Brief in Response to Defendants' Motions to Dismiss Sever or Transfer and in Support of Plaintiffs' Motions for Preliminary Injunction and Class Certification

    IN THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABMA 

NORTHERN DIVISION 

JOHN DILLARD, et al., on behalf of 

themselves and other similarly 
situated persons, 

Plaintiffs, 

VS. CA NO. 88-T-1332-N 

CRENSHAW COUNTY, ALABAMA, gua COUNTY, * 

et al... 

Defendants. 

BRIEF IN RESPONSE TO DEFENDANTS’ MOTIONS 

TO DISMISS AND/OR SEVER AND/OR TRANSFER AND 

IN SUPPORT OF PLAINTIFFS' MOTIONS FOR 

PRELIMINARY INJUNCTION AND CLASS CERTIFICATION 
  

Plaintiffs herein respond to briefs filed in support of 

motions to dismiss or change venue by Pickens, Escambia, 

Lawrence, Calhoun and Coffee counties. This brief is also filed 

in support of plaintiff's motion for class certification and 

preliminary injunction. 

OVERVIEW 

Alabama has 67 counties. The eight counties sued in 

this lawsuit are the only ones with significant black populations  



  

that have not been forced, either by court order or threat of 

litigation, to dismantle the racially discriminatory, 

vote-diluting, at-large method of electing county commissioners. 

Other lawsuits are pending against the at-large county 

commissions in Dallas, Henry, Madison, Marengo and Russell 

counties. Plaintiffs have filed this lawsuit in accordance with 

the intent of Congress in its passage of the Voting Rights Act to 

"deall] with continuing voting discrimination, not step by step, 

but comprehensively and finally." Report of the Committee on the 

Judiciary, United States Senate on §.1992, May 25, 1982. 

The 1982 extension of the Voting Rights Act by Congress 

made clear that full enfranchisement of black citizens is a top 

priority; delay is not acceptable. Defendants here seek to 

create eight separate lawsuits to be tried against each of the 

eight counties in three different courts. The delays created by 

such severance and transfer would result in yet another election 

in which black citizens of Alabama are effectively 

disenfranchised: the county commission elections of 1986. None of 

the theories advanced by the defendants in their motions to 

dismiss and/or sever and/or transfer requires the court to create 

such an unacceptable delay, with the concommitant increase in 

cost and burden on the court system. 

Plaintiffs are prepared to prove that the State of 

Alabama, acting through its Legislature, has for over one hundred 

- 2 - 

 



  

years intentionally manipulated at-large election schemes for 

county commissions for the specific purpose of minimizing the 

voting strength of its black citizens. In other words, we 

contend that there is a racially motivated pattern and practice 

on the part of the state Legislature that infects the election 

systems of all county commissions in Alabama. This is a matter of 

historical proof with statewide scope and implications. It goes 

far beyond the historical "background" of official discrimination 

that is one of the factors under the Section 2 "results" standard 

or under the ¥hite/Zimmer "totality of circumstances" intent   

standard. 

Once Plaintiffs establish a racial motive on the part 

of the Alabama Legislature with respect to both general laws and 

local laws affecting county commission election systems they will 

have established a statewide violation of Section 2 of the Voting 

Rights Act. Then it will not be necessary for plaintiffs to 

proceed with proof of a county-by-county violation under the 

Section 2 "results" standard. 

[a] violation of section 2 occurs either when official 
action is taken or maintained for a racially 
discriminatory purpose or when such action results in a 
denial or abridgment of the right of any citizen to 
vote on account of race. 

Buskey v., Oliver, 585 F.Supp 1473, 1481 (M.D.Als. 1983), citing,   

Senate Judiciary Committee Report, S.Rep. No. 97-417, reprinted 

 



  

in 1982 U.S. Code, Cong. & Admin. News at 205 (footnote 

omitted). 

In the instant case, Plaintiffs intend to prove a 

racially discriminatory statewide legislative pattern and 

practice based on direct, historical evidence, rather than by 

relying on the “circumstantial factors" found in Yhite v. 
  

Regegter, 412 U.S. 755 (1973), and Zimmer v. McKeithen, 485 F.2d 
  

  

1297 (5th Cir. 1973) (en banc), aff'd on other grounds sub. nom., 

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

Compare Bugskey, 565 F.Supp at 1473, (finding Section 2 violation 

based on direct evidence of racial intent) with Harris v. 
  

Graddick, 593 F.Supp 128 (M.D.Ala. 1984)(finding Section 2 

violation based on discriminatory result). 

The historical proof of a statewide, racially 

motivated, legislative pattern and practice of statutory 

enactments concerning at-large county commission election systems 

is the key to Plaintiffs’ entitlement to class certification, a 

preliminary injunction, joinder of all the remaining counties 

with racially dilutive at-large systems and the denial of the 

motions to dismiss or for change of venue. 

ITI. REQUEST FOR PRELIMINARY INJUNCTION 

In order for a preliminary injunction to issue, a 
district court must be satisfied that a plaintiff has 
clearly met all of the following four prerequisites: 
(1) that there is a substantial likelihood of success 

 



  

on the merits; (2) that without the relief there will 
be irreparable injury; (3) that the threatened harm to 
the plaintiff outweighs any threatened harm to the 
defendants; and (4) that the public interest will not 
be disserved by granting the injunctive relief. 

Harris, 523 F.Supp at 132, citing Shatel Corp. v. Mao Ta Lumber 
  

& Yacht Corp., 607 F.24 1352, 1354-88 (llth Cir. 1983). 

Plaintiffs in the instant case can meet all four prerequisites. 

A. Substantial Likelihood of Success of the Merits 

At a hearing on their motion for a preliminary 

injunction, Plaintiffs will present through the testimony of 

their expert historian, Dr. Peyton McCrary, proof of a racially 

discriminatory legislative intent to enact single-member district 

election schemes for county commissions only when blacks were not 

in a position to control any of the districts and otherwise to 

enact at-large election systems to dilute black voting strength. 

The evidence is summarized as follows: 

(1) In the latter part of the 19th century, following 

Alabama's "redemption" by the white-supremacist Democratic party, 

the Legislature passed local laws establishing gubernatorial 

appointment of county commissioners in Black Belt counties 

threatened with large black voting majorities, including 

Montgomery, Dallas, Wilcox, Autauga, Macon, Chilton, Barbour, 

Butler and Lowndes counties. A similar appointive system of 

county commissioners in Florida was one of the historical facts 

relied on to find intentional discrimination in McMillan v. 
  

 



  

Escambia County, 688 F.2d 960, 967 (5th Cir. 1982), vacated on 

other grounds, U.S... 104 S.Ct. (1984). 

(2) Before 1901, where the appointive system was not 

used, the pattern of local acts governing county commission 

elections strongly favored at-large systems. The few 

single-member district systems were in counties with very small 

black populations. There was a significant shift to at-large 

county commission elections in the 1890's at the time of the 

Populist Revolt. 

(3) After 1901, following the massive 

disfranchisement of black voters, there was a significant shift 

in the statutory pattern toward single-member districts for 

county commissions. There was also a substantial number of "dual 

systems," in which single member districts were used in the 

white-only Democratic primaries, while the general elections 

(which were the only eletions in which the few enchancised blacks 

could vote) were held at-large. Compare with McMillan, 688 F.2d 
  

at 967. 

(4) Beginning about 1950, as blacks began reacquiring 

the franchise in Alabama, there was a discernible shift back to 

the exclusive use of at-large elections for county 

commissioners. The Alabama Legislature enacted general laws in 

1951 prohibiting anti-single shot voting in at-large county 

commission elections and in 1961 requiring the use of numbered 

 



posts in these elections. The 1951 anti-single shot law was 

sponsored by Sam Englehardt, the notorious segregationist from 

Macon County, and there is direct evidence of the explicit 

racially discriminatory purpose behind it. 

(5) Following enactment of the Voting Rights Act of 

1965, the shift toward at-large county commission elections 

became a landslide. By 1975, only six of Alabama's 67 counties 

were still using single-member district elections for county 

commission: Blount (1.6% black), Lamar (12.0% black), Lauderdale 

(9.7% black), Limestone (14.2% black), Marion (2.3% black) and 

Shelby (10.5% black). 

