Motion to Dismiss or Alternatively to Affirm

    IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1977 

No. 

CITY OF MOBILE, ALABAMA, et al., 

Appellants, 

Vv. 

WILEY 1.. BOLDEN, et al,, 

Appellees. 

On Appeal From The United States Court of Appeals 
Por The Fifth Circult 

  

MOTION TO DISMISS OR ALTERNATIVELY TO AFFIRM 
  

QUESTIONS PRESENTED 
  

1. Were the concurrent findings of the courts below, that 

Mobile's at-large election plan is maintained purposefully to 

abridge black voting rights, clearly erroneous? 

2. Should the decision of the Court of Appeals be affirmed 

on the alternative ground--considered but not relied on by a 

majority of the Fifth Circuit panel--that Mobile's at-large 

election plan had the effect of disfranchising black voters in 

violation of White vs. Regester, 412 U. S. 755 (1973)? 
  

3... Did the District Court err in adopting its own plan 

where the appellants refused to propose any remedial plans and 

where the District Court injunction expressly permits state 

and local officials to modify that court plan? 

THE APPEAL SHOULD BE DISMISSED FOR WANT OF JURISDICTION 
  

Appellants have taken this appeal pursuant to 28 U.S.C.§ 

1254 (2), which provides: 

 



  

Cases in the courts of appeals maybe 
reviewed by the Supreme Court by the 
following method: 

(2) By appeal by a party relying on 
a State Statute held by a court of appeals 
to be invalid as repugnant to the Consti- 
tution, treaties or laws OF the United 
States, but such appeal shall preclude re- 
view by writ of certiorari at the instance 
of such appellant, and the review on ap- 
peal shall be restricted to the Federal 
questions presented.... 

In the instance case, the courts below have not held any 

State statutes to be invalid. The statutes named on page 

Jurisdictional Statement .. 
5 -of the A” and set out in ppendices F and G thereto 

are general laws of the State of Alabama, which remain in 

full force and effect. It is one of the several optional 

forms of municipal government authorized by Alabama law. 

Mobile elected this particular form by referendum ballot in 

1911. The decree affirmed below merely enjoins the City of 

Mobile from continuing to use this optional form of municipal 

government because of its at-large election feature. Every 

other city in Alabama is free to adopt or continue using the 

statutes in question. Therefore, jurisdiction of this appeal 

is wanting under 28 U. 8. C.§ 1254(2). 

This jurisdictional deficiency actually goes to the heart 

of appellants' arguments supporting review by this Court and 

reveals why they are insubstantial. It simply is not so that 

the rulings below have ''created a constitutional guarantee 

of certain political victory" for winority groups. J.S5., 

p.138. This case does not threaten any other city using the 

commission form of government, id, nor does it impose "an 

affirmative duty of racially-conscious electoral restructur- 

ing upon legislatures." J. S., p.26. The courts below deter- 

mined that Mobile was using the at large system authorized 

by general law as a vehicle for intentional debasement of 

blacks' voting rights. This finding is based on an exhaus- 

  
1."Any city or town may adopt and become organized under 

the commission form of government provided in this article by 
proceeding as hereinafter provided." Ala. Code §11-44-71(1975). 
J.8., p.iE. 

 



  

tive analysis of the legislative, political and governmental 

record unique to Mobile, Alabama. As the District Court points 

out, quoting White vs. Regester, supra 412 U. S. at 769-70, 
  

its opinion represents "a blend of history and an intensely 

local appraisal of the design and impact of the ... multi- 

n light ,¢ past and present member district [under scrutiny] i 

reality, political and otherwise." J.8., p.41lb. This Court 

could not reach the sweeping legal issues appellants had 

sought to construct from the decisionsbelow without first re- 

viewing all the svidenty and rejecting as clearly erroneous 

a long list of purely factual findings. 

