Brief for Plaintiffs-Appellees John Dillard

    IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NO. 86-7799 

JOHN DILLARD, ET AL., 

Plaintiffs-Appellees, 

Y. 

CRENSHAW COUNTY, ALABAMA, ET AL., 

Defendants-Appellants. 

  

Appe al from the United States District Court 

For the Middle Digtrict of Alabama 
  

Lani Guinier 

Terry G. Davi 
SEAY & DAVIS 
732 Carter Hi 
P.O. Box 8125 

Pamela Karlan 

Julius Chambers 

NAACP LEGAL DEFENSE FUND 

714 South 29th Street 

P.O. Box 2810 

Birmingham, AL 35233 P.O. Box 1051 

BRIEF FOR PLAINTIFFS-APPELLEES 
JOHN DILLARD, ET AL. 
  

Larry T. Menefee 

99 Hudson Street, 16th Floor Birmingham, AL 35203 
New York, NY 10013 (205) 322-7300 

W. Edward Still James U. Blacksher 

Mobile, AL 36633 

S Reo Kirkland, Jr. 

307 Evergreen Avenue 
11 Road P.O. Box 646 

Brewton, AL 36427 

Montgomery, AL 36106 

ATTORNEYS FOR PLAINTIFFS-APPELLEES JOHN DILLARD, ET AL. 

NON-PREFERENCE 

  

BLACKSHER, MENEFEE & STEIN, P.A. 
Fifth Floor Title Building 
300 Twenty-First Street, North 

BLACKSHER, MENEFEE & STEIN, 
405 Van Antwerp Building



    
IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NO. 86-7799 

JOHN DILLARD, ET AL., 

Plaintiffs-Appellees, 

Vv. 

CRENSHAW COUNTY, ALABAMA, ET AL., 

Defendants-Appellants. 

  

Appeal from the United States District Court 
For the Middle District of Alabama 

BRIEF FOR PLAINTIFFS-APPELLEES 

JOHN DILLARD, ET AL. 

Lani Guinier Larry T. Menefee 
Pamela Karlan BLACKSHER, MENEFEE & STEIN, P.A. 
Julius Chambers Fifth Floor Title Building 
NAACP LEGAL DEFENSE FUND 300 Twenty-First Street, North 
99 Hudson Street, 16th Floor Birmingham, AL 35203 
New York, NY 10013 (205) 322-7300 

¥. Edward Still James U. Blacksher 
714 South 29th Street BLACKSHER, MENEFEE & STEIN, P.A. 
P.O. Box 2810 405 Van Antwerp Building 
Birmingham, AL 835233 P.O. Box 1051 

Mobile, AL 36633 

Terry G. Davis Reo Kirkland, Jr. 
SEAY & DAVIS 307 Evergreen Avenue 
732 Carter Hill Road P.O. Box 646 
P.O. Box 6125 Brewton, AL 36427 
Montgomery, AL 36106 

ATTORNEYS FOR PLAINTIFFS-APPELLEES JOHN DILLARD, ET AL. 

NON-PREFERENCE 

 



    

STATEMENT REGARDING PREFERENCE 

This case 1s not entitled to a preference. 

STATEMENT REGARDING ORAL ARGUMENT 

Solely because of the somewhat complicated procedural 

history of this case, Plaintiffs-Appellees believe oral argument 

would be of assistance to the court. 

iii 

 



   

a 

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CERTIFICATE OF INTERESTED PARTIES 

Pursuant to Rule 22(f)(3), the undersigned counsel of 

record for appellees certifies that the following listed parties 

have an interest in the outcome of this case. These 

representations are made in order that the Judges of this Court 

nay evaluate possible disqualification or recusal pursuant to 

Rule 22(f£)(3). 

Defendants: Calhoun County, Alabama; Arthur Murray, 

Probate Judge; Roy Snead, Sheriff; Forrest Dobbins, Circuit 

Clerk; Gerald Wilkerson and Clarence Page, past members of the 

County Commission; Charles Fuller, James Dunn, Mike Rogers, 

Donald Curry, Ralph Johnson, members of the County Commission of 

Calhoun County; Leon Bradley, Chairman-Elect of the County 

Commission. 

Herbert D. Jones, Jr. and H. R. Burnham, Attorneys for 

Calhoun County, Alabama, et al., members of the firm of Burnham, 

Klinefelter, Halsey, Jones & Cater, P.C., of Anniston, Alabama. 

Plaintiffs: Earwen Ferrell, Ralph Bradford and Clarence 

J. Jairrels, individually and as representatives of a plaintiff 

class of all black citizens of Calhoun County, Alabama. 

Counsel for the Plaintiffs-Appellees: Larry T. Menefee, 

James U. Blacksher of Blacksher, Menefee & Stein, P.A.; Edward 

Still, Birmingham, Alabama; Terry Davis, Seay & Davis, 

Montgomery, Alabama; Reo Kirkland, Brewton, Alabama; Julius 

Lavonne Chambers, Lani Guinier and Pamela Karlan of the NAACP 

 



    

Legal Defense and Educational Fund, New York City. 

Trial Judge in this case was the Honorable Myron C. 

Thompson of the United States District Court for the Middle 

District of Alabama. 

BLACKSHER, MENEFEE & STEIN, P.A. 
Fifth Floor Title Building 
300 Twenty-First Street North 
Birmingham, AL 35203 

    BY: 

. BLACKSHER 
Y T. MENEFEE 

  

   
ATTORNEYS FOR PLAINTIFFS-APPELLEES 
JOHN DILLARD, ET AL. 

il 

 



    

A. 

B. 

C. 

TABLE OF CONTENTS 

Course of Proceedings and Dispositions in 
the Court BelOW. «vuoi vvoinnsvnnsvnnsnceesvninss vie 

Statement of the Standard or Scope of Review..... 

SUMMARY OF THE ARGUMENT. «oc civ cnt rvnssnnvnnvnsnrsinsssenens 

STATEMENT OF JURISDICTION. .. ctv civvnssnsvnnsnnssonsnssense 

ARGUMENT 

I. 

® 4 8 8 © 0 0 O° O° 0 0 0 OO OO 0 OO OO OO OO OO © OO OO O° O OO 0 © OO 6 © O° © © © © 0 © © © © 0 0° 

THE DISTRICT COURT PROPERLY REJECTED THE AT-LARGE 
CHAIR POSITION PROPOSED BY CALHOUN COUNTY ....... 

A. The Proper Standard of Revievw........ceeee.. 

B. The District Court Followed the Correct 
Procedure for Developing a Court-Ordered 
Redistricting Plan. ... cove civiiciinesnnnns 

C. The Proposed At-Large Chair Position Was 
Actually Inconsistent with State Policy, 
and the District Court Did Not Abuse Its 
Equitable Powers By Rejecting It. .......... 

iv 

PAGE[S] 

12-15 

15 

15-35 

15-29 

17-19 

19-20 

21-25 

 



    
TABLE OF CONTENTS 

PAGE(S) 

The District Court Correctly Held That the 
County's Proposal Failed to Remedy Fully the 
Violation of Section RB... ..ccvuvseivssvnnss 25-28 

The District Court Correctly Found From the 
Totallty of Evidence That Calhoun County's 
Proposed At-large Chair Would Itself Violate 
Section 2's Results Tesh. ...... cove eennnns 28-29 

THIS COURT SHOULD REJECT THE PER SE NUMERICAL RULE 
PROPOSED BY THE DEPARTMENT OF JUSTICE........... 29-35 

ET SRE CE RR AR AE 35-36 

CER IP ICATE OF BERRY ICE. os noe tvetnnnnnnninssrernvinneiinsis ves oT 

v 

 



  

i 

  

TABLE OF AUTHORITIES 

PAGE(S) 

CASES: 

CL SETS Een. Ce ea TC 20 

, Nos. 85-7634 and 86-7703 
(11th Cir., Jan. 27, 1987) (unpublished)........... 24-25 

gota QIOTRY. hl Sian Pie 20, 21 

640 F.Supp. 1347 (M.D. Ala. 1986). ....veeeneunnnn.. 4 

649 F.Supp. 289 (M.D. Ala. 1986) .....cuveeneunnnn.. passim 

775 F.2d 1500 (11th CLT. 1985)... .cveeeennuneenn.. 20, 28 

EPL 0.5. TOR CAOVE). os oes ries aati 17 

iO CC 17 

BOE UB. BED COBY. ..i cviivrvinssanssnvaaidnsea 30 

BOL U-8, 280 C1968). +» ivr ea 16 

iad 15 

ns TVD re TT MRE ORL IS EC le 19 

B58 F.00 1108 (Bbh Clr. 206)... vis anauisnssre 20 

vi 

 



  

| 

i 

  

TABLE OF AUTHORITIES 

CASES: 

288 VU. 8, 818 C1082)... i, ne 

BY7 YB, 698 (1004). i... i. a 

402 U.B8. 1 CA0V1). ve. esnvineesivhuscr ves és 

478 U.S. . 92 L.Ed.2d 25, 108 S.Ct. 2752 
CL DB Ye this tect ole ss oe tiene downs Cries nine sin irae 

107 8.0, 1058 CI087). «cvs sono ad 

456 U.S. 37 dpi hod LEE BWSR Ea a nl 

21% U.8. 785. A078)... itis a 

806 F.2d 655 (5th C17. 1088)... ov. vossonnnina, 

STATUTES AND RULES: 

B80 U.B8.0. 880. ABD... vsonvvnnsinsninsenronsisninisnsn 

Section 2 of the Voting Rights Act of 1965, 
as amended, 42 U.8.C. section 1973........cvv vue. 