(6) This Court has on numerous occasions noted the 

pervasiveness of Alabama's history of official discrimination 

against blacks with respect to voting and "in practically every 

area of political, social, and economic life." Harris, 592 

F.Supp at 130 and cases cited therein. The use of at-large 

elections for county commissioners in particular has been struck 

down by federal courts in at least 16 counties: Barbour, 

Chambers, Choctaw, Clarke, Conecuh, Hale, Jefferson, Marengo 

(remand proceedings still pending), Mobile, Monroe, Montgomery, 

Pike, Russell (settlement pending), Tallapoosa, and Tuscaloosa. 

At-large systems have also been struck down with respect to 

school boards and muncipalities in Alabama, too many to list 

here. This court has even rejected as racially discriminatory  



  

attempts by the Alabama Legislature to utilize multimember 

districts when reapportioning the Legislature itself. Sims v. 
  

Amos, 336 F.Supp 924, 935-36 (M.D.Ala. 1972), aff'd, 4090 U.S. 042 

(1972). 

The overwhelming weight of this historical evidence of 

purposeful racial discrimination against black voters with 

respect to at-large elections demonstrates the statewide pattern 

and practice of at-large county commission elections that violate 

the intent standard of Section 2 of the Voting Rights Act. 

Once proof of historical intent is established, a 

presumption is created that remaining at-large county commission 

plans are unlawful, and the state (here acting through its 

defendant subdivisions) should have the burden of proving that 

their continuing use of the at-large plans does not dilute black 

voting strength. See Sima v. Amos, 365 F.Supp 215, 220 n.2   

(M.D.Ala. 1973)(3-judge court), aff'd sub nom. Wallace v. Sims, 

415 U.S. 902 (1974), citing Keyes v. School District No. 1, 413 
  

U.S. 189 (1973). At most, Plaintiffs need establish only that 

racially polarized voting has consistently defeated black 

candidates in the defendant counties to obtain relief after 

historical intent has been proved. NAACP v. Gadsden County 
  

School Bd., 691 F.2d 978, 982 (11th Cir. 1982), citing McMillan 

Y. Escambia County, 638 F.2d 1239, 1248 n.18 (5th Cir. 1981). 

Thus, 1t will not be necessary for Plaintiffs to try individual 

 



  

"totality of the circumstances" "results" cases against the eight 

counties. 

B. JIrreparable Injury 

Since the plaintiffs seek preliminary injunctive 
relief pursuant to section 2 of the Voting Rights Act 
of 1965, as amended, they should not be and are not 
required to make the usual showing of irreparable 
injury as a prerequisite to relief; rather, such injury 
is presumed by law. ... Moreover, section 2 and its 
history reflect a strong national mandate for the 
lmmediate removal of impediments, intended or not, to 

equal participation in the election process. Thus, 
when section 2 is violated, the public as a whole 
Suffers irreparable injury. 

Harris v. Graddick, supra, 593 F.Supp at 135. 

In any event, as a practical matter, Plaintiffs and the 

class they seek to represent will suffer irreparable injury if 

preliminary relief is not granted. Qualifying for the Democratic 

Party primary begins March 1 and ends April 3, 1986, for primary 

eletions scheduled for June 3, 1986, with a runoff on June 24, 

1986. Unless the preliminary injunction is granted, the 1986 

primary and general elections for county commission in the 

defendant counties are likely to be held at large, and the voting 

strength of black citizens once again will be submerged or 

minimized. 

C. Relative Harm to the Defendants 
  

The defendants will not suffer irreparable injury if 

 



the preliminary injunction is granted. All incumbent 

commissioners will be able to stand for election if the court 

orders they be held from single-member districts. If the court 

subsequently rules that the at-large election schemes do not 

violate the amended section 2, at-large elections can be restored 

without any irreparable injury to elected officials or the 

citizens of the respective counties. 

D. Public Interest 
  

As noted earlier, the public interest is expressed by 

the congressional policy underlying the amended Voting Rights 

Act. That policy emphasizes the immediacy of the need for relief 

from racially dilutive election systems. Only preliminary relief 

can fully serve this policy and the public interest. See Harris, 

593 F.Supp at 136. 

III. VENUE 

As the Lawrence County defendants essentially concede 

(Lawrence County Defendants’ Brief at P.3), if joinder of the 

plaintiffs and defendants in this lawsuit is proper, venue in the 

Middle District of Alabama is proper under 28 U.S.C. sec. 

1392(b). That statute provides that in a suit with multiple 

defendants residing in different districts, venue is proper in 

any of the districts in which any of the defendants reside.  



Daniels v. Murphy, 528 F.Supp 2 (E.D.Okla. 1978). See United 

States v. Mississippi, 380 U.S. 128, 143 (1965) (in suit 

challenging registration practices in six counties, Court found 

venue to be proper under sec. 1392(a) once joinder of all county 

defendants held to be appropriate); Gilmore v. James, 274 
  

  F.Supp. 78 (N.D.Texas 1967); aff'd 389 U.S. 572 (1968); Brumfield 

y. Dodd, 405 F.Supp 338 (E.D.La. 1975)(3 judge court). 
  

In addition, Plaintiffs contend that venue properly 

lies in the Middle District of Alabama under 28 U.S.C. section 

1391(b), because it is the district "in which the claim arose". 

Plaintiffs’ central claim as spelled out above, 1s against the 

State of Alabama acting through its Legislature, which sits in 

Montgomery, Alabama. The state is present in this action through 

its subdivisions, the defendant counties which still utilize 

raclally dilutive at-large elections for county commission. The 

traditional "divide-and-conquer" strategy of white supremacy in 

Alabama fails when an intentionally discriminatory pattern on the 

part of the central government is proved. 

Iv. JOINDER 

The briefs filed by the Defendants are all mistaken in 

suggesting that this case will consist of eight unrelated 

nini-trials presenting proof for each county of the Section 2 (or 

Zimmer or Marengo County) "results" factors. As indicated in  



  

Sections I and II of this brief, Plaintiffs intend to proceed on 

& quite different course. Plaintiffs’ case in chief will be 

based entirely on historical evidence of a statewide scope and 

focusing on the actions of the Alabama Legislature. If plaintiffs 

succeed with this statewide, historical intent claim, it will be 

unnecessary for them to meet the burdensome and time-consuming 

requirements of section 2's results test. In fact, if the 

Plaintiffs’ intent claims have merit, it would be wasteful of 

Judicial resources and directly contrary to the policy of the 

Voting Rights Act to require them to try the same case and seek 

the same relief in eight separate trials in three different 

courts. The issue of historical intent is precisely the kind of 

common question of law and fact contemplated by Rule 20(a), 

Fed .R.Civ.P., as warranting joinder of parties plaintiff and 

defendant in a single action. 

Under the Federal Rules of Civil Procedure, "joinder of 

claims, parties and remedies is strongly encouraged." United 

Mine Vorkers of America v. Gibbg, 383 U.S. 7158, 724 (1968). 

Joinder of plaintiffs and defendants is proper under Rule 20(a) 

Fed.R.Civ.P. where there is asserted a right to relief "jointly, 

severally or in the alternative in respect of or arising out of 

the same transaction, occurrence, or series of transactions or 

occurrences and if any question of law or fact common to all 

these persons will arise in the action." (Emphasis supplied). 

 



  

There need not be a total congruence of interests. "A plaintiff 

or defendant need not be interested in obtaining or defending 

against all the relief demanded." Rule 20(a), Fed.R.Civ.P. The 

joinder provisions, including the definitions of commonality and 

relatedness of transactions or occurrences, are to be liberally 

construed. League to Save Lake Tahoe v. Tahoe Regional Planning 

Agency, 558 F.2d 914, 917 (9th Cir. 1977); Kolosky v. Anchor 

Hocking Corp., 585 F.Supp 746, 748 (W.D.Pa. 1983); Kedra v. City 

of Philadelphia, 454 F.Supp. 652 (E.D.Pa. 1978). Joinder is 

appropriate if "the operative facts are related even if the same 

  

transaction 1s not involved." Clvil Aeronautics Bd. v. Carefree 

Travel. Ino., B13 F.24 375 (2nd Cir. 1978) . (different travel 

agencies and individuals providing affinity charters sued by 

C.A.B.; severance denied). 

