Motion for Further Proceedings on Remand; Supplemental Brief of Plaintiffs-Appellees Supporting Motion

    BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT Law 

405 VAN ANTWERP BUILDING 

P. O. BOX 1051 

MOBILE, ALABAMA 36601 

  

JAMES LU. BLACKSHER TELEPHONE 

LARRY T. MENEFEE (205) 433-2000 

GREGORY B. STEIN ’ 

May 18, 1980 

Mr. Gilbert F. Ganucheau 
Clerk, United States Court of Appeals 
Fifth Circuit 
Room 102, 600 Camp Street 
New Orleans, Louisiana 70130 

RE: Wiley L. Bolden, et. al., Plaintiffs-Appellees, 
v. City of Mobile, Alabama, et. al., Defendants- 
Appellants; Appeal No. 76-4210 
  

Dear Mr. Ganucheau: 

Please file the enclosed MOTION FOR FURTHER PROCEEDINGS 
ON REMAND and the supporting brief in the above-styled 
appeal. 

I am enclosing the original and six copies, with the 
request that copies also be distributed to the panel 
in Brown v. Moore, No. 77-1583, whose judgment has 
been vacated and remanded for reconsideration in light 
of the Supreme Court's decision in the instant case. 

  

As soon as we can, within the next week, we will file 
a motion and supporting brief addressing the issues 
on remand in Brown v. Moore. 
  

Best regards. 

Sincerely, 

BLACKSHER, MENEFEE & STEIN, P.A. 

MA (ft ert et_ 

J. U. Blacksher 

JUB :nwp 

Ere 
cc All counsel in Nos. 76-4210 and 77-1583 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 76-4210 

  

WILEY L. BOLDEN, ET. AL., 

Plaintiffs-Appellees 

V. 

CITY OF MOBILE, ALABAMA, ET. AL., 

Defendants-Appellants. 

  

On Appeal from the United States District Court for the 
Southern District of Alabama, Southern Division 

  

MOTION FOR FURTHER 
PROCEEDINGS ON 

REMAND 
  

Plaintiffs-Appellees Wiley L. Bolden, et. al., through 

their undersigned counsel, move for the institution of fur- 

ther proceedings on remand, as is more fully set out in this 

motion and the supporting brief, and for leave to file these 

 



  

supporting briefs, pursuant to Rule 27, FRAP, and Rule 

10.1.12, Fifth Circuit rules. 

As grounds for their motion, Plaintiffs-Appellees 

would show that, on April 22, 1980, the Supreme Court of 

the United States reversed the judgment of this Court and 

remanded the case for further proceedings in the courts 

below. City of Mobile wv. Bolden, 48 USLW 4436 (Apr. 22, 1980). 
  

For reasons which are more fully set out in the sup- 

porting brief filed contemporanously herewith, further 

proceedings are required to determine whether at-large 

elections have been retained in the City of Mobile for 

reasons which violate the rights of black citizens under 

fourteenth and fifteenth amendments to the constitution 

of the United States and under the Voting Rights Act 

of 1965, 

WHEREFORE plaintiffs-appellees pray that this Court 

will: 

A. Grant them leave to file the supporting brief 

filed contemporaneously with this motion; 

B. Remand this case to the district court for 

further proceedings, including the taking of such addi- 

tional evidence as the district court deems warranted, 

 



  

to determine whether Mobile's at-large election system 

has been retained for a racially discriminatory purpose, 

to determine whether a private cause of action is avail- 

able under §2 of the Voting Rights Act and, if so 

whether Plaintiffs' rights thereunder have been violated H 

and to reexamine its remedial order in light of Wise v. 

Lipscomb, 437 U.S. 535 (1978). 
  

In the alternative, if the case is not first 

remanded to the district court, Plaintiffs-Appellees 

pray that, on the basis of the evidence already in the 

record, this Court will enter a judgment affirming in part 

and vacating in part the judgment of the district court 

and remanding the case for further proceedings as follows: 

(1) Reaffirming the judgment of the district 

court that at-large elections have been retained in the 

City of Mobile, at least in part, for the purpose of di- 

luting the voting strength of the black minority; 

(2) Reaffirming the judgment of the district 

court that, accordingly, the current at-large election 

system for the City of Mobile violates the rights of 

black citizens of Mobile under the fourteenth and 

fifteenth amendments to the Constitution of the United 

States; 

 



  

(3) Further holding that Mobile's present 

election system violates. §2 of the Voting Rights Act of 

1965 and that Plaintiffs-Appellees are afforded a 

private cause of action to enforce the statutory rights; 

(4) Remanding the case to the district court 

for reconsideration of its remedial order in light of 

Wise v. Lipscomb, and for such other additional proceedings 
  

as it may deem equitable and just. 

To 4 
Respectfully submitted this /§ “day of May, 1980. 

BLACKSHER, MENEFEE & STEIN, P.A. 
405 VAN ANTWERP BUILDING 
POST OFFICE BOX 1051 
MOBILE, ALABAMA 36601 

  

EDWARD STILL 
Reeves & Still 
Suite 400, Commerce Center 
2027 First Avenue, North 
Birmingham, Alabama 35203 

JACK GREENBERG 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs-Appellees 

 



  

CERTIFICATE OF SERVICE 
  

I do hereby certify that on this /9%4ay of May, 

1980, a copy of the foregoing MOTION FOR FURTHER 

PROCEEDINGS ON REMAND was served upon counsel of record: 

Charles B. Arendall, Jr., Esquire, William C. Tidwell, III, 

Esquire, Hand, Arendall, Bedsole, Greaves & Johnson, Post 

Office Box 123, Mobile, Alabama 36601; Fred G. Collins, 

Esquire, City Attorney, City Hall, Mobkle, Alabama 36602; 

Charles S. Rhyne, Esquire, William S. Rhyne, Esquire, 

1000 Connecticut Avenue, N. V., Suite 800, Washington, 

D.C. 20036, by depositing same in the United States Mail, 

postage prepaid. 

7 7 D aici SBT ATNTTFFS-APPELLEES 

  

) 
NY LLL ) NLS LAL a 
/ log / ; MH O.24 

/ A 

f +4 

7 3 
Vv 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 76-4210 

  

WILEY L. BOLDEN, ET. AL 
LE 

Plaintiffs-Appellees, 

V. 

CITY OF MOBILE, ALABAMA, ET. AL., 

Defendants-Appellants. 

  
On Appeal from the United States District Court for 
the Southern District of Alabama, Southern Division 

  

SUPPLEMENTAL BRIEF OF PLAINTIFFS-APPELLEES 
SUPPORTING MOTION FOR ADDITIONAL PROCEEDINGS 

ON REMAND 
  

EDWARD STILL 

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

J. U. BLACKSHER 
LARRY T. MENEFEE 
P. O. Rox 1051 
Mobile, Alabama 36601 

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

Attorneys for Plaintiffs-Appellees 

 



  

What the Supreme Court's Decision 
Means 
  

In retrospect, it is clear that the Supreme Court 

took this case in order to overrule Zimmer v. McKeithen, 
  

485 F.2d 1297 (5th Cir. 1973), aff'd sub nom., East Carroll 
    

Parish School Bd. v. Marshall, 424 U.S. 636 (1976). Some 
  

members of the Court had expressed disappointment over 

avoiding a head-on confrontation with the Zimmer merits on 

at least two previous occasions, in East Carroll Parish, 
  

supra, and in Wise v. Lipscomb, 437 U.S. 535, 549 (1978) 
  

(J. Rehnquist, concurring). Not to be denied a third time, 

the Supreme Court's plurality insisted on reading the 

opinions of this Court znd the district court in the 

instant case as having relied solely on a Zimmer analysis 

of the evidence. 

Thus, because the appellees had 
proved an "aggregate' of the 
Zimmer factors, the Court of 
Appeals concluded that a discrim- 
inatory purpose had been proved. 
That approach, however, is incon- 
sistent with our decisions in 
Washington v. Davis, supra, and 
Arlington Heights, supra. Although 
  

  

the presence of the indicia relied 
on in Zimmer may afford some evi- 
dence of a discriminatory purpose, 
satisfaction of those criteria is 
not of itself sufficient proof of 

 



  

such a purpose. The so-called 
Zimmer criteria upon which the 
District Court and the Court of 
Appeals relied were most assuredly 
insufficient to prove an unconsti- 
tutionally discriminatory purpose 
in the present case. 

48 USLW at 4441. So, in order to isolate the Zimmer 

inquiry, the plurality chose to ignore the substantial 

additional evidence in this record of an invidious legis- 

lative purpose in retaining at-large elections, and they 

remanded the case back to this Court for further consi- 

deration of whether such intent "ultimately' can be proved. 

Id. at 4441 n. 21; accord, id. at 4449 (J. White, dissenting), 

4459 n. 39 (J. Marshall, dissenting). Although Justice 

White complained that the plurality has "[left] the courts 

below adrift on unchartered seas with respect to how to pro- 

ceed on remand," id. at 4449, careful scrutiny of the 

several opinions, particularly the Stewart plurality's, 

does provide workable guidance. 

Simply put, Bolden holds that an invidious racial 

motive on the part of those who control legislation must 

be proved to invalidate an at-large election plan under the 

fourteenth and fifteenth amendments and that the Zimmer 

standards do not, by themselves, establish the requisite 

intent. To discern this result and the subsidiary holdings 

 



  

of Bolden, one must “headcount” each issue through the 

six opinions of the Justices: 

(1) The Equal Protection Clause of the 

fourteenth amendment provides a cause of action for dilu- 

tion of blacks' voting strength. 48 USLW at 4439 (Stewart); 

id. at 4444 (Stevens); id.at 4449 (White); id. at 4443 

(Blackmun); id. at 4444 (Brennan); id. at 4449 (Marshall). 

(2) Dilution can also violate the 

fifteenth amendment. 48 USLW at 4444 n. 3 (Stevens); id. 

at 4449 (White); id. at 4443 (Blackmun); id. at 4446 

(Brennan); id. at 4449 (Marshall). The plurality’'s view 

that the fifteenth amendment goes no further than guaranteeing 

the right to register and vote, id. at L438, was rejected 

by the rest of the Court. 

(3) But an invidious legislative purpose 

to discriminate in either the enactment or retention of the 

at-large scheme must be proved under both the fourteenth 

and fifteenth amendments. 48 USLW at 4438, 4439 (Stewart); 

id. at 4448 (White); id. at 4445 (Stevens). 

(4) The Zimmer analysis is overruled as 

a sufficient measure, by itself, of a constitutional violation. 

48 USLW at 4441 (Stewart); id. at 4445 (Stevens). 

However, there is no majority view in Bolden about 

 



  

the proper legal test for proving invidious intent or, 

as a corollary matter, why Zimmer is unsatisfactory as a 

constitutional test. Justice White believes that an 

aggregate of the Zimmer factors proves racial intent by 

a "totality of circumstances" approach (the approach used by 

this Court in Bolden). 48 USLW at 4449. Justices Blackmun, 

Brennan and Marshall agree. Id. at 4443, 4446, 4458. 

Justice Stevens would require objective proof that the 

election plan was either totally irrational or motivated 

solely by racial reasons. Id. at 4445. The Stewart 

plurality would apply the guidelines of Arlington Heights 
  

and Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 
  

* 7256 (1979), but would focus more on the subjective intent 

of lawmakers than the way the system operates. According 

to the plurality, "Zimmer may afford some evidence of a 

discriminatory purpose [but] is not of itself sufficient 

proof of such a purpose." 48 USLW at 4441. 

Five Justices were of the opinion that the Zimmer 

approach used by this Court in Bolden did prove racial 

motives in the maintenance of Mobile's election system 

(Stevens, Blackmun, White, Brennan and Marshall). But one 

of the five, Stevens, thinks that more is required to 

 



  

prove a constitutional claim. It seems clear, therefore, 

that to prove a case of intentional vote dilution that 

satisfies a majority of the Supreme Court, the demands of 

the Stewart plurality must be met. 

The holding of the Bolden plurality is "that the 

primary, if not the sole, focus of the inquiry must be on 

the intent of the political body responsible for making 

the districting decision.” 48 USLW at 4445 (Stevens, 

concurring). See id. at 4440. The requisite intent must 

be discerned in the evidence by use of the legal principles 

of Washington ¥v. Davis, 426 U.S. 229 (1976); Arlington 
  

  

  
  

Heights, supra; and Feeney, supra. Id. at 4438 n. 10, 

% 4439, 4440, 4441; accord, id. at 4458 (Marshall, dissenting). 

Those principles can be summarized as follows: 

(1) The impact of the districting plan 

-- whether it bears more heavily on one race than on 

another -- provides a starting point. Arlington Heights, 
  

supra, 429 U.S. at 266. Thereafter, "a sensitive inquiry" 

should be made into the following types of evidence: 

(2) The historical background of the 

legislative decision, ''particularly if it reveals a series 

of official actions taken for invidious purposes." Id. at 

267. 

 



  

(3) The "specific sequence of events" 

leading up to the decision. Sudden changes that counter- 

act . events favoring the minority group can show invidious 

intent. 1d. 

(4) 'Departures from the normal procedural 

sequence’. 1d. 

(5) '"Substantive departures . . . parti- 

cularly if the factors usually considered important by 

the decisionmaker strongly favor a decision contrary to 

the one reached." 1d. 

(6) The legislative history, especially 

contemporary statements by lawmakers, their minutes and 

AS reports. "3d. at 268. 7 

(7) The trial testimony of those 

involved in the decision making process. Id. 

Feeney has been interpreted as adding a substantial 

gloss to the Washington v. Davis - Arlington Heights prin- 
    

ciples: 

"Discriminatory purpose,’ how- 
ever, implies more than intent as 
volition . or intent as awareness of conse- 
quences. It implies that the decision 
maker, in this case a state legislature, 
selected or reaffirmed a particular 
course of action at least in part 
"because of," not merely "in spite of," 

 



  

its adverse effects upon an 
identifiable group. 

Feeney, supra, 60 L.Ed. 2d at 887-88 (citation and 
  

footnotes omitted). But this Feeney rule does nothing 

more than reject as a complete measure of constitutional 

intent mere "awareness of consequences" or "foreseeability" 

standing alone .L/ Justice Stewart hastened to explain in 

Feeney that this does not mean that "inevitability or 

foreseeability of consequences of a neutral rule has 

no bearing upon the existence of discriminatory intent." 

60 L.Ed. at 888 n. 25. Indeed, the record in that case 

showed that "all of the available evidence affirmatively 
  

demonstrate[d]" that Massachusetts' veterans preference 

had a completely benign purpose. Id. (emphasis added). 

The same was far from true in Bolden, which is why, 

we submit, the case was remanded for further proceedings 

ir. the courts below. 

  

1/ Justice Marshall thinks even this limited constraint 
on intent findings is ''far too extreme to apply in 

vote-dilution cases." Bolden, supra, 48 USLW at 4458. He 
would have adopted the "common-law foreseeability pre- 
sumption" that at least shifts the burden of disproving 
invidious intent to the state. Id. But most observers are 
not surprised that the same rule applied in "Austin II", 
United States v. Texas Education Agency, 532 F.2d 380 
(5th Cir.), vac. and remanded, 429 U.S. 990 (1976), on 
remand, 564 F.2d 162 (5th Cir. 1977), on rehearing, 579 
F.2d 910 (5th Cir. 1978), has now been extended to all 
fourteenth amendment cases. 

  

  

  

7 

 



  

Further, the Bolden plurality's adoption of Feeney 

underscores their repudiation of Justice Stevens' proposal 

that in apportionment cases an invidious purpose must be 

the sole motive behind the legislative decision. Justice 

Stewart's majority opinion in Feeney could not state the 

constitutional rule more plainly: 

Invidious discrimination does 
not become less so because the 
discrimination accomplished is 
of a lesser magnitude. Discrimi- 
natory intent is simply not amen- 
able to calibration. It either 
is a factor that has influenced 
the legislative choice or it is 
not. 

60 L.Ed. 2d at 886 (footnote omitted). Feeney set up 

K "a twofold inquiry" for facially neutral laws that adversely 

impact on a minority group: (1) Is the neutral rule 

actually an overt or covert pretext for invidious discrimi- 

nation? (2) If not, then the 'dispositive question" 

is whether an invidiously discriminatory purpose has, 

"at least in some measure,' shaped the rule. 60 L.Ed 2d 

at 884-85. Justice Stevens' theory in Bolden would per- 

mit only the first of the Feeney inquiries when analyzing 

apportionment decisions and not the second. Clearly, his 

extreme view has no support among the other members of 

the Court. Justice Powell's majority opinion in Arlington   

 



  

Heights states the Supreme Court's rule: 

[Washington v.] Davis does 
not require a plaintiff to prove 
that the challenged action rested 
solely on racially discriminatory 
purposes. Rarly can it be said 
that a legislature or administrative 
body operating under a broad mandate 

‘made a decision motivated solely 
by a single concern, or even that 
a particular purpose was the 
"dominant" or "primary' one. In 
fact, it is because legislators 
and administrators are properly 
concerned with balancing numerous 
competing considerations that 
courts refrain from reviewing the 
merits of their decisions, absent 
a showing of arbitrariness or 
irrationality. But racial discrimi- 
nation is not. just another competing 
consideration. When there is proof 

ak oe that a-discriminatory purpose has 
$ been a motivating factor in the 

decision, this judicial deference 
is no longer justified. 

  

Arlington Heights, supra, 429 U.S. at 265-66 (footnotes 
  

omitted). 

  

" The Proceedings on Remand 

The Supreme Court's mandate in Bolden states: ''The 

judgment is reversed and the case is remanded to the Court 

of Appeals for further proceedings." 48 USLW at 4443. Our 

Supreme Court brief and oral argument contended that both 

this Court and the district court had looked beyond Zimmer 

. jo 

 



  

and had made Arlington Heights findings of a racial 
  

intent in the maintenance of at-large elections based 

on the testimony of local lawmakers. But, as we have 

already pointed out, pp. 1 - 2, supra, the plurality in- 

sisted on reading the opinions below as based solely on 

a Zimmer analysis. When Justice Stewart wrote "it is clear 

that the evidence in the present. case fell far short of 

showing that the appellants 'conceived or operated [a] 

purposeful device[ ] to further racial discrimination'," 

48 USLW at 4440, he was referring only to'[t]he so-called 

Zimmer criteria upon which the District Court and the 

Court of Appeals relied ...." Id. at 4441. The plurality 

expressly left open for further consideration on remand 

the black Plaintiffs’ claims that modern-day legislative 

proposals to give Mobile single-member district options 

had been repudiated for racial reasons. 

There was evidence in this case 
that several proposals that would 
have altered the form of Mobile's 
municipal government have been de- 
feated in the state legislature, in- 
cluding at least one that would have 
permitted Mobile to govern itself 
through a mayor and city council 
with members elected from individual 
districts within the city. Whether 
it may be possible ultimately to 
prove that Mobile's present govern- 
mental and electoral system has been 

  

-10- 

 



  

  

pl retained for a racially dis- 
criminatory purpose, we are 
in no position now to say. 

Id. at 4441 n. 21 (emphasis added). Two other opinions 

support this interpretation of the plurality's remand 

instructions. Justice White acknowledged that the lower 

courts would be required to reexamine the intent question, 

but complained that they had been set "adrift on uncharted 

seas". Id. at 4449. Justice Marshall provided the most 

explicit statement of the remand task: 

The plurality, ante, at 18, 
n.2l, indicates that on remand 
the lower courts are to examine 
the evidence in these cases under 
the discriminatory intent standard 
of Personnel Adm'r of Mass. wv. 
Feeney, 442 U.S. 256 (1979), and 

rey may conclude that this test is met 
% by proof of the refusal of Mobile's 

state-legislative delegation to 
stimulate the passage of legislation 
changing Mobile's city government 
into a mayor-council system in which 
council members are elected from 
single-member districts. The 
plurality concludes, then, only that 
the District Court and the Court of 
Appeals in each of the present cases 
evaluated the evidence under an 
improper legal standard, and not that 
the evidence fails to support a claim 
under Feeney, supra. 

  

  

48 USLW at 4459 n. 39. 

Thus on remand this Court may yet affirm the judgment 

of the district court if the requisite racial intent of the 

 



  

& lawmakers appears from the evidence under the Arlington 
  

Heights - Feeney legal standards that now govern dilution 
  

cases .2/ Notwithstanding the Bolden plurality's inability 

to see it, we believe this Court in fact already reached 

such a conclusion using an Arlington Heights analysis on 
  

the first go-round. In the next section of this brief 

we will summarize the facts that warrant reaffirmance of 

the findings of invidious legislative intent. 

However, with due respect and out of an abundance 

of caution, we urge this Court to remand the question to 

the district court first. The Supreme Court has instructed 

the appellate courts reviewing Arlington Heights cases 
  

® to give special deference to the fact finding of the 

district judge "who has lived with the case over the years," 

  

2/ Such a result would be consistent with the general 
~ rule that, "[w]hile a mandate is controlling as to 
matters within its compass, on remand a lower court 
is free as to other issues." Sprague v. Ticonic Nat'l 
Bank, 307 U.S. 161, 168 (1939). An example close on 
point here is Edelman v. Jordan, 415 U.S. 651 (1974), 
which held that retroactive welfare benefits awarded by 
a district court violated the eleventh amendment. The 
Court's remand stated: '"The judgment of the Court of 
Appeals is therefore reversed and the cause remanded for 
further proceedings consistent with this opinion." 
415 U.S. at 679. On remand the Court of Appeals ordered 
Illinois officials to notify all class members of state 
law procedures that would afford them similar monetary 
relief. 563 F.2d 873. It rejected the state's contention 

  

  

mb 

® 

 



  

  

676, n.6 (1979) (J. White), and who is "uniquely situated 

++. to appraise the societal forces at work in the 

communit[y] where [he] sit[s].” "Id. at 685 (J. Stewart); 

accord, id. at 683 (J. Burger). Here the controlling 

plurality professed uncertainty about the meaning of the 

district court's key language concerning "intentional 

  state legislative inaction”. 48 USLW at 4440 n. 17. 

They believed the trial judge might have been relying 

on theories of jury discrimination cases or purely fore- 

seeable consequences. Id. Somehow, they were unable 

to associate the district court's intentional inaction 

conclusion with the legislative intent evidence later 

discussed in the plurality's footnote 21. Under these 

  

Footnote 2/ continued 

that such relief was contrary to the law of the case 
as established by the Supreme Court in Edelman. In a 
second appeal, the Supreme Court affirmed, saying: 

The doctrine of law of the case 
comes into play only with respect 
to issues previously determined. 
In re Sanford Fork & Tool Co., 
160 U.S. 247 (1895). On remand, 
the "Circuit Court may consider 
and decide any matters left open 
by the mandate of this court." 
Id. at 256, 

  

Quen v. Jordan, 99 S.Ct. 1139, 11483 n. 18 (1979).   

13+ 

 



  

circumstances, this Court might be well advised not 

to presume (again) from the district court's opinion 

what the Supreme Court was unable (or unwilling) to 

read there. The district judge should be asked to 

clarify his findings in light of the Supreme Court's 

decision -- and to receive such additional evidence as 

-..3 
he deems warranted. 

The Present Record Proves Racial 
Motives in the Retention of Mobile's 

At-large Election Plan 
  

In the alternative, if this Court addresses the 

issue remanded by the Supreme Court without first referring 

it to the district cours, the present record already 

  

3/ Remand to the district court has been the usual prac- 

tice of this Court when intervening Supreme Court de- 
cisions have changed the legal theory relied on originally 
by the trial judge; in particular where proof of discrimi- 
natory intent replaces an earlier theory based on discrimi- 
natory effect. Williams v. DeKalb County, 582 F.2d 2 
(5th Cir. 1978); Concerned Citizens of Vicksburg v. Sills, 
567 F.2d 646 (5th Cir. 1978); Myers v. Gilman Paper Corp. 
556. F.24 758 {5th Cir. 1977). 

  

  

  

4/ Even if the case is sent back to the district court, 
this Court should provide some guidance concerning 

the proper application to these facts of the Supreme Court's 
divergent opinions in Bolden. 

3 

 



  

establishes the inescapable conclusion that modern-day 

decisions of the legislature were designed to strengthen 

and preserve the City of Mobile's election scheme for the 

purpose of denying blacks representation. 

The decision regarding what forms of government and 

districting plans will be available to Mobile has always 

been controlled exclusively by the Mobile County legis- 

lative delegation, which operates under a local courtesy 

custom permitting any one of the county's senators to 

veto local bills. 423 F.Supp at 397. Since Mobile 

adopted a city commission form of government in 1911, 

local legislators have acted progressively to enhance 

the dilutive impact of the at-large scheme and to deny 

even the opportunity for referendum changes to single- 

member districts. The most important of these legislative 

decisions were (1) a 1945 amendment which removed the 

original plurality-win feature of commission elections, 

(2) an annexation in 1956 that tripled the geographic 

size of the City of Mobile, (3) a local law in 1965 that, at 

once, attached executive functions to the three commissioner 

places and offered a mayor-council option that preserved 

at-large elections, and (4) a mayor-council bill containing 

a mixed at-large and district election plan that was vetoed 

-15~ 

 



  

— in 1976 by one white senator. These events must be 

viewed together in their historical context, as Arlington 
  

Heights directs. 

- Throughout the nineteenth century Mobile used the 

mayor-alderman option provided in general state law. Ala. 

Code. §11-43-40 (1975) .2/ In 1911, the city commission 

form was adopted under ''race-proof" circumstances. 571 

F.2d at 245.8 However, as originally enacted, the 1911 

law provided that the voters would designate a first and 

second choice for each commissioner, with the candidate 

receiving a majority of the first-choice votes or the 

majority of first-choice and second-choice votes winning. 

® Act 281, Ala. Acts, 1911 Reg. Sess. After the election, 

the commissioners were to choose one of their number as 

mayor and divide other executive duties among all three. 

Act 281, supra, §§ 4, 5, 6, 7, 10, 11. 

  

5/ Mobile presently has 31 wards. If it reverted to this 
mayor-alderman government today, Mobile would be required 

by §11-43-40 to reduce the number of wards to no more than 20, 

with one alderman elected by the voters of each ward plus 
a mayor and council president elected at large. 

6/ Blacks were almost totally disfranchised in Alabama 
by the 1901 state constitution. 

1b 

 



  

For the next 35 years, the white-only Democratic 

primary and restrictive registration laws (e.g., the poll 

tax, literary tests) kept blacks from registering to vote. 

Then the Supreme Court struck down the white primary. 

Smith v. Allright, 321 U.S. 649 (1944). Alarmed, the 
  

Alabama Democratic Party responded to Smith v. Allright 
  

and to post-war black voter registration drives in Mobile, 

P. Ex. 2, by sponsoring the Boswell gnendasre which 

required registrants to "understand and explain" the U.S. 

Constitution. The Boswell Amendment was later determined 

to have been a contrivance to bar blacks from registering. 

Davis v. Schnell, 81 F. Supp. 872 (5.D. Ala.), aff'd,   

- T7336 U.S. 933 (1949). Id the midst of this flurry of 

official action to safeguard white supremacy, the city 

commission act was amended to eliminate the possibility 

of a plurality winner by adding numbered posts and a 

ma jority - vote requirement. Act 295, Ala. Acts, 1945 

Reg. Sess., p. 490. 

  

7/ There were only 275 placks registered in Mobile 
County in 1946." P, Ex. 2, 

8/ Ala. Const., amend no. 35 (1946). 

9/ It is noteworthy that the leadership for the Boswell 
Amendment came from a Mobile politician. P. Ex. 2. 

 



  

The black registration rate in Mobile County 

continued to grow. By the mid - '50's it was around 

147%. P. Ex.7. At the same time, many whites were moving 

to the suburbs outside the Mobile city limits. In 1956, 

the local legislative delegation passed a bill annexing 

the white suburbs to the city. Act 18, Ala. Acts, 1956 

2d Extra Sess. Without this annexation, Mobile would have 

been 54% black by 1970.2". The annexation cleared the 

legislature at a time when it was consumed with open con- 

cern over desegregation in general and pending federal 

legislation aimed at opening the voting booth to blacks 

in particular of 

  

10/ United States Census, City-County Data Book, p. 630 
(1972); Mobile Register, Mar. 2, 1956, p. 1A. 

11/ 1In 1956, the Eisenhower Administration was pressing 
for passage of what eventually became the Civil Rights 

Act of 1957. Special sessions of the Alabama Legislature 
were called to preserve the state's segregationist policies 
in the wake of Brown v. Board of Education, 347 U.S. 483 
(1954). Proposed constitutional amendments were enacted 
to authorize legislation establishing private, racially 

  

segregated schools, recreational and other public facilities. 
No. 82, Ala. Acts, 1956 lst Extra Sess.; No. 67, Ala. Acts, 
1956 2d Extra Sess. Resvlutions were adopted denouncing 
Brown itself and proclaiming Alabama's ''deep determination" 
to preserve its long established discriminatory policies. 
No. 58, Ala. Acts, 1956 2d Extra Sess. See United States 
v. Alabama, 252 F. Supp 95, 102 (M.D. Ala. 1966). A year 
later, Montgomery County changed to at-large elections for 
what Judge Johnson recently determined were racial reasons. 
Hendrix v. McKinney, 460 F. Supp. 626 (M.D. Ala. 1978). 

  

  

  

-18~ 

 



  

With the passage of the Voting Rights Act of 1965, 

the remaining impediments to black voter registration 

were removed, and approximately 257% of eligible black 

Mobilians were registered to vote. Tr. 355. At this 

time, the local delegation adopted Act No. 823, Ala. Acts, 

1965 Reg. Sess., which on one hand predesignated the exec- 

utive roles of each Mobile city gomissionai® and on the 

other authorized a referendum on changing to a mayor-council 

form of government. However, Act 823 specified that all 

the council members would be elected at large. P. Ex. 98, 

pp. 40-41. Former Senator Edington, then a member of 

Mobile's local legislative delegation, gave undisputed 

testimony that the lawmakers considered and rejected 

single-member districts for the council option because of 

racial reasons: 

Q. Why was the opposition to single- 
member districts so strong? 

A. At that time, the reason argued 
in the legislative delegation, very simply 
was this, that if you do that, then the 
public is going to come out and say that 
the Mobile legislative delegation has just 
passed a bill that would put blacks in 
city office. Which it would have done 
had the city voters adopted the mayor- 
council form of government. 

P. Ex, 98. p. 43. 

  

12/ 8See 571 F.2d at 241 n.2. 

16 

 



Finally, in 1976, State Senator Bill Roberts of 

Mobile introduced a local bill which would have given 

Mobilians the option of changing by referendum to a 

mayor-council form, with seven council members elected 

from districts and two at large. Tr. 727-28. Senator 

Roberts testified that he had publicly announced his 

reasons for the bill, that he had introduced it in re- 

sponse to ehis Aictgar tod ana to provide blacks an 

opportunity to be represented in city government. Tr. 

729, 733, 734. The bill was vetoed by another white 

14/ 
senator, Mike Perloff oberts said Perloff had given 

no reason for his veto. When asked if he knew why, 

~Roberts testified: "Yes. I have some idea, but I 

cannot prove that." Tr. 736. However, the two black 

Mobile County legislators, Cain Kennedy and Gary Cooper, 

had no doubt that the Roberts Bill was killed to 

  

13/ "I did make the statement that I felt that too often 
in Alabama ... the legislature has not met its responsi- 

bility and in those situations the courts have moved into 
that area because of the lack of responsibility of the 
legislature." Tr. 733. 

14/ Senator Perloff had narrowly defeated a black candi- 
~~ date in a senate district almost 50% black, using racial 
campaign tactics. See Brown v. Moore, No. 75-298-P 
(S.D. Ala., Jan. 18, 19773, Op. at 9, No. 77-1583 (5th Cir.) 
Appendix p. 233. 

   



  

blacks from being elected. P. Ex. 100, pp. 29-30; 

P. Ex. 99, p. 20. 

This series of legislative actions from 1945 to 

1976 provide a "sequence of events" set against an 

historical background of official racism, accompanied by 

procedural and substantive departures, all combining to 

produce a severely adverse impact on black voters. - The 

circumstantial evidence is cemented by direct testimony 

by lawmakers of invidious motives. Nearly all of the 

Arlington Heights criteria are satisfied. Nor is this 
  

like the situation in Feeney, where the state had attempted 

to relieve the impact of its otherwise benign policies 

on the disadvantaged group, 60 L.Ed. 2d at 881, and where 

"all of the available evidence affirmatively demonstrate[d]" 

there was no discriminatory intent. 1d. at 838 n. 25. At- 

large elections have been retained in Mobile "because 

of, not in spite of", their dilutive effects. For sure, 

"goodgovernment" =2/ reasons were espoused by some of the 

lawmakers at several stages of the legislative history 

of Mobile's election system. Under Arlington Heights and 
  

Feeney, such "mixed motives' do not save the racially 

intended laws from constitutional invalidity. See pp.8-9,6 supra. 

  

15/ Flannery O'Connor, "The Barber,' The Complete Stories 153, 
20 (1979). 

  

-J1- 

 



  

® And the racial motives cannot be missed. To use Judge 

Rives' familiar phrase, for the courts to conclude 

otherwise would "prove that justice is both blind and 

deaf." United States v. Alabama, 252 F., Supp. 95, 104 
  

(M.D. Ala. 1966), quoting, Sims v. Baggett, 247 F. Supp. 
  

96, 108-09 (M.D. Ala. 1965). 

The Voting Rights Act Claim 
  

The Supreme Court's decision in Bolden leaves open 

  

the question whether a private cause of action lies 

under §2 of the Voting Rights Act of 1965 and, if so, 

~~what elements of proof §2 requires to challenge dilutive 

® election schemes. Only the plurality opinion discusses 

the statutory issue. It criticizes this Court's refusal 

to address Bolden's §2 claim, but goes on to conclude 
  

that, even if a private cause of action exists, §2 "was 

intended to have an effect no different from that of the 

Fifteenth Amendment itself." 48 USLW at 4437. None of 

the other opinions even acknowledges this discussion. 

At the very least, the district court should be 

instructed on remand not to ignore the plurality's admoni- 

tion to rule on the §2 claim. (Alternatively, if this Court 

 



  

» decides the intent issue without first remanding to 

the district court, it should take up the §2 claim.) 

If the district judge determines in subsequent proceedings 

that Mobile's at-large elections are being maintained for 

a racial purpose, it need only decide whether a private 

cause of action exists under. §2, and there will be no 

need for it to pass judgment on the dispute left open by 

the Supreme Court about whether. §2's substantive scope 

exceeds that of the fifteenth amendment. On the other 

hand, it will be necessary for the district court to 

decide whether §2 of the Voting Rights Act provides an 

effect-only standard if it is determined the election 

% plan is not racially motivated. This Court's remand 

instructions should specify the trial court's responsibi- 

lities in this regard. 

The Remedy Issue 
  

Justice Blackmun was the only member of the Court 

who questioned the apprcpriateness of the district court's 

remedy, that is, ordering a change in the form of government 

in order to provide for single-member districts. 48 USLW at 

4443. It seems clear, however, that on remand the district 

33 

. 

 



  

court should be instructed to reconsider its remedial 

order in light of the Supreme Court's intervening 

decision in Wise v. Lipscomb, 437 U.S. 535 (1978). 
  

- Conclusion 
  

Pursuant to the mandate of the Supreme Court, 

this Court should remand the case immediately to the 

district court with instructions that it conduct additional 

proceedings, taking such additional evidence as the court 

deems necessary, in order to determine whether the City 

of Mobile's at-large elections have been retained for a 

“racially discriminatory purpose. 

Alternatively, this Court should conclude on the 

basis of the evidence already in the record that such 

irvidious intent has been proved. 

The remand instructions of this Court should further 

direct the district court: 

(1) To determine whether Plaintiffs have 

a private cause of action under §2 of the Voting Rights 

Act of 1965 and, if so, whether the statutory claim has 

been proved; and 

2h 

 



  

(2) To reexamine its remedial order in light 

of Wise v. Lipscomb. 
  

Respectfully submitted this | ¥“% day of May, 1980. 

BLACKSHER, MENEFEE & STEIN, P.A. 
405 VAN ANTWERP BUILDING 
POST OFFICE BOX 1051 
MOBILE, ALABAMA 36601 

BY . ' Af A { IAP 4 & Pd / pr - , 

J./ U. BLACKSHER" 
LARRY T. MENEFEE 

/ / 
& / 

1} 
  

EDWARD STILL 
REEVES & STILL 
SUITE 400, COMMERCE CENTER 
2027 FIRST AVENUE, NORTH 
BIRMINGHAM, ALABAMA 35203 

JACK GREENBERG 
ERIC SCHNAPPER 
SUITE 2030 
10 COLUMBUS CIRCLE 
NEW YORK, NEW YORK 10019 

Attorneys for Plaintiffs-Appellees 

«25. 

 



  

CERTIFICATE OF SERVICE 
  

I do hereby certify that on this /87 day of May, 

1¢80, a copy of the foregoing SUPPLEMENTAL BRIEF OF 

PLAINTIFFS-APPELLEES SUPPORTING MOTION FOR ADDITIONAL 

PROCEEDINGS ON REMAND was served upon counsel of record: 

Charles B. Arendall, Jr., Esquire, William C. Tidwell, III 

Esquire, Hand, Arendall, Bedsole, Greaves & Johnson, 

Post Office Box 123, Mobile, Alabama 36601; Fred G. 

Cullins, Esquire, City Attorney, City Hall, Mobile, 

Alabama 36602; Charles S. Rhyne, Esquire, William S. 

Rhyne, Esquire, 1000 Connecticut Avenue, N. W., Suite 

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

United States Mail, postage prepaid. 
— 

“26