Section 5 of the Voting Rights Act of 1965, 
42 U.5.0. SECLiOon 19730... cv vvsssetrnsnnseniion 

Ala. Code Seo. 11-83-11 (1098)... . converses vnvrvrnnene 

Ala. Code sec. 11-88-20 (Supp. 10868). ..0cuvvnercvessn 

No. 420, 1939 Local Acts of Alabama, Reg. Sess...... 

vii 

PAGE(S) 

 



    
TABLE OF AUTHORITIES 

PAGE(S) 

STATUTES AND RULES: 

Rule B88, PB. CP oe rscesrcrrsrtsrsstersssssnvinemesnonnsens 11 

Rule 658, BP. R.C. BP, vinnie en cesvcssvsmasssstanstonnin 4 

OTHER AUTHORITIES: 
H.R. BEeP.NO. O7=08% COBB), ov evv vids vs tnensniosomdnenvess 286-27 

B.REP. NO. 07210 (1080). evi sevtrrnssvansesnsnssmeinnssion 18, 18, 20, 
26, 28-33 

Carney, J., Nation of Change: The American 
Democratic SYSLEOm (1078). coves csr rstsnnrreisnesnnnsnen 22 

Cummings, Jr., M., and Wise, D., Democracy Under 
non il To 2 0 THEOL SEE EO RES RE SN 22 

Dye, T., Greene, L., Parthemos, G., Governing 
ihe American Democracy (1080)... eer vesvassvsivansiones 22 

Watson, R., and Fitzgerald, M., Promise and 
Performance of American Government (3d ed. 1978)....... 22 

U.S. Commission on Civil Rights, The Voting Rights 
Act: Ten Years After (1078)... . oo rie venmsssnnshnes sions 26 

NOTE TO CITATIONS 

Brief of the Appellants Calhoun County, et al. App .Br. a 

Brief of United States As Amicus Curiae 0.8. Br. pvp. ... 

Brief of United States in United States v. U.S. Marengo 

Marengo County Commission , No. 86-7703, Br. p. 
Court of Appeals for the Eleventh Circuit 

viii 

 



    

i 

STATEMENT OF THE ISSUES 

1. Whether the district court abused its equitable 

discretion by rejecting for inclusion in its court-ordered plan 

to remedy an existing Section 2 violation Calhoun County's 

proposal for an at-large elected chairperson. 

2. Whether the district court made clearly erroneous 

findings of fact when it determined, based on the totality of 

circumstances in Calhoun County, that the proposed at-large chair 

position would result in dilution of black voting strength, in 

violation of Section 2 of the Voting Rights Act? 

 



  

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A. Course of Proceedings and Dispositions in the Court Below 

Appellees adopt the statement of the Course of 

Proceedings Below as contained in Appellant's Brief, pp. 2-5. 

Appellees, however, add the following portion of the 

Stipulation entered into by the parties: 

STIPULATION 

The parties Plaintiff and Defendant in Calhoun, Etowah, 

Talladega and Lawrence Counties stipulate as follows: 

1. The Defendants stipulate that the present 
over-all form of county government, which includes 
election of associate commissioners and a commission 
chairman at-large, currently results in dilution of 
black voting strength in violation of Section 2 of the 
Voting Rights Act of 1965, as amended, 42 U.S.C. 
section 1973. Defendants further stipulate that a 
different form of government must be instituted to 
redress this violation. Defendants do not admit or 
stipulate, however, that the at-large election of a 
county commission chairman, in and of itself, 
necessarily is violative of Section 2 or any other 
law. 

2. The Defendants reserve the right to demonstrate 
that the present Section 2 violation can adequately be 
remedied and black citizens afforded full and equal 
access to the political process by remedial election 
plans that may contain a chair, administrator or county 
executive elected at-large by voters of the entire 
county. 

Any such remedial plan presented by the Defendants 
shall be considered and evaluated by the Court without 
any presumption against the inclusion of a chairman 

 



    

three-member county commission elected at large. 

elected at-large simply because the present systems, 
stipulated herein to be violative of the Voting Rights 
Act, contain a chairman elected at-large. In other 
words, the fact that the present form of government has 
as one component a chairman elected at-large shall not, 
in and of ifself, constitute a basis for rejecting or 
accepting a proposed remedial plan which includes a 
chairman elected at-large. 

Nothing in this paragraph or stipulation shall be 
construed to change the allocation of the burden of 
proof at the remedy stage of this litigation under 
applicable law or procedure, and nothing in this 
paragraph or stipulation shall be understood to allow 
or require the Court, at the remedy stage, to deviate 
from applicable law or procedure regarding deference, 
if any, which must be given a remedial plan submitted 
by the Defendants. 

3. It is understood that the Plaintiffs reserve 
the right, and intend, to present evidence of the 
dilutive effect of at-large voting with respect to all 
positions, including associate commissioner positions 
as well as the chairman position, when challenging any 
remedial plan submitted by the Defendants which 
includes as a component a chairman elected by the 
voters of the county at-large. 

BR. 8-201-1-2, 

B. Statement of the Facts 

Calhoun County has, since 1939, been governed by a 

420 of the 1939 Regular Session of the Alabama Legislature 

divided Calhoun County into two residency districts, provided for 

the election of all three commissioners at large, and provided 

that the commission member without any residency requirement 

should be denominated the "chairman". The salary of the chairman 

was twice that of the other two commissioners. There was no 

  

Local Act No.



  

| 

  

further distinction whatsoever made between the duties and 

responsibilities of the three members of the commission. The Act 

provided that: 

There is hereby conferred upon said County Commission 
all the jurisdiction and powers which are how [sic] or 
nay hereafter be vested by law in courts of County 
Commissioners, Boards of Revenue, or other like 
governing bodies of the several counties of this state. 

1 
No. 420, section 2, 1939 Local Acts of Alabama, Regular Session. 

2 
In its opinion on plaintiffs’ Motion for Preliminary Injunction, 

the district court found that the State of Alabama had maintained 

a policy of systematically discriminating against black citizens 

and their right to vote by the utilization of at-large elections 

with numbered posts. 640 F. Supp. at 1360-61. The court also 

found that the results of this invidious discrimination are 

manifest today in the racially polarized voting and lack of 

success of candidates supported by the black communities. Id. 

Pursuant to the provisions of Rule 65 Fed.R.Civ.P., the district 

court in its opinion of October 21 relied upon evidence submitted 
3 

at the hearing on preliminary injunction. It found that 

1 
A copy of the Act is attached as an appendix to this 

brief. 
2 

, 640 F.Supp. 1347 (M.D. Ala. 
1986) (Dillard I). 

3 
, 649 F. Supp. 289, 294 (M.D. 

Ala. 1986) (Dillard II). 

 



    
historic discrimination in all areas of the economic and social 

life of 

Alabama blacks, including ... education, employment and 
health services . . . has resulted in a lower 
soclo-economic status for Alabama blacks as a group 
than for whites, and this lower status has not only 
given rise to special group interests for blacks, it 
has depressed the level of black participation and 
thereby hindered the ability of blacks to participate 
effectively in the political process and to elect 
representatives of their choice to the associate and 
chairperson positions on county commissions in Calhoun, 
Lawrence, and Pickens Counties. 

