Defendants' Proposed Findings of Fact and Conclusions of Law

    IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, et al., 

Plaintiffs, 

CIVIL ACTION NO: 
-vS - 

75-297-~P 
  

CITY OF MOBILE, et al., 

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Defendants. 

DEFENDANTS' PROPOSED FINDINGS 

OF FACT AND CONCLUSIONS OF LAW 
  

Plaintiffs, as named representatives of a class 

composed of black citizens of the City of Mobile, brought 

sult in this Court’ claiming that the system of at-large 

election of the three Commissioners of the City of Mobile 

abridges the rights of plaintiffs and the class they repre- 

- sent, guaranteed to them under the First, Thirteenth, Four- 

teenth, and Fifteenth Amendments to the Constitution of the 

United States. The plaintiffs' claims are asserted under 

42 U.S.C. §§1973 and 1983.2 

  

Lhe remaining named plaintiffs are Wiley L. Bolden, 

R.L. Hope, Janet O. LeFlore, John L. LeFlore, Charles Maxwell, 
O.B. Purifoy, Raymond Scott, Sherman Smith, Ollie Lee Taylor, 
Ed Williams, Sylvester Williams, and Mrs. F.C. Wilson. Plain- 
tiffs Johnson and Turner voluntarily dismissed their claims, 
and Scott and Williams have moved to do so. Plaintiff John 

LeFlore died during the pendency of this cause, but his 
death was not suggested upon the record. 

Z oa as : : Ar 
The complaint alleged a class claim under Rule 23(b) (2) 

of the Federal Rules of Civil Procedure. The action was cer- 
tified as a class action by order dated January 19, 1976. 

3The jurisdiction of this Court was invoked under 28 
U.S.C. 5581331 and 1343. 

Z : a ; . be A 
A claim originally asserted under 42 U.S.C. §1985(3) 

was dismissed for failure to state a claim upon which relief 

can be granted. 

 



  

> and each of the Defendants are the City of Mobile 

Commissioners of the City of Mobile,® Gary A. Greenough, 

Robert B. Doyle, Jr., and Lambert Mims. 

Plaintiffs seek a declaratory judgment that the at- 

large election of City Commissioners violates the Consti- 

tution of the United States, and seek also an injunction 

against any city election under the present plans’ Plain- 

tiffs also seek to have defendants enjoined ''from failing 

to adopt" a single-member city government plan. 

  

he City of Mobile is sued only under 42 U.S.C. $1973. 

Claims against it based upon 42 U.S.C. §1983 and 1985(3) 

were dismissed by order of the Court on November 18, 1975. 

® he three Commissioners are each sued in their indi- 

vidual and official capacities. C. WRIGHT, LAW OF FEDERAL 

COURTS §48 (1970). 

’plaintiffs seek, in effect, an injunction against the 

enforcement of parts of ALA.CODE tit. 37, §89 et.seq., the 

present codification of Act 281 of the 1911 Alabama Legis- 

lature, as amended. Specifically, the at-large feature is 

contained in ALA.CODE tit. 37, §96. Mobile has been governed 

by the provisions of Act 281 (as amended) since 1911. 

Hartwell v. Pillans, 225 Ala. 685, 686, 145 So0.148(1949). 

While Act 281 was a general act, Baumhauer v. State, 240 

Ala. 10, 12, 198 S0.272(1940), it is impossible to tell 

what cities other than Mobile, if any, have elected to be 

governed by the statute. There are intimations that Act 

281 (or at least parts of it) constitute a general law of 

local application. Cf. State v. Baumhauer, 239 Ala. 476, 

195 S0.869(1940). While the statute purports to be general 

in nature, no Three-Judge Court need be convened because 

(1) injunction is sought only against local officials, and 

(2) the statute is of local impact, solely (or at least 

principally) in Mobile. Bd. of Regents v. New Left Edu- 

cation Project, 404 U.S. 541, 544(1972); Moody v. Flowers, 

387 U.S. 97(1967). This case is much more fundamentally 

"jocal' than Holt Civic Club v. City of Tuscaloosa, 525 

F.2d 653 (5th Cir. 1975), where plaintiffs were a class of 

all Alabama residents who lived in police jurisdictions 

‘surrounding cities, where the statute was genuinely state- 

wide in application, and where local officials were sued 

only because they were the only officials who could enforce 

the statute in the various Alabama cities. 