The paradigm for this statewide action is United States 

v. Mississippi, 380 U.S. 128 (1965), where registrars in six 

counties were sued for engaging in "acts and practices hampering 

and destroying the rights of Negro citizens to vote, in violation 

of 42 U.S.C. section 1971(a), and the Fourteenth and Fifteenth 

Anendments and Article I of the United States Constitution." Id. 

at 130. Five of the registrars sought severance, four of vhonm 

also sought transfer since they did not reside in the district or 

division in which suit was brought. In determining whether 

joinder was proper, the Supreme Court traced the history of acts 

—_ 13 - 

 



  

in Mississippi from 1890 to 1962 which prevented or restricted 

voting by black citizens. The Court found Jjoinder to be proper 

because the actions of each of the registrars were but the latest 

in a series of transactions or occurrences designed to 

disenfranchise Mississippl’s black citizens. The Supreme Court 

reversed the district court, which had denied joinder on the 

ground "that the complaint improperly attempted to hold the six 

county registrars jointly liable for what amounted to nothing 

more than individual torts committed by them separeately with 

reference to separate applicants." Id. at 142. The Supreme Court 

rejected the district court’s reasoning, finding it sufficient 

that the plaintiffs alleged that "the registrars had acted and 

were continuing to act as part of a statewide system designed to 

enforce the registration laws in a way that would inevitably 

deprive black people of the right to vote solely because of their 

color.” Id. Plaintiffs here challenge the remnants of the sane 

kind of statewide system of disenfrancisement, only by the method 

of election as opposed to registration. 

Similarly, in a number of cases outside the voting 

rights context, courts have found joinder of multi-county or even 

statewide plaintiffs and defendants to be appropriate in 

situations where there is some common thread to the actions of 

the defendants -— even if they acted seemingly independently -- 

particularly where the defendants acted in violation of 

 



  

  

plaintiffs’ federal constitutional rights. See, e.g., Mosley v. 

corp., 497 F.2d 1330 (8th Cir. 1974) (severance 

  

sought by company and union denied; same general policy of 

discrimination by both suffices for joinder purposes, identity of 

all events unnecessary); Coffin v. South Carolina Dept. of 
  

Social Services, 562 F.Supp 579 (D.S.C. 1983)(age discrimination 

sult against 14 defendants; defendants claimed that their actions 

were not the result of the same series of transactions or 

occurrences, because they were independent and based on different 

policies; severance denied); United States v. Yonkers Board of 
  

Education, 518 F.Supp. 191 (S.D.N.Y. 1981)(complaint against 

school board, city and Community Development agency under Titles 

Iv, VI, and VIII, D.O.E. regulations, the fourteenth amendment 

and contract; motion to sever denied despite variety of claims 

and differences in actions by different entities which were 

State Kn
 

KR
 

© o H fe
te

 

<3
 challenged); School District of Kansas City. Mis 

of Missouri, 460 F.Supp. 421 (W.D.Mo. 1978), appeal dismissed, 

(inner-city school board and school children seeking 

  

jo
 

inter-district school desegregation sued suburban school 

districts, state, H.U.D., H.E.¥.; defendants’ motion for 

severance denied despite fact that actions of defendants were 

otherwise independent and involved such different subject matter 

as teacher hiring, housing, highway construction, urban renewal); 

Redra v. City of Philadelphia, 454 F.Supp. 652 (Z.D.Ps. 

 



  

1978) (multiple plaintiffs sued city and officials for series of 

events over a period of more than one year involving separate 

incidents of beating and other harassment; defendants motions to 

sever denied despite fact of separate incidents and independent 

  

involvement of different defendants); Swift v. Toia, 450 F.Supp. 

083 £85.D.N.Y. 1978), aff'd, 598 F.248 313 (2nd Cir. 1979) (suit 

challenging prorating of AFDC benefits; intervention granted to 

plaintiffs also challenging proration, although facts of their 

claims differed; joinder of commissioners in coiunties serving 

intervenors allowed); Brumfield v. Dodd, 405 F.Supp. 338 (E.D. 
  

La. 1975) (3 judge court)(plaintiffs in six parishes challenged 

statewide application of state statutes by which all-white 

private schools opened to defeat public school integration 

received state financing; joinder held appropriate despite 

dlfferent facts in each parish re: integration, use of funds, 

etc. ). 

In an analogous group of cases, plaintiffs used the 

device of a defendant class action to unite claims against 

multiple defendants in a single lawsuit. In those cases, as 

here, the courts had to determine whether common issues of law or 

fact were involved. In Harris v. QGraddick, 593 F.Supp 128 

(M.D.Ala. 1984), this court certified both plaintiff and 

defendant classes in a statewide suit challenging the failure to 

appoint black voting officials. There, as here, defendants 

 



protested that different circumstances in different counties 

outweighed any common issues. The court rejected those 

objections. See also, Rakes v. Coleman, 318 F.Supp. 181 

(E.D.Va. 1970), (defendant class of state court judges certified 

in a suit by alcoholics against the practlce of confining 

alcoholics to penal and other inappropriate institutions under 

state statutes allowing for the confinement for "treatment" of 

alcoholics; class certified despite variations in procedures used 

by the judges, in their rationalizations for the commitments, or 

in the institutions to which class members were committed); 

Marcera v. Chinlund, 595 F.2d 1231 (24 Cir. 1979) vacated on 

other grounds, sub nom., Lombard v. Marcera, 442 U.S. 915 (1979) 

(defendant class of 43 sheriffs certified in suit by pre-trial 

detainees for contact visits in 43 separate county jails; 

differences in jail construction, staffing and inmate population 

insufficient to defeat certification). 

Finally, with respect to joinder, 1t is noteworthy that 

the Lawrence County defendants relied on their brief on the Lee 

Y. Macon precedent. Here, as in Lee yy. Macon, the "wide range of 

activities" by central state government require joinder of all 

the county defendants in order effectively to achieve enforcement 

of the voting Rights Act. See Lee v. Macon, Order of March 31, 

1970, at 3. (Order attached to defendant Lawrence County's 

brief). Plaintiffs believe that it would be proper for the Court  



  

to handle this litigation in the same manner as was done in Lee 

¥Y. Macon, that is, deciding the liability and remedy issues in a 

central proceeding, then "farming out" enforcement of the 

remedies, if that becomes necessary, to the other districts. 

V. TRANSFER 

Defendants have taken the position that even if they 

have not been misjoined and venue in this court is proper, the 

court should nonetheless use its discretionary powers under 28 

U.S.C. section 1404(a) to sever the claims against them and 

transfer those claims to other federal district courts in 

Alabama. Section 1404(a) authorizes transfers to another district 

in which the action could originally have been brought if such a 

transfer would be "for the convenience of parties and witnesses" 

and "in the interest of justice." The standards governing 

transfers under section 1404(a) place a heavy burden on the 

noving defendant to prove that "the balancing of interests weighs 

in favor of transfer and unless this is clearly established, the 

plaintiff's choice of forum will stand.” H.H. Robertson Co. v. 

Lumbermen’s Mutual Casualty Co., 94 F.R.D. 578, 581-2 (W.D.Pa. 

1982), aff'd 6968 F.2d 9582 (3rd Cir. 1983). 

  

In evaluating the balance of interests, the plaintiff's 

cholce of forum is to be given "considerable veight." Iexas 

Eastern Transmission v.Marine Office Appleton and Cox Corp., 579 

 



  

F.24 361, 58% (10th Cir. 1973). "Unless the balance is strongly 

in favor of the defendant, the plaintiff's choice of forum should 

rarely be disturbed.” Collings v. Straight. Inc., 748 7.24 916, 

921 (4th Cir. 1984) guoting, Gulf Oil v. Gilbert, 330 U.S. 501 
  

(1948). Thus, courts have refused transfers requested by 

defendants even where a majority of the witnesses did not reside 

in the district where the case was to be tried, see, e.2., Texas 

Eastern Transmission v. Marine Office Appleton and Cox Corp., 
  

supra, and where the cause of action arose in another district, 

ge, e.g. Cotlins v. BStraldgnt. Inc., supra. 