649 F. Supp. at 295. 

The parties stipulated that the 

present over-all form of county government, which 
includes election of associate commissioners and the 
commission chairman at large, currently results in 
dilution of black voting strength in violation of 
Section 2. 

R. 6-201-1, et seq. Calhoun County reserved the right to 

demonstrate that the retention of one at-large seat would not 

have a discriminatory purpose or effect and would remedy the 

existing Section 2 violation. Id. 

At the hearing on remedy issues, plaintiffs presented a 

survey of Alabama county governments. Though many Alabama county 

commissions have been chaired by the probate judge, Calhoun 

County has not been part of that tradition. Only four counties 

use the mixed system proposed by Calhoun County of commissioners 

elected from single-member districts and the chairman elected at 

 



    
4 

large. R. 10-22. However, sixteen counties have commissioners 

elected from single-member districts and choose their chair from 
5 

among the county commissioners. R. 10-23. 

The plaintiffs also presented testimony from Dr. Gordon 

Henderson, a political scientist with extensive experience 

analyzing racial voting patterns. Dr. Henderson testified that 

Calhoun County elections showed a clear pattern of racially 

polarized voting, with very few whites willing to vote for black 

candidates. R. 10S508-00.° Dr. Henderson also presented 

overwhelming and uncontradicted evidence of the disadvantaged 
7 

socio-economic status of blacks in Calhoun County. There was no 

contradictory evidence offered by the defendants. Dr. Henderson 

concluded on the basis of his study that an at-large election for 

the position of chair of the Calhoun County commission results in 

the dilution of black voting strength. Dr. Henderson went on to 

4 
However, none of defendants’ witnesses, not even former 

state senator Donald Stewart, was aware there were other counties 
in the state that had the form of government requested by Calhoun 
County. R. 11-289. 

5 
Three other counties are scheduled to change to this form 

in the near future. R. 10-23 
6 

Dr. Henderson utilized a statistical technique known as 
bivariate regression analysis and a technique known as "extreme 
case" or homogeneous case analysis. Thornburg v. Gingles, 478 
U.S. , 106 S.Ct. 2752, 2768 (1986). 

7 
Plaintiffs’ Ex. 2, an extensive affidavit by Dr. Henderson, 

was admitted into evidence. His testimony is found at R. 
10-170-76 and is summarized by the appellant's brief at pp. 
8-10. 

 



    

explain that it was unlikely that the candidate favored by the 

black community would have a chance of winning, and, as a 

consequence, black voting strength would be diluted, 

representational strength would be lessened and there would be a 

negative influence on the political socialization of the black 

community. R. 10-213-15. No contradictory testimony was offered 

in rebuttal. 

Plaintiffs and defendant Calhoun County both offered 

several lay witnesses who expressed their personal opinions about 

at-large elections, opportunities for black citizens to 

participate in the political life of Calhoun County, and the 

desirability or not of having a chair elected at large. The 

testimony was conflicting on this latter point; the witnesses 

called by the plaintiffs opposed the at-large elected chair, and 

the witnesses called by the defendants favored the at-large 

elected chair. Nevertheless, even the witnesses called by the 

defendants agreed generally that voting in Calhoun County was 

racially Polarized that a black citizen would have less 

opportunity than a white citizen to be elected to an at-large 

8 
Donald Stewart, R. 11-290; Willie Snow, R. 11-303; Hansler 

Bealyer, R. 11-329; William Trammell, R. 31-338; Theodore Fox, R. 
11-349; N. Q. Reynolds, R. 11-356; Chester Weeks, R. 11-368. 

 



    

2) 
position, and that a district election plan was necessary to 

10 
provide blacks representation. Some of the defense witnesses 

favored the at-large elected chair because of their favorable 

experience dealing with a council-manager form of city government 
11 

in Anniston. Other defense witnesses indicated that their 

preference for an at-large chair was tied to their favorable 

comparison of the incumbent chairman of the county commission 
12 

with his predecessors, who were not viewed favorably. 

The only description of the duties of the chairman of 

the county commission came through the testimony of the present 

county administrator and treasurer, Mr. Ken Joiner. He said the 

incumbent chairman presided at the commission meetings, responded 

to citizens’ complaints, represented the county at the 

governmental committee meetings, met with industrial prospects, 

net with the state legislators, and acted as liaison with local 

military installations. R. 11-370-372. However, Mr. Joiner also 

described his own duties as following legislative trends, 

9 
Willie Snow, R. 11-303; Hensler Bealyer, R. 11-330, n. 11; 

William Trammell, R. 11-339; Theodore Fox, R. 11-349; R. Q. 
Reynolds, 11-356. 

10 
Willie Snow, R. 11-302; Hansler Bealyer, R. 11-332; 

William Trammell, R. 11-340; N. Q. Reynolds, R. 11-356. 
11 

Donald Stewart, R. 11-291; Hansler Bealyer, R. 11-325. 
12 

Donald Stewart, R. 11-295; Willie Snow, R. 11-301, 305-06, 
James Dunn, R. 11-316, 319-320; Hansler Bealyer, R. 11-327, N. Q. 
Reynolds, R. 11-3551. 

 



    

ensuring compliance with employment laws, dealing with the public 

on a dally basis and "administering the things that I have just 

gone over that the chairman currently does". R. 11-372. He did 

not identify any duties that are "unique" to the chairman's 

office. 

The district court found that the majority vote 

requirement is an "insurmountable" barrier to the ability of 

black voters to elect candidates as chair of the commission. The 

court found that the black community of Calhoun County was 

“politicaly cohesive and geographically insular" and that 

raclally polarized voting is severe and persistent" and would 

result "in the defeat of any black candidates who ran for" the 

chalrperson position. 649 F. Supp. at 295. The court found that 

candidates had encouraged voting along racial lines by appealing 

to raclal prejudice which "effectively wiped out any realistic 

opportunity for blacks to elect a candidate of their choice." 

Id. Taking into account the totality of circumstances, the 

district court found that the requirement of at-large elections 

for associate commissioners and chairpersons, "together and 

separately, violate section 2. Each of these requirements, in 

conjunction with the social, political, economic, and geographic 

conditions described above, has effectively denied the black 

citizens of each county an equal opportunity to participate in 

the political process and to elect candidates of their choice. 

 



   

  

[Tlhis court would have to shut its eyes to reality, past and 

present, to find otherwise." Id. The court found that any 

effective cure for the Section 2 violation by the existing plans 

would have to include the chairperson position and that the 

submitted plan violated Section 2 under the results test. 649 F. 

Supp. at 295-96. 

The district court rejected the argument that the chair 

position ought to be elected at large because it is a 

"single-position" office with "unique" duties, like a probate 

Judge, sheriff or district attorney. 649 F.Supp. at 2986. It 

found as a matter of fact that the proposed remedy with an 

at-large elected chair possessing additional administrative 

duties 

fundamentally alters the form of government for the 
county in a way that is unprecedented elsewhere in 
Alabama. It would also dilute black voting strength by 
depriving the other commissioners of the practical 
political powers the commissioners normally enjoy. 
Just at the time that the Voting Rights Act affords 
biacks an equal opportunity to elect candidates of 
their choice to the county commission, persons they are 
able to elect would end up with less practical 
political influence than that of their previously 
at-large elected counterparts. Important day-to-day 
political power would be transferred to a single 
person, who would be elected by the very at-large 
ma jority system that this court has declared unlawful 
because it impermissibly dilutes black voting strength. 

649 F. Supp. at 296. The court rejected the analogy to a 

nayor-council form of city government, where the executive and 

legislative functions are almost entirely separated. Instead the 

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court reasoned that the county commission form of government was 

most like a city commission or school board where "the 

commissioners exercise both executive and legislative powers." 

Id. The court found it was "significant that there is no 

compelling state policy" for the chairperson-administrative 

position sought by Calhoun County, and that Calhoun County had 

failed to advance reasons why a system utilized by most other 

Alabama counties would not be satisfactory, "particularly at a 

time when 1t appears that elections will finally have become 

raclally fair." 649 F.Supp. at 206-97. The court found that the 

chairperson position with enhanced administrative 

responsibilities would be an office "completely beyond the reach 

of the counties’ black citizens and thus reserved exclusively for 

the white citizens" and refused to approve such a proposed 

remedy. 649 F. Supp. at 297. 

