 1347 (m .d . Ala.1986) (Dillard I).
3
Dillard v.__Crenshaw County. 649 F. Supp. 289, 294 (M.D.

Ala. 1986) (Dillard II).

4



historic discrimination in all areas of the economic and social 
life of

Alabama blacks, including ... education, employment and health services . . . has resulted in a lower 
socio-economic status for Alabama blacks as a group than for whites, and this lower status has not only 
given rise to special group interests for blacks, it 
has depressed the level of black participation and 
thereby hindered the ability of blacks to participate 
effectively in the political process and to elect 
representatives of their choice to the associate and 
chairperson positions on county commissions in Calhoun, 
Lawrence, and Pickens Counties.

649 F. Supp. at 295.
The parties stipulated that the

present over-all form of county government, which 
includes election of associate commissioners and the commission chairman at large, currently results in 
dilution of black voting strength in violation of Section 2.

R. 6-201-1, ei seq. Calhoun County reserved the right to 
demonstrate that the retention of one at-large seat would not 
have a discriminatory purpose or effect and would remedy the 
existing Section 2 violation. Id.

At the hearing on remedy issues, plaintiffs presented a 
survey of Alabama county governments. Though many Alabama county 
commissions have been chaired by the probate judge, Calhoun 
County has not been part of that tradition. Only four counties 
use the mixed system proposed by Calhoun County of commissioners 
elected from single-member districts and the chairman elected at

5



4
large. R. 10-22. However, sixteen counties have commissioners
elected from single-member districts and choose their chair from

5
among the county commissioners. R. 10-23.

The plaintiffs also presented testimony from Dr. Gordon
Henderson, a political scientist with extensive experience
analyzing racial voting patterns. Dr. Henderson testified that
Calhoun County elections showed a clear pattern of racially
polarized voting, with very few whites willing to vote for black

6
candidates. R. 10-208-09. Dr. Henderson also presented
overwhelming and uncontradicted evidence of the disadvantaged

7
socio-economic status of blacks in Calhoun County. There was no 
contradictory evidence offered by the defendants. Dr. Henderson 
concluded on the basis of his study that an at-large election for 
the position of chair of the Calhoun County commission results in 
the dilution of black voting strength. Dr. Henderson went on to

4
However, none of defendants' witnesses, not even former 

state senator Donald Stewart, was aware there were other counties 
in the state that had the form of government requested by Calhoun 
County. R. 11-289.

5
Three other counties are scheduled to change to this form 

in the near future. R. 10-23
6 Dr. Henderson utilized a statistical technique known as 

bivariate regression analysis and a technique known as "extreme 
case" or homogeneous case analysis. Thornburg v. Gingles. 478 
U.S. ___, 106 S.Ct. 2752, 2768 (1986).

7 Plaintiffs' Ex. 2, an extensive affidavit by Dr. Henderson, 
was admitted into evidence. His testimony is found at R. 
10-170-76 and is summarized by the appellant's brief at pp.
8- 1 0 .

6



explain that it was unlikely that the candidate favored by the 
black community would have a chance of winning, and, as a 
consequence, black voting strength would be diluted, 
representational strength would be lessened and there would be a 
negative influence on the political socialization of the black 
community. R. 10-213-15. No contradictory testimony was offered 
in rebuttal.

Plaintiffs and defendant Calhoun County both offered
several lay witnesses who expressed their personal opinions about
at-large elections, opportunities for black citizens to
participate in the political life of Calhoun County, and the
desirability or not of having a chair elected at large. The
testimony was conflicting on this latter point; the witnesses
called by the plaintiffs opposed the at-large elected chair, and
the witnesses called by the defendants favored the at-large
elected chair. Nevertheless, even the witnesses called by the
defendants agreed generally that voting in Calhoun County was

8
racially polarized, that a black citizen would have less 
opportunity than a white citizen to be elected to an at-large

8
Donald Stewart, R. 11-290; Willie Snow, R. 11-303; Hansler 

Bealyer, R. 11-329; William Trammell, R. 31-338; Theodore Fox, R. 
11-349; N. Q. Reynolds, R. 11-356; Chester Weeks, R. 11-368.

7



position, and that a district election plan was necessary to
10

provide blacks representation. Some of the defense witnesses
favored the at-large elected chair because of their favorable
experience dealing with a council-manager form of city government
in Anniston. Other defense witnesses indicated that their
preference for an at-large chair was tied to their favorable
comparison of the incumbent chairman of the county commission

12with his predecessors, who were not viewed favorably.
The only description of the duties of the chairman of 

the county commission came through the testimony of the present 
county administrator and treasurer, Hr. Ken Joiner. He said the 
incumbent chairman presided at the commission meetings, responded 
to citizens' complaints, represented the county at the 
governmental committee meetings, met with industrial prospects, 
met with the state legislators, and acted as liaison with local 
military installations. R. 11-370-372. However, Mr. Joiner also 
described his own duties as following legislative trends,

9

9
Willie Snow, R. 11-303; Hensler Bealyer, R. 11-330, n. 11; William Trammell, R. 11-339; Theodore Fox, R. 11-349; R. Q. Reynolds, 11-356.

10
Willie Snow, R. 11-302; Hansler Bealyer, R. 11-332;William Trammell, R. 11-340; N. Q. Reynolds, R. 11-356.

11
Donald Stewart, R. 11-291; Hansler Bealyer, R. 11-325.

12
Donald Stewart, R. 11-295; Willie Snow, R. 11-301, 305-06, 

James Dunn, R. 11-316, 319-320; Hansler Bealyer, R. 11-327, N. Q .  Reynolds, R. 11-3551.

8



ensuring compliance with employment laws, dealing with the public 
on a daily basis and "administering the things that I have just 
gone over that the chairman currently does". R. 11-372. He did 
not identify any duties that are "unique" to the chairman's 
office.

