Plaintiffs' Brief Supporting Motion for Additional Relief

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

NORTHERN DIVISION 

JOHN DILLARD, ET AL., ) 

Plaintiffs, ) 

v. ) CIVIL ACTION NO. 85-T-1332-N 

CRENSHAW COUNTY, ETC., ET AL. ) 

Defendants. ) 

PLAINTIFFS’ BRIEF SUPPORTING MOTION 

FOR ADDITIONAL RELIEF 

I. THIS COURT'S FINDINGS OF STATEWIDE VOTING RIGHTS 
ACT VIOLATIONS MAKE ADDITIONAL RELIEF APPROPRIATE 

In its decisions of May 28, 1986, and October 21, 1986, 

this Court found that the central government of the State of 

Alabama, acting through its Legislature, has been guilty of 

statewide, racially motivated manipulation of at-large election 

schemes in ways that taint all local jurisdictions which use 

at-large systems. It held that plaintiffs proved intentional 

discrimination on the part of the Legislature by two separate, 

alternative methods: 

(1) By proof that anti-single shot laws passed in the 

1950's and the 1961 numbered post law which replaced them were 

 



  

intended to minimize black voting strength. 

These racially inspired numbered place laws exist and 

operate today. 

Therefore, regardless of the reasons for which the 
at-large systems were put into place in various 
counties, including the five counties sued here, the 
numbered place laws have inevitably tainted these 
systems wherever they exist in the state. In adopting 
the laws, the state reshaped at-large systems into more 
secure mechanisms for discrimination. And as the 
evidence makes clear, this reshaping of the systems was 

completely intentional. 

Dillard v. Crenshaw County, 640 F.Supp. 1347, 1357 (M.D.Ala. 

1986) (emphasis added). 

(2) By proof of "a pattern and practice of using 

at-large systems as an instrument for race discrimination." 640 

F.Supp. at 1361. 

[Tlhe Alabama legislature ... has consistently enacted 
at-large systems for local governments during periods 
when there was a substantial threat of black 
participation in the political process. This evidence, 
set against the background of the state's unrelenting 
and undisputed history of race discrimination, 
convinces the court that the enactment of the at-large 
systems during such periods was not adventitious but 
rather racially inspired. 

Id. (emphasis added). 

This Court went on to conclude that the Legislature's 

racially motivated manipulation of laws governing at-large 

systems for local governments violated Section 2 of the Voting 

Rights Act, 42 U.S.C. section 1973, with respect to the five 

counties then defending their election systems, because the other 

 



two requirements for establishing a statutory claim were 

satisfied: proof that the laws have a present adverse impact on 

black voters and failure of the counties to rebut plaintiffs’ 

prima facie case. 640 F.Sup. at 1360, 1361. 

There are over 200 municipalities and over 30 county 

school districts with substantial black populations still using 

the tainted at-large election system. Available evidence shows 

that, like the nine counties against whom judgments have already 

been entered in this action, these jurisdictions display the same 

characteristics which, in the context of at-large elections, deny 

blacks equal access to the political process. 

The election systems in the five counties were 

determined to be in violation of the Voting Rights Act because of 

the state legislature's purposeful discrimination plus the 

following: 

(1) "three structural features particularly 

relevant”: 

(a) at-large voting methods, 

(b) numbered posts, and 

(c) a majority vote requirement, 640 F.Supp.at 1352; 

(2) "a clear history of racially polarized elections 

for both state and county officials", and 

(3) the absence of black elected officials, id. at  



  

Vhen this motion for additional relief is set for 

evidentiary hearing, plaintiffs will be prepared to show that 

each of the identified cities and school boards is elected by a 

system that includes all three relevant structural features, that 

recent elections in each jurisdiction exhibited racially 

polarized voting, and that in most cases no blacks have been 

elected (or, in a few cases, elected on disproportionately few 

occasions). This constitutes evidence that "the system continues 

today to have some adverse racial impact", id. at 1354, in each 

jurisdiction. Coupled with the existing findings of racially 

motivated statewide legislation, this impact evidence should be 

sufficient to shift the burden of rebutting prima facie Section 2 

violations "to the scheme’'s defenders". Id. at 1355. 

Plaintiffs emphasize that the quantity and quality of 

present impact proof they are prepared to adduce for some 250 

local government election systems is necessarily less 

comprehensive than the evidence ordinarily expected in 

case-by-case trials under the Section 2 "results" standard. We 

contend that the Voting Rights Act does not demand such strict 

proof in the circumstances of this case for the following 

reasons: 

a. As this Court noted, the "intent" and "results" 

standards are alternative methods for establishing a Section 2 

violation. 640 F.Supp. at 1353. With the exception of Pickens 

 



  

County, the county commissions enjoined by this Court were found 

to have at-large systems that violated Section 2 according to the 

intent standard. Because of the large number of county 

commissions challenged, plaintiffs tactically chose to prove a 

statewide intent case. The Court recognized that, once racial 

motives for the statewide at-large laws were established, the 

criteria for proving present-day adverse impact are "less 

stringent and may be met by any evidence that the challenged 

action is having significant impact on black persons today." Id. 

at 1354 n.5 (citation omitted). The evidence plaintiffs propose 

to adduce for each of the additional local election systems 

provides a sufficient overview of their disadvantageous operation 

against blacks to create a rebuttable presumption of adverse 

impact, in light of the laws’ intended statewide effects and in 

light of the fact that at-large election systems have been the 

subject of court ordered change in over 30 local jurisdictions 
1 

already in Alabama. 

