Motion for Leave to File and Brief for the Lawyers' Committee for Civil Rights Under Law as Amicus Curiae

    CRAWFORD, BLACKSHER, FIGURES & BROWN 

ATTORNEYS AT LAW 

1407 DAVIS AVENUE 

: a rw MOBILE, ALABAMA 36603 
VERNON Z, CRAWFORD 
JAMES U, BLACKSHER 
MICHAEL A. FIGLIRES TELEPHONE 432-1691 
W. CLINTON BROWN, JR. AREA CODE (208) 
GREGORY B, STEIN 

LARRY T. MENEFEE 

SAMUEL F. IRBY, JR. 

February 12, 1979 

Honorable Virgil Pittman 
United States District Judge 
United States District Court 
Post Office Box 465 
Mobile, Alabama 36601 

RE: Belden v. City of Mobile, 
  

Dear Judge Pittman: 

Enclosed for your information are copies of the Supreme Court 
briefs filed by the City of Mobile, the Mobile County School 
Board, the Plaintiffs-Appellees in the School Board case, and 
the Justice Department's Amicus Curiae Brief. 

Best regards. 

Very Respectfully, 

CRAWFORD, BLACKSHER, FIGURES AND BROWN 

pd 
Igmes U. Blacksher 

All counsel (w/o enc) 

 



  

  

IN THE 

Supreme mut of the Wnited States 
OCTOBER TERM, 1978 

No. 77-1844 

CITY OF MOBILE, ALABAMA, et al., 
- Appellants, 

WILEY L. BOLDEN, et al., 

Appellees. 

On Appeal from the United States 

Court of Appeals for the Fifth Circuit 

MOTION FOR LEAVE TO FILE 
AND 

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE 

CHARLES A. BANE 

THOMAS D. BARR 

Co-Chairmen 

NORMAN REDLICH 

Trustee 

FRANK R. PARKER 

Staff Attorney 
LAWYERS’ COMMITTEE FOR 

Civi. RIGHTS UNDER Law 

720 Milner Building 

210 South Lamar Street 

Jackson, Mississippi 39201 
(601) 948-5400 

ROBERT A. MURPHY 

Staff Attorney 

LAWYERS’ COMMITTEE FOR 

CiviL RIGHTS UNDER LAw 

733 Fifteenth Street, N.W. 
Suite 520 

Washington, D.C. 20005 

(202) 628-6700 

Attorneys for Amicus Curiae 

  

  

WILSON - EPES PRINTING CoO., INC. - 789-0096 - WASHINGTON, D.C. 20001  





  

  

IN THE 

Supreme Cut of the uited States 
OCTOBER TERM, 1978 

No. 77-1844 

CITY OF MOBILE, ALABAMA, et al., 
Appellants, 

Vv. 

WILEY L. BOLDEN, et al., 

Appellees. 

On Appeal from the United States 

Court of Appeals for the Fifth Circuit 

MOTION FOR LEAVE TO FILE 
BRIEF AMICUS CURIAE 

The Lawyers’ Committee for Civil Rights Under Law, 
proposed amicus curiae herein, respectfully seeks leave 
of this Court to file the attached brief in order to assist 
the Court in resolving the constitutional questions pre- 
sented in this voting rights case. 

As set forth in the attached brief, the Lawyers’ Com- 
mittee has been intimately involved for a number of 

years in voting rights litigation on behalf of minority- 
race voters, and we have participated, both as amicus  



  

curiae and as the representative of parties, in many of 
this Court’s important voting rights cases. The instant 
case is of particular concern to us, involving the effect 

of at-large voting schemes on the participation of mi- 
nority voters in the electoral process. We bring to this 

case a familiarity with, and understanding of, the ap- 

plicable decisions of this Court. We also bring to this 
case—as a result of our extensive litigation in this area 
—a close familiarity with the exclusionary purpose and 
effect at-large municipal voting has had on minority 
participation in municipal government, particularly in 
the South where most of our litigation has taken place. 
By filing this brief, we wish to present to the Court 
a perspective based on our litigation experience in the 
South which is not likely to be presented by any of the 
parties. 

Appellees have consented to the filing of this brief. 
Consent was sought from appellants, but not granted. 

   



WHEREFORE, the Lawyers’ Committee for Civil 
Rights Under Law respectfully moves that its brief 
amicus curiae be filed in this case. 

January 10, 1979. 
Respectfully submitted, 

CHARLES A. BANE 

THOMAS D. BARR 

Co-Chairmen 

NORMAN REDLICH 

Trustee 

FRANK R. PARKER 

Staff Attorney 

LAWYERS’ COMMITTEE FOR 

Civi RIGHTS UNDER LAw 

720 Milner Building 

210 South Lamar Street 

Jackson, Mississippi 39201 

(601) 948-5400 

ROBERT A. MURPHY 

Staff Attorney 
LAWYERS’ COMMITTEE FOR 

CiviL RIGHTS UNDER LAW 

733 Fifteenth Street, N.W. 

Suite 520 

Washington, D.C. 20005 

(202) 628-6700 

Attorneys for Amicus Curiae 

 





TABLE OF CONTENTS 

E33 EB RE 0 Dien iolesee blame aim Jy 

I. AT-LARGE ELECTIONS IN MUNICIPALI- 

IL 

111. 