The district court found that the majority vote 
requirement is an "insurmountable" barrier to the ability of 
black voters to elect candidates as chair of the commission. The 
court found that the black community of Calhoun County was 
"politicaly cohesive and geographically insular" and that 
racially polarized voting is severe and persistent" and would 
result "in the defeat of any black candidates who ran for" the 
chairperson position. 649 F. Supp. at 295. The court found that 
candidates had encouraged voting along racial lines by appealing 
to racial prejudice which "effectively wiped out any realistic 
opportunity for blacks to elect a candidate of their choice."
IsL. Taking into account the totality of circumstances, the 
district court found that the requirement of at-large elections 
for associate commissioners and chairpersons, "together and 
separately, violate section 2. Each of these requirements, in 
conjunction with the social, political, economic, and geographic 
conditions described above, has effectively denied the black 
citizens of each county an equal opportunity to participate in 
the political process and to elect candidates of their choice.

9



... [Tlhis court would have to shut its eyes to reality, past and 
present, to find otherwise." Id. The court found that any 
effective cure for the Section 2 violation by the existing plans 
would have to include the chairperson position and that the 
submitted plan violated Section 2 under the results test. 649 F. 
Supp. at 295-96.

The district court rejected the argument that the chair 
position ought to be elected at large because it is a 
"single-position" office with "unique" duties, like a probate 
judge, sheriff or district attorney. 649 F.Supp. at 296. It 
found as a matter of fact that the proposed remedy with an 
at-large elected chair possessing additional administrative 
duties

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 the 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, 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 system that this court has declared unlawful 
because it impermissibly dilutes black voting strength.

649 F. Supp. at 296. The court rejected the analogy to a 
mayor-council form of city government, where the executive and 
legislative functions are almost entirely separated. Instead the

10



court reasoned that the county commission form of government was 
most like a city commission or school board where "the 
commissioners exercise both executive and legislative powers."
M.  The court found it was "significant that there is no 
compelling state policy" for the chairperson-administrative 
position sought by Calhoun County, and that Calhoun County had 
failed to advance reasons why a system utilized by most other 
Alabama counties would not be satisfactory, "particularly at a 
time when it appears that elections will finally have become 
racially fair." 649 F.Supp. at 296-97. The court found that the 
chairperson position with enhanced administrative 
responsibilities would be an office "completely beyond the reach 
of the counties' black citizens and thus reserved exclusively for 
the white citizens" and refused to approve such a proposed 
remedy. 649 F. Supp. at 297.

C. Statement of the Standard or Scope of Review

The findings of the district court that the at-large 
elected chair position would hinder "the ability of black 
citizens to participate effectively in the political process and 
to elect representatives of their choice . . .", (op. p. 91), 
must be reviewed under the clearly erroneous standard of Rule 52, 
Fed.R .Civ.P.: Thornburg v.__Glngles, 106 S. Ct. 2752, 2781

11



(1986).
13

The district court was to determine a remedy and had 
available traditional equitable powers. The exercise of that 
power is reviewed under an abuse of discretion standard. Upham 
__Seamon. 456 U.S. 37 (1982).

SUMMARY OF THE ARGUMENT

The district court's task was to fashion an appropriate 
remedy for racial vote dilution caused by the at-large scheme for 
electing all members of the Calhoun County Commission, which the 
parties stipulated violated Section 2 of the Voting Rights Act.

The Alabama Legislature failed to adopt a remedial 
election plan for Calhoun County, which was operating under a 
1939 local act. Accordingly, the district court invited the 
incumbent Calhoun County commissioners to propose a plan that 
would be incorporated in a court-ordered remedy. The incumbents 
proposed and the plaintiffs agreed to the use of five 
single-member district commissioners, one of which would be 
elected from a black majority district. The only disagreement 
between the parties, and the only issue presented in this appeal, 
is whether the district court properly refused to adopt a sixth 
seat, an at-large elected chair of the commission, as

13
Contrast U.S.Br. p.5 urging legal error standard of review 

Wltil U.S. Marengo Br. p.12 urging clearly erroneous standard of review.

12



Under existing state law, all members of the county 
commission share legislative, executive and certain judicial 
functions. The only specified duty of the chairperson is to 
preside at commission meetings. Ala. Code section 11-3-20 (Supp. 
1986). Calhoun County's written remedial proposal does not 
specify any further duties or powers for the at-large chair. 
However, in arguments to the district court and in this Court, it 
contends that the at-large chair should exercise extensive 
executive powers that would not be shared with the single-member 
district commissioners. These unspecified executive powers are 
apparently modeled after those exercised by the incumbent 
chairman through informal arrangements with the other incumbent 
commissioners. The new chairperson, as presented by Calhoun 
County's brief, would become a powerful chief executive for the 
county. The district court properly refused to accept Calhoun 
County's invitation to disturb in such a radical fashion the 
existing form of county government, particularly when it would 
operate to diminish the electoral influence of black citizens.

Because the at-large chair position proposed by the 
defendant incumbents is actually at odds with the state law 
governing the form of government for Calhoun County, the district 
court did not abuse its discretion in ruling that there was no 
compelling state policy justifying departure from the general

additionally proposed by the incumbent commissioners.

13



equitable principle preferring only single-member districts in 
court-ordered remedies.

Neither did the district court abuse its discretion by 
rejecting the at-large chair proposal on the ground that it would 
diminish the political strength of the person elected from the 
black majority district and would deny black citizens an equal 
opportunity to participate in the political processes influencing 
the executive functions proposed for the new chair position. The 
district court properly concluded that such a plan would fail to 
satisfy the sweeping remedial objectives of Section 2 of the 
Voting Rights Act.

Finally, the district court conducted an independent 
factual assessment of the proposed at-large chair position 
utilizing the evidentiary factors provided by Congress for 
determining whether an electoral structure fails the results test 
of Section 2. These findings were based on virtually 
uncontradicted evidence and are not clearly erroneous.