support 
The case is cited by appellants in of this Court's 

jurisdiction provide them no help. In Dusch vs. Davis, 337 
  

U. S. 112 (1967), this Court accepted a $1254 (2) appeal from 

the decision of a Court of Appeals invalidating a municipal 

charter for the City of Virginia Beach, Va., that had been 

specifically approved by the legislature. Clark vs. Peters, 422 
  

U. 8. 1031(1975), and Dallas County vs. Reese, 421 U. 8S. 477 
  

(1975), were §1254 (2) appeals to this Court from federal ap- 

pellatg/udgments invalidating local acts of the Alabama Legis- 

lature adopting malapportioned district boundaries for local 

government in specific counties. By contrast, the general law 

relied on by the City of Mobile in the instant case has not 

been declared invalid, and the Alabama Legislature has not by 

some special or local enactment singled out Mobile's election 

of a form of government for specific approval. 

 



  

STATEMENT 
  

Black citizens of Mobile, Alabama, brought this action in 

June 1975 challenging the at - large system of electing mem- 

bers of the Mobile City Commission. Following a 6-day trial, 

in which 37 witnesses testified and 153 documentary exhibits 

were introduced, and following a half-day tour of the City by 

the District Judge, the trial court determined that the at- 

large elections were being used purposefully and invidiously 

to discriminate against black voters. The salient findings of 

fact, affirmed in all respects by the Court of Appeals, are as 

follows: 

The Long History Of Voting Discrimination 

Against Blacks In Mobile 
  

  

The "Redemption'" of Alabama by the Bourbon Democrats from 

Federal Reconstruction policies culminated with the enactment 

of various so-called Progressive reforms. In Alabama, the Pro- 

gressive movement included disfranchisement of blacks, because 

they were considered a corrupting influence. The 1901 Alabama 

Constitutional Convention was called for the primary purpose of 

disfranchising blacks. The cumulative poll tax and grandfather 

clause were the primary devices used to accomplish this. Dele- 

gates from Mobile led the efforts to remove blacks from politics 

in 1901, and some of these same white Mobilians promoted the 

adoption of an at-large elected city commission for Mobile in 

1911. Only token numbers of blacks were allowed to register and 

vote until passage of the Voting Rights Act of 1965. J.S., pp. 19b- 

20b 29b. Alabama operated an all-white Democratic primary until 

well after it was outlawed by this Court in Smith vs. Allright, 
  

321 U. S. 649 (1944). A white State legislator from Mobile was 

chiefly responsible for the enactment of interpretation tests 

as a device to prevent blacks from voting after the white primary 

was struck down. The interpretation tests were declared unconsti- 

 



  

tutional by the Federal Court in Mobile. Davis vs. Schnell 
  

8L FF. Supp. 872 (S.D. Ala. 1948), aff'd; 336 U. 8. 933 (1949). 

In 1964, The Mobile County Legislative Delegation enacted 

a special law to enable Mobile to change to a Mayor-Council, 

form of government after a referendum election. A former State 

Senator from Mobile| participated in the law's passage testified 

that the local delegation chose to provide for at-large election 

of the proposed council, rather than a single-member districts, 

because of racial considerations: 

Q. Why was the opposition to single-mem- 
ber 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. 

The District Court found, as a matter of fact, that "[tlhese 

factors prevented any effective redistricting which would 

result in any benefit to the black voters passing until the 

State was redistricted by a Federal Court order." J. S., p30b. 

The Present Denial Of Effective Participation 

In The Political Process 
  

  

In the opinion of the court below, the total absence of 

black elected officials in Mobile was only "[o]nlyzThdication 

that local political processes are not equally open [to blacks]." 

J. S., p. 7b. The District Judge also relied upon evidence pre- 

senting a thorough analysis of racial politics in Mobile. 

Expert statisticians and political scientists analyzedfmost 

of the local elections in the city and county over the past 15 

years. The unsuccessful candidacies of 4 black citizens who 

  

1. The City of Mobile contains approximately two-thirds of 
the population of Mobile County. The District Court considered 
the election experiences of black candidates in county-wide races 
to be relevant as well to an analysis of city politics. J. S. pp.6b- 
10h,..13b n. 