The interests of justice in this case weigh heavily 

against transfer to other districts. Transfer would involve 

delays that would prevent the granting of relief in time for the 

1986 elections. It would substantially increase the burden on 

plaintiffs -- the aggrieved parties -- both in terms of time and 

expense, requiring, for example, many additional hours in travel 

time and in-court time for expert witnesses crucial to the 

prosecution of voting rights claims, who would be required to 

appear in three different forums for eight different trials 

rather than appearing in one forum once. Since "[tlhe interest 

of Justice favors retention of jurisdiction in the forum chosen 

by an aggrieved party where, as here, Congress has given him a 

cholce,"” Newsweek. Inc. v. United States Postal Service, 652 
  

F.2d R39, 243 (2nd Cir. 1981), the Court should deny defendants’ 

 



  

motions to transfer. 

VI. PLAINTIFFS’ CLASS CERTIFICATION 

A. Standing 

It is axiomatic that Article III empowers federal 

courts to hear only cases and controversies. One aspect of this 

doctrine, standing, demands there be a direct connection between 

the injuries suffered and the violations alleged. Church of 
  

Scientology v. City of Clearwater, 777 F.24 598, 608 (11th Cir. 

1985). Defendants here concede that each named representative has 

standing $0 challenge the at-large system in county. They 

assert, however, that every named plaintiff must have standing in 

relation to every named defendant. 

Vhile defendants’ argument might have merit in 

commercial litigation where a single named plaintiff seeks to sue 

multiple, unrelated defendants, See, Lamar v. H &¥ B Novelty and 

Loan Co., 489 F.2d 461 (9th Cir. 1973)(named plaintiff sued 

several pawnbrokers with whom he had no dealings), it is 

meritless in the context of this litigation. Here, plaintiffs 

seek to represent black citizens who have been injured by acts 

adopted by the Alabama Legislature and implemented by the named 

defendants, subordinate governmental units. The crux of 

plaintiffs’ case is a common historical intent to discriminate. 

In civil rights cases such as this one, the inquiry 1s 

 



  

“whether the class as a whole has standing to sue the named 

defendants, rather than upon the narrow question of whether each 

named plaintiff meets the traditional standing requirements 

against each named defendant." ¥ilder v. Bernstein, 499 F.Supp 
  

080, 994 (S.D.N.Y. 1980). There, a plaintiff class of children 

alleged that New York's statutory child placement scheme was 

unconstitutional. The court, recognizing that standing is a 

broader concept in civil rights cases, held the children had 

standing to sue defendants with whom they had no dealings. Id. 

at 993. See also Yashington v. Lee, 263 F.Supp 327 (M.D.Ala. 

1966) aff'd, 390 U.S. 333 (1968)(class of plaintiffs had standing 

to challenge segregated detention facilities in Alabama, despite 

the fact that not all plaintiffs had been detained in all 

facilities); O'Shea v. Littleton, 414 U.S. 491, 494 (standing 

denied where none of the named plaintiff's stated a case or 

controversy). 

Even if this court accepts defendants’ stringent 

standing analysis, any perceived standing problem can be cured by 

certifying appropriate subclasses. This is precisely the action 

taken in Young v. Pierce, 554 F.Supp 1010 (E.D.Tx. 1982). There 

the court certified a class of residents and applicants in a 36 

county area who had suffered discrimination in public housing. 

id. at 1026. See also Vulcan Societv v. Fire Department of Clty 

of ¥hite Plains, 82 F.R.D. 379 (8.D.X.Y. 1978)(employment 

 



  

discrimination suit by firefighters in four municipalities where 

common issue was test used by all four cities; court created four 

subclasses, one for each municipality.) 

B. Class Certification 

Resolving the standing problem does not automatically 

establish that the representative plaintiffs are entitled to 

litigate the interests of the class they seek to represent. 

Instead, the emphasis shifts from justicibility to an examination 

of the criteria of rule 23(a). Sosna v. Iowa, 419 U.S. 303, 

402-03 (1975). 

Plaintiffs submit this cause satisfies rule 23(a) and 

rule 233(b)(2). 

A. Numerosity. Whether the numerosity requirement is 

met depends upon the circumstances of the case rather than upon 

any arbitrary limit. General Telephone Co. v. EEOC, 446 U.S. 

318, 330 (1980). The putative class in this action meets this 

requirement. The number of known, identifiable class members lis 

at least 64,515. That number, set forth in plaintiff’s motion to 

certify, represents the number of black citizens in the defendant 

counties according to the 1980 census. The impossibility of 

Joining all of these class members in any one action is obvious. 

W¥hen class size reaches these proportions, the 

Joinder/impracticability test is satisfied by numbers alone. 1 

—- 22 

 



Newberg on Class Actions, section 3.05, p.142 (24d E4d.). 

B. Conmonality. Plaintiffs seek to represent a class 

of persons situated precisely as themselves with regard to 

defendants’ election system. There is one determinative common 

question in this case: whether the State of Alabama has adopted 

and maintained racially discriminatory, vote diluting, at-large 

election systems for the specific purpose of denying and 

abridging black citizens voting rights. 

This issue is plain, narrow and manageable, and affects 

the putative class members and the named plaintiffs alike. Thus, 

the class device will save the "resources of both the courts and 

the parties by permitting an issue potentially affecting every 

[class member] to be litigated in an economic fashion under rule 

23." General Televhone v. Falcon, 457 U.S. 147 (1983). 

C. Typicality. Though closely related, commonality 

and typicality are actually separate inquiries. The commonality 

requirement focuses on the absent or represented class, while the 

typicality requirement addresses the desired qualifications of 

the representatives. "[A] strong similarity of legal theories 

will satisfy the typicality requirement despite substantial 

factual differences." Appleyard v. Wallace, 754 F.2d 955, 958 

(11th Cir. 1988), 

Here, as discussed in the joinder section of this 

brief, the predominate question is whether the State of Alabama  



  

adopted the at-large election scheme in these counties for the 

purpose of discriminating against black citizens. 

D. Adequacy of Representation. Whether the named 

plaintiffs will adequately represent the class is a question of 

fact to be raised and resolved in the trial court in the usual 

manner, including, if necessary, an evidentiary hearing on the 

matter. Johnson v. Georgia Highway Express, 417 F.2d 1122, 

1124-25 (5th Cir. 1972). The standard to be applied in this 

determination is whether the named plaintiffs have qualified and 

experienced counsel able to conduct the proposed litigation and 

whether there is any possibility that the named plaintiff is 

involved in a collusive suit or has interests actually 

antagonistic to those of the remainder of the class. Id. 

Plaintiffs here are represented by experienced counsel, 

and there 1s no evidence that plaintiffs’ suit is collusive or 

that plaintiffs have any interests which are actually 

antagonistic to those of the remainder of the class. 

E. Injunctive relief is appropriate. Defendants have 

acted or refused to act on grounds which are generally applicable 

to the entire class, thereby making appropriate final injunctive 

and declaratory relief. This court should determine that this 

cause should proceed as a class action and promptly certify this 

suggested class of plaintiffs under rule 23(b)(2) of the Federal 

Rules of Civil Procedure. 

— 24 

 



  

VII. PRIOR COURT ORDERS 

A. Coffee County 

In Simg v. Braxlevy, No. 1170-8 (M.D.Ala., Dec. 22, 

1971), this court ordered Coffee County to reapportion its 

residency subdistricts for a county commission election system 

that was already being conducted at large. No blacks were 

parties to that action, and no issues were raised regarding 

dilution of black voting strength. This court retained 

jurisdiction for all purposes, and there is no question that the 

claims against Coffee County under Section 2 of the Voting Rights 

Act are in the proper court. 

B. d unt 

Brown v. Gallion, No. 69-697-E (N.D.Ala.), like the 

Coffee County lawsuit, was concerned solely with redistricting 

residency subdistricts in an at-large system. Plaintiffs’ 

counsel checked with the clerk of the Northern District, and 

their docket records indicate the action has been dismissed. 

Again, it 1s certainly no bar to the section 2 claims raised in 

the instant action, and court records show that the U.S. District 

Court of the Northern District of Alabama no longer retains 

jurisdiction over the matter. 

- 25 

 



  

C. Pickens County 

Pickens County has a different and more substantial 

claim based on a prior action. It contends that Plaintiffs’ 

claims in the instant case are barred by the final judgment 

entered in Corder v. Xirksey, Civil Action No. 73-M-1088 

(N.D.Ala., Sept. 24, 1980). Pickens County's argument is without 

merit. Corder v. Kirksey was decided solely on the basis of an 

asserted constitutional cause of action; it does not bar the 

instant action based on the Voting Rights Amendments of 1982. 