1 
At-large election systems have been struck down by court 

orders in the following county jurisdictions: Montgomery, Mobile, 
Marengo, Pike, Dallas, Tallapoosa, Henry, Russell, Hale, 
Tuscaloosa, Monroe, Conecuh, Barbour, Choctaw, Clarke, Talladega, 
Crenshaw, Pickens, Coffee, Calhoun, Lawrence, Etowah, Escambia 
and Lee. 

At-large election systems have been struck down by 
court orders in the following municipalities: Mobile, Troy, 
Enterprise, Jackson, Opelika, Tuscaloosa, Montgomery, Bessemer, 
Gadsden and Marion. 

This list is probably incomplete. 

 



  

b. The Court’s alternative finding of intentional 

discrimination using the pattern and practice method and relying 

on precedents like Keyes v. School District No. 1, 413 U.S. 189 

(1973), suggests the appropriateness of a school desegregation 

approach to remedying Voting Rights Act violations that 

potentially exist statewide. Just as the State of Alabama has an 

obligation to dismantle the vestiges of de jure school 

segregation in all its school districts, it has a corresponding 

obligation to remedy any continuing effects of its de jure policy 

of racial vote dilution in every political subdivision that uses 

at-large elections. Only a minimal showing of a continuing 

violation in particular jurisdictions should be required of the 

victims of official voting discrimination to shift the burden to 

the state to demonstrate that, in fact, its offensive policy no 

longer disadvantages blacks there. The Court has noticed the 

rule of school desegregation caselaw that proof of discriminatory 

intent in one part of a school system creates a presumption that 

invidious intent exists in other parts where schools are 

segregated. 640 F.Supp. at 1361 n.7, citing Keyes, supra. In the 

context of de jure discriminatory at-large voting schemes, proof 

that blacks are significantly underrepresented in at-large 

Jurisdictions by itself should be analogous to proof that 

particular schools are still segregated. 

c. An "intensely local appraisal” is required to 

 



® oO ® © 

  

establish a Section 2 claim only when the Court must proceed 

under the ¥Yhite v. Regester results standard. Once statewide 

intentional discrimination has been established with respect to a 

voting practice, like at-large elections, a requirement that 

extensive proof still be adduced for each of hundreds of local 

jurisdictions would frustrate the Congressional purpose of the 

Voting Rights Act. The Court has acknowledged "the expressed 

policy of the Voting Rights Act that voting discrimination be 

dealt with ‘not step by step, but comprehensively and finally’'." 

640 F.Supp. at 1369, quoting S.Rep.No. 417, 97th Cong., 2d Sess. 

5. Speedy enforcement of the Act should be given a high priority: 

"the court does recognize that with each election the [unlawfull 

at-large systems impermissibly dilute the vote of thousands of 

black citizens and thus must be eliminated as soon as possible." 

Id. at 1362. Where the state legislature has carried out an 

invidious design to dilute black voting strength, there is at 

least some presumption that the design has succeeded in each 

jurisdiction operating under the affected laws. To require 

further extensive proof of present adverse effects in hundreds of 

Alabama jurisdictions would take many years and would undermine 

enforcement of the Act. 

 



  

II. THE STATE OF ALABAMA IS THE PROPER PARTY TO DEFEND 
THE STATEWIDE CLAIM AGAINST ITS LOCAL JURISDICTIONS 
AND TO SUPERVISE DEVELOPMENT OF REMEDIAL PLANS 

The state legislature is the entity responsible for 

the use of tainted at-large systems in the identified local 

Jurisdictions. 640 F.Supp. at 1361. 

The State Is Ultimately Responsible for Remedying 
the Continuing Effects in Each of its Subdivisions 

of Laws That Violate the Voting Rights Act 

The Voting Rights Act was intended to remedy a 

“century of obstruction" and "to counter the perpetuation of 95 

years of pervasive voting discrimination," City of Rome v. 

United States, 446 U.S. 156, 182 (1980), by “creatl[ingl a set of 

mechanisms for dealing with continued voting discrimination,not 

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

97-417, p.5 (1982). Sections 4 and 5, which suspend the use of 

tests and devices and require that covered jurisdictions seek 

preclearance of electoral changes, form the "heart of the Act," 

because they "shift the advantage of time and inertia from the 

perpetrators of the evil to its victims," South Carolina v. 

Katzenbach, 383 U.S. 301, 315, 328 (1966). Thus, sections 4 and 5 

constitute, along with section 2, a concerted plan of attack on 

 



  

practices, standards, and devices that discriminate against 

minority voters. Cf. S.Rep.No. 97-417, pp.5-6 (1982). 

Section 2 of the Act contains a broad prohibition of 

“the use of voting rules to abridge exercise of the franchise.” 

South Carolina v. Katzenbach, 383 U.S. at 301. The legislative 

history of the 1982 amendment of section 4 shows that Congress 

intended to make states affirmatively responsible for dismantling 

discriminatory electoral systems within their territories. Thus, 

a state’s continued acquiescence in its subdivisions’ use of 

election systems which result in the dilution of minority voting 

strength violates section 2. 

Originally, coverage under the special provisions of 

sections 4 and 5 of the Act was triggered by a finding that the 

state or separately covered subdivision had used a test or device 

as a prerequisite to registration or voting and had a history of 

depressed political participation. Section 4(b). The triggering 

mechanism was designed to identify and target those jurisdictions 

which had historically discriminated on the basis of race in 

restricting the franchise. A covered jurisdiction could "bail 

out," or free itself from the Act's special remedies, by showing 

that, for a specified period of time, it had not used the test or 

device with the purpose or effect of denying or abridging the 

right to vote on account of race. Section 4(a). 