C. Statement of the Standard or Scope of Review 

The findings of the district court that the at-large 

elected chair position would hinder "the ability of black 

citizens to participate effectively in the political process and 

to elect representatives of their choice . . .", (op. p. 91), 

must be reviewed under the clearly erroneous standard of Rule 52, 

Fed. R.Civ.P.; Thornburg v. Gingles, 106 S. Ct. 2752, 2781 

= 11 

 



    
13 

(1988). 

The district court was to determine a remedy and had 

avallable traditional equitable powers. The exercise of that 

power is reviewed under an abuse of discretion standard. Uphan 

Y. Seamon, 456 U.S. 37 (1982). 

SUMMARY OF THE ARGUMENT 

The district court's task was to fashion an appropriate 

remedy for racial vote dilution caused by the at-large scheme for 

electing all members of the Calhoun County Commission, which the 

parties stipulated violated Section 2 of the Voting Rights Act. 

The Alabama Legislature failed to adopt a remedial 

election plan for Calhoun County, which was operating under a 

1939 local act. Accordingly, the district court invited the 

incumbent Calhoun County commissioners to propose a plan that 

would be incorporated in a court-ordered remedy. The incumbents 

proposed and the plaintiffs agreed to the use of five 

single-member district commissioners, one of which would be 

elected from a black majority district. The only disagreement 

between the parties, and the only issue presented in this appeal, 

is whether the district court properly refused to adopt a sixth 

seat, an at-large elected chair of the commission, as 

13 
Contrast U.S.Br. p.5 urging legal error standard of review 

with U.S. Marengo Br. p.12 urging clearly erroneous standard of 
review. 

- 12 - 

 



  

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additionally proposed by the incumbent commissioners. 

Under existing state law, all members of the county 

commission share legislative, executive and certain judicial 

functions. The only specified duty of the chairperson is to 

preside at commission meetings. Ala. Code section 11-3-20 (Supp. 

1986). Calhoun County's written remedial proposal does not 

specify any further duties or powers for the at-large chair. 

However, in arguments to the district court and in this Court, it 

contends that the at-large chair should exercise extensive 

executive powers that would not be shared with the single-member 

district commissioners. These unspecified executive powers are 

apparently modeled after those exercised by the incumbent 

chairman through informal arrangements with the other incumbent 

commissioners. The new chairperson, as presented by Calhoun 

County's brief, would become a powerful chief executive for the 

county. The district court properly refused to accept Calhoun 

County's invitation to disturb in such a radical fashion the 

existing form of county government, particularly when it would 

operate to diminish the electoral influence of black citizens. 

Because the at-large chair position proposed by the 

defendant incumbents is actually at odds with the state law 

governing the form of government for Calhoun County, the district 

court did not abuse its discretion in ruling that there was no 

compelling state policy Justifying departure from the general 

- 15 - 

 



    

equitable principle preferring only single-member districts in 

court-ordered remedies. 

Neither did the district court abuse its discretion by 

rejecting the at-large chair proposal on the ground that it would 

diminish the political strength of the person elected from the 

black majority district and would deny black citizens an equal 

opportunity to participate in the political processes influencing 

the executive functions proposed for the new chair position. The 

district court properly concluded that such a plan would fail to 

satisfy the sweeping remedial objectives of Section 2 of the 

Voting Rights Act. 

Finally, the district court conducted an independent 

factual assessment of the proposed at-large chair position 

utilizing the evidentiary factors provided by Congress for 

determining whether an electoral structure fails the results test 

of Section 2. These findings were based on virtually 

uncontradicted evidence and are not clearly erroneous. 

The U. S. Department of Justice has filed an amicus 

brief which fails entirely to discuss the local circumstances of 

politics in Calhoun County and, instead, urges this Court to 

erect a mechanical per se rule. This rule would absolutely 

require district courts to accept in their court-ordered remedial 

plans proposals by local jurisdictions which offer blacks 

something close to numerical proportional representation, without 

- 14 - 

 



    

regard to the relative political influence of the black and white 

representatives and without regard to the ability of black 

citizens equally to influence all levels of local government. 

The Department's radical new rule would literally read the Equal 

Participation Clause out of Section 2. And it would directly 

contravene the directives of Congress and the Supreme Court that 

federal courts always conduct a sensitive appraisal of political 

realities and the totality of circumstances in each jurisdiction 

to determine whether black citizens were being afforded equal 

access to the political process. This Court should reject the 

Department’s regressive adventurism in the strongest possible 

terns. 

STATEMENT OF JURISDICTION 

This court has jurisdiction of this appeal under 28 

U.S.C. section 1291. 

ARGUMENT 

I. THE DISTRICT COURT PROPERLY REJECTED THE AT-LARGE 

CHAIR POSITION PROPOSED BY CALHOUN COUNTY 

A district court faced with a violation of the Voting 

Rights Act "has not merely the power but [also] the duty to 

render a decree which will so far as possible eliminate the 

discriminatory effects of the past as well as bar like 

discrimination in the future." Louisiana v. United States, 380 

—- 15 - 

 



    

U.S. 145, 154 (1965). The Act was intended "to create a set of 

mechanisms for dealing with continued voting discrimination, not 

step by step, but comprehensively and finally." S.Rep.No. 

o7-417, p.b (es). Thus, when a jurisdiction that is found to 

have violated the Act submits a proposed remedy, it bears the 

burden of"com(ing] forward with a plan that promises 

realistically to work, and promises realistically to work now." 

Green v. School Board of New Kent County, 391 U.S. 430, 439 

(1968); see S.Rep.No. 97-417, p.31, n.121 (1982) (relying on 

Green to illustrate the scope of the remedial obligation in 

Section 2 cases). And in imposing a remedy, the district court 

"should exercise its traditional equitable powers so that it 

completely remedies the prior dilution of minority voting 

strength and fully provides equal opportunity for minority 

citizens to participate and to elect candidates of their 

choice." Id. at 31. In this case, the district court properly 

rejected Calhoun County's proposal for one full-time 

commissioner, with enhanced executive powers, elected at large in 

addition to five commissioners elected from single-member 

districts. Moreover, the district court properly ordered the 

14 
The Supreme Court has characterized the Senate Report as 

an "authoritative source" for determining Congress’ purpose in 
enacting the 1982 amendments to the Act, which firmly established 
the results test of section 2. Thornburg v. Gingles, 478 U.S. 
— 92 L.E4d.2d 25, 42 n.7, 108 S.Ct. 2752, 2763 n.7. 

- 16 - 

 



    

rotation of the chair of the commission. 

A. The Proper Standard of Review 

Recently, in United States v. Paradise, 107 S.Ct. 1053 

(1987), the Supreme Court discussed the standard to be used in 

reviewing a district court’s use of its equitable powers to 

remedy entrenched, intentional discrimination. The Court's 

observations are particularly salient to this case because they 

came in the course of affirming a remedial order entered by the 

same district court whose actions are being challenged here. 

Justice Brennan's plurality opinion stated: 

"Once a right and a violation have been shown, the 
scope of a district court’s equitable powers to remedy 
past wrongs is broad, for breadth and flexibility are 
inherent i in equitable remedies." Swann v. 

Nor have we in all situations "required remedial 
plans to be limited to the least restrictive means of 
implementation. We have recognized that the choice of 
remedies to redress racial discrimination is ‘a 
balancing process left, within appropriate 
constitutional or statutory limits, to the sound 
discretion of the trial court.’ Fullilove [v, 
Klutznick, 448 U.S. 448, 508 (1980)]1 (Powell, J., 
concurring) (quoting 
Co., 424 U.S. at 794 (Powell, J., concurring in part 
and dissenting in part) ). ; 

The district court has first-hand experience with 
the parties and is best qualified to deal with the 
"flinty, intractable realities of . . . implementation 
of constitutional commands. Swann, supra, at 6. ‘ 
His proximate position and broad equitable powers 
mandate substantial respect for [his] judgment. 

107 S.Ct. at 1073. 

- 1% - 

 



    

Similarly, Justice Stevens’ opinion concurring in the 

Judgment relied on Swann's statements that "[tlhe essence of 

equity Jurisdiction has been the power of the Chancellor to do 

equity and to mould each decree to the necessities of the 

particular case," 402 U.S. at 15, and that "a district court's 

remedial decree is to be judged by its effectiveness," id. at 25, 

to support the conclusion that the petitioners in Paradise had 

not shown that the district court's remedial order was 

unreasonable. 107 S.Ct. at 1077. 