Here 1s the chronology of Corder v. Kirksey: 

March 12, 1976: Judge McFadden entered a one and 

one-half page order approving the Legislature's reapportionment 

of the Pickens County commission residency subdistricts utilized 

with the at-large election system. Final judgment was entered on 

August 18, 1976. 

November 1978: The Fifth Circuit vacated the judgment 

and remanded the case to the district court for explicit findings 

of fact using the Zimmer standards. 585 F.24 708. 

February 16, 1979: The district court entered an 

order upholding the at-large system for county commission general 

elections (districts are used only in the primary elections) 

under Zimmer. No evidence was presented by the plaintiffs that 

—- 268 -—- 

 



  

would allow the district courts to determine the distribution of 

the black population among the districts, no evidence was 

presented that would allow the court to draw inferences that the 

election scheme diluted the voting strength of blacks or was 

designed to discriminate against blacks, and no evidence was 

presented regarding the general law of Alabama, which provides 

for at-large elections for county commissions not otherwise 

governed by local acts. Slip Op. at 3. 

August 21, 1980: The Fifth Circuit again vacated and 

remanded, this time for findings consistent with the Supreme 

Court’s lntervening decision in City of Mobile v. Bolden, which 

called for findings on the issue of purpose or intent. Corder 

Y...Birkasey, 625 P.24 at 520. 

September 24, 1980: The district court again found 

that "there is no evidence that the election scheme was designed 

to discriminate against blacks." Corder v. Kirksey, No. 

73-M-1086, unpublished order at 3. The plaintiffs declined the 

court’s invitation to present further evidence. Id. at 1. 

March 16, 1981: The Fifth Circuit affirmed the 

district court’s holding that the at-large county commission 

election scheme was constitutional, on the ground that the 

district court had found “simply no facts in the record probative 

of racially discriminatory intent on the part of those officially 

responsible for the Pickens County Board of Commissioners 

— 27 — 

 



  

at-large election scheme." Corder v. Kirksey, 639 F.2d 1191, 

1195. The analysis of the Fifth Circuit and the district court 

focused entirely on the inadequacy of the plaintiffs’ 

¥Yhite/Zimmer evidence to establish an inference of discriminatory 

intent. 

October 12, 1982: The Fifth Circuit denied 

Plaintiffs’ petition for rehearing and rehearing en banc, 

concluding that the Supreme Court's decision in Rogers v. Lodge, 

102 S.Ct. 3272 (1982), "does not affect our analysis or 

dlsposition of this case." Corder v. Kirksey, 688 F.24 991, 

092. 

Copies of all of the district court’‘s orders in Corder 

yy. Rirksey are attached +0 this brief. 

Rirksoy v. City of Jagkaon, 714 7.24 42 (Bth Cir. 

1983), accord, United States v. Marengo County Commission, 731 

F.2d 1546 (11th Cir. 1984), is dispositive of the Pickens County 

res Judicata defense. In Kirksey v. City of Jackson a plaintiff 

class of black citizens had suffered a final judgment on their 

claims that Jackson, Mississippi's at-large elections violated 

the thirteenth, fourteenth, and fifteenth amendments and 

43. AS ln Pickens County, there had been a remand for trial court 

findings based on City of Mobile v. Bolden, which had resulted   

in a flnal judgment based on insufficient evidence of 

 



  

discriminatory intent. Id. 

After Congress amended section 2 of the Voting Rights 

Act, plaintiffs in the City of Jackson case filed a Rule 60(b)(5) 

motion to reopen the case after final judgment. The Fifth 

Circuit held that the motion to reopen the old case should be 

denied, because the final judgment in the old case was not a bar 

to a brand new action based on the amended Voting Rights Act. 

In Moch v. East Baton Roude Parish School Bd... 
548 F.2d 594 (5th Cir.), cert. denied, 434 U.S. 859 
(1977), we held that the doctrine of res judicata would 

not bar a second suit, virtually identical to one that 
had been dismissed earlier, when there had been a 
change in the interim in the opinions of this Court and 
the Supreme Court as to the proper constitutional 
standard to apply. The same principle applies to 
statutory changes, such as the amendment to section 2 
of the Voting Rights Act, for, as Judge Wisdom has 
written, "Faced with changing law, courts hearing 
questions of constitutional right cannot be limited by 
res judicata. If they were, the Constitution would be 

  

applied differently in different locations." Parnell 
Y. Rapides Parish School B4d,, 863 F.24 180, 185 (5th 
Cir. 1077), cert. denied. 438 1.8. 915 (1978). 

If the judgment of dismissal does not stand in the 
way of a new action, Rule 60(b)(5) does not apply by 
its terms. In addition, the issues can be clearly and 
directly presented in a new action, one that does not 
carry elther the freight of old issues or the welght of 
81x vears Of no longer relevant briefs and papers. 

Kirksey v.City of Jackson, 714 F.2d at 44. See also Lee County 

Branch of the NAACP v. City of Opelika, 748 F.2d 1473, 1480-81 

and 1n.10 ¥ 12 (11th Cir. 1984), giting Cross v. Raxtier, 460 

U.S. 10685 (1983), vacating, 683 F.24 279 (8th Cir. 1087). 

- 29 -— 

 



  

Reg Judicata only precludes relitigation where the 

cause of action is the same. When it is not the same, the rule 

has no application. 

If the second lawsuit involves a new claim or 
cause of action, the parties may raise assertions or 
defenses that were omitted from the first lawsuit even 
though they were equally relevant to the first cause of 
action. 

To the extent that a different claim or cause of 
action 1s involved, the parties are free to advance new 
matters without regard to the role that the new matters 
might have played had they been advanced in the first 
action. 

Wright, Miller and Cooper, Federal Practice and Procedure at 4407 

(empahsis added). 

Although Pickens County does not raise the issue, we 

will address the question of whether Plaintiffs’ contention of 

fact in the instant action, that there is a racially motivated 

legislative pattern and practice involving at-large county 

commission elections in Alabama, is barred by the principle of 

collateral estoppel, at least with respect to Pickens County, in 

light of Corder v. Kirksey. 

The doctine of collateral estoppel is a related but 

much narrower application of the general principles of reg 

Judicata. Collateral estoppel precludes relitigation "only of 

those issues actually litigated in the original action, 

regardless of whether the second suit is based on the same cause 

 



  

Of action.” Johnson v. United States, 576 F.2d 608, 8l1 (5th 

Cir. 1978). Hornbook law names three preconditions to the 

application of collateral estoppel: (1) the issue to be concluded 

must be identical to that involved in a prior action; (2) it must 

actually have been litigated; and (3) it must have been necessary 

and essential to the resulting judgment. This circuit adds three 

more. The court must be satisfied that “the parties against whom 

estoppel is urged had a full and falr opportunity to litigate the 

issues in the prior proceeding [and] that application of the 

doctrine under the circumstances, will not result in injustice to 

the party ... [and] the application of ... collateral estoppel 

does not contravene any overriding public policy." Johnson Vv. 

United States, 576 F.2d at 614-15. 

Applying these principles to the case at bar 

  

demonstrates that collateral estoppel does not apply. The 

precise issues determined in Corder v. Kirksey were: (1) that 

there was no Zimmer evidence of intentional discrimination behind 

the Pickens County at-large election system, and (2) no evidence 

whatsoever was presented regarding racial motives behind the 

general law governing county commission elections, now codified 

at Ala. Code, section 11-3-1 (Supp. 1985). The statewide proof of 

legislative intent plaintiffs intend to adduce was not presented 

at all in Corder v. Kirksey, it was not actually litigated, and 

it would not have been necessary and essential to the resulting 

-_ 21 - 

 



  

judgment in Corder. Moreover, where the plaintiffs in Corder v. 

Kirksey made no attempts whatsoever to present historical proof, 

it would result in clear injustice to the present plaintiffs and 

class to apply collateral estoppel in a way that would squarely 

contravene the overriding public policy of the amended Voting 

Rights Act. 

A recent case in point is Judge Clemon’'s December 7, 

  

1985, Memorandum Opinion and Judgment in United States v. 