TIES IN WHICH MINORITY VOTERS HAVE 
BEEN DENIED EQUAL ACCESS TO THE 
POLITICAL PROCESS AND IN WHICH MI- 
NORITY VOTERS HAVE HAD LESS OPPOR- 
TUNITY THAN WHITES TO BLECT CITY 
COUNCIL MEMBERS OF THEIR CHOICE 
UNCONSTITUTIONALLY DILUTE, MINI- 
MIZE, AND CANCEL OUT BLACK VOTING 
SD NG RH iio rziiir te nr isissis setacshasacsssainssrss 

AS OUR EXPERIENCE IN MISSISSIPPI IN- 
DICATES, THE FIFTH CIRCUIT'S DECI- 
SION IN THIS CASE IS CORRECT AND 
SHOULD BE AR RMD ci arcoess-rreecicocss 

PLAINTIFFS CHALLENGING AT-LARGE 
MUNICIPAL VOTING SHOULD NOT BE RE- 
QUIRED TO PROVE THAT THE AT-LARGE 
SYSTEM WAS ADOPTED FOR A SPECIFIC 
RACIAL PURPOSE IF THE PROOF SHOWS 
THAT AT-LARGE MUNICIPAL VOTING 
HAS BEEN MAINTAINED TO EXCLUDE 
BLACK REPRESENTATION OR OPERATES, 
IN THE FACE OF A PAST HISTORY OF 
EXCLUSION OF MINORITIES FROM THE 
POLITICAL PROCESS, TO DENY BLACK 
VOTERS THE OPPORTUNITY TO ELECT 
CANDIDATES OF THEIRCHOICE .................. 

CONCLUSION |... cis rst t-ssrsosoa~srcisess stor siotrrosss 

Page 

11 

16 

20  



    
II 

TABLE OF AUTHORITIES 

CASES Page 

Allen v. State Board of Elections, 393 U.S. 544 

BL a Sala ee ily 11,43 
Avery v. Midland County, 390 U.S. 474 (1968) 11 

Boker Vv. Carr, 369 U.S. 186 (1962) ......... c..cnie. 19 

Black Voters Vv. McDonough, 565 F.2d 1 (1st Cir. 

50g PEER Bet pn LC DM 8 
Bolden v. City of Mobile, Ala., 571 F.2d 238 (5th 

431 Le HERE a a ee 11 
Burns V. Richardson, 384 U.8..73.41966)................ 4 

Chapman V..Meier, 420 U.S. I (1975)... .cccoieicinen. 10 

City of Richmond Vv. United States, 422 U.S. 358 

ES Male a aE SRE 2 
Connor. Ny. Finch, 431 1.8. 407 (1977) ..coreinsneerncises 2.10, 15 

Corder v. Kirksey, 585 F.2d 708 (5th Cir. 1978) .... 10 

Dallas County v. Reese, 421 U.S. 477 (1975).......... 4,9 

Dove Vv. Moore, 539 F.2d 1152 (8th Cir. 1976) .... 8 

Fast Carroll Parish School Bd. v. Marshall, 424 

U.S 830 L10T0Y fi... comicerariciae. red isemine ian bine srs 3,8,10 
Fairley v. Patterson and Bunton V. Patterson, de- 

cided sub nom. Allen v. State Board of Elections, 

BOS U.S. 544 (1960y a. 24 

Forison V. Dorsey,.379.1U.8..433 (1965) ................. 4 

Georgia Vv. United States, 411 U.S. 526 (1973) ...___. 3 

Kendrick v. Walder, 527 F.2d 44 (7th Cir. 1975) .. 8 

Kilgarlin V..Hill, 3806 U.S. 120. (1967) .-....ccorircivmennns 10 

Kirksey v. Board of Supervisors of Hinds County, 

Mississippt, 554 F.2d 139 (5th Cir. 1977), cert. 

dented, 434 U.S. 968 £1977) corn. occrenernse imonionys 9 
Nashville, C. & St. Louis R. Co. v. Walters, 294 

RMSE DR bons BIRO Ce 18 
Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978) ........ 11 
Paige v. Gray, 538 F.2d 1108 (5th Cir. 1976) ........ 8 
Parnell v. Rapides Parish Police Jury, 563 F.2d 

180 (Bh Clr. A077) sueccortier omssrociseitrmpogrivarsssss sion: 8 
Perry v. City of Opelousas, 515 F.2d 639 (5th Cir. 

2 50600 BIG IR RE CS TH 8 
Reynolds v. Sims, 377 U.S. 533 (1964) ..................... 4, #819 

 



III 

TABLE OF AUTHORITIES—Continued 
Page 

Seals v. Quarterly County Court, 526 F.2d 216 (6th 

Cle 1978) «as 8 
Stewart v. Waller, 404 F. Supp. 206 (N.D. Miss. 

By 5,12,13, 14 
Washington Vv. Davis, 426 1U.8.229 (1976) ............... 17,18 

Whitcomb v. Chavis, 403 U.S. 124 (1971) ....4,8,9,12,16 

White Vv. Regester, 412 U.S. 7155 (1973) ................ passim 

Wise Vv. Lipscomb, No. 77-5629 (June 22, 1978) .._._..... 2,7,10 

Zimmer V. McKeithen, 485 F.2d 1297 (5th Cir. 

1973), aff’d on other grounds sub nom. Fast 

Carroll Parish Police Jury v. Marshall, 424 U.S. 
686 (1976)... a a 8, 10 

OTHER AUTHORITIES 

Banzhaf, Multi-Member Electoral Districts—Do 

they Violate the “One Man, One Vote” Principle, 

73 Yale LJ. 1309:(1966) .... c.cink tii bien oan. 5 

Bonapfel, Minority Challenges to At-Large FElec- 

tions: The Dilution Problem, 10 Ga. L. Rev. 353 

(1876)... a 10 

Carpeneti, Legislative Apportionment: Multi- 

Member Districts and Fair Representation, 120 

U. Pal. Bev. 606 (1972) ........ionsi sn ive. 5 

Sloane, “Good Government” and the Politics of 

Race, 17 SOCIAL PROBLEMS 156 (1969) ......... 5 

UNITED STATES COMMISSION ON CIVIL 
RIGHTS, POLITICAL PARTICIPATION 
coesy. 5, 13 

WASHINGTON RESEARCH PROJECT, THE 
SHAMEFUL BLIGHT: THE SURVIVAL OF 
RACIAL DISCRIMINATION IN VOTING IN 
THR SOUTH (1972)... "= = a

  





IN THE 

Supreme mut of the United States 
OCTOBER TERM, 1978 

No. 77-1844 

CITY OF MOBILE, ALABAMA, et al., 

Appellants, 

V. 