 



  

. “ » 

sought school board seats, 3 blacks who ran for city commission 

and 2 black candidates for at-large legislative seats were 

thoroughly explored, as were the racial campaign tactics used to 

stir up white backlash and defeat several candidates who dared 

to espouse some interests of the black community. While most 

white candidates actively seek black votes as well as white 

votes, there was uniform agreement among the experts and poli- 

ticians that, to be successful, a candi- 

date must be careful not to be tagged with the "bloc [black] 

vote," which is tantamount to the "kiss of death," according to 

the City's own expert political scientist . All of the witnesses 

(except one defendant city commissioner) agreed that it would be 

difficult if not impossible for a black candidate to overcome the 

solid racially polarized voting patterns in Mobile and win an at- 

large election. Most of the prominent leaders and politicians in 

the black community testified at trial, and without exception they 

agreed that the futility of the effort prevented them from even 

considering running for city commission under the at-large system. 

The District Court accepted the opinion of plaintiffs’ expert 

political scientist that black voting strength is "basically 

cancelled or negated in the at-large structure in the Mobile City 

elections." 

Unresponsiveness Of Elected Officials 
  

To Black Community Interests 
  

Much of the long trial was devoted to evidence of how un- 

fairly Mobile's all-white government has treated black citizens. 

The District Court found that "[t]he at-large elected city 

commissioners have not been responsive to the minorities' needs." 

J.S8., p. 11b. To support this finding, the court's opinion re~- 

fers first to continuing racial discrimination by the city in 

employment. The Court still monitors compliance with its earlier 

decree ordering desegregation of the Mobile Police Department. 

Id. other Federal Court orders were required to desegregate public 

facilities in the City of Mobile. J.S., p.12b. Blacks have been 

 



Tap 

  

appointed to important governmental boards and committees 

only token numbers. J.S., pp.l12b-14b. Black residential areas 

have suffered inequitable neglect with respect to such vital 

services as drainage control, paving and resurfacing streets 

and the placement of sidewalks. J.S., pp.l15b-17b. 

Perhaps most importantly, the court found that city com- 

missioners have been insensitive to long-standing complaints 

of police brutality directed against blacks and the continuing 

reoccurrence of cross burnings. In particular, the trial judge 

was critical of the "timid and slow reaction' of city govern- 

ment to investigate and discipline 7 white Mobile police offi- 

cers who actually carried out a'mock lynching" of a black 

suspect on a downtown street corner. It was confirmed, finally 

that these officers placed a rope around the suspect's neck, 

threw it over a live oak branch, and pulled the black man to his 

tiptoes. The court found that the "sluggish and timid response" 

of elected city officials to the lynching incident "is another 

manifestation of the low priority given to the needs of black 

citizens and of the political fear of a white backlash vote 

when black citizens' needs are at stake." J. S. p.1l9%. 

 



  

ARGUMENT 

1. Notwithstanding appellants' extensive discussion 

of the meaning and application of the dilution rule of 

White v. Regester, 412 U. 8. 755 (1973), the decisions below 
  

rest, in the first instance, not merely on the discriminatory 

impact of the at-large election system, but on a finding of 

fact that Mobile's system of electing Commissioners is motiva- 

ted by an unconstitutional desire to discriminate against blacks. 

J..8.,pp. 12a, :30b.. This case thus. presents, not just another 

application of White v. Regester, but, primarily, an applica- 
  

tion of Gomillion Vv, Lightfoor, 364 U. 8. 339 (1960), and Village 
  

of Arlington Heights v. Metropolitan Housing Development 
  

Corp., 429 0. 8.252 (1977). 

The district court made a finding of discriminatory 

intent after an exhaustive analysis of the evidence presented 

at a six-day trial. J. S., pp. 286b ~ 31b. : The court of appeals 

carefully scrutinized the record and concluded that the district 

judge's detailed findings of fact were not clearly erroneous 

and that they compelled a finding of discriminatory intent. J. S. 

Pp. 12a. This Court does not ordinarily ''undertake to review 

concurrent findings of fact by two courts below in the absence 

of a very obvious and exceptional showing of error." Graver 

Mfz. Co. Vv. Linde Co., 336 'U. 8S. 271, 275 (1961). No such 
  

unusual circumstances are present here. 