  

  

  

  

  

  

  

8pefendants moved to strike this claim for relief 

upon the ground that they had no power to adopt a single- 

member plan, since only the state legislature has such 

power. The motion was denied at that stage of the case. 

 



  

I. CONCLUSIONS OF LAW 
  

A. Necessity of Discriminatory Purpose: Shortly be- 
  

fore the trial of this case, the United States Supreme Court 

decided Washington v. Davis, U.S, , 44 U.S.1L.W. 4789 
  

(U.S. June 7, 1976), making clear that in order for a court 

to declare a statute unconstitutional by reason of its 

being ''racially discriminatory', the statute must first be: 

1 proved to have a racially discriminatory purpose". —————— 

U.S. at , H4 4.8. L.Y, at 4792 (emphasis added). Washing- 

ton v. Davis thus clarified an issue which a number of 
  

cases-~including multi-member districting cases--had left 

as "somewhat less than a seamless web'. Beer v. United 
  

States, 0.8. , 47 L.E4.24 629, 643 n.4(1976) (dissent). 
  

While Washington technically involved equal protection analy- 
  

sis oily 0 the Court made quite clear that it was announcing 

a broad principle of constitutional law, including the 

Fifteenth Amendment as well. Writing that '"[t]he rule is 

  

The holdings of several courts were unclear on the neces- 

sity of a showing of discriminatory purpose. The Supreme Court 

in Chavis v. Whitcomb, 403 U.S. 124, 149 (1971), seemed to re- 

quire proof of or inatory purpose ['"purposeful', '"designed"]. 

See Graves v. Barnes, 378 F.Supp. 640, 665(W.D.Tex. 1974) (dissent), 

opinion on remand of White v. Regestey, 412 U.8.755(1973). The 

Fifth Circuit in 1974 wrote that'[i]t is unclear whether di- 

lution of a group's voting power is unconstitutional only if 

deliberate..." Reese v. Dallas County, Ala.,505 F.2d 879, 886 

(5th Cir.1974) ,rev'd other grounds, 421 U.S.477(1975). But 

the Fifth Circuit earlier had seemed to say that effect had 

greater relevance than did purpose. Zimmer v. McKeithen, 485 
F.2d 1297, 1304 n.16(5th Cir.1973) (en banc), aff'd sub.nom. 
East Carroll Parish School Bd. v. Marshall, U.S. 

(March 8, 1976) (where the Supreme Court ata that its affirm- 

ance was "without approval of the constitutional views expressed 

by the Court of Appeals''). 

10:6 case involved the operation of the police department 

of the District of Columbia, which is not a '"'state' bound by 

the strictures of the Fourtee nth Amendment. However, as the 

Washington Court noted, it was held shortly after Brown v. 

Bd.of Educ. "that the Due Process Clause of the Fifth Amend- 

ment contains an equal protection component prohibiting the 

United States from invidiously discriminating between indi- 

viduals or groups. Bolling v, Sharpe. %7 U.8.491954)". 

U.S. at , B.S. NW. st 4752 

  

  

  

  

  

  

  

  

  

  

  

TR 

 



# i » 

  

the same in other contexts', Washington specifically reaf- 
  

firmed Wright v. Rockefeller, 376 U.S. 52(1964), a case re- 
  

quiring proof of discriminatory purpose where voting districts 

were alleged to have been racially gerrymandered in contra- 

vention of the Fourteenth and Fifteenth Amendment rights 

of black plaintiffs. _ U.S. at ___, 44 U.8.L.W. at 4792. 