WILEY L. BOLDEN, et al., 

Appellees. 

On Appeal from the United States 

Court of Appeals for the Fifth Circuit 

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE 

INTEREST OF AMICUS CURIAE 

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President 
of the United States to involve private attorneys through- 

out the country in the national effort to assure civil 

rights to all Americans. The Committee’s membership 
today includes two former Attorneys General, ten past 
Presidents of the American Bar Association, a number 

of law school deans, and many of the Nation’s leading  



  

2 

lawyers. Through its national office in Washington, D.C., 
and offices in Jackson, Mississippi, and eight other cities, 
the Lawyers’ Committee over the past fifteen years has 

enlisted the services of over a thousand members of the 
private bar in addressing the legal problems of minori- 
ties and the poor in voting, employment, education, hous- 
ing, municipal services, the administration of justice, 
and law enforcement. 

In the past, the Lawyers’ Committee has filed briefs 
amicus curiae by consent of the parties or by leave of 
this Court in a number of important civil rights cases. 
The interest of the Lawyers’ Committee in this case 
arises from its dedication to and interest in the full 
and effective enforcement and administration of the Na- 
tion’s constitutional and statutory provisions securing the 
voting rights of minorities. As a result of providing 
legal representation to litigants in voting rights cases 
for the past thirteen years, the Committee has gained 
considerable experience and expertise in problems of 
racial discrimination relating to the voting rights of 
minority citizens, and in the requirements and guaran- 
tees of the Fourteenth and Fifteenth Amendments and 
the Voting Rights Act of 1965. Attorneys associated with 
the Lawyers’ Committee represented the minority plain- 
tiffs in two of the first four cases to reach this Court 
on the scope of the requirements of § 5 of the Voting 
Rights Act of 1965, Fairley v. Patterson and Bunton 
Vv. Patterson, decided sub nom. Allen v. State Board of 
Elections, 393 U.S. 544 (1969), and have provided con- 
tinuing representation since 1970 to the plaintiff voters 

in the Mississippi state legislative reapportionment case, 
in which this Court has rendered five decisions in this 

decade, the latest of which was Connor v. Finch, 431 U.S. 
407 (1977). The Committee also represented the mi- 
nority voters in City of Richmond v. United States, 422 
U.S. 358 (1975); and, we filed amicus briefs in Wise 

   



3 

Vv. Lipscomb, No. 77-529 (June 22, 1978); East Carroll 
Parish School Bd. v. Marshall, 424 U.S. 636 (1976), and 
Georgia Vv. United States, 411 U.S. 526 (1973). 

In this case the Committee is interested in (1) the 
constitutional and Federal statutory implications of the 
exclusion of minority representation in municipal gov- 
ernment by at-large municipal voting in majority white 
communities, (2) the applicability to at-large municipal 
elections, of the principles announced by this Court in 
White v. Regester, 412 U.S. 755 (1973), that at-large 
voting unconstitutionally dilutes black voting strength 
when blacks have been denied equal access to the po- 
litical process, and (3) the question of the applicability 
of the racial purpose requirements to an at-large munici- 
pal voting system which has been in effect for a long 
time. In addition, attorneys associated with the Jack- 
son, Mississippi office of the Lawyers’ Committee cur- 
rently have pending four cases challenging at-large mu- 
nicipal elections for city council members, and the de- 
cision of the Court in this case is likely to have a direct 
impact on the decisions in those cases. 

Because of our extensive and intimate involvement 
in voting rights cases involving state legislatures, coun- 
ties, and municipalities, our extensive knowledge of the 
case law in the area, and our familiarity with the ex- 
clusionary purpose and effect at-large municipal voting 
has had on minority participation in municipal govern- 
ment, particularly in the South, we have a perspective on 

this case which has not been presented by the petitioners, 
and which will not be presented in its entirety by the 
respondents. 

The Lawyers’ Committee therefore files this brief as 
friend of the Court urging affirmance of the judgment 
below.  



  

4 

DISCUSSION 

I. AT-LARGE ELECTIONS IN MUNICIPALITIES IN 
WHICH MINORITY VOTERS HAVE BEEN DE- 
NIED EQUAL ACCESS TO THE POLITICAL 
PROCESS AND IN WHICH MINORITY VOTERS 
HAVE HAD LESS OPPORTUNITY THAN WHITES 
TO ELECT CITY COUNCIL MEMBERS OF THEIR 

CHOICE UNCONSTITUTIONALLY DILUTE, MIN- 
IMIZE, AND CANCEL OUT BLACK VOTING 
STRENGTH. 

While at-large elections are “not per se illegal under 
the Equal Protection Clause,” Whitcomb v. Chavis, 403 
U.S. 124, 142 (1971), the Court has repeatedly held 
that at-large voting is unconstitutional when “designedly 
or otherwise, a multi-member constituency apportionment 
scheme, under the circumstances of a particular case, 

would operate to minimize or cancel out the voting 
strength of racial or political elements of the voting 
population.” (emphasis supplied) Burns Vv. Richardson, 
384 U.S. 73, 88 (1966) ; Fortson v. Dorsey, 379 U.S. 433, 
439 (1965) ; accord, Dallas County Vv. Reese, 421 U.S. 
477, 480 (1975); White v. Regester, 412 U.S. 755, 765 

(1973) ; Whitcomb v. Chavis, supra, 403 U.S. at 143. In 
Fairley v. Patterson, decided sub nom. Allen Vv. State 
Board of Elections, 393 U.S. 544, 569 (1969), the Court 
in considering whether a switch to at-large county super- 
visor elections was subject to Federal preclearance under 
§ 5 of the Voting Rights Act of 1965 held: 

The right to vote can be affected by a dilution of 
voting power as well as by an absolute prohibition 
on casting a ballot. See Reynolds v. Sims, 377 U.S. 
533, 555. Voters who are members of a racial 
minority might well be in the majority in one dis- 
trict, but in a decided minority in the county as a 
whole. This type of change could therefore nullify 
their ability to elect the candidate of their choice 
just as would prohibiting some of them from voting. 