The U. S. Department of Justice has filed an amicus 
brief which fails entirely to discuss the local circumstances of 
politics in Calhoun County and, instead, urges this Court to 
erect a mechanical per se rule. This rule would absolutely 
require district courts to accept in their court-ordered remedial 
plans proposals by local jurisdictions which offer blacks 
something close to numerical proportional representation, without

14



regard, to the relative political influence of the black and white 
representatives and. without regard, to the ability of black 
citizens equally to influence all levels of local government.
The Department's radical new rule would literally read the Equal 
Participation Clause out of Section 2. And it would directly 
contravene the directives of Congress and the Supreme Court that 
federal courts always conduct a sensitive appraisal of political 
realities and the totality of circumstances in each jurisdiction 
to determine whether black citizens were being afforded equal 
access to the political process. This Court should reject the 
Department's regressive adventurism in the strongest possible 
terms.

STATEMENT OF JURISDICTION

This court has jurisdiction of this appeal under 28 
U.S.C. section 1291.

ARGUMENT
I. THE DISTRICT COURT PROPERLY REJECTED THE AT-LARGE

CHAIR POSITION PROPOSED BY CALHOUN COUNTY

A district court faced with a violation of the Voting 
Rights Act "has not merely the power but [also] the duty to 
render a decree which will so far as possible eliminate the 
discriminatory effects of the past as well as bar like 
discrimination in the future." Louisiana v. United States. 380

15



U.S. 145, 154 (1965). The Act was Intended "to create a set of 
mechanisms for dealing with continued voting discrimination, not
step by step, but comprehensively and finally." S.Rep.No.

14
97-417, p .5 (1982). Thus, when a jurisdiction that is found to 
have violated the Act submits a proposed remedy, it bears the 
burden of"com[ing] forward with a plan that promises 
realistically to work, and promises realistically to work now.11
Green v,__School Board of New Kent County. 391 U.S. 430, 439
(1968); £££ S.Rep.No. 97-417, p.31, n.121 (1982) (relying on 
Green to illustrate the scope of the remedial obligation in 
Section 2 cases). And in imposing a remedy, the district court 
"should exercise its traditional equitable powers so that it 
completely remedies the prior dilution of minority voting 
strength and fully provides equal opportunity for minority 
citizens to participate and to elect candidates of their 
choice." Id. at 31. In this case, the district court properly 
rejected Calhoun County's proposal for one full-time 
commissioner, with enhanced executive powers, elected at large in 
addition to five commissioners elected from single-member 
districts. Moreover, the district court properly ordered the

14
The Supreme Court has characterized the Senate Report as 

an "authoritative source" for determining Congress' purpose in 
enacting the 1982 amendments to the Act, which firmly established 
the results test of section 2. Thornburg Gingles. 478 U.S.__, 92 L .Ed.2d 25, 42 n.7, 106 S.Ct. 2752, 2763 n.7.

16



A • The Proper Standard, of Review
Recently, in United States v. Paradise. 107 S.Ct. 1053 

(1987), the Supreme Court discussed the standard to be used in 
reviewing a district court's use of its equitable powers to 
remedy entrenched, intentional discrimination. The Court's 
observations are particularly salient to this case because they 
came in the course of affirming a remedial order entered by the 
same district court whose actions are being challenged here.

Justice Brennan's plurality opinion stated:
"Once a right and 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." Swann v. 
Charlotte-Mecklenbeurg Bd. of Education. 402 u.s. l, 15 (1971).

Nor have we in all situations "required remedial 
plans to be limited to the least restrictive means of 
implementation. We have recognized that the choice of remedies to redress racial discrimination is 'a balancing process left, within appropriate 
constitutional or statutory limits, to the sound discretion of the trial court.' Fullllove fv.
KlhtznlCfc, 448 U.S. 448, 508 (1980)] (Powell, J.,
concurring) (quoting Eranks v,__Bowman TransportationCo,, 424 U.S. at 794 (Powell, J., concurring in part and dissenting in part) ). . . .

The district court has first-hand experience with the parties and is best qualified to deal with the 
"flinty, intractable realities of . . . implementation 
of constitutional commands. Swann. supra. at 6. . . .
His proximate position and broad equitable powers 
mandate substantial respect for [his] judgment.

rotation of the chair of the commission.

107 S.Ct. at 1073.

17



Similarly, Justice Stevens' opinion concurring in the 
judgment relied on Swann's statements that “[t]he essence of 
equity jurisdiction has been the power of the Chancellor to do 
equity and to mould each decree to the necessities of the 
particular case," 402 U.S. at 15, and that "a district court's 
remedial decree is to be judged by its effectiveness," id- at 25, 
to support the conclusion that the petitioners in Paradise had 
not shown that the district court's remedial order was 
unreasonable. 107 S.Ct. at 1077.

Paradise makes clear that a reviewing court must accord 
substantial deference to the decisions of a district court 
regarding the necessary components of a remedial decree in civil 
rights cases. Deference is particularly appropriate in cases 
under Section 2 of the Voting Rights Act in light of the 
"searching practical evaluation" of the "past and present 
reality, political and otherwise" the Act requires. S.Rep.No. 
97-417, p .30 (1982), and White v. Regester. 412 U.S. 755, 770
(1973); £££ Thornburg v. Gingles. 478 U.S.  ,  , 92 L.Ed.2d
25, 106 S.Ct. at 2781 (1986). Finding a violation of the Voting 
Rights Act involves an "'intensely local appraisal of the design
and impact' of the contested electoral mechanisms," id- at __, 92
L.Ed.2d at 65, 106 S.Ct. at 2781 (quoting Rogers v.Lodge. 458 
U.S. 613, 622 (1982)); tailoring a remedy requires no less 
intense an appraisal of the design and impact of the proposed

18



remedy.