In 1982, Congress found a continuing need for the 

 



  

special remedies provided by sections 4 and 5. Preclearance 

remained necessary for some jurisdictions both "because there are 

‘vestiges of discrimination present in their electoral system and 

because no constructive steps have been taken to alter that 

fact.'" H.R.Rep.No. 97-227, p.37 (1982). Thus, Congress amended 

the bailout provision to ensure that jurisdictions would not be 

released from the special remedial provisions of the Act merely 

because of the passage of wie In place of the existing bailout 

provision, which imposed on covered jurisdictions only a passive 

obligation not to use tests or devices that had the purpose or 

effect of denying minorities the right to vote, Congress 

substituted a bailout formula that imposed on covered 

jurisdictions an affirmative responsibility to ensure minorities 

the right to vote and to have their votes count. It hoped that 

"a carefully drafted amendment to the bailout provision could 

indeed act as an incentive to jurisdictions to take steps to 

permanently involve minorities within their political process 

." H.R.Rep.No. 97-227, p.37 (1982); see also id. at 32;. 

S.Rep.No. 97-417, p.2 (1982) (new bailout provision requires a 

2 
The then-existing bailout formula permitted covered 

jurisdictions to bail out by showing that they had not used a 
test or device in a discriminatory manner in the preceding 17 
years. Since section 4 had suspended the use of tests and 
devices in the originally covered jurisdictions on August 6, 
1965, such jurisdictions would automatically come out from under 
sections 4 and 5 on August 6, 1982. See S.Rep.No. 97-417, p.43, 
n.162 (1982). 

- 10 - 

 



  

showing that jurisdiction has "taken positive steps to increase 

the opportunity for full minority participation in the political 

process, including the removal of any discriminatory barriers"); 

id. at 43-44. 

The new bailout formula, which took effect on August 

5, 1984, provides, in pertinent part, that the declaratory 

judgment releasing a jurisdiction from the requirements of 

sections 4 and 5 

shall issue only if [the United States District Court 
for the District of Columbia] determines that during 
the ten years preceding the filing of the action, and 
during the pendency of such action-- 

(F) such State or political subdivision and all 
governmental units within its territory-- 

(1) have eliminated voting procedures and 
methods of election which inhibit or dilute equal 
access to the electoral process; 

(ii) have engaged in constructive efforts to 
eliminate intimidation and harassment of persons 
exercising rights protected under this Act; and 

(iii) have engaged in other constructive 
efforts, such as expanded opportunity for convenient 
registration and voting for every person of voting age 
and the appointment of minority persons as election 
officials throughout the jurisdiction and at all stages 
of the election and registration process. 

(Emphasis added). The legislative history of this new bailout 

provision shows that Congress intended to impose on covered 

states an affirmative responsibility to police the electoral 

-iyY 

 



  

behavior of their political subdivisions and to remedy the 

continuing effects in each of its subdivisions of state laws 

adopted with the purpose or having the effect of denying citizens 

the right to vote on account of race. 

The most detailed discussion of the states’ special 

responsibilities under the Act occurred in the context of a floor 

debate in the House concerning a proposed amendment to section 4 

that would have permitted states to bail out even if not all 

their political subdivisions met all the criteria for bailout. 

The House rejected that amendment overwhelmingly. 

Representatives who spoke in opposition to the proposed amendment 

stressed both the special constitutional role of states in 

protecting the right to vote and the extent of states’ control 

over their subdivisions’ electoral systems. (See, e.g., 127 

Cong .Rec. HB6969 (daily ed., Oct. 2, 1981) (Rep. Sensenbrenner) 

(states have broad control over subdivisions and ample authority 

to make them obey the Act); id. at H6970 (Rep. Fish) (noting that 

states "are mentioned specifically in the language of the 15th 

amendment" and "have an important fundamental power with regard 

to the franchise. I think, along with that authority goes the 

responsibility of States to protect the right to vote"); id. 

(Rep. Frank) (same); 1d. at HE6971 (Rep. Chisholm) (states "have a 

constitutional and a moral responsibility to insure that the 

local governmental units under their jurisdiction meet the 

- a, 

 



standards of the act"). 

Of particular salience to this case, several 

representatives pointed to Alabama legislation to support their 

contention that states must be made responsible for the 

compliance of their subdivisions. Representative Washington 

relied on Alabama's local reregistration statutes to illustrate 

the danger of relieving states of the obligation of assuring 

compliance with the Act by their subdivisions: 

[I]t will be very difficult to determine when a 
violation flowed from a county provision in the first 
instance, from a provision of state law, or as a 
consequence of a county's interpretation or 
administration of a State law of general 
applicability. And throughout all of this would remain 
the issue of whether the State knew or should have 
known that it was legislatively acquiescing to a county 
practice that violated the act. 