The record contains ample evidence to support the finding 

that discriminatory intent lay behind the decision of the legis- 

lature to maintain the at-large election of Commissioners in 

Mobile. Until 1965 blacks were largely unable to register in 

Mobile or elsewhere in Alabama, and racial discrimination in 

voting had been the announced state policy since at least 1901. 

The district court found, based on the direct testimony of 

several state legislators who participated in consideration of 

redistricting bills for Mobile, that the legislature would not 

 



- 

® » 

  

pass "any effective redistricting which would result in any bene- 

fit to black voters." J. S., p.30b. At-large elections were found 

to effectively disenfranchise blacks in Mobile because of a parti- 

cularly virulent hostility by white voters, who have not only 

voted as a bloc against any black candidate for any office in 

Mobile, but have also repeatedly defeated white candidates 

who have been notably responsive to black needs. J. S., p./b- 

10b. The decision below did not, as appellants claim, revolve 

around some unstated premise that local governmental bodies 

should reflect proportional minority representation, but rested 

on the inability of black voters to have their electoral 

choices -- whether whites or blacks -- registered through the 

political process. J. S. pp. 9b - 10b. After detailed analysis 

of all the election vetutng, the district court considered and 

rejected appellants’ contention at trial that, just because 

blacks sometimes vote for winners in elections that are not 

racially polarized, they wield an effective ''swing vote." 

Against this background of historical discrimination 

against black voters in Alabama, and in light of a present leg- 

islative practice of refusing to adopt redistricting measures 

that might result in the election of blacks, the courts below 

were entirely justified in concluding that the maintenance of 

at-large voting in this particular case was racially motivated. 

Arlington Heights v. Metropolitan Housing Corp., supra, 429 U. S. 
  

at 266-68. The lower courts did not ignore appellants' asser- 

tion that the at-large elections have been used for over half 

a century because they discourage the alleged corruption of 

"ward-heeling"; they merely made a factual determination that that 

somewhat implausible explanation was not the reason for main- 

taining the present method of election. 

, The decisions below express no preference for single-mem- 

a political science standpoint. Beyond ] 
Jodlidls ber districts as opposed at-large elections fromythe issue 

    

a — Ee —— tia 

    

  a   

of racial discrimination, political commentators disagree 

whether the purported greater "efficiency" of at-large elected 

local governments can offset their high price of political con- 

 



-/0- 

  

trol by strong financial interests and the loss of grass-roots 

See Kendrick v. Walder, 527 P. 24 44.,51-54 (7th Cir. 
  

input. 

1975). (3. Pell Yispenring) 
Ge ——— ea pape ETE————————— —— a car 

Appellants suggest the courts below adopted a rule of law 

that discriminatory intent must be inferred whenever a legis- 

lature fails to adopt a districting plan it knows is favorable 

to blacks. J. S., pp- 7, 24-26. Appellants point to no lan- 

guage in either opinion adopting such a rule, and none is to 

be found. On the contrary, the same panel of the Fifth Circuit 

 



   
     

  
 
     

      
  

 
 

 
 

      
  
 
 

 
 

  
 
 

 
 
 

 
 

 
 
 

   

  
 
 

    
 
 

 
 
 

 
 
 

 
   

  
 
 

 
  
   

  

 
 
 

  
 
  
 

 
 
  
 
 

 
 
 

 
 

 
 

  

 
 

 
 

 
 

  
    

i 
i
 

: 
tf 

” 
. 

i 
. 

i 
i 

Vd 
a
a
 

fe 

Ps 
[ 

—
 

- 
A 

¢ 
Vv, 

oe 
‘ 

- 
¢ 

- 
— 

~ 
[
3
 

- 
i 

: 
pos 

\ 
~ 

~ 
\ 

pe 
~y 

ry 
"a 

& 
ay 

+
 

§ 
” 

3 
| 

p 
- 

J 
pe) 

J 
ot 

jd 
A
 

3 
’ 

i 
| 

: 
g
l
 

y 
PN 

: 
A 

» 
» 

y
d
 

2 
ad 

rt 
4 

. 
~ 

’ 
fod 

f 
vi 

‘ 
- 

. 
: 

» 
Te 

. 
Ld 

will 
4
 

- 
od 

- 
. 