   



5 

In many parts of the South—and possibly elsewhere— 
at-large elections ‘“designedly or otherwise” are the last 
vestige of racial segregation in voting. Although blacks 
and other minorities in the South are now permitted to 
register and vote in large numbers—primarily as a 
result of the Voting Rights Act of 1965—at-large elec- 
tions which dilute minority voting strength “nullify their 
ability to elect the candidate of their choice just as would 
prohibiting some of them from voting.” 

In White v. Regester, 412 U.S. 755, 766 (1973), aff’g 
in relevant part, Graves V. Barnes, 343 F. Supp. 704 
(W.D. Tex. 1972) (three-judge court), the Court held 
that at-large elections unconstitutionally dilute minority 
voting strength when plaintiffs have produced 

evidence to support findings that the political pro- 
cesses leading to nomination and election were not 
equally open to participation by the group in ques- 

1 WASHINGTON RESEARCH PROJECT, THE SHAMEFUL 
BLIGHT: THE SURVIVAL OF RACIAL DISCRIMINATION IN 
VOTING IN THE SOUTH 109-26 (1972); UNITED STATES 
COMMISSION ON CIVIL RIGHTS, POLITICAL PARTICIPA- 
TION 21-25 (1968) ; see also Carpeneti, Legislative Apportionment: 

Multi-M ember Districts and Fair Representation, 120 U. Pa.L. Rev. 

666 (1972); Banzhaf, Multi-Member Electoral Districts—Do they 

Violate the “One Man, One Vote” Principle, 75 YALE L.J. 1309 

(1966). There can be no doubt that in some instances at-large 

municipal elections have been instituted for purposes of discrimina- 

tion, e.g., Stewart v. Waller, 404 F. Supp. 206 (N.D. Miss. 1975) 

(three-judge court) (1962 Mississippi statute requiring switch to 

at-large municipal voting held unconstitutional as racially moti- 

vated). In other instances, the justification advanced is to eliminate 

ward politics and to promote government reform, but the effect on 

minority participation is equally discriminatory: 

In a fundamental sense, the Black American has fallen victim 

of governmental reform. In their zeal for efficiency, democratic 

government, and the elimination of corruption, the reformers 
have led us to new political systems which operate to the detri- 

ment of minority groups. 

Sloane, “Good Government” and the Politics of Race, 17 SOCIAL 

PROBLEMS 156, 174 (1969).  



  

6 

tion—that its members had less opportunity than did 
other residents in the district to participate in the 
political processes and to elect legislators of their 
choice. 

White held at-large voting for the Texas Legislature in 
Dallas County unconstitutional on a showing of (1) ‘“the 
history of official racial discrimination in Texas, which 
at times touched the right of Negroes to register and 
vote and to participate in the democratic processes”; (2) 
Texas law “requiring a majority vote as a prerequisite 
to nomination in a primary election”; (3) the “so-called 
‘place’ rule limiting candidacy for legislative office from 
a multi-member district to a specified ‘place’ on the 
ticket”; (4) since Reconstruction, only two black can- 

didates from Dallas County had been elected to the 
House of Representatives, and these were the only two 
blacks ever slated by the white-controlled Dallas Com- 
mittee for Responsible Government (DCRG); and (5) 
the DCRG did not require the support of black voters, 
and “did not therefore exhibit good-faith concern for the 
political and other needs and aspirations of the Negro 
community.” 412 U.S. at 766-67. 

The Court made similar findings with respect to 
Mexican-American voters in Texas. The Court found 
that the Mexican-American community of Bexar County 
(San Antonio) was effectively removed from the political 
processes on proof that it “had long suffered from, and 
continues to suffer from, the results and effects of in- 

vidious discrimination and treatment in the fields of 
education, employment, economics, health, politics and 
others”; that the state poll tax and restrictive voter 
registration procedures had foreclosed effective political 
participation; and that “the Bexar County legislative 
delegation in the House was insufficiently responsive to 
Mexican-American interests.” Id. at 767-69. Single- 
member legislative districts were required “to remedy 
‘the effects of past and present discrimination against 

   



7 

Mexican-Americans’ . . . and to bring the community into 
the full stream of political life of the county and State 
by encouraging their further registration, voting, and 
other political activities.” Id. at 769. 

White is the first case in which this Court struck 
down at-large voting—there in multi-member legislative 
districts—for unconstitutional dilution of minority vot- 
ing strength. But in Wise v. Lipscomb, 46 U.S.L.W. 4777, 
4781 (U.S. June 22, 1978) (No. 77-529), four Justices 

noted that the Court had not yet decided whether the 
principles of White v. Regester were applicable to munici- 
pal governments. We believe that they are, and that no 
significant distinction can be made between at-large 
legislative voting and at-large municipal voting. 