B. The District Court Followed the Correct Procedure for 
Developing a Court-Ordered Redlstrlctlng Plan______

The Alabama Legislature has not acted to replace the 
1939 local act governing the election of Calhoun County 
Commissioners, which violates Section 2 of the Voting Rights Act. 
Accordingly, it was necessary for the district court to fashion 
its own remedial plan. In doing so, it followed all the 
directions given by the Supreme Court for developing 
court-ordered redistricting schemes. First, it deferred to the 
incumbent county commissioners, giving them the first opportunity 
to propose a remedy, and witholding judicial review of it until 
the Section 5 preclearance process had been completed. McDaniel 
V- Sanchez. 452 U.S. 130 (1981). The U.S. Attorney General 
precleared Calhoun County's plan, 649 F.Supp. at 292, leaving the 
district court with the duty of reviewing it for compliance with 
the following additional standards for court-ordered plans:

(1) The General Equitable Standard. The Supreme Court«
has instructed district courts fashioning redistricting plans to 
defer to legitimate state policy where possible, but to prefer 
single-member districts over at-large seats, to minimize 
population deviations among districts, and to avoid any taint of 
arbitrariness or discrimination. Connor v. Finch. 431 U.S. 407,

19



414-15 (1977), citing Chapman v . Meier. 420 U.S. 1, 26-27
(1976); Roman V,__Slncock. 377 U.S. 695, 710 (1964); Paige v.
Gray. 538 F.2d 1108, 1111-12 (5th Cir. 1976). A district court 
cannot justify deviation from these requirements when there is an 
alternative plan available that more nearly satisifies them. 
Connor v. Finch, supra. 431 U.S. at 420.

(2) The Section 2 Remedial Standard. Where the 
existing election scheme violates Section 2, the district court 
must ensure that its injunction "completely remedies the prior 
dilution of minority voting strength and fully provides equal 
opportunity for minority citizens to participate and to elect 
candidates of their choice." S.Rep.No. 97-417, p.31 (1982).

(3) The Section 2 Results Standard. No matter what 
statutory or constitutional infirmity affords the basis for 
striking down the existing election scheme, the district court 
must ensure that the remedy it approves does not itself violate 
Section 2 of the Voting Rights Act by diluting black voting 
strength either in its purpose or results. Edge y. Sumter County 
School District. 775 F.2d 1509, 1510 (11th Cir. 1985).

The district court properly concluded that Calhoun 
County's proposed sixth commissioner elected at large failed to 
meet any of the standards for a court-ordered remedy.

20



C. The Proposed At-large Chair Position Was Actually 
Inconsistent with State Policy, and the District 
Court Did Not Abuse Its Equitable Powers By Rejecting It. __________________________ __

Calhoun County was unable to point to compelling state 
policy that would justify deviation from the exclusive use of 
single-member districts in a court-ordered remedial plan. It 
urged the court to create a chief executive for the county who 
would be elected at large and would either serve as a sixth 
voting member of the commission, as a sixth but nonvoting member 
of the commission, or strictly as an executive removed from the 
commission. 649 F.Supp. at 296. The written proposal did not 
specify what powers and duties the chair would have, but 
appellants' arguments here and in the trial court contemplate 
that the chairperson will be less like another county 
commissioner and more like a single-position executive with 
powers none of the other commissioners possess. E.g., see 
Appellants' Brief at 19-20. Whatever merit appellants might find 
in such a governmental arrangement, it is not one that is 
provided by Alabama law. More specifically, appellants cannot 
point to authorization for a single, powerful, and elected 
executive in the local law governing Calhoun County.

An essential feature of any commission form of

21



15government is shared legislative and administrative duties. The 
general state law in Alabama for counties provides a commission 
form of government that combines legislative, judicial and 
administrative powers to be exercised by all of the 
commissioners. Alabama Code Sec. 11-3-11 (1975). This is also 
true for Alabama municipalities that adopt a commission form of 
government. Alabama Code Secs.11-44-23, 84 and 135 (1975). There 
is nothing to the contrary in the 1939 Calhoun County statute. 
Calhoun County asked the court to approve a chairman whose powers 
were limited only by the political skills of the Incumbent, a 
form of government that does not exist anywhere else in Alabama. 
The district court properly found that "[t]his proposal 
fundamentally alters the form of government for the county in a 
way that is unprecedented elsewhere in Alabama." 649 F.Supp. at 
296.

The district court did not rule that the county

15
Shared executive/administrative and legislative duties are 

inherent in a commission form of government. Standard text books 
all agree on this point. R. Watson and M. Fitzgerald, Promise 
and Performance of American Government 655-56 (3d ed., 1978) 
("commissioners perform both legislative and executive 
functions"); T. Dye, L. Greene, G. Parthemos, Governing the American Democracy 538-39 (1980) ("The commission form of city 
government combines legislative and executive powers in a small 
body, usually about five members"); J. Carney, Nation of Change: The American Democratic System 444 (1972) ("Commission Plan. Here 
the power, both executive and legislative, is concentrated in a 
policy-making commission."); M. Cummings, Jr., and D. Wise, 
Democracy Under Pressure 641-42 (1977) ("The commissioners make 
policy as a city council, but they also run the city departments 
as administrators").

22



commission elected under the court-ordered plan would be barred 
from appointing an executive officer to take responsibility for 
day-to-day administration of county business. In fact, the new 
commission will continue to operate as provided by the 1939 local 
act in all respects save the number of commissioners and the 
manner of their election. The new commission may choose to keep 
the existing county administrator's position and/or assign more 
or fewer executive functions to the commission chairperson. All 
the disrict court held was that selection of the chair by an 
at-large election method which dilutes black voting strength is 
not supported by overriding state policy.