That the rule of Washington v. Davis obtains in a multi- 
  

member district voting dilution case has also quite recently 

been recognized in the United States District Court for the 

Northern District of Alabama, in Rev. Charles H. Nevett v. 
  

Lawrence G, Sides, et al,, C.A. 73~P~-529-8 (Order of June 11, 
  

1976). While that case will be discussed in more detail 

11 it is informative here that after Judge Pointer made infra, 

specific factual findings for the defendant city, he also 

added that "It may be noted that there has been no evidence 

that the claimed 'dilution' was the result of any invidious 

discriminatory purpose. Cf. Washington v. Davis..." Id. 
  

Therefore, the Alabama statute attacked by plaintiffs 

in the instant case is not due to be held unconstitutional 

unless its enactment was motivated by a racially discrimina- 

tory purpose. 12 

  

; priefly, that case involved a suit quite similar to this 

one, involving multi-member districting in the City of Fair- 

field. After the District Court found for the plaintiff in 

an unreported decision, the United States Court of Appeals 

for the Fifth Circuit reversed for more specific factual 

findings on the factors outlined in Zimmer v. McKeithen, 485 

F.2d 1297(5th Cir.1973). Nevett v. Sides, ¥.24. 
(5th Cir. June 8, 1976). On remand the District Court found 

for the city the day after receipt of the mandate. Nevett 
v. Sides, B.Supp, = AN.D, Ala. June 11, 1976). 

129he fact that the city government statute is said to 
violate 42 U.S.C. §1973(c), as well as the Constitution it- 
self, does not change the result. The statute tracks the 

language of the Fifteenth Amendment and is "constitutional 
in nature". Wallace v. House, 515 F.2d 619, 634 n.17(5th 
Cir.1975), vacated on other grounds, 0.5. 7. 47 1.54, 

  

  

  

  

      

2d 296(1976). 

 



  

Whatever may have been the dicta, or even the holdings, 

of Fifth Circuit and lower court cases that pre-date Washington, 
  

it is now certain that evidence of discriminatory effect is 

relevant and admissible only for whatever light, if any, it 

may cast upon purpose--the decisive issue. 

B. Burden of Proof and Standing. The plaintiffs, 
  

of course, have the burden of proof: 

The plaintiff's burden is to produce 
evidence to support findings that the 
political processes leading to nomina- 

tion and election were not equally open 
to participation by the group in ques- 
tion-~that its members had less oppor- 

tunity than did other residents in the 

district to participate in the politi- 

cal processes and to elect legislators 

of their choice. 

White v. Rezester, 412 U.S. 755, 766(1973). 
  

1. Plaintiffs Must be an Identifiable Segment 
  

of the Population. As an initial matter, plaintiffs have 
  

the burden of proving that they constitute under the pre- 

sent facts an identifiable class for Fourteenth Amendment 

purposes. While dilution cases such as this are most com- 

monly brought by blacks, membership in the Negro race is 

not talismanic; nor is the doctrine reserved exclusively 

for blacks. The Supreme Court in one recent case held 

that blacks as such did not constitute an identifiable 

class; under the circumstances of that case blacks were 

held to be not dissimilar from non-black Democrats, for 

example: 

[TlThe interest of the ghetto resi- 
dents in certain issues did not 

measurable differ from that of 

other voters. 

Whitcomb v. Chavis, 403 U.S. 124, 155(1972) (claim of dilu- 
  

 



  

tion ''seems a mere euphemism for defeat at the polls', id. 

at 153). 

The Supreme Court has long suggested that the dilution 

doctrine extends to political as well as racial elements of 

the population, 13 and has indicated strongly that blacks 

need not necessarily fare better under the Constitution 

than, for example, 'union oriented workers, the university 

community, or religious or ethnic groups occupying identifi- 

able areas of our heterogeneous cities and urban areas'. 