First, every Court of Appeals which has been pre- 
sented with the issue has held the principles of White 
equally applicable to at-large voting in county and mu- 
nicipal government, and has sustained or rejected dilu- 
tion challenges to local at-large voting depending on 

2 The District Court’s judgment affirmed by this Court also rested 

on evidence of racial bloc voting, 343 F. Supp. at 731, 732: 

The population of the West Side of San Antonio tends to 

vote overwhelmingly for Mexican-American candidates when 

running against Anglo-Americans in party primary or special 

elections, to split when Mexican-Americans run against each 

other, and to support the Democratic Party nominee regardless 

of ethnic background in the general elections. The record shows 
that the Anglo-Americans tend to vote overwhelmingly against 

Mexican-American candidates except in a general election when 

they tend to vote for the Democratic Party nominee whoever 

he may be although in a somewhat smaller proportion than 

they vote for Anglo-American candidates. * * * It is not sug- 

gested that minorities have a constitutional right to elect 

candidates of their own race, but elections in which minority 

candidates have run often provide the best evidence to deter- 

mine whether votes are cast on racial lines. All these factors 

confirm the fact that race is still an important issue in Bexar 

County and that because of it, Mexican-Americans are frozen 

into permanent political minorities destined for constant de- 

feat at the hands of the controlling political majorities.  



  

8 

whether or not the White criteria had been met on the 
facts of each individual case. Thus, the White v. Reg- 
ester criteria have been applied to local at-large voting 
challenges by the First,® Fifth,* Sixth,” Seventh, and 

Eighth 7 Circuits. 

Second, the reasoning of the Court’s decision in White 
V. Regester is sound, and there is no good reason to 
limit its application to at-large legislative elections. 
Where—as in this case (423 F. Supp. at 393-94) —the 
election law of the State applicable to municipal elections 
requires at-large, citywide voting, city council members 
must receive a majority vote for nomination or election, 
and candidates are restricted to a place or number on the 
ballot, blacks are effectively excluded from the oppor- 
tunity to elect candidates of their choice to city govern- 
ment in majority white communities where racial bloc 
voting prevails—not “as a function of losing elections,” 
Whitcomb v. Chavis, 403 U.S. 124, 153 (1971), but as 

a result of the “built-in bias” (id.) of the State’s elec- 
toral mechanisms. Further, where—as here (423 F. 

Supp. at 393) —in the past black citizens have been dis- 
enfranchised by racially discriminatory state voter regis- 

3 Black Voters v. McDonough, 565 F.2d 1 (1st Cir. 1977) (Boston 

City School Committee). 

t Parnell v. Rapides Parish Police Jury, 563 F.2d 180 (5th Cir. 

1977) (parish police jury and school board) ; Paige v. Gray, 538 F.2d 

1108 (5th Cir. 1976) (Albany, Ga., City Council) ; Perry v. City of 

Opelousas, 515 F.2d 639 (5th Cir. 1975) (city council) ; Zimmer V. 

McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff’d on other 

grounds sub nom. East Carroll Parish Police Jury v. Marshall, 424 

U.S. 636 (1976) (parish policy jury and school board). 

5 Seals v. Quarterly County Court, 526 F.2d 216 (6th Cir. 1975) 

(Madison County, Tenn., county governing board). 

8 Kendrick Vv. Wolder, 527 F.2d 44 (7th Cir. 1975) (Cairo, li, 

City Commission). 

7? Dove V. Moore, 539 F.2d 1152 (8th Cir. 1976) (Pine Bluff, Ark., 

City Council). 

   



9 

tration statutes and mechanisms, the requirement of at- 
large municipal voting under these conditions unconstitu- 
tionally perpetuates the past purposeful and intentional 
exclusion of blacks from the political and electoral proc- 
esses of the municipality, cf. Kirksey v. Board of Su- 
pervisors of Hinds County, Mississippi, 554 F.2d 139 
(5th Cir. 1977) (en banc), cert. denied, 434 U.S. 968 
(1977), and distinguishes the exclusion of the disen- 
franchised racial minority from exclusion of other in- 
terest groups, cf. Whitcomb v. Chavis, supra, 403 U.S. 
at 156. In addition, where—as the proof here shows 
(423 F. Supp. at 389-92) —the at-large elected city gov- 
ernment has been unresponsive to the needs and interests 
of the minority community, the presumption that each 
city commissioner represents and serves all of those who 
elect him in citywide voting, cf. Dallas County V. Reese, 
421 U.S. 477, 480 (1975), is overcome, and the exclusion 

of minority representation goes to the heart of the 

democratic process: 

Racial minorities protest this institutionalized bar 
to their effective exercise of political power. They 
point out that, because of racial discrimination, they 
have been and are being denied adequate educational, 
employment, and housing opportunities and conse- 
quently have common interests in these substantive 
areas which are unique to them because of their race. 
In a system dominated by the majority, racial mi- 
norities complain, they are powerless to improve their 
condition because the government in which they lack 
representation and political influence is unconcerned 
about their problems. In particular, racial minori- 
ties urge that they must be given the opportunity to 
elect members of their own race who, having experi- 
enced similar difficulties, are more understanding of 
the minority’s problems and better able to articulate 
the minority’s viewpoint. Noting that in a ward sys- 
tem they would be thus represented and able to ex- 
ploit their political power, minorities contend that  



  

10 

an at-large electoral system which precludes this ac- 
cess is invalid: the inability to elect a share of rep- 
resentatives substantially proportionate to their num- 
bers is alleged to be a denial of the effective rep- 
resentation to which they are entitled under the 
Constitution.® 

Third, no meaningful distinction can be drawn be- 
tween at-large legislative voting and at-large municipal 
voting. Multi-member legislative districts “in logic of 
analysis are merely one form of at-large voting . . .” 
Zimmer Vv. McKeithen, supra, 485 F.2d 1315 (Clark, J., 

dissenting). While certain differences may exist in the 
evils attributable to at-large legislative elections and 
at-large municipal voting,” they are identical in their 
one distinguishing feature—both multi-member districts 
and citywide municipal voting “[allow] the majority to 
defeat the minority on all fronts,” Kilgarlin v. Hill, 386 
U.S. 120, 126 (1967) (Douglas, J., concurring). It is this 
winner-take-all feature that permits the overrepresenta- 

8 Bonapfel, Minority Challenges to At-Large Elections: The Dilu- 

tion Problem, 10 Ga. L. Rev. 353, 360 (1976) (footnotes omitted). 