The evidence before the court showed that Calhoun 
County was requesting a form of government unusual for Alabama. 
Only four counties of the sixty-seven in Alabama had a mixed plan 
with commissioners elected from districts and a chairman elected 
at-large, and they were established by special local legislation 
which the Legislature has chosen not to provide for Calhoun 
County. While a number of Alabama counties use the general state 
law providing for the Probate Judge to serve as chairman, that 
has not been true in Calhoun County nor in most other larger 
Alabama counties. In any event, as the United States argues in
United States v,__Dallas County Commission. CA No. 78-0578-BH
(S.D.Ala.):

While the probate judge is the county's chief 
executive officer, the position of probate judge is

23



totally separate and distinct from the position of chairman of the county commission. The chairman, 
ex-officio, does not exercise any executive duties or 
administrative responsibilities involving county 
commission affairs different in kind from those 
performed by other county commissioners. As chairman, 
ex-officio, of the county commission the chairman 
(probate judge) votes only to break tie votes and 
presides over meetings of the county commission.

Response of Plaintiff United States of America To Proposed 
Election Plan, filed Mar. 24, 1987 (footnote omitted). In fact, 
the trend is toward the practice in sixteen counties presently of 
the county commissioners choosing the chair from among 
themselves. Adhering to Supreme Court guidance for court-ordered 
plans, the district judge correctly held that appellants had 
failed to demonstrate a compelling state policy for their 
proposed at-large chair or reasons why the less discriminatory 
alternatives used in other counties would not operate 
satisfactorily in Calhoun County as well. 649 F.Supp. at 296-97. 
His findings concerning governing state policies are not clearly 
erroneous, and his refusal to add an at-large executive and/or 
legislative position to the new commission was not an abuse of 
discretion.

A virtually identical situation was confronted by this 
Court in Clark v. Marengo County. Nos. 85-7634 and 86-7703 (11th 
Cir., Jan. 27, 1987) (unpublished). As remedies for at-large 
election systems for the Marengo County Commission and Board of 
Education found to violate Section 2 of the Voting Rights Act, 
defendants submitted plans which proposed that each government

24



have an at-large elected president or chair in addition to 
single-member districts. Judge Hand of the Southern District of 
Alabama rejected these proposals for lack of a compelling state 
reason and installed his own plan composed exclusively of 
single-member districts. This court affirmed. In all relevant 
respects, this case is indistinguishable from Marengo County, in 
which the U.S. urged affirmance. U.S. Marengo Br.

D. The District Court Correctly Held That the County's 
Proposal Failed to Remedy Fully the Violation of Section 2_________________________________________ __

The district court found that appellant's plan would do 
more than simply alter the method by which the county's 
government was elected: it would also fundamentally alter the way 
in which the county's government operates, by usurping the powers 
traditionally vested in the county commission and concentrating 
them instead in a single official elected at large— the 
commission chair. 649 F.Supp. at 296. In light of this finding, 
the court correctly concluded that, far from curing the violation 
of Section 2, the new plan would itself deny black citizens an 
equal ability to participate in the political process.

The ideal of equal participation expressed in the 
Voting Rights Act embodies more than being able to enter the 
voting booth and cast a ballot. Put simply, "[t]he Voting Rights 
Act was designed to enable minority citizens to gain access to

25



the political process and to. gain the Influence that 
participation brings.“ U. S. Commission on Civil Rights, The 
Stating Rights Act: Ten Years After 8 (1975) (emphasis added); see 
also S.Rep.No. 97-417, p .33 (1982). Thus, the evil the Act 
targets is not merely the exclusion of minorities from the voting 
booth. Rather, it is the exclusion of minorities from the 
process of government itself. See H.R.Rep.No. 97-227, p.14 
(1982).

This exclusion can occur even when minority voters are 
able to elect some government officials. When the Civil Rights 
Commission surveyed the first decade of the Voting Rights Act, it 
noted the presence of barriers beyond election itself to 
effective minority political participation:

Not all the problems which a minority candidate 
faces are those of qualifying as a candidate, running 
an effective campaign, and receiving fair treatment on election day. . . . Some minorities who have been 
elected have found that lack of cooperation from other 
officials limits their effectiveness. And in some 
places the prospect of minority success has led 
communities or States to abolish the office that the minority candidate had a chance to win.

In some instances minorities have been elected to office only to find that the powers and 
responsibilities of the office have been reduced, either formally or in practice.

U. S. Commission on Civl Rights, The Voting Rights Act: Ten Years 
After 165-66, (1975); q £_. H.R.Rep.No. 97-227, p.ll (1982) 
("electoral gains by minorities since 1965 have not . . .

26



render ted] them immune to attempts by opponents of equality to 
diminish their political influence"). A remedy that dismantles 
some road blocks to the election of a candidate preferred by the 
black community only to re-erect them at the post-election phase 
of the political process is no remedy at all.

Calhoun County's proposed "remedy" is a paradigmatic 
example of the phenomenon identified by the Civil Rights 
Commission: "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." 649 F.Supp. at 
296. Thus, the district court would have shirked its obligation 
to make certain that the scope of the remedy is commensurate with 
the extent of the violation had it allowed Calhoun County to 
continue to exclude blacks from effective participation in the 
governance of their county by approving the unprecedented 
creation of an office completely beyond their political reach.

In contrast to the proposal advanced by appellant, the 
plan adopted by the district court fully cures the violation of 
section 2. It both gives black voters a realistic chance to elect 
a commissioner of their choice and gives that commissioner equal 
practical political power. The remedy ordered by the district 
court provides some protection against the danger that the locus

27



of political discrimination against the black citizens of Calhoun 
County will simply shift from the voting booth to the commission 
chamber by creating a structure within which each commissioner is 
given a meaningful role in the governance of the county and thus 
£aoh voter can "participate meaningfully" in the political 
process. S.Rep.No. 97-417, p.33 (1982). On this basis, this 
Court should affirm the district court's remedial order in its 
entirety.

E. The District Court Correctly Found From the Totality 
of Evidence That Calhoun County's Proposed At-large Chair Would Itself Violate Section 2's Results Test

The district court followed this Court's instruction in 
M g e  v,— Sumter County School District. 775 F.2d 1509 (nth Cir. 
1985) (per curiam). to determine whether the court-ordered plan, 
on its own merits, complies with Section 2. Accord Wright v.
City of Houston. 806 F.2d 635 (5th Cir. 1986). Using the 
evidentiary factors listed in the Senate Report, the district 
court analyzed results of the the proposed at-large chair 
position and entered specific findings on each factor. 649 F. 
Supp. at 294-95.