Whitcomb v. Chavis, 403 U.S. 124, 156(1971). In order to 
  

invoke the benefit of the dilution doctrine, blacks must 

prove more similarity than mere blackness. As one post- 

Chavis commentator wrote: 

After all, if Republicans could have 
elected someone more sympathetic to 
their views in the absence of a mul- 

timember district, are they not suf- 
fering the same harm blacks suffer...? 

Certainly in the case of de facto 
racial submergence, where racial in- 
tent is not shown, blacks are not suf- 

fering because they are black, 

Carpeneti, Legislative Apportionment: Multi-member Dis- 
    

  

tricts and Fair Representation, 120 U,PA.L.REV.666, 698(1972). 

2. Mere Showing of Adverse Impact Has Never Met 
  

the Burden. Even prior to the decision of the Supreme Court 
  

in Washington v. Davis, a plaintiff could not meet his bur- 
  

den by showing a mere adverse impact, but had to prove more: 

The critical question under Chavis and 
Regester is not whether the challenged 
political system has a demonstrably ad- 

verse effect on the political fortunes 

of a particular group, but whether the 
effect is invidiously discriminatory, 

that is, fundamentally unfair. 

  

  

  

  

LBg.e., Burns v. Richardson, 384 
9 : Fortson v. Dorsey, 379 U.S. 733, 739(1965). 

  

 



  

Wallace v. House, 515 F.2d 619, 630 (5th Cir. 1975), vacated 
  

& remanded on other grounds, u.s. yoh7 L.Bd,.24 
rps —— 

  

296(1976) (per curiam) (emphasis added). 
  

3. No Constitutional Right to a Black District. 
  

plaintiffs have no constitutional right to a politically 

safe black district. The Fifth Circuit has recently reit- 

erated that the Supreme Court's pronouncements reject such 

a "guaranteed district' concept: 

Chavis and Regester hold explicitly that 

no racial or political group has a con- 

stitutional right to be represented in 

the legislature in proportion to its num- 

bers, so it follows that no such group is 

constitutionally entitled to an apportion- 

ment structure designed to maximize its 

political advantages. ..Neither does any 

voter or group of voters have a constitu- 

tional right to be included within an 

electoral district that is especially 

favorable to the interests of one's own 

group, or to be excluded from a district 

that is dominated by some other group. 

  

Wallace v. House, 515 F.2d 619, 630 (5th Cir. 1975), vacated 
  

& remanded on other grounds, 0.8. y 47 5.84.24 
  

296(1976). Accord, Vollin v. Kimbel, 519 7.24 790,791 
  

(4th Cir. 1975) (''black voters are not constitutionally en- 

titled to insist that their strengh as a voting bloc be 

preserved''), cert.denied, de 1976); Cherry v. 
  

  

County of New Hanover, 489 F.2d 273, 274(4Lth Cir. 1973) 
  

(blacks '""do not have a constitutional right to elect mem- 

bers of their race to public office’). 

The Court of Appeals for the Fifth Circuit Court 

in the Fairfield case, in reversing the holding of the 

District Court, recently held that: 

 



  

the trial court's findings may be 
read as indicating that elections 
must be somehow so arranged--at any 

rate where there is racial bloc vot- 
ing~~that black voters elect at least 

some candidates of their choice re- 
gardless of their percentage turnout. 

This is not what the Constitution 

requires. 

Nevett v. Sides, F.2d ; (5th Cir.June 5, 1978), 
  

  

Plaintiffs in order to prevail have always had to show, 

as Wallace v. House indicates, that the system is ''fundament- 
  

ally unfair". 515 F.2d at 630. Now, after Washington v. 
  

Davis, they must show (1) that the system is ''fundamentally 

unfair", and (2) that it was intended to be so. 
  