9 In Corder Vv. Kirksey, 585 F.2d 708, 713 n. 11 (5th Cir. 1978), 

the Fifth Circuit noted that there were certain differences between 

multi-member legislative districts and local at-large districts. But 

most of the recognized evils of multi-member legislative districts 

cited by this Court for preferring single-member districts in court- 

ordered legislative reapportionment plans are equally applicable to 

at-large municipal voting. In court-ordered plans, single-member 

districts are preferred “[b]ecause the practice of mutimember dis- 

tricting can contribute to voter confusion, make legislative repre- 

sentatives more remote from their constituents, and tend to sub- 

merge electoral minorities and overrepresent electoral majorities 

. .." Connor v. Finch, 431 U.S. 407, 415 (1977) ; see also, Chapman 

V. Meier, 420 U.S. 1, 15-19 (1975). All of these disadvantageous 

characteristics of multi-member legislative districts are shared by 
at-large municipal voting, and the Court has held that single-member 

districts are preferred in court-ordered plans in both cases involving 

multi-member legislative districts and in cases involving at-large 

county and municipal voting. Wise v. Lipscomb, 46 U.S.L.W. 4777, 
4779 (U.S. June 22, 1978) (No. 77-529) ; East Carroll Parish School 

Bd. v. Marshall, supra. 

   



11 

tion of the majority and the exclusion of the minority— 
which might gain representation under single-member 

districts—under both multi-member legislative districts 
and at-large municipal voting. 

Indeed, there is a close analogy with malapportioned 
voting districts, since both at-large voting and malap- 
portioned districts involve claims of dilution of voting 
power. Allen Vv. State Board of Elections, supra, 393 
U.S. at 569. The Court has not limited dilution claims 
involving malapportionment to state legislative districts, 
but has applied the dilution criteria based upon nu- 
merically unequal districts to all “units of local govern- 
ment having general governmental powers over the en- 
tire geographic area served by the body,” Avery v. Mid- 
land County, 390 U.S. 474, 485 (1968). It would be 
anomalous indeed for the Court to sustain dilution chal- 
lenges based on malapportionment of municipal voting 
districts in the context of municipal voting to allow one 
kind of dilution challenge—based on malapportioned mu- 
nicipal voting districts—but not to allow another—based 
on minimizing and cancelling out black voting strength. 
Certainly nothing can be found in the Fourteenth Amend- 
ment—which was enacted specifically to protect racial 
minorities—which would support such a bizarre dis- 
tinction. 

II. AS OUR EXPERIENCE IN MISSISSIPPI INDI- 
CATES, THE FIFTH CIRCUIT'S DECISION IN 
THIS CASE IS CORRECT AND SHOULD BE 
AFFIRMED. 

The Fifth Circuit correctly decided that an at-large 
municipal voting system is unconstitutional when it is 
enacted for a racial purpose, maintained for a racial 
purpose, or operates to deny the minority community 
equal access to the electoral process. Bolden v. City of 
Mobile, Ala., 571 F.2d 238 (5th Cir. 1978); see also, 
Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978). These 
legal principles represent a proper application of the  



  

12 

holdings in this Court’s prior decisions in Whitcomb Vv. 
Chavis, supra, and White Vv. Regester, supra. 

The Fifth Circuit’s decision in this case addresses a 
serious and continuing problem of exclusion of minority 
representation from equal participation in municipal 
government which exists throughout the South and pos- 
sibly in some Northern communities as well. In Missis- 
sippi, where we are familiar with local conditions be- 
cause of our extensive voting rights litigation there, at- 
large municipal voting has been both instituted and 
maintained for purposes of minimizing and cancelling 
out black voting strength. In 1962—after the first mas- 
sive voter registration drives were getting underway— 
the Mississippi Legislature enacted a statute, Miss. Laws, 
1962, ch. 537, requiring all code charter municipalities 
with a mayor-alderman form of government to switch 
from ward to at-large, citywide election of aldermen. 

Stewart v. Waller, 404 F. Supp. 206 (N.D. Miss. 1975) 
(three-judge court). Prior to 1962, cities with popula- 
tions over 10,000 were required to elect six aldermen by 
ward and one at-large, and cities with populations under 
10,000 had an option of electing four aldermen by ward 
and one at-large, or of electing all five aldermen at- 
large. An action was filed challenging the -constitu- 

tionality of this statute. In 1975, on evidence showing 
that “it was a foreseeable certainty that in many wards 
in many municipalities the electorate would contain a 
majority of black citizens” (404 F. Supp. at 213), and 
that the author of the statute argued during the legis- 
lative debates that “this is needed to maintain our south- 
ern way of life” (id.), a three-judge District Court de- 
clared the statute violative of the Fourteenth and Fif- 
teenth Amendments for the reason that it was designed 
“to forestall the possibility that black aldermen might in 
some instances win election” and was passed with the 
“intent to thwart the election of minority candidates 

   



13 

to the office of alderman.” Stewart v. Waller, supra, 
404 F. Supp. at 214. 

As a result of the Stewart injunction enjoining en- 
forcement of the 1962 statute, 29 cities which had 
switched to at-large elections were required to revert 
to ward elections. In the 1977 municipal elections—the 
first since the Stewart decision—twenty black aldermen 
were elected for the first time to formerly all-white boards 
of aldermen in fourteen cities covered by the Stewart 
decree. 