Paradise makes clear that a reviewing court must accord 

substantial deference to the decisions of a district court 

regarding the necessary components of a remedial decree in civil 

rights cases. Deference is particularly appropriate in cases 

under Section 2 of the Voting Rights Act in light of the 

“searching practical evaluation" of the "past and present 

reality, political and otherwise" the Act requires. §S.Rep.No. 

97-417, p.30 (1982), and ¥Yhite v. Regester, 412 U.S. 755, 770 

(1973); see Thornburg v. Gingles, 478 U.S. __, __, 92 L.Ed.2d 

25, 106 S.Ct. at 2781 (1986). Finding a violation of the Voting 

Rights Act involves an "'‘intensely local appraisal of the design 

and impact’ of the contested electoral mechanisms," id. at 02 

L.Ed.2d at 65, 106 S.Ct. at 2781 (quoting Rogers v.Lodge, 458 

U.S. 613, 622 (1982)); tailoring a remedy requires no less 

intense an appraisal of the design and impact of the proposed 

we LE i 

 



    

~ 

  

remedy. 

B. The District Court Followed the Correct Procedure for 
Developing a Court-Ordered Redistricting Plan 

The Alabama Legislature has not acted to replace the 

1939 local act governing the election of Calhoun County 

Commissioners, which violates Section 2 of the Voting Rights Act. 

Accordingly, it was necessary for the district court to fashion 

its own remedial plan. In doing so, it followed all the 

directions given by the Supreme Court for developing 

court-ordered redistricting schemes. First, it deferred to the 

incumbent county commissioners, giving them the first opportunity 

to propose a remedy, and witholding judicial review of it until 

the Section 5 preclearance process had been completed. McDaniel 

¥. Sanchez, 452 U.S. 130 (1981). The U.S. Attorney General 

precleared Calhoun County's plan, 649 F.Supp. at 292, leaving the 

district court with the duty of reviewing it for compliance with 

the following additional standards for court-ordered plans: 

(1) The General Equitable Standard. The Supreme Court 

has instructed district courts fashioning redistricting plans to 

defer to legitimate state policy where possible, but to prefer 

single-member districts over at-large seats, to minimize 

population deviations among districts, and to avoid any taint of 

arbitrariness or discrimination. Connor v. Finch, 431 U.S. 407, 

- 10 - 

 



    

414-15 (1977), citing Chapman v. Meler, 420 U.S. 1, 26-27 

(1976); Roman v. Sincock, 377 U.S. 695, 710 (1964); Paige v. 

Gray, 538 F.2d 1108, 1111-12 (5th Cir. 1976). A district court 

cannot justify deviation from these requirements when there is an 

alternative plan available that more nearly satisifies them. 

Connor v. Finch, supra, 431 U.S. at 420. 

(2) The Section 2 Remedial Standard. Where the 

existing election scheme violates Section 2, the district court 

must ensure that its injunction "completely remedies the prior 

dilution of minority voting strength and fully provides equal 

opportunity for minority citizens to participate and to elect 

candidates of their choice." §S.Rep.No. 97-417, p.31 (1982). 

(3) The Section 2 Results Standard. No matter what 

statutory or constitutional infirmity affords the basis for 

striking down the existing election scheme, the district court 

nust ensure that the remedy it approves does not itself violate 

Section 2 of the Voting Rights Act by diluting black voting 

strength either in its purpose or results. Edge v. Sumter County 

School District, 776 F.2d 1509, 1510 (11th Cir. 1985). 

The district court properly concluded that Calhoun 

County's proposed sixth commissioner elected at large failed to 

meet any of the standards for a court-ordered remedy. 

- 20 - 

 



    

C. The Proposed At-large Chair Position Was Actually 
Inconsistent with State Policy, and the District 
Court Did Not Abuse Its Equitable Powers By 
Rejecting It. 
  

Calhoun County was unable to point to compelling state 

policy that would justify deviation from the exclusive use of 

single-member districts in a court-ordered remedial plan. It 

urged the court to create a chief executive for the county who 

would be elected at large and would either serve as a sixth 

voting member of the commission, as a sixth but nonvoting member 

of the commission, or strictly as an executive removed from the 

commission. 649 F.Supp. at 206. The written proposal did not 

specify what powers and duties the chair would have, but 

appellants’ arguments here and in the trial court contemplate 

that the chairperson will be less like another county 

commissioner and more like a single-position executive with 

powers none of the other commissioners possess. E.g., see 

Appellants’ Brief at 19-20. Whatever merit appellants might find 

in such a governmental arrangement, it is not one that is 

provided by Alabama law. More specifically, appellants cannot 

point to authorization for a single, powerful, and elected 

executive in the local law governing Calhoun County. 

An essential feature of any commission form of 

- 21 - 

 



    

15 
government is shared legislative and administrative duties. The 

general state law in Alabama for counties provides a commission 

form of government that combines legislative, judicial and 

administrative powers to be exercised by all of the 

commissioners. Alabama Code Sec. 11-3-11 (1975). This is also 

true for Alabama municipalities that adopt a commission form of 

government. Alabama Code Secs.11-44-23, 84 and 135 (1975). There 

is nothing to the contrary in the 1939 Calhoun County statute. 

Calhoun County asked the court to approve a chairman whose powers 

were limited only by the political skills of the incumbent, a 

form of government that does not exist anywhere else in Alabama. 

The district court properly found that "[tlhis proposal 

fundamentally alters the form of government for the county in a 

way that is unprecedented elsewhere in Alabama." 649 F.Supp. at 

206. 

The district court did not rule that the county 

15 
Shared executive/administrative and legislative duties are 

inherent in a commission form of government. Standard text books 
all agree on this point. R. Watson and M. Fitzgerald, Promise 
and Performance of American Government 655-56 (3d ed., 1978) 
(“commissioners perform both legislative and executive 
functions"); T. Dye, L. Greene, G. Parthemos, Governing the 
American Democracy 538-39 (1980) ("The commission form of city 
government combines legislative and executive powers in a small 
body, usually about five members"); J. Carney, Nation of Change: 

The American Democratic System 444 (1972) (“Commission Plan. Here 
the power, both executive and legislative, is concentrated in a 
policy-making commission."); M. Cummings, Jr., and D. Wise, 
Democracy Under Pressure 641-42 (1977) (“The commissioners make 
policy as a city council, but they also run the city departments 
as administrators"). 

- 22 -— 

 



    
commission elected under the court-ordered plan would be barred 

from appointing an executive officer to take responsibility for 

day-to-day administration of county business. In fact, the new 

commission will continue to operate as provided by the 1939 local 

act in all respects save the number of commissioners and the 

manner of their election. The new commission may choose to keep 

the existing county administrator’s position and/or assign more 

or fewer executive functions to the commission chairperson. All 

the disrict court held was that selection of the chair by an 

at-large election method which dilutes black voting strength is 

not supported by overriding state policy. 

The evidence before the court showed that Calhoun 

County was requesting a form of government unusual for Alabama. 

Only four counties of the sixty-seven in Alabama had a mixed plan 

with commissioners elected from districts and a chairman elected 

at-large, and they were established by special local legislation 

which the Legislature has chosen not to provide for Calhoun 

County. While a number of Alabama counties use the general state 

law providing for the Probate Judge to serve as chairman, that 

has not been true in Calhoun County nor in most other larger 

Alabama counties. In any event, as the United States argues in 

United States v. Dallas County Commission, CA No. 78-0578-BH 

(S.D.Ala.): 

V¥hile the probate judge is the county's chief 
executive officer, the position of probate judge is 

EE, SC 

 



  

totally separate and distinct from the position of 
chairman of the county commission. The chairman, 
ex-officio, does not exercise any executive duties or 
administrative responsibilities involving county 
commission affairs different in kind from those 
performed by other county commissioners. As chairman, 
ex-officio, of the county commission the chairman 
(probate judge) votes only to break tie votes and 
presides over meetings of the county commission. 

Response of Plaintiff United States of America To Proposed 

Election Plan, filed Mar. 24, 1987 (footnote omitted). In fact, 

the trend is toward the practice in sixteen counties presently of 

the county commissioners choosing the chair from among 

themselves. Adhering to Supreme Court guidance for court-ordered 

plans, the district judge correctly held that appellants had 

failed to demonstrate a compelling state policy for their 

proposed at-large chair or reasons why the less discriminatory 

alternatives used in other counties would not operate 

satisfactorily in Calhoun County as well. 649 F.Supp. at 206-97. 