C. Evidentiary Factors to be Considered in Deciding 
  

Whether Political Process Open. Cases decided prior to 
  

Washington developed a number of evidentiary criteria to 
  

be considered upon the principal issue raised by White=-- 

whether "the political processes leading to nomination and 

election" are "equally open'. White v. Regester, 412 U.S. 
  

at 766. These criteria (being pre-Washington) relate to 
  

effect only, and have been variously stated from time to 

time and from case to case, and even from Court to Court. 1% 

As formulated in Zimmer, these indicia of discrim- 

inatory effect comprise "a panoply of factors'. Proof of 

LA] "an aggregate of these factors' may suffice to prove effect, 

  

L4G ommentators analyzing the Fifth Circuit's en banc 
decision in Zimmer v. McKeithen have suggested that a civil 

rights plaintiff may more easily prevail under the Zimmer 
criteria than under the Supreme Court cases which Zimmer 
purported to follow. See, e.g., Note, 87 HARV.L.REV. 1851, 

1858(1974); Note, 26 ALA.L.REV, 163, 170(1973). Support is 
lent to this by the pointed remark of the Supreme Court in 

  

tutional views expressed by the Court of Appeals'. East 
Carroll Parish School Bd. v. Marshall, U.S. (March Sor ——— 

8, 1976), aff'a Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir, 
  

    

1973) (en banc). 

 



  

485 F.2d at 1305; the stated factors do not include intent, 

since Zimmer preceded Washington. These factors were in 
  

Zimmer divided further into what may be termed "primary" 

and "enhancing" factors. Id. 

1. "Primary" Factors. The following factors from 
  

Zimmer were h21d in that case to be indicia of dilution of 

the votes of blacks [id. at 1305]: 

(a). "Lack of access to the process of slat- 

ing candidates"; 

(b). "unresponsiveness of legislators to P B 

their [blacks'] particularized interests''; 

c). "a tenuous state policy underlying the p y ying 

reference for multi-member or at-large districting'; P 2 g 3 

(d). "the existence of past discrimination 

in general precludes the effective participation in the & P : p Pp 

election system". 

2. "Enhancing' Factors. Zimmer also says that proof 
  

of dilution made out by a showing of the above-enumerated fac- 

tors may be "enhanced by" [id. at 1305] the following factors: 

(a). "the existence of large districts"; 

(b). "majority vote requirements’; 

(¢). "anti-singleshot voting" 

(d). "the lack of provision for at-large can- 

didates running from particular geographical subdistricts'. 

Because these factors have been explicitly followed 

i> 
in later (but pre-Washington) Fifth Circuit decisions, 

  

  

Lyevert v. Sides, F.2d (Bth Cir: June 8, 1976); 

Perry v. City of Opelousas, 515 ¥.2d 639(5th Cir. 1973); 
Wallace v. House, 515 F.2d 619(5th Cir. 1975); Turner .v. 

  

  

  

  

McKeithen, 490 F.2d 191(5th Cir. 1973). Nevett was decided 
EE set nt 

the dav after Washineton. but contains no mention of it. 
"3 () oo 
  

 



<10~ 

  

they will be the basis here of factual findings on effect, 

notwithstanding any differences between Zimmer and Supreme 

Court pricedent 0 Thus, the findings of fact will princi- 

pally follow the dictates and factors stated in both 

Washington v. Davis (intent) and Zimmer v. McKeithen (indicia 
  

  

of effect), keeping in mind that "unless [the Zimmer] cri- 

teria in the aggregate point to dilution..., then plaintiffs 

have not met their burden, and their cause must fail, 

Nevett v. Sides, F.2d (5th Cir.1975), 
  

D. Present Form of Government, 1965 Voting Rights 
  

Act, and Act 832. Since 1911, the City Commission form of 
  

government has obtained in Mobile, with three commissioners 

required by statute to be "elected from the city at large’. 

Ala. Acts No. 281(1911) [now principally codified as ALA. 

CODE tit. 37, §89 et seq.]. As originally provided by 

statute, the three commissioners upon their election would 

elect from their number a mayor, and apportion among them- 

selves the administrative tasks of the City. With some 

minimal modification over the years, the commission form of 

government, with its at-large feature [ALA.CODE tit. 37, §96] 

has remained susbtantially unchanged. 

