Defendants' Response to Plaintiffs' Motion for Setting of Election

    IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

WILEY L. BOLDEN, et al., ) 

Plaintiffs, ) 

VS. ) CA 75-297-P 

CITY OF MOBILE, et al., ) 

Defendants. ) 

DEFENDANTS' RESPONSE TO PLAINTIFFS 

MOTION FOR SETTING OF ELECTION 
  

Come now the defendants and respectfully show: 

A. On Wednesday, May 3, 1978, defendants filed in 

the Supreme Court of the United States an Application for 

Stay and Recall of Mandate Pending Certiorari. As of the 

date hereof, defendants have not been advised as to the 

disposition of such application. However, in any event 

defendants intend to file with the Supreme Court of the 

United States, within the time allowed by law, a Petition 

for Writ of Certiorari. There can be no judgment finally 

disposing of this controversy until the Supreme Court of 

the United States has acted on such petition and, if the 

same is granted, until that Court has ruled on the merits. 

B. Defendants are of the opinion that this action 

should remain in its present status until such a final 

judgment has been rendered. If any steps toward the conduct 

of an election under a mayor-council form of government 

were to be taken, and then the Supreme Court of the United 

States were to rule favorably to defendants, substantial 

expenses to the citizens of Mobile would have been needlessly 

incurred; and if such steps had encompassed the actual 

election of a major and council, and the institution of a 

new form of government, the supplanting of the existing 

 



hy 

  

governing body and then its subsequent reinstatement would 

be extremely disruptive to the conduct of the affairs of the 

municipality. This Court decided, in its Order of April 7, 

1977, that such considerations (and others noted by the Court) 

justified the stay it then granted. The Court's analysis is 

as correct now as it was then. 

WHEREFORE, defendants respectfully suggest that no further 

orders be entered herein until a final judgment shall be 

rendered. 

IT. 

For further response to plaintiffs' said motion, defen- 

dants say: 

A. With respect to the allegations of paragraph 1 of 

plaintiffs' said motion, defendants say that it is premature 

to set an election at this time, for the reasons referred to 

in Section I above. 

B. With respect to the allegations of paragraph 2 of 

plaintiffs' said motion, defendants say that they agree that 

the monetary effect on the citizens of Mobile of the timing 

of an election should be considered. However, defendants 

further say that the citizens should not incur the expense 

of holding an election unless and until a final determination 

of the validicy vel non of the orders previously entered 

herein has been secured, as a ruling favorable to defendants 

would render superfluous any mayor-council election which had 

been held. Defendants further say that, for reasons which 

will be the subject of testimony on the hearing of this 

matter, it is very doubtful that the City could save money 

if an election of municipal officials were to be held con- 

currently with another election and, in any event, the problems 

and disadvantages that would arise through the holding of 

concurrent elections demonstrate the desirability of having 

 



  

municipal officials elected in a special election, no matter 

what form of government the City of Mobile may have. 

C. With respect to paragraph 3 of plaintiffs' said 

motion, defendants say: Pursuant to previous directions of 

the Court, the City of Mobile, the Board of Registrars and 

the Probate Judge took appropriate steps to determine what 

persons would, at that time, be entitled to vote in each 

district under the Court's districting plan, but it is reason- 

able to assume that since that time there have been population 

changes in all of the districts. Additionally, it has now 

been determined that, in any event, changes would need to 

be made in the Court's districting plan. For example, certain 

portions of the City of Mobile have not been included within 

any district; certain districts include territory that is 

not within the limits of the City of Mobile; and there is now 

a MW 33-98-2 to which no reference is made in the Court's 

Order of March 9, 1977. Upon the hearing hereof, testimony 

with respect to such matters will be adduced. 

D. With respect to the allegations of paragraphs 4-8, 

inclusive, of plaintiffs' said motion, defendants say: 

(1) It is entirely possible that the voting machines 

could not accommodate a listing of all of the candidates for 

the various offices if a city election were held at the same 

time as the September 5, 1978, primary elections; and, in any 

event, the voting machines cannot be so adjusted mechanically 

that a voter could be precluded from voting in a city election 

while being given his or her choice of voting in either the Dem- 

ocrat or Republican Primary. 

(2) The scheduling of an election on November 7, 

1978, would not provide sufficient time for the making, in a 

reasonable manner, of the arrangements necessarily incident to 

the conduct of an election udner the Court's plan. 

 



  

(3) The institution of a new form of government 

at any time other than the commencement of the City's fiscal 

year would be disadvantageous and disruptive of the conduct 

of the City's business. 

(4) It is highly desirable that the City of Mobile 

and the County of Mobile have, insofar as territory within 

the City limits is concerned, the same boundaries for pre- 

cincts and wards. 

(5) The Probate Judge appoints election officials 

and controls the conduct of elections other than municipal 

elections, while the City is responsible for the appointment 

of election officials and the conduct of municipal elections. 

(6) The holding of city elections contemporaneously 

with the holding of primary or general elections would raise 

questions as to the ability of various candidates to obtain 

sufficient media coverage (television and otherwise) with 

respect to their candicacies. 

(7) By virtue of the recent decision of the Supreme 

Court of Alabama in Peddycoart v. City of Birmingham, 354 So.   

2d 808 (Ala. 1978), no general law with respect to a munici- 

pality's form of government or its operation can be changed 

by a local act or by -@a "general act of local application". 

Therefore, the traditional methods for modifying the laws 

applicable to Mobile are now unavailable and no aspect of the 

mayor-council plan of government prescribed by the Court can 

now be changed by a statute applicable only to the City of 

Mobile. 

These and other matters which, in the opinion of defendants, 

should be taken into account by the Court will be the subject 

of testimony upon the hearing of this matter. 

 



  

WHEREFORE, defendants deny that plaintiffs are entitled 

to the relief sought by their said motion. 

; 7 
WE TN A 4 

&.E. TFET Jr. {se 
William C. Tidwell, 111 

Travis M. Bedsole, 
Post Office Box 123 

Mobile, Alabama 36601 

  

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

Charles S. Rhyne 
William S. Rhyne 
Donald A. Carr 

Martin W. Matzen 
1000 Connecticut Avenue, N.W. 

Suite 800 

Washington, D. C. 20036 

Attorneys for Defendants 

CERTIFICATE OF SERVICE 
  

I certify that a copy of the foregoing pleading has 
been served upon opposing counsel of record, and upon Amicus, 
by placing the same properly addressed in the United States 
mail with adequate postage affixed thereto this /¢ /¢ Xday of 
May, 1978. 

A, 7 ; CTL thre nf 
  

Attorney for Defendanfs™