His findings concerning governing state policies are not clearly 

erroneous, and his refusal to add an at-large executive and/or 

legislative position to the new commission was not an abuse of 

discretion. 

A virtually identical situation was confronted by this 

Court in Clark v. Marengo County, Nos. 85-7634 and 86-7703 (llth 

Cir., Jan. 27, 1987) (unpublished). As remedies for at-large 

election systems for the Marengo County Commission and Board of 

Education found to violate Section 2 of the Voting Rights Act, 

defendants submitted plans which proposed that each government 

—- 24 - 

 



    
have an at-large elected president or chair in addition to 

single-member districts. Judge Hand of the Southern District of 

Alabama rejected these proposals for lack of a compelling state 

reason and installed his own plan composed exclusively of 

single-member districts. This court affirmed. In all relevant 

respects, this case is indistinguishable from Marengo County, in 

which the U.S. urged affirmance. U.S. Marengo Br. 

D. The District Court Correctly Held That the County's 
Proposal Failed to Remedy Fully the Violation of 
Section 2 
  

The district court found that appellant's plan would do 

more than simply alter the method by which the county's 

government was elected: it would also fundamentally alter the way 

in which the county's government operates, by usurping the powers 

traditionally vested in the county commission and concentrating 

them instead in a single official elected at large-—the 

commission chair. 649 F.Supp. at 206. In light of this finding, 

the court correctly concluded that, far from curing the violation 

of Section 2, the new plan would itself deny black citizens an 

equal ability to participate in the political process. 

The ideal of equal participation expressed in the 

Voting Rights Act embodies more than being able to enter the 

voting booth and cast a ballot. Put simply, "[tlhe Voting Rights 

Act was designed to enable minority citizens to gain access to 

- 05 - 

 



   

  

the political process and to gain the influence that 

participation brings." U. S. Commission on Civil Rights, The 

Yoting Rights Act: Ten Years After 8 (1975) (emphasis added); see 

also S.Rep.No. 97-417, p.33 (1982). Thus, the evil the Act 

targets is not merely the exclusion of minorities from the voting 

booth. Rather, it is the exclusion of minorities from the 

process of government itself. See H.R.Rep.No. 97-227, p.1l4 

(1982). 

This exclusion can occur even when minority voters are 

able to elect some government officials. When the Civil Rights 

Commission surveyed the first decade of the Voting Rights Act, it 

noted the presence of barriers beyond election itself to 

effective minority political participation: 

Not all the problems which a minority candidate 
faces are those of qualifying as a candidate, running 
an effective campaign, and receiving fair treatment on 
election day. . . . Some minorities who have been 
elected have found that lack of cooperation from other 
officials limits their effectiveness. And in some 
places the prospect of minority success has led 
communities or States to abolish the office that the 
minority candidate had a chance to win. 

In some instances minorities have been elected to 
office only to find that the powers and 
responsibilities of the office have been reduced, 
either formally or in practice. 

U. 5S. Commission on Civl Rights, The Voting Rights Act: Ten Years 

After 165-66, (1975); cf. H.R.Rep.No. 97-227, p.11 (1982) 

("electoral gains by minorities since 1965 have not 

—- 26 - 

 



    

rendered] them immune to attempts by opponents of equality to 

diminish their political influence"). A remedy that dismantles 

some road blocks to the election of a candidate preferred by the 

black community only to re-erect them at the post-election phase 

of the political process is no remedy at all. 

Calhoun County's proposed "remedy" is a paradigmatic 

example of the phenomenon identified by the Civil Rights 

Commission: "Just at the time that the Voting Rights Act affords 

blacks an equal opportunity to elect candidates of their choice 

to the county commission, the persons they are able to elect 

would end up with less practical political influence than that of 

their previously at-large elected counterparts." 649 F.Supp. at 

296. Thus, the district court would have shirked its obligation 

to make certain that the scope of the remedy is commensurate with 

the extent of the violation had it allowed Calhoun County to 

continue to exclude blacks from effective participation in the 

governance of thelr county by approving the unprecedented 

creation of an office completely beyond their political reach. 

In contrast to the proposal advanced by appellant, the 

plan adopted by the district court fully cures the violation of 

section 2. It both gives black voters a realistic chance to elect 

a commissioner of their choice and gives that commissioner equal 

practical political power. The remedy ordered by the district 

court provides some protection against the danger that the locus 

—- 27 - 

 



    

of political discrimination against the black citizens of Calhoun 

County will simply shift from the voting booth to the commission 

chamber by creating a structure within which each commissioner is 

given a meaningful role in the governance of the county and thus 

each voter can "participate meaningfully" in the political 

process. S.Rep.No. 97-417, p.33 (1982). On this basis, this 

Court should affirm the district court's remedial order in its 

entirety. 

E. The District Court Correctly Found From the Totality 
of Evidence That Calhoun County's Proposed At-large 

The district court followed this Court's instruction in 

Edge v. Sumter County School District, 775 F.2d 1509 (llth Cir. 

1985) (per curiam), to determine whether the court-ordered plan, 

on its own merits, complies with Section 2. Accord ¥Wright v. 

City of Houston, 806 F.2d 635 (5th Cir. 1986). Using the 

evidentiary factors listed in the Senate Report, the district 

court analyzed results of the the proposed at-large chair 

position and entered specific findings on each factor. 649 F. 

Supp. at 204-95. 

The court found that six of the seven primary factors 

listed by the Senate Report were present in Calhoun County. The 

court found: 1) a history of racial discrimination affecting the 

- 28 - 

 



   

  

right to vote; 2) a history of discrimination in education, 

employment and health which affect blacks’ current ability to 

participate in the political process; 3) a historical use of 

electoral devices which enhance the opportunity for 

discrimination; 4) the existence of a politically cohesive black 

community; 5) persistent racially polarized voting; 6) politial 

campalgns characterized by appeals to racial prejudice; 7) and 

the absense of successful black candidates. Id. The district 

court was “convinced from the above circumstances that ... the 

current requirement for at-large associate commissioners and the 

requirement for an at-large chairperson commissioner, together 

and separately, violate section 2." 649 F.Supp. at 295. There is 

virtually no contradictory evidence in the record, and these 

findings are not clearly erroneous. They provide a separate and 

independent basis for affirming the judgment. 

II. THIS COURT SHOULD REJECT THE PER SE NUMERICAL RULE 
PROPOSED BY THE DEPARTMENT OF JUSTICE. 

The United States has filed a brief amicus curiae 

asking this Court to adopt a per se rule: a districting scheme 

proposed by a jurisdiciton found to have violated the Voting 

Rights Act must be approved if it permits minorities to elect 

representatives in proportion to their presence in the 

popoulation, regardless of their actual relative political 

- BO 

 



   

  

influence. See, U. S. Br. at 8 ("For example, in a county where 

blacks constitute 20% of the population, a plan that promises to 

give blacks an opportunity to elect one of five representatives 

could not violate section 2.") (emphasis added). Under this 

theory, courts would lack the power to search behind the 

mathematics of the plan to assure that the actual political 

processes are equally open to black voters or to assure that the 

remedy fully remedies the violation of Section 2. The 

Government's proposal would essentially limit the Voting Rights 

Act to curing simple-minded, but not sophisticated, forms of 

discrimination, cf. Gomillion v. Lightfoot, 364 U.S. 359 (1960), 

by reading out of Section 2 altogether the "Equal Participation 
16 

Clause." It thus runs afoul of Congress’ intention to remedy a 

“century of obstruction," "counter the perpetuation of 95 years 

of pervasive voting discrimination, not step by step, but 

comprehensively and finally." S.Rep.No. 97-417, p.5 (1982). 

The very language of Section 2 directs courts to 

consider "the totality of circumstances in deciding whether a 

challenged scheme violates the Act. Section 2(b), 42 U.S.C. 

16 
A results claim is established where the ‘totality of the 

circumstances’ reveals that ‘because of the challenged practice 
or structure plaintiffs do not have an equal opportunity to 

in the political processes and to elect candidates of 
their choice.’'" 649 F.Supp. at 203, quoting 42 U.S.C. section 
1973(b) and Thornburg v. Gingles, 108 S.Ct. at 2763 (emphasis 
added). The Justice Department's amicus brief assidiously avoids 
any mention of the Equal Participation Clause. 