Alabama, No. 83-C-1676-S (N.D.Ala. Dec. 7, 1985), where he 

rejected claims by the State of Alabama, Auburn and other 

defendants that the Knight intervenors’ attempts to raise the 

issue of racial intent behind the decision to establish an Auburn 

branch in Montgomery was barred under principles of res judicata, 

and collateral estoppel by the prior judgment in ASTA v. Alabang 

College and Public School Authority, 289 F.Supp 784 (M.D.Ala. 

1968) (3-Jjudge court). U.S. v. Alabama, Order of December 7, 

1085 at 44-45, 91-97. 

CONCLUSION 

For all the aforegoing reasons, the various motions to 

dismiss and for change of venue should be denied, and a speedy 

hearing should be set to receive evidence on Plaintiffs’ motion 

for a class certification and for a preliminary injunction. 

Respectfully submitted this /) day of February, 1986. 

ww 30 

 



BLACKSHER, MENEFEE & STEIN, P.A. 
405 Van Antwerp Building 
P. O. Box 1081 
Mobile, Alabama 36633 

  

A 
I 

BY: / Wt 7 Ye . {” ry Vid VES 

“JAMES U. BLAQKSHER 
LARRY T. MENEFEE 

WANDA J. COCHRAN 

  

TERRY DAVIS 
SEAY AND DAVIS 
732 Carter Hill Road 
P. O. Box 6215 
Montgomery, Alabama 36104 

JULIUS L. CHAMBERS 
DEBORAH FINS 
Legal Defense Fund 
99 Hudson Street 

18th Floor 

New York, New York 10013 

¥. EDWARD STILL 
Reeves and Still 

714 South 29th Street 
Birmingham, AL 35233 

REO KIRKLAND, JR. 
Attorney at Law 
P. O. Box 648 

Brewton, AL 36427 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 

I do hereby certify that on this [) day of February, 

1986, a copy of the foregoing pleading was served upon counsel of 

record: 

wl BE, 

 



Alton L. Turner, Esq. 
404 Glenwood Avenue 
P. O. Box 207 
Luverne, AL 360490 Attorney for Defendants Crenshaw County, et al. 
(205) 335-3302 

Jack Floyd, Esq. 
Floyd, Keener & Cusimano 
816 Chestnut Street 
Gadsden, AL 35999 Attorney for Defendants Etowah County, et al. 
(205) 547-6328 

D. L. Martin, Esq. 
215 South Main Street 

Moulton, AL 38850 

David R. Boyd, Esq. 
Balch and Bingham 
P. O. Box 78 
Montgomery, AL 36101 Attorneys for Defendants Lawrence County, 
(205) 834-6500 Larry Smith and Dan Ligon 

AND 

James G. Speake, Esq. 
SPEAKE, SPEAKE & REICH 
10] Bpring Street, N.V. 
2. 0.Box 8B Attorney for Probate Judge, Richard I. Procto 
Moulton, AL 385650 Probate Judge of Lawrence County 

WV. 0. Bix, J2., Esq. 
CURRY & KIRK 
P. O. Box A-B 
Carrollton, AL 35447 Attorney for Defendants Pickens County, 
(205) 367-8125 et al. 

Warren Rowe, Esq. 
ROWE, ROWE & SAWYER 
P. 0. Box 180 
Enterprise, AL 36331 Attorney for Defendants Coffee County, et al.; 
(205) 347-3401 

James W. Webb, Esq. 
WEBB, CRUMPTON, MCGREGOR, SCHMAELING 

& WILSON 
166 Commerce Street  



  

P. 0. Box 238 

Montgomery, AL 36101 
(205) 834-3176 

Lee Otts, Esq. 
OTTS & MOORE 

P. O. Box 467 

Brewton, AL 36427 

(205) 867-7724 Attorneys for Defendants Escambia County, et al. 

Barry D. Vaughn, Esq. 
PROCTOR & VAUGHN 
121 North Norton Avenue 
Sylacauga, AL 35150 Attorney for Defendants Talladega County, et al. 

H. R. Burnum, Esq. 
P. 0. Box 1818 
Anniston, AL 36202 Attorney for Defendants Calhoun County, et al. 

by depositing same in the United States mail, postage prepaid. 

A 

{ 
xf 

{ 
3 - 

f J 

  

ATTORNEY FOR PLAINTIFFS 

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT 

OF ALABAMA, WESTERN DIVISION 

JAMES H. CORDER, eft al., ) 

) 
Plaintiffs ) 

) 
- - ) CIVIL ACTION NO. 73-M-1086 

) FILED IN CLERK'S OFFICE 

) 
Defendants ) MAR 1 2 1976 

JAMES E. VANDEGRIFT, CLERK 
ORDER UNITED STATES DISTRICT COURT 

BYi 

This cause came before the Court on the motion of 

defendants Robert H. Kirksey, individually and as Probate 

Judge of Pickens County: H. Hope Wheat, individually and as 

Circuit Clerk and Register of Pickens County; Louie C. Coleman; 

individually and as Sheriff of Pickens County; and W. W. Curry, 

Jr., Travis Fair, Groce Pratt and Richard Walters, individually 

and as the County Commissioners of Pickens County, for the 

Court to enter an order approving the plan of apportionment of 

the Commissioners’ Districts of Pickens County as set forth 3 
agra 

in Act No. 594, House Bill No. 1566, passed by the 1975 Regu- 

lar Session of the Alabama Legislature and approved by the 

Governor of Alabama on October 1, 1975. This cause is before 

the Court also on plaintiffs' motion for injunctive relief. 

Plaintiffs have no objection to the County Commis- 

sioners' Districts as drawn by Act No. 594 but in their motion 

for injunctive relief have moved the Court to alter the 

method by which the individual commissioners are elected. 

The Court has considered the motions, the plan of 

apportionment set forth in Act No. 594, the pleadings and 

other papers on file in this case, the briefs and argument of 

counsel, the applicable law and the evidence received in open 

 



  

court. The Court is of the opinion that the plan of apportion- 

ment of the Commissioners' Districts of Pickens County set forth 

in Act No. 594 is constitutional and should be approved. The 

Court is further of the opinion that the request for relief 

as to the County Commission made by plaintiffs in their motion 

for injunctive relief should be denied. 

Accordingly, it is ORDERED, ADJUDGED and DECREED that 

the plan of apportionment of the Commissioners' Districts of 

Pickens County as set forth in Act No. 594 of the 1975 Regular 

Session of the Alabama Legislature is constitutional and hereby 

approved. 

It is ORDERED further that the request for relief as 

to the County Commission made by plaintiffs in their motion 

for injunctive relief is hereby denied. 

Done this |¥ “day of March, 1976. 

  

 



  

IN THE UNITED STATES DISTRICT COURT POR THE NORTHEER 

OF ALABAMA, WESTERN DIVISION 

  

~
—
 

JAMES H. CORDER and 

HARRY WESTERN, 

Plaintiffs 

N
t
 

a
t
 

SN
 

CIVIL ACTION NO. 73-M-1086 

S CFFICE 
   

>T OF ALABAMA 
ROBERT H. KIRKSEY, et 0 . -~ 

—
 

Na
 

A
r
 

3 

hb) 

A 
i i 

Defendants 
11 8 1978 

- ORDER 
ORDER 

STANCES nigT gu ZEJAES DISTRICT COURT J 
7 ut ] Salarrr atl’ 

tL or’? A trop 
> 

This cause is before the Court on motion 

  

for entry of a final judgment with respect to their claims 

against the Pickens County Commission and Pickens County 

Board of Education. Having considered the motion, the Court 

has determined that there is no just reason for delay in the 

entry of a final order and judgment in accordance with Rule 54 (b) 

of the Federal Rules of Civil Procedure pursuant to the determin- 

ations made herein and in the Court's orders of March 12, 197s 

and March 17, 1976, and that the motion is due to be granted. 

Accordingly, it is finally ORDERED, ADJUDGED and 

DECREED: 

the Pickens County 

  

i ra That henceforth one me 

Board of Education shall reside in and be nominated and elected 

from each of the Pickens County Commissioners' Districts and 

= XT
 one member shall be nominated and elected at-larg=, witho 

regard to the place of residence within Pickens County, accord- 

ing to the following schedule: 

Member at Large: 19380, 

District 1: 1976, 

Bistrict 2: 1878, 

District 3: oso, 

District 4: 1976 

2. That in all other respects the plaintiffs’ request 

for rel f as to the Board of Education is hereby denled, except 

 



  

that plaintiffs' request for an award of attorneys’ 

reserved for later decision. 