127 Cong .Rec. H6968 (daily ed., Oct. 2, 1981). Moreover, 

Representative Washington's explanation of the way in which 

states historically acted to restrict the franchise mirrors this 

Court's description of Alabama's intentional manipulation of 

county commission elections. Compare Dillard v. Crenshaw 

County, 640 F.Supp. 1347, 1356-59 (M.D.Ala. 1986) with 127 

Cong .Rec.H6968 (daily ed., Oct. 2, 1981) ("there is a tradition 

of the State legislature overruling or preempting other 

jurisdictions in these matters. Remember it was the Stae [gic] 

legislatures which called constitutional conventions to 

disenfranchise blacks."). Representative Sensenbrenner also used  



  

Alabama's local laws as an example to support his assertion that 

states have broad control over subdivisions and ample authority 

to make them obey the Act. Id. at HE969. In light of this debate, 

the House Report expressly stated that the new bailout formula 

"retain[s] the concept that the greater governmental entity is 

responsible for the actions of the units of government within its 

territory, so that the State is barred from bailout unless all 

its counties/parishes can also meet the bailout standard " 

H.R. Rep.No. 97-227, p.33 (1982). 

The Senate Report, which the Supreme Court has 

characterized as an "authoritative source" for determining 

Congress’ purpose in enacting the 1982 amendments, Thornburg v. 

Gingles, 478 U.S. __, 92 L.E4d.2d4 25, 42 n.7 (1986), took the 

same approach. "It is approporiate to condition the right of a 

state to bail out on the compliance of all its political 

subdivisions, both because of the significant statutory and 

practical control which a state has over them and because the 

Fifteenth Amendment places responsibility on the states for 

protecting voting rights." §S.Rep.No. 97-417, p.56 (1982). In 

particular, the Report noted that "States have historically been 

treated as the responsible unit of government for protecting the 

franchise," id. at 57, because "the Fifteenth Amendment places 

responsibility on the states for protecting voting rights,” id. 

at 69. Since state laws govern local electoral practices, the 

- 14 

 



  

states ultimately are responsible for ensuring that none of their 

subdivisions denies minorities the right to vote. Id. at 57. 

In sum, the 1982 amendments of section 4, the 

centerpiece of the Act's special protections, were intended to 

place upon states an affirmative obligation to dismantle 

still-existing barriers to minority political participation. A 

state's failure to undertake this duty should not only result in 

its continued coverage under section 5 but should also be viewed 

as a violation of section 2, which prohibits the states from 

imposing or applying any voting standard practice or procedure 

which results in the denial or abridgment of the right to vote. 

As the 1982 House Report made clear: 

Under the Voting Rights Act, whether a discriminatory 
practice or procedure is of recent origin affects oniy 
the mechanism that triggers relief, i.e., litigation 
[under section 2] or preclearance [under section 5]. 
The lawfulness of such a practice should not vary 
depending on when it was adopted, i.e., whether it is a 
change. : 

H.R.Rep.No. 97-227, p.28 (1982). The failure of Alabama to 

dismantle its discriminatory electoral systems represents a 

continuing violation of the Voting Rights Act and the Fifteenth 

Amendment. 

- 15 - 

 



  

The State of Alabama Is Subject to Suit Under 

Section 2 of the Votlng Rights Act 

A proper reading of the amended Voting Rights Act and 

eleventh amendment jurisprudence demonstrates that sovereign 

immunity is no bar to the claims by these private plaintiffs 

against the State of Alabama. This Court has noted the three 

exceptions to the state's eleventh amendment immunity from suits 

by private litigants. Allen v. Alabama State Bd. of Education, 

636 F.Supp 64 (M.D.Ala. 1986), rev'd on other grounds, __F.2d.__ 

(llth Cir., Nov. 25, 1988): 

(1) The Ex Parte Young exception. Prospective 

injunctive relief can be sought against state officials who 

violate the laws and Constitution of the United States. 636 

F.Supp at 75-76, c¢lting Green v. Mapsour, 106 S.Ct. 423, 428 

(1985); Pennhurst State School & Hospital v. Halderman, 465 U.S. 

89, 105 (1984). Plaintiffs here rely on the Young exception in 

seeking to have the state Attorney General added as a party 

defendant. However, for reasons already stated, the state 

legislature itself is guilty of the intentional dilution of 

blacks’ voting rights, and the responsibility for eliminating all 

vestiges of the central government's wrongdoing should fall not 

just on one state official but all departments, agencies, 

officers and political subdivisions of the State of Alabama. 

- 168 - 

 



  

Plaintiffs believe that the best and most appropriate way to 

insure that all elements of the state share in the legal, : 

financial and practical responsibility for vindicating the voting 

rights of black citizens is to add the state as a defendant in 

its own name. 

(2) The congressional abrogation exception. 

Exercising its authority under the Commerce Clause, section 5 of 

the fourteenth amendment or section 2 of the fifteenth amendment, 

Congress can abrogate the eleventh amendment immunity of the 

state. 636 F.Supp. at 76, citing Atascadero State Hospital v. 

Scanlon, 105 S.Ct. 3142, 3145 (1985); Fitzpatrick v. Bitzer, 427 

U.S. 445 (1976). The "abrogation" exception is the one plaintiffs 

rely on in the instant case. 

(3) The state waiver or consent exception. Under 

proper circumstances, which will not be enumerated here, the 

state can walve its eleventh amendment immunity. 636 F.Supp at 

76, clting Atascadero, supra, 105 S.Ct 3145 n.l; Edelman v. 

Jordan, 415 U.S. 651, 673 (1974). Plaintiffs do not rely on the 

walver exception in the instant case. 

So far as we can determine, no court has squarely 

addressed the question of congressional abrogation of states’ 

eleventh amendment immunity by the Voting Rights Act. A state 

agency was successfully sued by private citizens in Allen v. 