The court found that six of the seven primary factors 
listed by the Senate Report were present in Calhoun County. The 
court found: 1) a history of racial discrimination affecting the

28



right to vote; 2) a history of discrimination in education, 
employment and health which affect blacks' current ability to 
participate in the political process; 3) a historical use of 
electoral devices which enhance the opportunity for 
discrimination; 4) the existence of a politically cohesive black 
community; 5) persistent racially polarized voting; 6) politial 
campaigns characterized by appeals to racial prejudice; 7) and 
the absense of successful black candidates. Id. The district 
court was "convinced from the above circumstances that ... the 
current requirement for at-large associate commissioners and the 
requirement for an at-large chairperson commissioner, together 
and separately, violate section 2." 649 F.Supp. at 295. There is 
virtually no contradictory evidence in the record, and these 
findings are not clearly erroneous. They provide a separate and 
independent basis for affirming the judgment.

II. THIS court should REJECT THE EER £E numerical rulePROPOSED BY THE DEPARTMENT OF JUSTICE.

The United States has filed a brief amicus curiae 
asking this Court to adopt a per se rule: a districting scheme 
proposed by a jurisdiciton found to have violated the Voting 
Rights Act must be approved if it permits minorities to elect 
representatives in proportion to their presence in the 
popoulation, regardless of their actual relative political

29



influence. See, U. S. Br. at 8 ("For example, in a county where 
blacks constitute 20% of the population, a plan that promises to 
give blacks an opportunity to elect one of five representatives 
GCnll net violate section 2.") (emphasis added). Under this 
theory, courts would lack the power to search behind the 
mathematics of the plan to assure that the actual political 
processes are equally open to black voters or to assure that the 
remedy fully remedies the violation of Section 2. The 
Government's proposal would essentially limit the Voting Rights 
Act to curing simple-minded, but not sophisticated, forms of 
discrimination, q£. Gomllllon v. Llghtfoot. 364 U.S. 359 (1960), 
by reading out of Section 2 altogether the "Equal Participation 
Clause." It thus runs afoul of Congress' intention to remedy a 
"century of obstruction," "counter the perpetuation of 95 years 
of pervasive voting discrimination, not step by step, but 
comprehensively and finally." S.Rep.No. 97-417, p.5 (1982).

The very language of Section 2 directs courts to 
consider "the totality of circumstances in deciding whether a 
challenged scheme violates the Act. Section 2(b), 42 U.S.C.

16
A results claim is established where the 'totality of the 

circumstances' reveals that 'because of the challenged practice 
or structure plaintiffs do not have an equal opportunity to 
participate in the political processes and to elect candidates of their choice.'" 649 F.Supp. at 293, quoting 42 U.S.C. section
1973(b) and Thornburg y,__Glngles. 106 S.Ct. at 2763 (emphasis
added). The Justice Department's amicus brief assidiously avoids any mention of the Equal Participation Clause.

30



section 1973(b). The Supreme Court and Congress have explained
the contours of this inquiry. £.£., see S.Rep.No. 97-417, p.30
(1982) (the Act requires a "searching practical evaluation" of
the "past and present reality, political and otherwise") (quoting
Hhlte v, Regester, 412 u.S. 755, 770 (1973)); Thornburg v.
Glngles. 478 U.S.  , _, 92 L.Ed.2d 25, 65, 106 S.Ct. 2752, 2781
(1986) (the Act demands an "'intensely local appraisal of the
design and impact' of the contested electoral mechanisms")

17(quoting Rogers v,__Lodge, 458 U.S. 613, 622 (1982) ). Adoption
of an£ per se rule would thus fly in the teeth of a longstanding 
congressional and judicial policy to the contrary.

The interest claimed to justify the amicus brief is 
"the Attorney General's responsibility to enforce Section 2 of 
the Voting Rights Act." U.S.Br. at 1. It is particularly 
disturbing to plaintiffs that the Attorney General has selected 
this case, which even defendants agree presents an intensely 
factual question about the dynamics of local political processes, 
in which to advance a novel, mechanistic, per se rule designed 
not to assure full participation for blacks but to prevent 
federal courts from inquiring into the question of effective

17
Indeed, contrary to what it advocates in this case,the 

United States took the position in the Supreme Court that the 
determination whether an electoral procedure violates Section 2 
"requires delicate judgments that can hardly be reached or 
reviewed by any mechanical standard." Brief of the United States 
as Amicus Curiae 6, Thornburg v. Gingles. 478 U.S.__ (1986).

31



participation at all.
A per Sfi rule resting on the presence or absence of

proportional representation is particularly inappropriate. The
Act explicitly provides that “[t]he extent to which members of a
protected class have been elected to office in the State or
political subdivision is one circumstance which may be
considered," Section 2(b) (emphasis added), as part of its
disclaimer of any Intention to make proportional representation
the touchstone of a Section 2 analysis. Thus, the Act refuses to
set a numerical upper boundary on the number of candidates that

18
the white majority can elect. The United States, however, seeks 
in essence to impose precisely this kind of mechanical upper 
boundary on the rights of "members of the class of citizens 
protected" by the Act, surely a perverse result. And it seeks to 
do so regardless of the particular facts, circumstances, and 
history of the jurisdiction involved.

This is not the first time that the United States has 
advanced this contention. In Thornburg v, Glngles. it argued 
that a Section 2 challenge necessarily must fail when black

18
The simple fact, for example, that a community that is 20% black consistently elects 5 white council members does not 

establish a violation of Section 2, absent a showing that the 
electoral scheme "interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and 
white voters to elect their preferred representatives." Glngles. 
478 U.S. at __ 92 L.Ed.2d at 44, 106 S.Ct. at 2764-65.