One present feature of at least peripheral interest 

in this case is Act 823 of the 1965 Alabama Legislature, en-~ 

acted not as an amendment to title 37, section 89 et seq. 

  

165ee note 14 supra. The Three-Judge District Court on 

the remand of White v. Regester formulated the factors in- 

volved in a different and slightly less Procrustean fashion 
than appeared in Zimmer and its progeny. See Graves Vv. 

Barn 

  

  

s, 378 F.Supp. 640, 643(W.D.Tex.1974), on remand of 2 
1 th 
—— 

White v. Regester, 412 1.8. 755(1973). 
  

 



wl] 

  

[old Act 281], but instead as a general act of local appli- 

17 cation’ covering only the City of Mobile. Act 823 echoed 

earlier, short-lived amendments in providing an apportion- 

ment of specific tasks A WI comtastionere Act 

823 assigned specific tasks to numbered commission posts 

(Finance and Administration, Public Safety, and Public Works 

and Services), and also provided for a scheduled rotation of 

the largely ceremonial mayoralty. There had been numbered 

posts since 1945. ALA.CODE tit. 37, §94. 

Act 823 did not change or alter the at-large feature 

here under attack. 

However, because of the peripheral involvement of Act 

823 in this case, some mention should be made of its re- 

lationship to Section 5 of the 1965 Voting Rights Act, 42 

U.S.C. §1973(c). -Because plaintiffs are found herein to be 

not entitled to relief under the standards of Zimmer and 

other dilution cases as modified by Washington v. Davis, 
  

  

177he frequent Alabama use of the so-called ''general 
law of local application' is described in Adams, Legisla- 
tion by Census: The Alabama Experience, 21 ALA.L.REV, 401 
(1969). The .Three~-Judge Court ramifications of that prac~ 
tice are discussed in note 7 supra. 

18 : 
In 1939, Act 289 was introduced by Mr. Langan and 

passed, providing for election of the Mayor for that speci- 

fic office, and also providing a specific apportionment of 
the tasks of administration among the two associate commis~ 
sioners. It was declared unconstitutional the next year 
for repugnancy to legislative requirements (procedural in 

nature) under the Alabama constitution. State v. Baumhauer, 
239 Ala. 476, 195 So. 869(1940). Almost immediately there- 
after the same basic provision was re-enacted in the general 
codification of 1940, ALA.CODE tit. 37, §95(1%40). One 

associate commissioner was assigned the fire, police, health, 
and sewer departments, while the other was assigned parks, 

docks, streets, public buildings and the city airport. The 

majority of the Board of Commissioners assigned to each 

associate commissioner one set of tasks. In 1945, this 

procedure was abandoned. Ala. Acts No. 295(1945). 

  

  

 



12 

  

it is not necessary in this case that an adjudication be had 

concerning the coverage of Act 823 by §5 of the Voting 

Rights Act of 1945, %7 If such an adjudication were neces- 

sary, of course, a Three-Judge District Court would have 

been required to determine that issue. Allen v. Bd. of 
  

Elections, 393 U.S. 544, 563(1969); United States v. Cohan, 
  

  

470 F.2d 503, 505(5th Cir.1972). Whatever the current 

status of Act 823 under the 1965 Voting Rights Act, no deter- 

mination of the problem need be made in this case, and, in 

any event, could not be made by a single judge. 