Similarly, after the passage of the Voting Rights Act 
of 1965, 42 U.S.C. § 1973, allowing black citizens to 
register and vote in large numbers in the South, the 
Mississippi Legislature enacted several statutes requir- 
ing and allowing county boards of supervisors and county 
boards of education to switch from district to at- 
large, countywide elections. See United States Commis- 
sion on Civil Rights, POLITICAL PARTICIPATION 
21-23 (1968). In Allen v. State Board of Elections, 
supra, 393 U.S. at 569-70, this Court held that such 
statutes were covered by the Federal preclearance re- 
quirement of § 5 of the Voting Rights Act of 1965, 42 
U.S.C. §1973c, in part because of their potential for 
diluting and minimizing minority voting strength. The 
statutes were submitted to the Attorney General of the 
United States, and an objection was lodged based upon 
dilution of black voting strength. 

These statutes were enacted purposefully and inten- 
tionally to prevent the election of black candidates and 
to deprive black voters of the opportunity to elect can- 
didates of their choice. But as here when a municipality 
maintains an at-large, citywide voting scheme for the 

purpose of diluting black voting strength, the result is 
the same and the constitutional rights of minority voters 
are equally violated. In Mississippi, the Lawyers’ Com-  



  

14 

mittee has represented black voters in filing at-large 
municipal voting challenges against ten Mississippi cities, 
involving the cities of Aberdeen, Columbus, Greenville, 
Greenwood, Hattiesburg, Hazlehurst, Jackson, Picayune, 
West Point, and Yazoo City. In each instance, all mem- 
bers of the city council were elected in at-large, citywide 
voting, and despite the fact black candidates had run for 
the city council, and blacks constituted more than 20% 
of the voting population (but less than a registered ma- 
jority), in only one instance! had any black candi- 
date been elected to the city council when the suit 
was filed. These municipalities—and others—are not 
covered by the injunction issued in Stewart v. Waller, 
supra, either because they have commission forms of 
government or because they are private charter munici- 

palities in which their at-large voting systems are not 
mandated by state statute. Like Mobile, some of these 
municipalities instituted at-large voting systems in the 
early 1900’s; others are of more recent vintage. But 
in each case, the maintenance of at-large municipal vot- 
ing has resulted in the almost total exclusion of any 
black representation in city government, although black 
persons constitute 20% or more of the city population. 
To the best of our knowledge, of the more than 1,300 
elected city council members in Mississippi, only seven 

10 In 1974 Mrs. Sarah Johnson was elected to the six-person Green- 

ville City Council with less than a majority of the vote in a three- 

person race. After these suits were filed, two black council members 

were elected in at-large voting in Greenville (Mrs. Johnson was 

reelected) and Picayune. 

11 Because of White Vv. Regester and other related Fifth Circuit 

decisions, six of the ten cases have been settled and single-member 

ward districting plans have been substituted for all at-large elec- 

tions. In each case, the new ward plans provide for two majority 

black wards. In two cases, ward election plans went into effect for 

the 1977 and 1978 municipal elections in West Point and Yazoo 

City; in West Point one black alderman was elected to the pre- 

viously all-white board of aldermen and in Yazoo City two black 
aldermen were elected for the first time. 

   



15 

black city council members have been elected in at-large 
voting from white majority constituencies or in ward 
voting from white majority wards. 

Under circumstances such as these, public officials in 
the South can hardly claim to be unaware that the main- 
tenance of at-large municipal voting schemes, particu- 
larly in face of a recent past history of exclusion of black 
citizens from the political process through disenfranchise- 
ment, operates to dilute, minimize, and cancel out black 

voting strength and to exclude the possibility of black 
representation in municipal government, whatever the 
particular form that municipal government may take. 

In the circumstances of this case, the constitutional 

claims of black voters and the findings of the District 
Court that at-large municipal elections have been main- 
tained for a racially discriminatory purpose and have 
operated to exclude black representation should outweigh 
the purely administrative claims of the city that a city- 
wide perspective is needed in city government. In Connor 
Vv. Finch, supra, the Mississippi Legislative reapportion- 
ment case, the State official defendants made similar 
claims that at-large voting in multi-member legislative 
districts were needed to maintain a countywide per- 
spective in the Legislature, but these arguments were 
rejected by the Court last Term in rejecting pleas for 
multi-member districts in a court-ordered plan, Connor 
v. Finch, supra, 431 U.S. at 415. Many Mississippi 
municipalities have been forced to abolish at-large vot- 
ing and revert to ward elections, but no claim has been 
made that this has destroyed or seriously impaired the 
orderly functioning of municipal government.  



  

16 

ITI. PLAINTIFFS CHALLENGING AT-LARGE MUNICI- 
PAL VOTING FOR DILUTION OF BLACK VOTING 
STRENGTH SHOULD NOT BE REQUIRED TO 
PROVE THAT THE AT-LARGE SYSTEM WAS 
ADOPTED FOR A SPECIFIC RACIAL PURPOSE IF 
THE PROOF SHOWS THAT AT-LARGE MUNICI- 
PAL VOTING HAS BEEN MAINTAINED TO 
EXCLUDE BLACK REPRESENTATION OR OPER- 
ATES, IN THE FACE OF A PAST HISTORY OF 
EXCLUSION OF MINORITIES FROM THE POLITI- 
CAL PROCESS, TO DENY BLACK VOTERS THE 
OPPORTUNITY TO ELECT CANDIDATES OF 
THEIR CHOICE. 

In White v. Regester, supra, a unanimous Court held 
that at-large legislative voting in multi-member districts 
is unconstitutional if plaintiffs produce evidence (412 
U.S. at 766) 

that the political processes leading to nomination and 
election were not equally open to participation by the 
group in question—that its members had less op- 
portunity than did other residents in the district to 
participate in the political processes and to elect 
legislators of their choice. Whitcomb v. Chavis, su- 
pra, at 149-50. 

