Memorandum Opinion

    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE F I L E D 

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION 
NOV 31886 = 

THOM AG AF ows 
ii C. Cave, CLER: 

ME i 

DEPUTY Gl, ERK i ie 
JOHN DILLARD, et al., 

Plaintiffs, 

Ve CIVIL ACTION NO. 85-T-1332-N 

CRENSHAW COUNTY, etc., et al., 

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Defendants. 

MEMORANDUM OPINION 
  

This matter is before the court on the plaintiffs' September 11, 

1986, request to show cause why the Crenshaw County defendants should not be 

held in contempt of court and the plaintiffs' October 7, 1986, motion to 

enjoin the November 4 general elections of the Crenshaw County Commission. 

A hearing was held on the motion and request on October 31, 1986. 

1. 

This litigation has involved a number of Alabama Counties wherein 

the plaintiffs challenged the at-large election systems of the county 

commissions claiming that the systems diluted the voting strength of black 

citizens in violation of section 2 of the Voting Rights Act of 1965, 42 

d8.00 § 1973. The court has previously ruled on various aspects of this 

case. See Dillard v. Crenshaw County (Dillard I), 640 F. Supp. 1347 (M.D. 
  

Ala. 1986), and, most recently, the memorandum opinion of this court dated 

October 21, 1986. Crenshaw County is one of the counties that settled the 

claims brought against it by the plaintiffs. 

 



  

The Crenshaw County defendants before the court are Jerry L. 

Register, Amos McGough, Emmett L. Speed, and Bill Colquett, who are the 

present county commissioners for Crenshaw County; Ann Tate, circuit clerk of 

the county; Ira Thompson Harbin, probate judge of the county; and ‘Francis A. 

Smith, sheriff of the county. Probate Judge Harbin is also sued as a member 

of the Crenshaw County Commission. 

The plaintiffs and Crenshaw County defendants agreed to a 

settlement that required Crenshaw County to utilize five single-member 

districts for the election of county commissioners rather than the present 

at-large election system; under the settlement, one of the five districts, 

district five, has a clear majority black voting population. On April 18, 

1986, after notice to the class and a hearing, the court approved the 

settlement on an interim basis pending U. S. Justice Department 

preclearance of the settlement pursuant to section 5 of the Voting Rights 

Act, 42 U.S.C.A., § 1973¢; and, on June 17, 1986, after preclearance, the 

court gave final approval of the settlement 

Party primary elections were conducted on June 3 and primary 

runoff elections on June 24, 1986. All of the incumbent defendant county 

commissioners lost in the Democratic primary. The Democratic nominees Billy 

J. Sexton, Jerry L. Hudson, Walter Barnett King, Aubrey Alford and John 

Bryce Smith intervened as defendants in this action. The circuit clerk, 

probate judge and sheriff are separately represented by different counsel 

from the present county commissioners. The general election is scheduled 

for November 4, 1986. There is only one contested seat for the November 4 

election and that is in district five, the majority black district. 

iL, 

 



  

The plaintiffs complain that defendants circuit olorh; probate 

judge, and sheriff did not implement the single-member district plan agreed 

to in the settlement and ordered by the court for the June primaries, and 

that these defendants are not prepared to do so for the upcoming November 4 

general election. Basically, the plaintiffs complain that these election 

officials never developed a list of registered voters for each of the five 

commission districts; rather, they contend that each voter was allowed to 

vote in the commission district of the voter's choice. 

There is not a significant factual dispute as to how the June 

primary elections were conducted. None of the existing beatlines were 

changed; rather, the lines of the beats were maintained as they had been in 

past years, with 10 of the 15 existing beats split into two or more of the 

county commission districts. To accommodate the splitting of the beats, the 

number of votings machines at the polling places was increased from 26 in 

past elections to 37 for the June primaries. The county commissioners 

authorized the probate judge to hire the necessary personnel to develop a 

list of registered voters for each of the five districts. The county com- 

missioners understood that those lists would be prepared in time for the 

June primaries. The commissioners testified that they were not aware that 

the work of assigning voters to the correct district had not been undertaken 

until they saw the list of registered voters published in a local paper on 

May 14, 1986. The commissioners, however, took no action to stop the 

primary elections. Furthermore, only one commissioner filed a challenge to 

  

1. Crenshaw County traditionally has used the term "beat" to 
refer to the geographical area encompassed by a particular polling place. 

Therefore, this order will also use that terminology. The term "polling 

place" will refer to the specific location where the voting machines are 
actually located. 

3 

 



primary elections after his defeat, and he later abandoned the challenge. 