32



candidates are elected "in numbers as great as or greater than
the approximate black proportion of the population." Brief of
the United States as Amicus Curiae 25, Thornburg v. Gingles. 47819

—  (1986). The Supreme Court unanimously rejected the 
United States' position. Justice Brennan, writing for the Court, 
acknowledged that the extent of minority political success is "a 
pertinent factor" in assessing the legality of a districting
scheme. Gingles, 478 U.S. at __ ,92 L.Ed.2d at 62, 106 S.Ct. at
2779. But, he continued:

[T]he Senate Report expressly states that "the election 
of a few minority candidates does not 'necessarily 
foreclose the possibility of dilution of the black 
vote,'" noting that if it did, "the possibility exists 
that the majority citizens might evade [section 2] by manipulating the election of a 'safe' minority 
candidate." The Senate Committee decided, instead, to "'require an independent consideration of the 
record.'". . . Thus, the language of section 2 and its 
legislative history plainly demonstrate that proof that 
some minority candidates have been elected does not foreclose a section 2 claim.

(internal citations omitted); see also S.Rep.No. 97-417, p.299 
(1982). Similarly, Justice O'Connor, in an opinion concurring in 
the judgment and joined by the three other Justices who did not 
join the Court's opinion, stated: "I do not propose that

19
According to the Court's characterization of this 

position, "[essentially, appellants and the United States argue 
that if a racial minority gains proportional or nearly 
proportional representation in a single election, that fact alone 
precludes, as a matter of law, finding a section 2 violation." 
Glngles, 478 U.S. at __, 92 L.Ed.2d at 62, 106 S.Ct. at 2779.

33



consistent and virtually proportional minority electoral success 
should always, as a matter of law, bar finding a section 2
violation." Singles, 478 U.s. at _, 92 L.Ed.2d at 81, 106 S.Ct.
at 2795.

The Court reached this result in Glngles despite the
fact that black voters in each of the challenged districts had
actually elected some candidates of their choice. In this case,
the Department seeks to immunize a plan from attack merely
because it offers the potential that black voters will be able to
elect one member of an emasculated commission that will be denied
the full powers granted the commission from which blacks were
excluded. The Supreme Court has directed the application of a
standard of review that "preserves the benefit of the trial
court's particular familiarity with the indigenous political
reality . . . ." Glngles. 478 U.S. at __, 92 L.Ed.2d at 65, 106
S.Ct. at 2782. In this case, the district court found that the
county's proposal offered black citizens an empty promise and
denied them equal participation in the political process. An
at-large elected member would increase the voting membership of
the county commission, would

participate as a member of the commission, and would 
exercise enhanced powers enjoyed by no other member of 
the commission. To that extent, the members elected by 
a racially fair district election method would have 
their voting strength and Influence diluted.

649 F.Supp. at 296 (emphasis added). Essentially, the district

34



court found that the county's plan would assure the retention of 
all political power by the white majority and any commissioner 
elected by black voters would be "safe" because he or she would 
be powerless.

The Justice Department boldly asserts the legal 
irrelevance of the district court's finding of fact that the 
proposed at-large chair would devalue the black representative's 
political Influence. "While black voters may have little 
influence over the performance of [the at-large chairperson's] 
duties, that is the result of it being a single-person job and 
not the result of the at-large election structure." U.S. Br. at 
11. The Attorney General says all that matters is arithmetic. He 
says the district court was limited to counting the chair as a 
sixth legislator, ignoring its executive powers, and since 
Calhoun County has a 17.6% black population and 15.9% black 
voting age population, a 16.7% black share of the commission 
should be legally sufficient and 20% too much. Id. The amicus 
brief makes no attempt to square this simple-minded rule with the 
equal participation language of Section 2 or with the 
congressional directive to explore all the local political 
realities.

CONCLUSION

The district court's remedial order should be affirmed

35



in its entirety.
Respectfully submitted this day of April, 1987.

BLACKSHER, MENEFEE & STEIN, P.A. 
Fifth Floor, Title Building 
300 Twenty-First Street, North 
Birmingham, AL 35203 
(205) 322-7300
405 Van Antwerp Building 
P. 0. Box 1051 
Mobile, AL 36633 
(205) 433-2000

BY ' J g A S u t s i r t ,  U U L tL P d e £ j LARRY MENEfEE

Terry Davis
SEAY S DAVIS 
732 Carter Hill Road P. 0. Box 6215 
Montgomery, AL 36106 
(205) 834-2000
Julius L. Chambers 
Pamela S. Karlan Lani Guinier 
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900
¥. Edward Still 
714 South 29th Street 
Birmingham, AL 35233-2810 
(205) 322-6631
Reo Kirkland, Jr.
307 Evergreen Avenue 
P. 0. Box 646 
Brewton, AL 36427 
(205) 867-5711

36



Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I do hereby certify that on this day of April, 1987,
a copy of the foregoing BRIEF FOR PLAINTIFFS-APPELLEES JOHN
DILLARD, ET AL. was served upon the following counsel of record:
Herbert D. Jones, Jr., Esq.
BURNHAM, KLINEFELTER, HALSEY,5? CATER 
P. 0. Box 1618 
Anniston, AL 36202 (205) 237-8515 
(Calhoun County)
William Bradford Reynolds, Esq.
Assistant Attorney General 
Jessica Dunsay Silver, Esq.
Irving Gornstein, Esq.
Department of Justice 
Washington, D.C. 20530
by depositing same in the United States, mail postage prepaid.