4. 
. 

43 
r
n
 

5) 
. 

t
 

~ 
. 

+’ 
J 

A
 

ast 
dt 

Le 
=
 

I 
4 

f 
§ 

- 
.. 

o 
-
 

™
 

3 
} 

« 
v 

3 
: 

SE) 
i 

4 
/ 

{ 
‘ 

ore 
t 

” 
Oo 

Sa 
Ct 

3 
2 

2 
¢ 

- 
x 

’ 
a 

7 
i 

- 
pond 

r 
3 

: 
L 

tr 
§ 

8 
4 

™
 

. 
Ca 

{ 

§ 
v 

J 
® 

peed 
tld 

r 
c
d
 

fi 
~ 

MN 
i 

. 
1 

, 
: 

4 
Gd 

~ 
£5 

J 

. 
; 

1 
s 

% 
> 

7 
mf 

w~ 
§ 

A 
ig 

i» 
oo 

* 
¢ 

H 
ih 

1 
po 

’ 
Li 

§ 
C 

1 
: 

bo? 
® 

{ 
JJ 

15 
)
 

; 
F 

y 
- 

r
t
 

P
e
e
 

A
o
 

{ 
} 

: 
. 

. 
’ 

® 
33 

or 
£ 

; 
he 

’ 
. 

! 
{ 

. 
i 

. 
; 

o
a
 

4 
df 

> 

" 
U 

- 
od 

od a 
1 

£ 
wena) 

. 
r 

a
p
 

} 
cr 

y 
hd 

¢ 
Jd 

I 
t 

“
—
 

A 
x 

{ 
~ 

Le 
py 

> 
4 

f
s
 

“
 

- 
: 

: 
N 

- 
4 

ge 

{ 
H 

¥ 
eo 

J 
q
d
 

po 

i 
pot 

_
 

fot 
- 

+ 
pe 

  
    

    
    

 
 

 
 

  
    
 
 

  
 
   

 
 
  
 

 
 
 
 

 
  
 

 
  
 

    
 

  
  

       
  

  
  

- 
v 

- 
£4 

I 
he 

J
 

LW 
hs 

. 
b 

} 
7
 

~ 
4 

) 
{ 

» 
isd 

* 
=. 

| 
» 

N
y
 

g
l
 

p- 
peord 

¥ 
: 

i 
t
n
d
 

é 
“ 

\z 
a! 

q 
[
 

a
 

y 
i 

Bou 
J 

\/ 
: 

wp 
owed 

wd 
\ 

a
y
 

- 

/ 
. 

o 
{ 

fod 
pod 

bs 
pr. 

SS 
i ; 

J
 

* 
{ 

a 
’ 

Eh 
¥ 

4 
= 

" 
§ 

«pom 
. 

; 
; 

je 
~™ 

so 
% 

i 
» 

[81 
>. 

bes 
het 

He 
d 

- 
n 

pod 
- 

ac 
J 

bi 
’ 

. 
c 

5 
4 

, 
oo 

+ 
; 

. 
Gg 

oped 
i 

= 
N      

 

   

  
 
 

   

 
 

 
   

    
  

   
 

 
 

 
 

  
 
 

      

; 
. 

) 
rod 

7 
» 

\ 
de 

) 
9 

. 
— 

r 
4
 

— 
A
 

| 
pi 

: 
: 

: 
5 

P 
= 

1 
t
d
 

{ 
|
 

~4 

 # 
—
 

1) 
t 

» 

«ge 
" 

MN 
~
 

r 
er" 

C 
{ 

f 
/ 

" 
“ 

- 
“ 

, 
. 

py 
; 

* 
i 

, 
—
 

|» 
~< 

+ 
. 