The parties, however, dispute the magnitude of the out-of-district 

voting. The plaintiffs contend that there was wholesale out-of-district 

voting. In contrast, the circuit clerk, probate judge, and sheriff admit 

that there was some but claim it was insignificant. The court finds 

credible the testimony of the circuit clerk that certain procedures were 

specifically implemented to assure that there was no out-of-district voting; 

the court is, however, also of the opinion that these procedures were not 

completely adequate and that, while there was not wholesale out-of-district 

voting, such voting was nonetheless substantial. 

11. 

The plaintiffs contend that the presence of out-of-district voting 

violated the one-person, one-vote requirement of the fourteenth amendment to 

the U.S. Constitution, Reynolds v. Sims, 377 U.S. 533, 84 8.Ct. 1362 (1964), 
  

and the general single-member district requirement of the consent decree. 

Admittedly, it may be true that election irregularities could be of such a 

magnitude as to violate the one-person, one vote constitutional requirement, 

See Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967), or the general single- 
  

member district requirement of a court injunction. However, while the 

irregularities here were substantial, they were not of such a magnitude as 

to violate the U.S. Constitution and the general single-member district 

requirement of the consent decree and thus to warrant federal court 

intervention. The avenue of relief for the irregularities here is and 

remains the state process.  



  

111, 

The plaintiffs also contend that the out-of-district voting 

violated the consent decree's intent to provide the black citizens of 

Crenshaw County an equal opportunity to participate in the county's 

political process. The court agrees as to district five only. 

The plaintiffs brought this lawsuit claiming that the present 

at-large election scheme for the Crenshaw County Commission violated section 

2 of the Voting Rights Act of 1965, 42 U,.S.C.A. § 1973. They traveled on 

two theories: (1) that the at-large scheme, in conjunction with certain 

social, economic, political, and geographic conditions, impermissibly 

"resulted" in the dilution of the black vote in the county, Thornburg wv. 
  

Gingles, B.S. , 106 S.Ct. 2752 (1986); and (2) that the scheme was 
  

"intentionally" passed to discriminate against the county's black citizens. 

Dillard I, 640 F. Supp. at 1353, As already stated, in settlement of the 
  

claims against Crenshaw County and to assure that the black county citizens 

enjoyed an equal opportunity to participate in the political process and 

elect candidates of their choice, the parties agreed to the creation of five 

single-member districts with, most importantly, district five having a clear 

black voting majority. The court is convinced that the out-of-district 

voting that occurred during the June primaries substantially and 

significantly impaired the existence of district five as a clear black 

voting majority district; indeed, the court is convinced that it is more 

probable than not that with the out-of-district voting district five was 

effectively no longer a majority black voting district as intended by the 

settlement. 

 



  

It is also significant that there were two black candidates and 

one white candidate in the first primary election for district five, with a 

runoff election between a black and white candidate, and with the white 

candidate winning the runoff election by only 17 votes. The court is 

impressed that, because the election in district five was so close, there is 

a strong likelihood that the election of the white candidate over the black 

candidate was due to out-of-district white voting. 

It is also significant that the irregularities occurred under the 

old commission regime, prior to full entry of the county's black citizens 

into the political process by the election of a commissioner of their 

choice. Under such circumstances, where the democratic process is not yet 

racially fair and equal, the judicial deference normally due the process is 

not warranted, and a court may more readily step in to cure the 

irregularities, especially when the evidence reflects that there is a 

substantial likelihood that the irregularities have had a disproportionate 

adverse impact on blacks. 

In light of these circumstances and legal principles, the court is 

convinced that the June primary elections for district five violated the 

intent of the consent decree entered into by the parties; the primary 

election irregularities in district five impaired the opportunity of the 

black citizens in that district to participate equally in the political 

process and to elect the candidate of their choice. Because the other 

district had only small black populations, the court cannot say that the 

same was true for these districts. 

=~ 

 



  

The court will therefore 

defendants conduct new primary and 

before January 1, 1987, with these 

primary elections and the upcoming 

also require that these defendants 

require that the Crenshaw County 

general elections for district five 

new elections to supersede the past June 

: 2 : 
November 4 election. The court will 

adopt, and file with the court, 

procedures that will identify prior to the new elections all registered 

voters residing in district five and that will document and assure in 

accordance with state law that only registered voters in district five may 

vote for the district five commissioner in the new elections. 

An order and injunction in accordance with this memorandum opinion 

was already entered by the court earlier today. 

DONE, this the 3rd day of November, 1986. 

  

  

UNITED STATES DISTRICT JUDGE~___ 

2. Because it appears that there may be some difficulty meeting 

the January 1 deadline, the court declines to enjoin the November 4 election 

for district five. The court does not want the new year to arrive with 

district five left without any representative.