Memo from Lani Guinier to Jim Nabrit (cover memo without attachment)

    IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY 1. BOLDEN, et al., E ; 

Plaintiffs, x 
CIVIL ACTION 

VS. * 
NO. 75-297-P 

CITY OF MOBILE, et al., * 

Defendants. x 

TEMPORARY STAY OF INJUNCTION 

This cause is before the Court on the application filed 

March 18, 1977, by Defendants for an Order staying imple- 

mentation of this Court's Orders of October 21, 1976, and 

March 9, 1976, pending determination of an appeal to the 

United States Court of Appeals for the Fifth Circuit. Defen- 

dants' motion urges this Court to stay, pending outcome of 

the appeal, not only the changes in form of City government 

and method of election prescribed by the aforesaid orders, 

but all elections under the present scheme of government 

as well. 

The sole contention advanced by the City Commissioners 

in their motion as grounds for contending this Court's orders 

are likely to be reversed on appeal is that recent Supreme 

Court decisions demonstrate conclusively that this Court was 

mistaken in its interpretation of Washington v. Davis, 426 
  

0.8. 229 (1978), as it applies to this case. Bub this Court 

 



  

is of the opinion that Fifth Circuit voter dilution cases 

  
  

533 F.24 1361 (5th Cir. 1976); McGill Vv. Gadsden County 
  

Commission, 535 F.24 277 (5th Cir. 1976); and particularly   

Paige v. Gray, 533 F.2d 1108 (5th Cir. 1976), have considered 
  

and rejected the suggestion that Washington Vv. Davis has 
  

undermined the continued viability of Zimmer v. McKeithen, 
  

4835. F.24 1297 (5th Cir. 1973)(en banc), aff'd, East Carroll 
  

Parish School Board Vv. Marshall, 96 S.Ct. 1083 (1976), which 
  

this Court so assiduously followed in reaching its conclusion 

that the at-large election of the Mobile City Commission is 

unconstitutional. ''The Zimmer standards ... are still 

controlling in this circuit.” Paige v, Gray, supra, 538 TF. 
  

24 at:1110 n . 4, 

Thus this Court is of the opinion that it would be 

inappropriate for it to grant Defendants' application for a 

stay pendente lite in the face of such clear directions from 
  

the Court of Appeals. Furthermore, the Court is not impressed 

with the City Commissioners’ argument that "the majority” 

of the citizens of Mobile will suffer irreparable injury 

absent issuance of the requested stay. The Legislature of 

Alabama has been in session three times since this action 

began, and the Court has throughout its course taken pains 

to urge the Commissioners and the Mobile County Legislative 

Delegation to enact suitable changes in the election system 

to remedy its present racially discriminatory features. 

Yet the Defendants have refused to act. Even as the City 

Commissioners approach this Court with their petition to 

preserve the status quo, they have taken no initiative 

toward proposing to the Legislature now in session some 

alternative to the Court's plan that would still protect 

black citizens' rights to equal representation in city 

 



  

government. 

However, this Court has since the trial of this case 

indicated its strong desire that the Court of Appeals be 

given the opportunity to review the ''serious constitutional 

issues" and any remedial plan imposed by this Court prior to 

the 1977 City elections. Bolden v. City of Mobile, 423 
  

F.Supp. 384, 404 (S.D. Ala. 1976). In addition, it has 

been called to the Court's attention that election officials 

may have difficulty meeting the May 1, 1977, deadline in the 

March 9, 1977, order for redesignating certain new wards and 

informing affected voters of the changes. 

ACCORDINGLY, it is ORDERED, ADJUDGED and DECREED as 

follows: 

1. The time for accomplishing the tasks set out 

in paragraph 7 of this Court's March 9, 1977, Order is 

hereby extended from May 1, 1977, to June 1, 1977. 

2. Defendants' application for a stay of the 

October 21, 1976, and March 9, 1977, Orders pending final 

determination of the appeal pending in the Court of Appeals 

is HEREBY DENIED. 

3. This Court's Orders of October 21, 1976, and 

March 9, 1977, are HEREBY TEMPORARILY STAYED until April 

15, 1977, in order to enable Defendants, or any one or more 

of them, to apply for and obtain a stay of said Orders of 

October 21, 1976, and March 9, 1977, from the Court of 

Appeals for the Fifth Circuit. See Bush v. Martin, 224 
  

F.Supp. 499, 517 (S.D. Tex. 1963). 

  

UNITED STATES DISTRICT JUDGE