State Board of Elections, 393 U.S. 544 (1968). The Supreme 

- 17 - 

 



Court's decision upheld a private cause of action to enforce 

Section 5 of the Voting Rights Act, but it did not squarely 

address the sovereign immunity question. However, the long and 

somewhat complicated eleventh amendment jurisprudence makes it 

clear that Congress has waived the state's immunity from suit 

under Section 2 of the Act. 

States and their agencies can be sued by private 

parties when Congress, exercising its power under section 5 of 

the fourteenth amendment or section 2 of the fifteenth amendment, 

unequivocally expresses its intent to abrogate their eleventh 

amendment immunity. Gomez v. Illinois State Board of Education, 

F.2d (75h Cir., Jan. 30, 1987), Lexis Op. at 7, gclting 

Atascadero, supra, 105 S.Ct. at 3145 (a copy of the relevant 

portions of the Gomez opinion, taken from the Lexis service, is 

attached to this brief). The issue is one of statutory 

construction. For the important federal-state policy reasons 

discussed by this Court in Allen v. Alabama State Board of 

Education, supra, the Supreme Court has said there must be 

"unmistakable language in the statute itself" containing 

Congress’ unequivocal expression of intent to abrogate the 

state's eleventh amendment immunity. Atascadero, supra, 108 

S.Ct. 3148. It held in Atascadero that Section 504 of the 

Rehabiliation Act did not unequivocally abrograte the immunity, 

and in Fitzpatrick v. Bitzer it held that Title VII of the Civil  



  

Rights Act did contain a clear expression of abrogation. The 

question, therefore, is whether the statutory language of the 

Voting Rights Act and its supporting legislative history meet the 

criteria of unequivocal abrogation found in Fitzpatrick or fail 

to do so for reasons like those in Atascadero. 

There are these discernible differences between 

Atascadero and Fitzpatrick: 

In Atascadero: 

(1) The statutory entitlement set up by Section 504 

of the Rehabilitation Act used the language "No otherwise 

qualified handicapped individual ... shall ... be excluded from 

participation in ... any program or activity receiving Federal 

Financial Assistance ...." A congressional intent that individual 

legal rights should proceed against the states had to be inferred 

from their inclusion in the generic class of programs receiving 

federal financial assistance. 105 S.Ct. at 3149. 

(2) Similarly, the remedies provided by the 

Rehabilitation Act referred to those in Title VI of the Civil 

Rights Act and were to be available against "any recipient of 

Federal Assistance." Id. (emphasis supplied by Court). The Court 

said this statutory language was not a sufficiently unequivocal 

abrogation of eleventh amendment immunity, because it constituted 

only a "general authorization of suit in federal court". Id. 

(3) In order for states to become subject to the 

=:10 = 

 



  

rights of individuals provided by the Rehabilitation Act, it was 

necessary for them to accept federal funding. Id. at 3149-50. 

There was no indication that Congress intended to single out the 

states in particular, as distinguished from other potential 

recipients of funding. 

(4) The Court could not find in the legislative 

history of the Rehabilitation Act a clear congressional purpose 

to expand the jurisdiction of federal courts and thus to enhance 

federal power over power reserved by the states. 105 S.Ct. at 

3148, 3150. 

In Fltzpatrick: 

(1) Congress in 1972 struck an explicit exclusion of 

states and their political subdivisions from the definition of an 

employer subject to Title VII and added to the definition of 

persons who were employers "governments, governmental agencies, 

[and] political subdivisions." 427 U.S. at 449 n.2. The rights 

of employees covered by Title VII thus proceeded against 

employers who, by definition, included the states. 

(2) The remedy section of Title VII was not amended 

explicitly to name states; rather, broad equitable relief in 

federal court remained available against "respondents" in 

general. The definition of employer as including states was 

considered sufficient to connect the entitlement section with 

remedy section. 427 U.S. at 449 and n.5. 

w OL) im 

 



  

(3) The legislative history of Title VII made it 

clear that Congress intended to extend coverage to the states in 

particular as employers. 427 U.S. at 453 n.9, citing S.Rep.No. 

92-415, pp. 10-11 (1971). 

(4) Citing inter alia a Voting Rights Act case, South 

Carolina v. Katzenbach, 383 U.S. 301, 308 (1966), the Court found 

that abrogation of eleventh amendment immunity was part of a 

“shift in the federal-state balance" brought about by the Civil 

War Amendments and "was grounded on the expansion of Congress’ 

powers—--with the corresponding diminution of state 

sovereignty--found to be intended by the Framers and made part of 

the Constitution upon the State's ratification of those 

Amendments ...." 427 U.S. at 455-56. 

Considering the analyses in Atascadero and Fitzpatrick, 

along with the rest of the eleventh amendment jurisprudence, one 

can see that the Supreme Court "has never held ... that a statute 

must expressly provide that it abrogates the states’ immunity 

...." Gomez, supra, Lexis Op. at 7, citing Fitzpatrick, supra; 

Hutto v. Finney, 436 U.S. 678 (1978). 

Thus, although a federal enactment must "unequivocally" 
abrogate immunity, it may do so, not in so many words, 
but rather by its effect. For example, an abrogation 
may be found where any other reading of the statute in 
question would render nugatory the express terms of the 
provision. : 

Gomez, supra, Lexis Op. at 8 (citations omitted). 

OY 

 



  

Considering these criteria of statutory interpretation 

one at a time and together, a congressional intent to abrogate 

the state's eleventh amendment immunity is clear in the Voting 

Rights Act. First, the entitlement language of Section 2 

explicitly extends its obligations to the state: "No voting 

qualifications ... shall be imposed or implied by any state or 

political subdivision ...." 42 U.S.C. section 1973 (emphasis 

added). Similar wording has led federal courts to find 

congressional abrogation of immunity in the Equal Educational 

Opportunities Act, Gomez, supra, Lexis Op. at 8 ("No State shall 

deny an equal educational opportunity to an individual on account 

of his or her race, color, sex, or national origin ...."), and in 

the Education of All Handicapped Children Act, David D. ¥. 

Dartmouth School Committee, 775 F.2d 411, 422 (1st Cir. 1985) 

(unlike Section 504 of the Rehabilitation Act, the EAHCA "is 

directed to one class of actors: states and their political 

subdivisions responsible for providing public education"). 3 

Second, when Congress amended the Voting Rights Act in 

1982, it made clear its intention that a private right of action 

5) 
Two other courts of appeals have reached opposite 

conclusions about abrogation of eleventh amendment immunity by 
the EAHCA, but both courts summarily assumed that the EAHCA was 
in all relevant respects identical to the Rehabilitation Act 
without considering the differences discussed in David D. 

, 796 F.2d 940, 944 
(7th Cir. 19868): Doe v. Maher, 793 F.2d 1470, 1493-94 (9th Cir. 

10886). 

- DO 

 



  

exists under Section 2. S.Rep.No. 97-417, p.30 (1982). Even 

though the language in the jurisdictional section of the Voting 

Rights Act, 42 U.S.C. section 1983j(f), speaks only in terms of 

"a person asserting rights under the provisions of [the Actl" and 

does not explicitly mention actions against the state, as in 

Fitzpatrick, the connection between the statutory section 

authorizing a judicial remedy and the section establishing rights 

against the state is enough to exhibit Congress’ intent to 

abrogate eleventh amendment immunity. No clearer reference to 

the state is found in Title VII of the Civil Rights Act, 

Fitzpatrick, supra, 427 U.S. at 449 and n.S5, or in the Equal 

Educational Opportunities Act, Gomez, supra, Lexis Op. at 9 (an 

individual denied an equal educational opportunity ... may 

institute a civil action in an appropriate district court of the 

United States against such parties and for such relief, as may be 

appropriate"), or in the Education of All Handicapped Children 

Act, David D., supra, 775 F.2d at 422 ("The culmination of the 

state administrative appeals process is the right of any party 

‘aggrieved’ by the decision or procedure employed to take the 

matter to either state of federal court", c¢iting 20 U.S.C. 

section 1415(e)(2)). 

Third, as in Fitzpatrick, legislative history makes it 

clear that Congress intended the states to be the entitles 

primarily responsible for enforcement of rights guaranteed by the 

- Be. 

 



  

Voting Rights Act and the fifteenth amendment. See the preceding 

section of this brief. As distinguished from the statute 

considered in Atascadero, the Voting Rights Act does not impose 

obligations upon the states only if they accept federal funding, 

and the responsiblities of the state are singled out from those 

of other persons or entities who are able to affect blacks’ 

voting rights. 

Fourth, the Voting Rights Act is probably the most 

dramatic instance of the exercise of Congress’ enlarged powers, 

vis-a-vis the states, under the enforcement sections of the Civil 

War Amendments. 

"It is the power of Congress which has been enlarged. 
Congress is authorized to enforce the prohibitions [in 
Section 1 of the fifteenth amendment] by appropriate 
legislation. Some legislation is contemplated to make 
the [Civil War] amendments fully effective." 
Accordingly, in addition to the courts, Congress has 
full remedial powers to effectuate the constitutional 
prohibition against racial discrimination in voting. 

South Carolina v. Katzenbach, supra, 383 U.S. at 326, quoting EX 

Parte Virginia, 100 U.S. 339, 345. 

Finally, as in Gomez, supra, a reading of the Voting 

Rights Act which provides private citizens a judicial cause of 

action under Section 2 of the Act but which denies them the right 

to name the state as a defendant would render nugatory thelr 

ability to obtain an injunction against unlawful voting practices 

"applied by any State". As this Court has discovered in the 

A 

 



  

ea Oo eo o 

instant action and in other cases like Harris v. Graddick, 593 

F.Supp 128 (M.D.Ala. 1984), private suits challenging voting 

practices with statewide implications face practical difficulties 

and delays when the defendants are limited to state officers. In 

Harris, the primary defense of the governor and attorney general 

has been their disavowal of responsibility in their individual or 

official capacities to fulfill the state's obligation to 

eliminate statewide voting rights violations carried out under 

state law. By enacting and amending the Voting Rights Act, 

Congress intended to block the "buck-passing" tactics officers 

and subdivisions of the state were employing to avoid voting 

rights enforcement. It could not have intended to extend a right 

of action to the victims of voting discrimination and at the same 

time cripple their ability to obtain enforcement by forcing them 

to sue individual state officers. The only fair reading of the 

express terms and legislative scheme of the Voting Rights Act is 

that Congress abrogated the states’ eleventh amendment immunity. 

Procedural and Practical Matters 

According to the Federal Rules of Civil Procedure, 

service on the State of Alabama should be perfected by service on 

the governor and state attorney general. Under Alabama law, the 

attorney general is responsible for defending the state and all 

- an. 

 



  

its agencies in civil actions. Ala. Code sections 16-8-1 and 

36-15-21 (1975). 

The state is bound by this Court's findings of 

invidious legislative intent. Although this Court never formally 

invited the Attorney General of Alabama to defend the original 

claims, as a matter of fact the Attorney General was aware of the 

lawsuit, was actually requested to participate by some of the 

defendant counties, and chose not to intervene. 

However, the state should be given the opportunity to 

demonstrate that, as a matter of law or as a matter of fact, it 

is not bound by principles of res judicata with respect to the 

intent findings. 

The state alone has the responsibility and resources to 

respond to claims that the racially motivated at-large laws still 

adversely affect blacks in each of the identified local 

jurisdictions. It can carry out its responsibilities under the 

Voting Rights Act in at least two ways: by conducting its own 

assessment of where violations still exist and by coordinating 

any defenses that the local jurisdictions themselves might choose 

to assert. Because any significant adverse racial impact makes 

the local election systems unlawful in light of this Court's 

intent findings, and because Thornburg wv. Gingles, 106 S.Ct. 

2752 (1986), has dramatically clarified and simplified the 

criteria for determining whether at-large systems fall the 

- 260 - 

 



  

results test in particular jurisdictions, the state has clear 

guidance for its assessment. The state may already have access 

to much of the information needed to "audit" its at-large local 

election systems. It can, where it thinks necessary, require 

local jurisdictions to produce all the data--such as 

precinct-level election returns, black-white registered voter 

PE (or census figures where the registered voter breakdown 

is not available), and the record of success of candidates 

favored by black voters--which should be examined to determine 

whether there is racially polarized voting that operates in the 

at-large system to deny a substantial black minority the equal 

opportunity to elect candidates of its choice. 

The state, of course, can also present any claim 

preclusion defenses on behalf of particular local jurisdictions, 

such as res judicata. 

As a practical matter, the state may determine that 

many if not most jurisdictions should not or would not choose to 

defend the liability claims in court. These jurisdictions .can 

4 
This Court previously ordered 64 counties to comply no 

later than the 1986 primary elections with the requirement of 
Ala. Code section 17-4-187 (Supp. 1986) to maintain a permanent 
list of all qualified electors by precinct and by race. Harris 

v. Graddick, 615 F.Supp. 239, 246 (M.D.Ala. 1985). The Court 
presently has under submission the Harris plaintiffs’ remaining 
claims that the state attorney general should supervise 
enforcement of this requirement and others set out in the Harris 
decree. 

- 0. 

 



become the subject of prompt remedy proceedings. With respect to 

situations where the state and/or the local jurisdiction decides 

to rebut the prima facie evidence of a Section 2 violation, 

pretrial preparation and presentation of evidence can be 

coordinated by the state, and cumulative or duplicative evidence 

can be eliminated. Once on notice about which local 

Jurisdictions will be the subjects of liability contests, 

plaintiffs can be given a manageable opportunity to prepare 

whatever evidence they think is needed to meet these defenses. 

In the remedy phase, the state is the appropriate 

entity to coordinate specific proposals. In the first place, by 

legislation it can offer local jursidictions options for remedial 

election systems that are not available under existing law. The 

state attorney general can examine existing law governing 

municipal and school board elections and propose modifications or 

additions to the Legislature. See Ala. Code sections 36-15-1(1), 

(8), (10) and (15). In this way, the Court will be adhering to 

the rule of initial deference to proper state authority in. 

formulating remedies. 

It appears that current Alabama law provides the 

following options for municipalities using at-large elections: 

Cities over 12,000 not having a commission form of government 

elect the members of the council under one of several options; 

most require at-large elections. Only two options allow the use  



  

of districts--a city having more than 7 wards shall elect one 

councilor from each ward plus enough at-large to make 15 total 

(one of whom is designated the president); and cities over 20,000 

with 7 or fewer wards shall elect two from each ward, plus an 

at-large county president. See generally Ala. Code, Title 11, 

Chapters 43 and 44. 

Unless local laws provide alternative systems, general 

law in Alabama now provides only for partisan election of county 

school boards by the at-large scheme challenged here. Ala. Code, 

section 16-8-1 (1975). 

The state can choose to provide remedial election 

schemes other than the single-member districts which must be 

employed in court-ordered plans. So long as they afford blacks 

truly equal opportunities for effective political participation 

and to elect candidates of their choice, state and local 

governments are free to retain at-large voting under election 

schemes that include provisions like limited voting, cumulative 

voting and transferable preferential voting. United States v. 

Marengo County Comm., 731 F.2d 1546, 1560 n.24 (llth Cir. 1984) 

(citations omitted). 

Considering all the remedial options available to the 

state (but not to the local governments), the Court should 

require the attorney general to prepare and present for 

appropriate Section 5 preclearance and final approval by the 

0 

 



  

Court a statewide "de-dilution" plan. 

III. CLASS ACTION ISSUES 

The State of Alabama has ultimate legal authority over 

all its local subdivisions and their election systems. Arguably, 

the state is the only party defendant necessary to afford 

plaintiffs complete relief. 

However, to take account of potential practical and 

political conflicts between state and local officials, plaintiffs 

have asked that the Talladega County Board of Education and the 

City of Childersburg be added as respresentative defendants. 

But, in joining the Talladega County defendants, 

plaintiffs emphasize their contention that the state has the 

primary legal and financial responsibility for defending this 

action. Accordingly, plaintiffs also seek to join the Attorney 

General of Alabama as a named party so that he can serve as the 

chief co-representative of the defendant class of nunicipalities 

and school boards. In this way, the attorney general, who would 

already be before the Court as counsel for the defendant State of 

Alabama, can in his joint capacity ensure that the defendant 

class (and subclasses, if necessary) is adequately represented. 

It would be impractical to require the Talladega County 

defendants--or, for that matter, any other city or school 

board--to bear more than a nominal share of the burden of 

RE 4 DAE 

 



  

representing the defendant class. With this defendant lineup, 

plaintiffs contend, the major responsibility for conducting the 

litigation will remain where it belongs, with the State of 

Alabama: at the same time, the presence of city and school board 

class representatives will afford a procedural avenue for more 

active participation--and a commensurately larger share of the 

legal and financial responsiblity--by local jurisdictions who 

contend that the state and the attorney general are not 

adequately representing thelr interests. 

IV. PROCEDURALLY, JOINDER OF THE ADDITIONAL DEFENDANTS 
AND DEFENDANT CLASS IN THIS ACTION IS APPROPRIATE 

Joinder in this action of the State of Alabama, the 

Attorney General of Alabama, the Talladega County Board of 

Education, the City of Childersburg and the class they represent 

is appropriate for the same reasons relied on by the Court to 

join the five county commissions: 

Plaintiffs’ claims arise out the state's racially 

motivated enactment of at-large systems and numbered place laws. 

640 F.Supp. at 1369. 

Plaintiffs’ claims against all the additional 

defendants arise from a single transaction or series of 

transactions. Id. 

Plaintiffs’ claims raise common questions of law and 

- 31 - 

 



  

fact with respect to all defendants. Id. 

The Supreme Court instructs federal courts to give the 

joinder rules "the broadest possible scope of action consistent 

with fairness to the parties." Id., quoting United Mine Workers 

v. Gibbs, 383 U.S. 715, 724 (19686). 

Joinder is especially fitting where avoidance of 

multiple litigation will help carry out the Congressional policy 

of speedy enforcement of the Voting Rights Act. Id. 

CONCLUSION 

The motion for additional relief is the approporiate 

means of enforcing the voting rights of Alabama's black citizens, 

in light of this Court's prior rulings. 

Respectfully submitted this 23rd day of February, 198%. 

BLACKSHER, MENEFEE & STEIN, P.A. 
405 Van Antwerp Building 
P. O. Box 105) 
Mobile, AL 36633 

(205) 433-2000 

U. BLACKSHER 

  

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

(205) 322-7300 

Terry Davis 

- 32 - 

 



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

  

Julius L. Chambers 
Pamela S. Karlan 
Lani Guinier 
99 Hudson Street 
16th Floor 

New York, New York 10013 

(212) 219-1900 

¥. Edward Still 
REEVES & STILL 
714 South 20th Street 

- Birmingham, AL 35233-2810 
(205) 322-6631 

Reo Kirkland, Jr. 
307 Evergreen Avenue 
P. O. Box 646 

Brewton, AL 36427 

(205) 867-5711 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 

I do hereby certify that on this 23rd day of February, 

1987, a copy of the foregoing PLAINTIFFS’ BRIEF SUPPORTING MOTION 

FOR ADDITIONAL RELIEF was served upon following counsel: 

D. L. Martin, Esq. David R. Boyd, Esq. 
215 South Main Street BALCH & BINGHAM 
Moulton, AL 35650 P. O. Box 78 
(205) 974-9200 Montgomery, AL 36101 
(Lawrence County) (205) 834-6500 (Lawrence County) 

Jack Floyd, Esq. Barry D. Vaughn, Esq. 
FLOYD, KEENER & CUSIMANO PROCTOR & VAUGHN 
816 Chestnut Street 209 North Norton Avenue 

-. Bai, 

 



  

Gadsden, AL 35999-2701 

(208) 547-6328 
(Etowah County) 

Yetta G. Samford, Esq. 
SAMFORD, DENSON, HORSLEY, 

MARTIN & BARRETT 
P. O. Box 2345 
Opelika, AL 36803-2345 
(205) 745-3504 
(Lee County) 

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

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

John A. Nichols, Esq. 
LIGHTFOOT, NICHOLS &® SMITH 
P. 0. Box 369 
Luverne, AL 36049 
(205) 335-5628 
(Crenshaw County) 

Robert Black, Esq. 
HILL, HILL, CARTER, FRANCO, COLE 

& BLACK 
P. O. Box 118 
Montgomery, AL 36195 

(205) 834-7600 
(Crenshaw County) 

Warren Rowe, Esq. 
Rowe & Sawyer 
P. 0. Box 150 
Enterprise, AL 36331 
(Coffee County) 

Sylacauga, AL 35150 
(205) 249-8527 
(Talladega County) 

Rick Harris, Esq. 
MOORE, KENDRICK, GLASSROTH, 
HARRIS, BUSH & WHITE 
P.O. Box 910 
Montgomery, AL 36102 
(208) 264-9000 
(Crenshaw County) 

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

¥ WILSON 
P. O. Box 238 
Montgomery, AL 36101 
(205) 834-3176 
(Escambia County) 

Lee M. Otts, Esq. 
OTTS & MOORE 
P. O. Box 46% 

Brewton, AL 36427 

(205) 867-7724 
(Escambia County) 

¥. O. RIRK, Jr., Esq. 
P. O.Box A-B 

Carrollton, AL 35447 

(205) 367-8125 
(Pickens County) 

James G. Speake, Esq. 
SPEAKE, SPEAKE & REICH 
P. O.Box B 
Moulton, AL 35650 
(Lawrence County) 

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

  

   
  

EY FOR PLAINTIFFS 

BA