Since this case can be disposed of upon the basis of 

issues which can be decided by a single judge without trans- 

  

Pact 823 was enacted shortly after passage of the 1965 
Voting Rights Act, and was not at the time submitted to the 
Department of Justice. On May 14, 1975, the City of Mobile 

submitted to the Justice Department five statutes of the 1971 

Regular Session of the Alabama Legislature for approval 
under §5 of the Voting Rights Act. On July 14, 1975, the 
Justice Department wrote the City to ask that Act 823, which 

had been minimally amended by one of the 1971 enactments, be 

submitted for approval under §5. On December 30, 1975, the 

City submitted Act 823 "without prejudice to the right of 
the City to continue to insist upon its position that Act 

823 is not within the scope of the Civil Rights Act of 
1965." On March 2, 1976, the Department of Justice inter- 
posed objection to portions of Act 823, upon the rationale 

that since the City was contending in this litigation that 

Act 823 made the imposition by this Court of single-member 
districting inappropriate, Act 823 was invalid since it 
"rigidifies use of the at-large system''. On March 5, 1976, 
counsel for the City wrote the Department of Justice re- 

iterating the City's position that Act 823 was without the 
coverage of §5, and specifically by copy inviting plaintiffs 
in this action "to bring an appropriate legal action to 
determine the matter, if they are disposed to contend that 
it is unenforceable'. Neither plaintiffs herein nor the 
Department of Justice have done so; nor has the City in- 
stituted a declaratory judgment action under §5 in the 

United States District Court for the District of Columbia. 

No supplemental claim raising the issue has been filed in 
this action. This Court of course intimates no view on the 
issue of coverage of Act 823 by §5 of the 1965 Voting Rights 

Act. See generally Beer v. United States, D.S. : 
  

  

47 L.EE.24 629{1975). 

 



<13= 

  

gressing upon the jurisdiction of a Three-Judge Court, it 

is appropriate for this Court to so decide the issues. MIM 

v. Baxley, 420 U.S. 799, 806-07(1975) (concurring opinion); 
  

Hagans v. LaVine, 415 U.S. 528(1974). 
  

ITI. FINDINGS OF FACT 
  

A. Identifiable Segment. This Court elects to pre- 
  

dicate its decision upon the merits, and there is therefore 

no reason to spend an undue amount of time upon the issue of 

whether or not plaintiffs under the facts of this case con- 

stitute an identifiable segment of the population. Despite 

the existence of a creditable body of evidence in the record 

indicating that Mobile blacks are no longer for certain 

political purposes to be regarded as an identifiable seg- 

ment of the population, 2S this Court, in order to reach 

the merits, holds that blacks in Mobile constitute an iden- 

tifiable segment of the population for Fourteenth Amendment 

purposes. 

Bh Purpose. Under Washington v. Davis, plaintiff must 
  

prove that the statute involved was enacted or instituted to 

further a discriminatory purpose. 

The statute under attack in this Court, setting up 

the at-large facet of government which still obtains in 

Mobile, was passed by the Alabama legislature in 1911. ALA, 

CODE tir. 37, 396, 

  

For example, the testimony of Dr. James E. Voyles, an 

expert for defendants, indicated that black/white political 

scisms of the 1960's were an aberrant product of the civil 
rights struggle during that period, and that black/white 
scismatic voting trends have been significantly (if not yet 
entirely) reduced. Similarly, the answers of the named 
plaintiffs to interrogatories indicate many examples of iden- 

tity of black/white views, thus reducing the number of issues 
upon which the blacks have ''particularized needs'. See, e.g. bh 

Answers of Plaintiffs to Defendants' Interrogatories 67-114. 
  

 



. 14- » 

  

This Court finds that neither §96 nor Act 281 as 

a whole was enacted for a discriminatory purpose. In 1911, 

the Negro vote played no part in elections in Mobile, as 

the evidence clearly shows. Blacks had been overtly dis- 

franchised prior to that time 2} a fact plaintiffs do not 

dispute. Under such circumstances, any contention that the 

adoption of Act 281 was racially motivated is unsupportable, 

This finding, that the enactment of Act 281 had no 

racial purpose, echoes similar findings in other courts deal- 

ing with other Southern states. The Court of Appeals for 

the Fifth Circuit in Wallace v. House held that when the at- 
  

large election system was first passed in Louisiana in 1898, 

"there could have been no thought that the device was racially 

discriminatory, because very few blacks were allowed to vote 

in Louisiana during that period". 515 F.2d at 633. Judge 

Wisdom made a similar observation in Taylor v. McKeilthen, 
  

finding that prior to the 1965 Voting Rights Act, 

blacks could not be elected to [public 

officel-~to be blunt-~-because there 
were no black voters. It is as simple 
as that. Since adoption of the Louisi- 

ana Constitution of 1898 and until rec- 
ently, the legislature disfranchised 

blacks overtly; it was never necessary 
for the legislature to resort to covert 
disenfranchisement [sic] of blacks by 
manipulating [apparently neutral electoral 
devices]. 