37



A P P E N D I X  A



Sheriff, the salary of which Deputy Sheriff shall be set by the Court of County Commissioners of Cleburne County, Alabama, and shall be payable in equal monthly installments out of the General Fund of said Cleburne County, provided however, the salary of said Deputy Sheriff shall not exceed $1 ,200.00 per year.
Section Two: On the first day of each month a statement ofthe name and amount due said Deputy Sheriff shall be furnished the Court of County Commissioners of said County by the Sheriff of said County, and it shall be the duty of the Court of County Commissioners to order a warrant drawn upon the General Fund of said County in favor of said Deputy Sheriff for the amount of the month’s salary.Section Three: All laws and parts of laws in conflict herein are expressly repealed and this Act shall be of force and effect from and after its approval by the Governor.Approved September 13, 11)31).

No. 395) (H. 730— Flowers and McGowin
AN ACT

T o provide for the manner of electing the members of the Butler County
Board of Education, and to specify the Districts from which they must
he elected.

Be it Enacted by the Legislature:

Section 1. There shall be elected by the voters of the County five (5) members of the Butler County Board of Education. One member shall be elected from each Commissioners District and shall be a bona fide resident of the District from which he is elected. There shall be one member of the Board elected from the County at large, and may reside in any part of the County..Section 2. The present members of the Board of Education shall hold office until the expiration of their respective terms, and until their successors shall have been elected and qualified.Section 3. All laws and parts of laws in conflict herewith are hereby repealed.
Section 4. This Act shall become effective immediately upon its passage and approval by the Governor.Approved September 13, 1939.

No. 420) (S. 387— Booth
/  AN ACT

v  To create and establish a board to be known as the County Commission 
for Calhoun County, Alabama in the place of the board of Revenue in 
and for Calhoun County, Alabama, now existing in said County, and



253
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abolishing said board of revenue of Calhoun County; and dividing the 
said County of Calhoun into two districts and providing for the election 
of a member of said county commission from each district by vote of the 
qualified electors of the entire county; and for the election of a chairman 
of said county commission; defining the jurisdiction of said county com­
mission, and their compensation, and conferring upon said county com­
mission all the jurisdiction, powers and authority granted by law to 
courts of county commissioners, boards of revenue or other governing 
bodies of like kind and authority in the State of Alabama; providing for 
the election of the successors of said commission; for the appointment 
of a secretary of said commission and fixing his salary, and providing for 
a date when said commission shall take office.

Be it Enacted by the Legislature of Alabama:

Section 1. There is hereby created and established in and for Calhoun County, Alabama, from and after the first day of January, 1943, a board to be known as the County Commission of Calhoun County, Alabama, to be composed of three members, one of whom shall be chairman of said Board, and all of whom shall be qualified voters of said County.
Section 2. 1 he Board of Revenue of Calhoun County as nowconstituted is hereby abolished to take effect upon the first day of January, 1943, and there is hereby conferred upon said County 

Commission all the jurisdiction and powers which are how or may hereafter be vested by law in courts of county commissioners, board of revenue, or other like governing bodies of the several counties of this State.
Section 3. For the purpose of this act said county of Calhoun is hereby divided into two districts, numbered one, to be known as the Northern District of Calhoun County, and numbered two to be known as the Southern District of Calhoun County. Dis­trict Number One shall embrace the following precincts of Cal­houn County as now constituted, viz; 1, 2, 3, (i, 7, 8, 9, 10, 11, 16 19, 22, 23 and 24. District Number Two shall embrace the’follow- mg precincts of said County as now constituted, viz - 4 5 12 13 14, 15, 17, 18, 20 and 21.
Section 4. The members of the Board of Revenue of Calhoun County as now constituted, who are qualified and serving as mem­bers of said Board, shall continue to hold office as members of said Board of Revenue of Calhoun County until the first day of Jan- 

: lllc Chairman of the present Board of Revenue shall be the Chairman of the Board of Revenue as now constituted until January 1st, 1943, and shall hold office as Chairman of said Board until said tune, it being the intention of this section that all mem.- bers of the Board of Revenue as now constituted shall remain in office with all authority and power and at same salaries now fixed by law until January 1st, 1943.
i.woeCtl°,n 5‘ T,hat at the 8cneral election to be held in November 1942, and each four years thereafter, three members of the said

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County Commission shall be elected by the qualified electors of Calhoun County. One member shall be elected from each the nonhern and southern districts as herein created, and sha be a 
resident of said district from winch he is elected, and shall be qualified elector of said county and district and shaH be edecte tho minified electors of the entire county, and shall lie a res ,n2 qialifi«d elector of saio! county. The chairman shall be 
elected by Ihc qualified voters of the county, and shall be a qu. 
t ied elector of said county. Each n,ember of said *  “  "  '-.(v over twenty one years of age, and of good moral character. The sa d members so elected shall hold office for a term of four years from and after the first day of January after their election 
Vacancies in office shall be filled by appointment of the gmernor Ind any person appointed to fill a vacancy shall hold office for the ^nexp^ed term an?d until his successor shall be elected as herein 
nrovided Any person appointed to fill a vacancy shall <
Sm c qualifications as to residence and character as required of

^Vectkm C^The'members of said county commission, except the 
chairman shall receive as compensation an annual salary of tw hundred dollars, payable in twelve monthly installments °f on 
hundred dollars each. The Chairman of said commission shall fecet" au luual satry of twenty four hundred dollars, payable 
in twelve monthly installments of two hundred dollars each A o" slid salaries being payable out of the county tr-sury of sand county as provided by law for payment of salaries out of the fui
°f SectioT^' Said county commission shall elect ̂  secretarŷ  
said commission, who shall keep the minutes andwork of said commission. The salary of said secretary e fixed 
by the commission at a sum not less than six hundred dollars per 
annum, payable monthly out of the county treasury.Section 8. All laws, general or special, in conflict with the provisions of this Act be, and the same are hereby expressly re­
pealed.Approved September 13, 1939.

254

No. 421)
AN ACT

To Fstabli'h the Office of Road Engineer in and for the County of Cal­
houn; T o  Prescribe his Qualifications and Duties and Fix his salary a 
Provide for the Method of his Election and Appointment.

Be it Enacted by the Legislature of Alabama: