Motion for Further Proceedings on Remand; Supplemental Brief of Plaintiffs-Appellees Supporting Motion
Public Court Documents
May 18, 1980

33 pages
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Case Files, Bolden v. Mobile Hardbacks and Appendices. Motion for Further Proceedings on Remand; Supplemental Brief of Plaintiffs-Appellees Supporting Motion, 1980. 68c39d86-cdcd-ef11-b8e8-7c1e520b5bae. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/945fb5e1-61ff-4641-9b8b-2ac1071a92ac/motion-for-further-proceedings-on-remand-supplemental-brief-of-plaintiffs-appellees-supporting-motion. Accessed April 27, 2025.
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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