: 
- 

 



-_]d~ 

    

   

  

i 7 X {. £33 

4 % 3 . % In § by § ¢ 

” ce 

n 3 

4 - ™ 

$ 1 ER » . ® J 

 



  

         

             

    

              

    

     

        

    

      

      

               

       

  

      

  

         

         

    

    

  

      

  

         

       

       

    
      

       

     

            

. v - 4 a iL A 

" » “4 ¢ 
4 § 8 - h: wo 

a Pz 

of 3 ) 3 Y at "TT 
5 whe he A Ae bo 4 

ho iid 

il { 1.8 : ” A 

oh on yy en “ 

p 

    
PERE my, foe 

(& \ | 99         

  
      

  

fe . - ; " 
ne i x wo LS 

doe n “ Pho 5 - on 
Lad ild Ck i LI 3 ty         

      

  

ny 
      

   



! 
>
 

~
 ) 

  
  

  

 
 

on IS ad a 
LF Sg 

= 

 
 
 

 
 

  
  

  

 
  

 
 
 

 
 
 
 

3
 

4
 : lan re 

 
 
 
 

 
 

 
 
 
 

 
 

            
      

  

                           

ds 

Ye WJ ux te 
Pia Pre > a a 

Ners ®) 1           
 
 

 
  
 

4) ne 
4
 

43 

® 

3
 

« 
0 

by 
4
3
1
 

8
 

§ 

+
i
 

[14] 

i
h
 

~ 
| 

a) 
v
i
 

Q
i
 

=
i
 

f
=
 

 
 

 
 

 
 

 
 

                    

 



. — 15 » 

  

3. The Jurisdictional Statement contains a question re- 

garding the remedy fashioned by the district court, and the 

history of that issue is delineated, but the matter is not 

discussed at length in the body of the Jurisdictional State- 

ment. J. S., Dp.4, 15-16. 

The appropriateness of the remedy was properly analyzed 

by the court of appeals. J. S., pp. 1l5a-17a. Appellants 

inexplicably refused in the district court to offer any plan 

for the conduct of elections or the creation of single-member 

districts. Under that circumstance it was the obligation "of 

the federal court to devise and imposé a reapportionment plan." 

Wise v. Lipscomb, 46 U.S.1..W. 4777, 4779 (1978). Manifestly 
  

some alteration in Mobile's method of election was required 

to remedy the proven violation, and since the plan was ordered 

by the district court it was required to prefer single-member 

districts. Id. Appellants' recalcitrant refusal to assist: in 

the framing of a decree forced the district court to re- 

solve the details of a plan which it would have preferred to 

leave to state or local authorities; for this reason the court's 

decree expressly provides that state and local officials retain 

their authority to alter the plan adopted by the court in any 

respect other than the reinstitution of at-large seats, J.S., 

pp. 2d-3d {Appellants imply that the trial court abused its 

discretion by formulating a ''sErong mayor" plan (based on a 

synthesis of special statutes governing Birmingham and Mont- 

gomery) instead of utilizing the "weak mayor" option offered 

by general law. J.S., p.13n.17. In fact, it was at the instance 

of appellants' counsel, who during and after trial pleaded with 

the court not to employ the "weak mayor" form as a remedy, 

that the district judge appointed a blue-ribbon panel to de- 

velop an interim ''strong mayor" plan. Other misleading state- 

ments in the Jurisdictional Statement include inferences that 

the court-ordered plan calls for partisan elections, J.S., p.22 

n. 26, and that Moblle presently has a city charter, J. S., 

PP. 2, 15. Actually, (he district court's injunction retains 

the nonpartisan election feature of Mobile's present system. 

 



Na es * 

  

J. 5. %pp. 74 - 9d. And Mobile has never . been governed under 

a charter, to the extent that term is popularly understood 

as meaning local home rule. For Mobile to be reapportioned 

or to change its form of government requires either action by 

the state legislature or a referendum election to change to 

one of the other optional municipal forms of government pro- 

vided by general law. Appellants did not attack this remedy 

in the court of appeals, except to argue that no remedy was 

possible because at-large elections are an integral part of 

commission government. In any event, the appellants, having 

failed in 1976 to offer the district court any proposed remedial 

plan, cannot now complain in this Court about the details of 

the plan actually adopted. 

 



        

   

    

    

    

   

-)7-