3. That the plan of apportionment of the Commis- 

sioners' Districts of Pickens County as set fort 

594 of the 1975 Regular Session of the Alabama Legislature is 

constitutional and hereby approved 

It 1s further ORDERED that plaintiffs' request 

for relief as to the County Commission is hereby denied, except 

that plaintiffs' request for an award o f attorneys' fees is 

reserved for later decision. 

Ser lel 
Done this [ day of August, 1975. 

mnt AML sta... 
  

Chief Judge 

 



IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA 

WESTERN DIVISION 

JAMES H. CORDER and 
HARRY W. WESTERN, on behalf 
of themselves and all 
others similar situated 

Plaintiffs 

3-M-1086 

FILED IN 010g mee ROBERT H. KIRKSEY, Ind. NORTHERN DISTRLT 27 1 ABAMA and as Probate Judge of 
Pickens County, et al. 

No
t 

N
t
 

Na
tt
 

Na
at
 

No
tt
 

tt
? 

ou
ta
 

No
ss
 

No
tt
 
No
t 

So
ph
’ 

Soi
ant

t 
ms
t 

ou
n 

Defendants 

MEMORANDUM OPINION 
  

By order dated November 16,1978, the Co = of Appeals 

remanded this matter for further findings. memorandum 

opinion is issued in lieu of findings pursuant to 

Civ. P. 

This case challenged the apportionment scheme of the 

Pickens County, Alabama County Commission, Board of Education and 

Democratic Executive Committee. The thrust of the complaint was 

directed toward the disparity in population of the election 

districts and a contention that election in multi-memober 

districts diluted the voting strength of blacks. 

The court, by order dated January 23, 1975, 

unconstitutional the then existing legislative act, Act i147, 

Regular Session, settinc Up the election districts for 

Pickens County Commission caus it violated 

one-man, one-vote. The court als invalidated eg election 

scheme for the Board of Education and that of the County Demo- 

Cratic Executive Committee. 

Committee to reapportion itself and held t €¢ case 1n abeyance in 

order to give the legislative 3) & pportunity tc correct  



  

2 » 
outstanding apportionment problems in Pickens County with respect 
to the County Commission and the Board of Education without 
further judicial intervention. The court was of the opinion that 
it should give the Legislature an opportunity to correct the 
imbalance with respect to the two legislatively created boards. 

[R]eapportionment is Primarily a matter for legislative consideration and determination, and . . . judicial relief becomes appropriate only when a legislature fails to reap- portion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so. 

Boynolds v. Sims, 377 U.S. 533, 586, 84 8. Ct. 1362, 1394 (1964). 
See also Burns wv. Richardson, 384 vu.s. 73, 83, 86 8. ct. 128s, 
1292 (1966). 

COUNTY COMMISSION 

By order dated March 12, 1976, the court approved the 
Plan of apportionment of the Commissioner's districts of Pickens 
County as set forth in Act No. 5%4, H.B. 1566, passed by the 1975 
Regular Session of the Alabama Legislature and approved by the 
Governor of Alabama on October 1, 1975. This plan provided for 
four Commissioner districts of substantially equal population. 
Candidates are nominated from each district but are elected in 
the general election on an at-large basis. The fifth member of 
the commission is the probate judge. 

Plaintiffs' present objection to the Commissioners! 
Plan is to the at-large general election, which they claim 
dilutes the voting strength of the blacks. 

At-large election Procedures are not per se unconstitu-— 
tional. Whitcomb v. Charis, 403 U.S. 124, 142, 91 8. Ct. 1858, 
1868 (1871); Nevett v. Sides, 571 F.2d 208, 222 {Sth Cir. 1978); 
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973). 

 



  

Ei
} 

(T
S 

In order to carry their burden of showing a dilution of 

voting strength, plaintiffs must show either a racially motivated 

Plan, or that the apportionment scheme would operate to minimize 

or cancel out the voting strength of the black voters. Zimmer v. 

McKeithen, supra. 

According to 1970 Census figures, Pickens County had a 

population of 20,326. There were 11,854 whites (58%) and 8,466 

(42%) blacks. The over eighteen group was 65% white and 35% 

black. According to 1974 registration figures, there were 11,699 

registered voters in the county, 30% black and 70% white. There 

is no evidence before the court with respect to a population 

breakdown; that is, there is no evidence about the distribution 

of the black population from which an inference could be drawn 

with respect to the voting strength. 

court is of the opinion the plaintiffs have totally failed to 

carry the necessary burden of proof with respect to the county 

commission. The court is mindful of the admonition Of the Court 

of Appeals on remand, but there is no evidence before the court 

on which to draw inferences that the election scheme dilutes the 

voting strength of blacks or that the scheme was designed to 

discriminate against blacks. 

There are no black elected County Commissioners in 

Pickens County. However, as the court noted in Zimmer, a 

disparity between the number of minority residents and the number 

of minority representatives is insufficient in and of itself to 

establish unconstitutionality of the statute. 

The general law of Alabama provides for the at-large 

elections in county commission elections, but this has been modi- 

fied in many instances by local acts. There is no evidence that 

this policy is in any way. connected with racial discrimination; 

plaintiffs simply put no evidence on with respect to this issue. 

 



  

There was no evidence of racial polarization in Pickens 

County. There was evidence of voter crossover, whites voting for 

blacks and blacks voting for whites. Plaintiff Corder testified 

that there were no problems in registering blacks to vote and 

that the Board of Registrars fully cooperated in registering 

blacks. There was further evidence that there was no trouble of 

a black getting on a ballot to run for public office. 1In short, 

there was no proof of any denial of political access in that 

CF
 county to the blacks; nor was there any evidence of discrimina- 

tion in the distribution of services to blacks. There was evi- 

dence of money spent on a countywide water system to provide 

service to all black communities, a new social service center, a 

new county hospital, in cooperative efforts with the Black 

Economic Development Council. There was evidence of black 

participation in all aspects of the political and community life 

of the county. 

The only evidence plaintiffs submitted on this issue 

was to the effect that some rural black churches did not get 

paved parking lots promised for political support and there were 

not enough blacks in managerial positions in the county. 

It does not appear to the court that the at-large 

general election feature contravened the Constitution and accord- 

ingly the court was loath to substitute its judgment for that of 

the Legislature, notwithstanding the Supreme Court's clearly 

stated preference for single-member districts when federal courts 

have to fashion a remedy. Had the court been fashioning a 

remedy, as in the case of the school board, I might well have 

opted for single-member districts as 1 did there; but, absent 

proof of impermissible discrimination in the scheme, the court 

did not deem it appropriate to substitute its judgment for that 

of the Legislature. 

 



  

d r J 

This court should not strike down laws merely because 

it believes them to be unwise. Ferguson Vv. .Skrupa, 372 U.8. 72s, 
  

729, 83 8. Ct. 1028, 1030 {1943}. niClourts do not substitute 

their social and economic [and political] beliefs for the judg- 

ment of legislative bodies, who are elected to pass laws." Ia. 

at 730, 83 S. Ct. at 1031. This court should invalidate laws only 

when they are constitutionally impermissible. 

In this connection, it should be noted that while the 

Po
ut
 evidence is somewhat sketchy, it appears that generally speaking 

the elections are determined in the nominating primaries. 

According to the evidence, only one Republican had been elected 

tO a county office in Pickens County. No candidate from the 

National Democratic Party of Alabama, the once predominantly 

black political party, has been elected. Nomination by the Demo- 

cratic Party is generally tantamont to election. As plaintiffs 

stated in a memorandum submitted to the court on August 30, 1974 

in support of a motion for partial summary judgment: "Since 

Pickens County, like most rural counties in Alabama, has one pre- 

dominant party, the results of the Democratic Primary are usually 

conclusive." 

BOARD OF EDUCATION 
  

The court declined to approve a reapportionment plan 

passed by the Alabama Legislature for the Board of Education 

because the Attorney General of the United States, pursuant to 

Section 5 of the Voting Rights Act of 1965, had objected to the 

plan of apportionment. The court accordingly fashioned a reap- 

portionment plan based on the four Commissioner's districts. The 

court's order required the election of one member from each 

 



  

“® “ 

district, and the fifth was to be nominated and elected by the 

county at-large. The plaintiffs sought five single-member 

districts. The Court of Appeals strongly suggests that the court 

should have used the Commissioner districts and caused the 

election of a four-man Board of Education. 

Although there is a preference for single-member 

districts, when a district court is called upon to fashion a plan 

of apportionment, this court found and finds again that there are 

special and unusual circumstances which justified the adoption of 

a modified single-member district plan. First, the short period 

of time remaining before the Primary Election was not sufficient 

for preparation of a plan dividing Pickens County into five 

districts of equal population. The deadline for qualifications 

was March 19, 1976. The election was to be held on May 4, 1976. 

The probate judge, who is responsible for the orderly operation 

of the election process, testified that at least 10 to 12 dif- 

ferent ballots would be required for the upcoming Democratic 

Primary as well as for the Republican Primary to be -handled 

concurrently. To create five districts in addition to the four 

Commissioner districts would result in even further complicating 

the already difficult process. 

Second, although there are four Commissioner districts 

which are constitutionally apportioned the court declined to 

order .the reduction of the Board of Education to four members. 

Neither party suggested this alternative and the court was and is 

of the opinion that it should not alter the composition of the 

Board created by the Legislature unless compelled to do so by 

overriding constitutional considerations. Under Alabama law, 

Title 52 § 63, Code of Alabama (now § 16-8-1, Code of 1975), a 

county board of education is to be composed of five members. 

While there is the suggestion of authority to make such altera- 

tions in a legislatively created body, this court is reluctant to 

 



  

do so absent compelling constitutional Ieasons. See Bolden v. 

City of Mobile, 571 F.2d 238, 246-247 {5th Cir, 1978), probable 

jurisdiction noted 47 u.S.L.W. 3221 (Oct. 3, 1978). Moreover, 

the exercise of such authority if it exists seems inappropriate 

in this case. In the court's opinion, the fifth member would be 

an indispensable person in the Board's operation of the system. 

Most, if not all, decision-making bodies composed of more than 

one individual have an odd-number of members. Even-numbered 

decision-making bodies create a distinct possibility of deadlock 

votes. The fifth position of the Pickens County Board of Educa- 

tion elected at-large is the chairman. The testimony from both 

sides is clear that Board members elected from a district tend to 

be more responsive and concerned, as they should be, with their 

respective school patrons. The chairman not only prevents dead- 

locks, but because elected at-large represents the entire county 

and has to be responsive to all the voters. The balancing effect 

of the fifth member thus is obvious to this court. 

“Phird, the Board of Education has indicated a 

preference for having one member primarily responsible for each 

of the four school attendance zones, and, while the zones are not 

congruent with the Commissioner's districts, there is a substan- 

tial overlap. These four attendance zones are the result of a 

terminal desegregation order issued in the case of Lee v. Macon 
County, C.A. 604-E (M.D. Ala., June 12, 1970). These zones are 

centered around the four cities of Pickens County (Aliceville, 

Carrollton, Gordo and Reform). The only four high schools and 

related feeder schools are located in these sane cities and 
3 zones. The election scheme of Board members has followed the 

HH
 

or
 

high school attendance zones since at least 1949. RT 

single-member district would Create a situation where one of the 

five districts has either no schools in it or parts of two or more 

such attendance zones. The imbalance of such a scheme is 

inherent. 

Lor ond ——ien 

Chief Judge 

  

February ny 197% 

 



® recog SEF 2 5 198) ® 

  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ALABAMA 

WESTERN DIVISION 

FILED JAMES H. CORDER and x fs E35 
HARRY W. WESTERN, on behalf 

of themselves and all 
others similarly situated 

UNITED STATES DISTRICT CQURT 
NORTHERN DISTRICT OF ALABAMA 
JAMES E. VANDEGRIFT. CLERK 

C.A. 73-M-1086 / 

Piaintiffs 

-— yy - 

/ 

J 
ENTERED 
SEP 24 1980 

ROBERT H. KIRKSEY, ind. 

and as Probate Judge of 
Pickens County, et al. 

Defendants —
 

rt
 

Sr
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ne
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Ne
 

er
 

a
 

Na
 

S
e
 

N
f
 

ee
’ 

S
t
 

e
t
 

ORDER 

This case has again been remanded by the Fifth Circuit 

"to enable the district court to reexamine the evidence and its 

findings in the light of City of Mobile, Ala. v. Bolden, 

ji U.S. 5 100:8.CL. 1490, 64 -L.E4.28 47 (1980)), and fo 

entertain any application plaintiffs may care to make to present 

further evidence on their claim that the at-large method of 

electing the county commissioners is unconstitutional." 

Plaintiffs have declined the court's invitation to 

present further evidence. 

Plaintiffs' attack on the present voting scheme was on 

the at-large election of members of the county commission 

nominated from discrete equally apportioned districts on the 

ground that this diluted the voting strength of blacks in contra- 

vention of the fourteenth and fifteenth amendments to the United 

States Constitution. The court held in its last opinion that 

this had not been proved. There the court said: there is 

no evidence before the court on which to draw inferences that the 

scheme was designed to discriminate against blacks." (Emphasis 

 



: § ® 

  

2 

supplied.) The court is still of this opinion. Dilution is not 

now a test under City of Mobile, supra. The Supreme Court held 

that racially discriminatory motivation is necessary to sustain a 

claim under either the fourteenth or fifteenth amendments. 

The Court's early decisions under the Fifteenth 
Amendment established that it imposes but one limita- 
tion on the powers of the States. It forbids them to 
discriminate against Negroes in matters having to do 
with voting. See Ex parte Yarbrough, 110 U. S. 65], 
665; Neal v. Delaware, 103 U0. S. 370, 389-390; United 
States Vv. Cruikshank, 92 U. S. 542, 555-556; Onited 
States Vv. Reese, 92 U. S. 214. The Amendment's command 
and effect are wholly negative. "The Fifteenth Amend- 
ment does not confer the right of suffrage upon any 
one," but has "invested the citizens of the United 
States with a new constitutional right which is within 
the protecting power of Congress. that ‘right Is 
exemption from discrimination in the exercise of the 
elective franchise on account of race, color, or 
pevious condition of servitude." 1Id., at 217-218. 

  
  

Our decisions, moreover, have made clear that 

action by a State that is racially neutral on its face 
violates the Fifteenth Amendment only if motivated by a 
discriminatory purpose. . . . 

100 S.Ct. 1497. 

The test is substantially the same with respect to the 

fourteenth amendment equal protection claim. 

Despite repeated constitutional attacks upon 
multimember legislative districts, the" Court has 

consistently held that they are not unconstitutional 
per se, e. §., White v, Regester, 412 U. 8. 1755; 

WRTLcomb V. Chavis, 403 0. 5. 174; Rilgarin v. Hill, 
38 U0. 5.120: Blirns Vv. Richardson, S32 OJ. 8. 743; 

  
  

  
however, that such legislative apportionments could 
violate the Fourteenth Amendment if their purpose were 

invidiously to minimize or cancel out the voting 

potential of racial or ethnic minorities. See White v. 
Regester, supra; Whitcomb v. Chavis, supra; Burns v. 
Richardson; supra; Fortson v. Dorsey, supra. To prove 
such a purpose it is not enough to show that the group 

allegedly discriminated against has not elected repre- 
sentatives in proportion to its numbers. White wv. 

  
  

  
at 149-150. A plaintiff must prove that the disputed 
plan was "conceived or operated as [a] purposeful 
devicel] to further racial discrimination,” id., at 

149. or 

 



This burden of proof is simply one aspect of the 
basic principle that only if there is purposeful 
discrimination can there be a violation of the Equal 
Protection Clause of the Fourteenth Amendment. 

100 5.Ct. 

As the court originally found and here reiterates, 

there is no evidence that the election scheme was designed to 

discriminate against blacks. 

Accordingly, the court is still of the opinion that the 

challenge on the County Commission as it is presently constituted 

has not been sustained. 

le, Lea. 1980. Done this nd day of