In neither Whitcomb nor White did the Court establish 
a specific requirement that plaintiffs must prove that 
the at-large system had been instituted for a racially 
discriminatory purpose, if the proof showed that at-large 
voting had operated to deny minority citizens an equal 
opportunity to participate in the political and electoral 

processes. Therefore, there seems to be no way for this 
Court to reverse the decision of the Fifth Circuit in 
this case without overruling this Court’s unanimous de- 
cision in White. 

In cases such as this, where the at-large voting scheme 
was adopted with the commission form of government in 

   



17 

1911, a requirement that plaintiffs prove specific racial 
intent with the adoption of at-large elections would place 
an impossible burden on minority plaintiffs. Virtually 
no witnesses to the change would be alive today, and 
newspaper accounts may be nonexistent or unreliable. 

Nor do this Court’s subsequent decisions governing the 
Fourteenth Amendment racial purpose requirement re- 

quire such a burden. Thus, in Washington v. Davis, 426 
U.S. 229, 241-42 (1976), this Court was careful to say: 

This is not to say that the necessary diserimina- 
tory racial purpose must be express or appear on 
the face of the statute, or that a law’s disproportion- 
ate impact is irrelevant in cases involving Consti- 
tution-based claims of racial discrimination. A stat- 
ute, otherwise neutral on its face, must not be ap- 
plied so as invidiously to discriminate on the basis 
of race. Yick Wo. v. Hopkins, 118 US 356 (1886). 
It is clear from the cases dealing with racial 
discrimination in the selection of juries that the 
systematic exclusion of Negroes is itself such an 
“unequal application of the law . . . as to show 
intentional discrimination.” Akins v. Texas, supra, 
at 404. Smith v, Texas, 311 US 128 (1940) ; Pierre 
Vv. Louisiana, 306 US 354 (1939) ; Neal v. Delaware, 
103 US 370 (1881). A prima facie case of discrim- 
inatory purpose may be proved as well by the ab- 
sence of Negroes on a particular jury combined with 
the failure of the jury commissioners to be informed 
of eligible Negro jurors in a community, Hill Vv. 
Texas, 316 US 400 (1942), or with racial non- 
neutral selection procedures, Alexander v. Louisiana, 
405 US 625 (1972); Avery Vv. Georgia, 345 US 559 
(1953) ; Whitus v. Georgia, 385 US 545 (1967). 

* * * * 

Necessarily, an invidious discriminatory purpose 
may often be inferred from the totality of the rele- 
vant facts, including the fact, if it is true, that the  



  

18 

law bears more heavily on one race than another. 
It is also not infrequently true that the discrimina- 
tory impact—in the jury cases for example, the total 
of seriously disproportionate exclusion of Negroes 
from jury venires—may for all practical purposes 
demonstrate unconstitutionality because in various 
circumstances the discrimination is very difficult to 
explain on nonracial grounds. 

In looking at the scheme at issue here, both the Dis- 
trict Court, after “an intensely local appraisal of [its] 
design and impact”, White v. Regester, supra, 412 U.S. 
at 769, and the Court of Appeals were convinced that 
the evidence clearly demonstrated that at-large voting 
in Mobile had been maintained for a racial discrimina- 
tory purpose. It has operated for almost 70 years to 
exclude black representation totally from Mobile’s gov- 
erning body, and certainly the City Fathers could not be 
ignorant of this preeminent fact. As Mr. Justice Stevens 
wrote in his concurring opinion in Washington v. Davis, 
supra, 426 U.S. at 253: 

Frequently the most probative evidence of intent will 
be objective evidence of what actually happened 
rather than evidence describing the subjective state 
of mind of the actor. For normally the actor is 
presumed to have intended the natural consequences 
of his deeds. 

A requirement that plaintiffs must prove intentional 
discrimination with the enactment of at-large voting 
schemes also overlooks the firmly established principle of 
constitutional law that a statute or official action may be 
constitutional at the time it was adopted, but may be- 
come unconstitutional over time as conditions change. 
“A statute valid when enacted may become invalid by 
change in the conditions to which it is applied.” Nash- 
ville, C. & St. Louis R. Co. v. Walters, 294 U.S. 405, 
415 (1935). Thus, in the reapportionment cases, a legis- 

   



19 

lative reapportionment plan which provided equi-populous 
and perfectly valid districts when adopted may become 
unconstitutional over time as a result of legislative in- 
action in not responding to shifts of population which 
render the legislative districts malapportioned. Reynolds 
Vv. Sims, 377 U.8. 533 (1964); Baker v. Carr, 369 U.S. 
186, 192-93 (1962). 

Thus, in this case, even if the at-large voting scheme 
was adopted in 1911 in a “race-proof” circumstance in 
which there was no racial intent because Mobile blacks 
were denied the right to vote, nevertheless the at-large 
scheme became unconstitutional through legislative inac- 
tion as blacks were later permitted to register and vote 
and the city commission recognized that at-large elections 
operated completely to deny black voters of Mobile the 
opportunity to elect city council members of their choice 
and to exclude black representation on the Mobile city 
commission. 

 



    

20 

CONCLUSION 

The judgment of the Court of Appeals should be 
affirmed. 

Respectfully submitted, 

CHARLES A. BANE 

THOMAS D. BARR 

Co-Chairmen 

NORMAN REDLICH 

Trustee 

FRANK R. PARKER 

Staff Attorney 
LAWYERS’ COMMITTEE FOR 

Civi. RIGHTS UNDER LAw 

720 Milner Building 

210 South Lamar Street 

Jackson, Mississippi 39201 

(601) 948-5400 

ROBERT A. MURPHY 

Staff Attorney 

LAWYERS’ COMMITTEE FOR 

Civi. RIGHTS UNDER LAW 

733 Fifteenth Street, N.W. 
Suite 520 

Washington, D.C. 20005 
(202) 628-6700 

Attorneys for Amicus Curiae