- BY - 

 



   

  

section 1973(b). The Supreme Court and Congress have explained 

the contours of this inquiry. E.g., see S.Rep.No. 97-417, p.30 

(1982) (the Act requires a "searching practical evaluation" of 

the "past and present reality, political and otherwise") (quoting 

¥hite v. Regester, 412 U.S. 755, 770 (1973)); Thornburg v. 

Glingles, 4v8 U.S. _, __, 92 L.Ed.2d 25, 65, 106 S.Ct. _”752, 2781 

(1986) (the Act demands an "‘intensely local appraisal of the 

design and impact’ of the contested electoral mechanisms") 

(quoting Rogers v. Lodge, 458 U.S. 613, 622 (1982) yo Adoption 

of any per se rule would thus fly in the teeth of a longstanding 

congressional and judicial policy to the contrary. 

The interest claimed to justify the amicus brief is 

“the Attorney General's responsibility to enforce Section 2 of 

the Voting Rights Act." U.S.Br. at 1. It is particularly 

disturbing to plaintiffs that the Attorney General has selected 

this case, which even defendants agree presents an intensely 

factual question about the dynamics of local political processes, 

in which to advance a novel, mechanistic, per se rule designed 

not to assure full participation for blacks but to prevent 

federal courts from inquiring into the question of effective 

17 
Indeed, contrary to what it advocates in this case, the 

United States took the position in the Supreme Court that the 
determination whether an electoral procedure violates Section 2 
"requires delicate judgments that can hardly be reached or 
reviewed by any mechanical standard." Brief of the United States 
as Amicus Curiae 6, Thornburg v. Gingles, 478 U.S.__ (1986). 

- 31 - 

 



    

1 

participation at all. 

A per se rule resting on the presence or absence of 

proportional representation is particularly inappropriate. The 

Act explicitly provides that "[t]lhe extent to which members of a 

protected class have been elected to office in the State or 

political subdivision is one circumstance which may be 

considered," Section 2(b) (emphasis added), as part of its 

disclaimer of any intention to make proportional representation 

the touchstone of a Section 2 analysis. Thus, the Act refuses to 

set a numerical upper boundary on the number of candidates that 

the white majority can Sach. The United States, however, seeks 

in essence to impose precisely this kind of mechanical upper 

boundary on the rights of “members of the class of citizens 

protected" by the Act, surely a perverse result. And it seeks to 

do so regardless of the particular facts, circumstances, and 

history of the jurisdiction involved. 

This is not the first time that the United States has 

advanced this contention. In Thornburg v. Gingles, it argued 

that a Section 2 challenge necessarily must fail when black 

18 
The simple fact, for example, that a community that is 20% 

black consistently elects 5 white council members does not 
establish a violation of Section 2, absent a showing that the 
electoral scheme "interacts with social and historical conditions 
to cause an inequality in the opportunities enjoyed by black and 
white voters to elect their preferred representatives." Gingles, 
478 U.S. at _, 92 L.E4d.2d4 at 44, 106 S.Ct. at 2764-65. 

- 32 - 

 



    
candidates are elected "in numbers as great as or greater than 

the approximate black proportion of the population." Brief of 

the United States as Amicus Curiae 25, Thornburg v. Gingles, 478 
19 

U.8. .. (1088). The Supreme Court unanimously rejected the 

United States’ position. Justice Brennan, writing for the Court, 

acknowledged that the extent of minority political success is "a 

pertinent factor" in assessing the legality of a districting 

scheme. Gingles, 478 U.S. at __ , 92 L.Ed.2d at 62, 108 S.Ct. at 

2779. But, he continued: 

[T]he Senate Report expressly states that "the election 
of a few minority candidates does not ‘necessarily 
foreclose the possibility of dilution of the black 
vote, '" noting that if it did, "the possibility exists 
that the majority citizens might evade [section 2] by 
manipulating the election of a ‘safe’ minority 
candidate." The Senate Committee decided, instead, to 
"‘require an independent consideration of the 
record. '". . . Thus, the language of section 2 and its 
legislative history plainly demonstrate that proof that 
some minority candidates have been elected does not 
foreclose a section 2 claim. 

(internal citations omitted); see also S.Rep.No. 97-417, p.299 

(1982). Similarly, Justice O'Connor, in an opinion concurring in 

the judgment and joined by the three other Justices who did not 

Join the Court's opinion, stated: "I do not propose that 

19 
According to the Court's characterization of this 

position, "[elssentially, appellants and the United States argue 
that if a racial minority gains proportional or nearly 
proportional representation in a single election, that fact alone 
precludes, as a matter of law, finding a section 2 violation." 
Gingdles, 478 U.S. at _, 92 L.Ed.2d4 at 62, 106 S.Ct. at 2779. 

- BB 

 



    

consistent and virtually proportional minority electoral success 

should always, as a matter of law, bar finding a section 2 

violation." Gingles, 478 U.S. at __, 92 L.Ed.2d at 81, 108 S.Ct. 

at 2795. 

The Court reached this result in Gingles despite the 

fact that black voters in each of the challenged districts had 

actually elected some candidates of their choice. In this case, 

the Department seeks to immunize a plan from attack merely 

because it offers the potential that black voters will be able to 

elect one member of an emasculated commission that will be denied 

the full powers granted the commission from which blacks were 

excluded. The Supreme Court has directed the application of a 

standard of review that "preserves the benefit of the trial 

court’'s particular familiarity with the indigenous political 

reality . . . ." Gingles, 47Y8 U.S. at __, 92 L.Ed.2d at 65, 106 

S.Ct. at 2782. In this case, the district court found that the 

county’'s proposal offered black citizens an empty promise and 

denied them equal participation in the political process. An 

at-large elected member would increase the voting membership of 

the county commission, would 

participate as a member of the commission, and would 
exercise enhanced powers enjoyed by no other member of 
the commission. To that extent, the members elected by 
a racially fair district election method would have 
their voting strength and influence diluted. 

649 F.Supp. at 296 (emphasis added). Essentially, the district 

— BA 

 



    

court found that the county's plan would assure the retention of 

all political power by the white majority and any commissioner 

elected by black voters would be "safe" because he or she would 

be powerless. 

The Justice Department boldly asserts the legal 

irrelevance of the district court's finding of fact that the 

proposed at-large chair would devalue the black representative's 

political influence. "While black voters may have little 

influence over the performance of [the at-large chairperson’s] 

duties, that is the result of it being a single-person job and 

not the result of the at-large election structure." U.S. Br. at 

11. The Attorney General says all that matters is arithmetic. He 

says the district court was limited to counting the chair as a 

sixth legislator, ignoring its executive powers, and since 

Calhoun County has a 17.6% black population and 15.9% black 

voting age population, a 16.7% black share of the commission 

should be legally sufficient and 20% too much. Id. The amicus 

brief makes no attempt to square this simple-minded rule with the 

equal participation language of Section 2 or with the 

congressional directive to explore all the local political 

realities. 

CONCLUSION 

The district court's remedial order should be affirmed 

- BG i 

 



    

in its entirety. 

Respectfully submitted this _3 day of April, 1987. 

BLACKSHER, MENEFEE & STEIN, P.A. 
Fifth Floor, Title Building 
300 Twenty-First Street, North 
Birmingham, AL 35203 
(205) 322-7300 

405 Van Antwerp Building 
P. O. Box 1081 
Mobile, AL 36633 
(205) 433-2000 

  

Terry Davis 
SEAY & DAVIS 
732 Carter Hill Road 
P. O. Box 6215 
Montgomery, AL 36106 
(205) 834-2000 

Julius IL. Chambers 

Pamela S. Karlan 
Lani Guinier 
99 Hudson Street 
16th Floor 
New York, New York 10013 
(212) 219-1900 

¥. Edward Still 
714 South 29th Street 
Birmingham, AL 35233-2810 
(205) 322-6631 

Reo Kirkland, Jr. 
307 Evergreen Avenue 
P. O. Box 646 
Brewton, AL 36427 
(205) 867-5711 

- 30 - 

 



    
Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 

I do hereby certify that on this 3 day of April, 1987, 

a copy of the foregoing BRIEF FOR PLAINTIFFS-APPELLEES JOHN 

DILLARD, ET AL. was served upon the following counsel of record: 

Herbert D. Jones, Jr., Esq. 
BURNHAM, KLINEFELTER, HALSEY, 

& CATER 
P. O. Box 1618 
Anniston, AL 36202 
(208) 237-8515 
(Calhoun County) 

William Bradford Reynolds, Esq. 
Assistant Attorney General 

Jessica Dunsay Silver, Esq. 
Irving Gornstein, Esq. 
Department of Justice 
Washington, D.C. 208530 

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

  
- 37 - 

 



PLEX ND 1 Xx P   A 

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R52 

Sheriff, the salary of which Deputy Sheriff shall be set by the 
Court of County Commissioners of Cleburne County, Alabama, 
and shall be payable in equal monthly installments out of the 
General Fund of said Cleburne County, provided however, the 
salary of said Deputy Sheriff shall not exceed $1,200.00 per year. 

Section T'wo: On the first day of each month a statement of 
the name and amount due said Deputy Sheriff shall be furnished 
the Court of County Commissioners of said County by the Sheriff 

“of said County, and it shall be the duty of the Court of County 
Com:nissioners to order a warrant drawn upon the General Fund 
of said County in favor of said Deputy Sheriff for the amount of 
the month’s salary. 

Section Three: All laws and parts of laws in conflict herein 
are cxpressly repealed and this Act shall be of force and effect 
from and after its approval by the Governor. 

Approved September 13, 1939. 

No. 395) (H. 730—Flowers and McGowin 

AN ACT 

To provide for the manner of electing the members of the Butler County 
Board of Education, and to specify the Districts from which they must 
be elected. 2 

Be it Enacted by the Legislature: 

Section 1. There shall be elected by the voters of the County 
five (5) members of the Butler County Board of Education. One 
member shall be elected from each Commissioners District and 
shall be a bona fide resident of the District from which he is elected. 
There shall be one member of the Board elected from the County 
at large, and may reside in any part of the County. 

Section 2. The present members of the Board of Education 
shall hold office until the expiration of their respective terms, and 
until their successors shall have been elected and qualified. 

Section 3. All laws and parts of laws in conflict herewith are 
hereby repealed. 

Section 4. This Act shall become cffective immediately upon 
its passage and approval by the Governor. 

Approved September 13, 1939. 

No. 420) (S. 387—Booth 

AN ACT 

To create and establish a board to be known as the County Commission 
for Calhoun County, Alabama in the place of the board of Revenue in 
and for Calhoun County, Alabama, now existing in said County, and 

    
abolishing 
said Coun 
of a memt 
qualified e 
of said con 
mission, a: 
mission al 
courts of 
bodies of 1 
the electio 
of a secret: 
a date wh 

Be it Ena 

Section 1. 
Calhoun Cou: 
1943, a board 
County, Alab 
shall be chair 
voters of saic 

Section 2. 
constituted is 
of January, 1: 
Commission 3 
hereafter be 
board of rev 
counties of tl 

Section 3. 
is hereby div 
as the Northe 
to be known 
trict Number 
houn County 
19, 22, 23 and 

ing precincts 
14, 15, 17, 18, 

Section 4. 
County as nov 
bers of said Bc 
Board of Rew 
uary, 1943: the 
the Chairman 
January 1st, 1¢ 
until said time 
bers of the Bo 
office with all 
by law until J: 

Section 5. 
1942, and each 

 



  

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R53 

abolishing said board of revenue of Calhoun County; and dividing the 
said County of Calhoun into two districts and providing for the election 
of a member of said county commission from each district by vote of the 
qualified electors of the entire county; and for the election of a chairman 
of said county commission; defining the jurisdiction of said county com- 
mission, and their compensation, and conferring upon said county com- 
mission all the jurisdiction, powers and authority granted by law to 
courts of county commissioners, boards of revenue or other governing 
bodies of like kind and authority in the State of Alabama; providing for 
the election of the successors of said commission; for the appointment 
of a secretary of said commission and fixing his salary, and providing for 
a date when said commission shall take office. 

Be it Enacted by the Legislature of Alabama: 

Section 1. There is hereby created and established in and for 
Calhoun County, Alabama, from and after the first day of January, 
1943, a board to be known as the County Commission of Calhoun 
County, Alabama, to be composed of three members, one of whom 
shall be chairman of said Board, and all of whom shall be qualified 
voters of said County. 

Section 2. The Board of Revenue of Calhoun County as now 
constituted is hereby abolished to take cffect upon the first day 
of January, 1943, and there is hereby conferred upon said County 
Commission all the jurisdiction and powers which are how or may 
hereafter be vested by law in courts of county commissioners, 
board of revenue, or other like governing bodies of the several 
counties of this State. 

Section 3. For the purpose of this act said county of Calhoun 
is hereby divided into two districts, numbered one, to be known 
as the Northern District of Calhoun County, and numbered two, 
to be known as the Southern District of Calhoun County. Dis- 
trict Number One shall embrace the following precincts of Cal- 
houn County as now constituted, viz: 1, 2, 3, 6, 7, 8,8,10,11, 16, 
19, 22, 23 and 24. District Number T'wo shall embrace the follow- 
ing precincts of said County as now constituted, viz: 4, 5, 12, 13, 
14, 15, 17, 18, 20 and 21. 

Section 4. ‘The members of the Board of Revenue of Calhoun 
County as now constituted, who are qualified and serving as mem- 
bers of said Board, shall continue to hold office as members of said 
Board of Revenue of Calhoun County until the first day of Jan- 
uary, 1943: the Chairman of the present Board of Revenue shall be 
the Chairman of the Board of Revenue as now constituted until 
January 1st, 1943, and shall hold office as Chairman of said Board 
until said time, it being the intention of this section that all mem; 
bers of the Board of Revenue as now constituted shall remain in 
office with all authority and power and at same salaries now fixed 
by law until January 1st, 1943. 

Section 5. That at the general election to be held in November, 
1942, and cach four years thereafter, three members of the said 

   
   

    

    

      

    

   
   

      

   

                        

    
   
    

   
   

  

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R54 

County Commission shall be elected by the qualified electors of 

Calhoun County. One member shall be elected from each the 

northern and southern districts as herein created, and shall be a 

resident of said district from which he is elected, and shall be 2 

qualified elector of said county and district, and shall be elected 

by the quaified electors of the entire county, and shall be a resi- 

dent and qualified elector of said county. The chairman shall be 

elected by the qualified voters of the county, and shall be a quali- 

fied elector of said county. Each member of said commission shall 

be over twenty one years of age, and of good moral character. 

The said members so elected shall hold office for a term of four 

years from and after the first day of January after their election. 

Vacancies in office shall be filled by appointment of the governor, 

and any person appointed to fill a vacancy shall hold office for the 

unexpired term and until his successor shall be elected as herein 

provided. Any person appointed to fill a vacancy shall have the 

same qualifications as to residence and character as required © 

the elected members. 

Section 6. ‘The members of said county commission, except the 

chairman, shall receive as compensation an annual salary of twelve 

hundred dollars, payable in twelve monthly installments of one 

hundred dollars each. The Chairman of said commission shall 

receive an annual salary of twenty four hundred dollars, payable 

in twelve monthly installments of two hundred dollars each. 

of said salaries being payable out of the county treasury of said 

county as provided by law for payment of salaries out of the funds 

of said county. 
Section 7. Said county commission shall elect a secretary of 

said commission, who shall keep the minutes and do the clerical 

work of said commission. The salary of said secretary be fixed 

by the commission at a sum not less than six hundred dollars per 

annum, payable monthly out of the county treasury. 

Section 8. All laws, general or special, in conflict with the 

provisions of this Act be, and the same are hereby expressly re- 

pealed. 
Approved September 13, 1939. 

————————— 

No. 421) 
(S. 388—Booth 

AN ACT 

To Establish the Office of Road Engineer in and for the County of Cal- 

houn; To Prescribe his Qualifications and Duties and Fix his salary and 

Provide for the Method of his Election and Appointment. 

Be it Enacted by the Legislature of Alabama : 

Section 
County the 
pointed by 
erning bod: 
like goverr 
elected for 
ber, 1939 a 
pointed ear 
time at the 
or other li 
less than ty 
hundred ds 
county, pa: 
by said bos 

Section 
tice engine 
shall have 
nance and 
time to the 

Section 
ject to the 
governing 
sistants as 

county put 
gineering ¢ 
and maint 
the necess: 
highway s 
dent to the 

Section 
care of ma 
said count 
lished by t 
shall empl 

work of ti 
pensation « 
of revenue 
the approw: 
make requ 
other persc 
for the pw 
plies and & 
the work’ 
the directi 
body all tl 
provement