  

  

  

499 F.2d 893, 896(5th Cir. 1974), quoted in Wallace v. House, 
  

515 F.2d at 633. Additionally, contemporaneous journalistic 

accounts reflect other, non-racial reasons for the adoption 

of Aci 281, 

This finding-~that the 1911 Alabama legislature in pass- 

ing Act 281 did not have a racially discriminatory pucrpose=-- 

should, under Washington v. Davis, end the inquiry and 
  

    

21. : : . : eT 
; Lhe [Alabama] Constitution of 190l1...eliminated the Negro 

voter'"., M. McMILLAN, CONSTITUTIONAL DEVELOPMENT IN ALABAMA 35 4 

(1955), 

 



“15 

  

mandate judgment for defendants. However, since the Fifth 

Circuit has not yet explicitly engrafted Washington upon 
  

Zimmer and its progeny, and since Washington leaves some 
  

room for admissibility of evidence of effect as it might 

bear upon purpose, this Court will also make factual findings 

in terms of the criteria of Zimmer. 

C. Zimmer Factors. The Court herewith makes factual 
  

findings upon each of the Zimmer criteria, for whatever 

residual use they may be in dilution cases after Washington:   

1. "Priwmarvy' Factors. 
  

(a). "Lack of access to the process of slating 
  

candidates'. Blacks in the City of Mobile have not been 
  

deprived of access to the slating of candidates to the City 

Commission; in Mobile there is no such slating. This find- 

ing is parallel to the finding of Judge Pointer in the 

Fairfield case “Yowever pernicious the operation of slat- 

23 
ing organizations might be in other cities, thev do not 

exist in Mobile City elections. In fact, not only are there 

  

22 he plaintiffs, blacks residing in the City of Fairfield, 
have not demonstrated any lack of access to the process of 

slating candidates for city elections; for in Fairfield there 
has been no such slating'. Nevett v. Sides, F. Supp. 

(N.D, Ala. June 11, 1975). 
  

2315 Dallas City Council elections, a slating organiza- 

tion styled the "Citizens Charter Association'', or C.C.A., 
"enjoyed dominance in city elections. Lipscomb v. Wise, 399 
F.Supp. 782, 786(N.D.Tex.1975). A similar group, called the 
"Dallas Committe for Responsible Government' or DCRG operated 
in elections from that county to the state legislature. 
White v. Regester, 412 U.S. 755, 766~-67(1973). In other 
cases, political parties or party organizations with racial 
solidarity served the same function. E.g., Turner v, J 

McKeithen, 490 F. 2d 191, 195(5th Cir.1973) (one-party parish 

  

  

  

  

where black vote solicited only after nomination). There is 
no such monolithic political organization in Mobile City 

Commission elections. 

 



“16~ 

  

no non-partisan slating organizations for the City Com- 

mission in wobtle, the elections are non-partisan and 

the Democratic and Republican parties themselves do not 

serve as slating organizations for the City Commission. 

~All that is necessary is for a potential candidate to 

qualify and to run. 

A few other, more general findings concerning 

Mobile political affairs may be in order in view of the 

suggestion of the Supreme Court in White that these cases 

call for an "intensely local appraisal...in the light of 

past and present reality, political and otherwise'. 412 

U.8.:at 769. 

Unlike many Southern polities in which nomination 

by the Democratic Party is tantamount to election, that is 

not necessarily so in Mobile, even in races which (unlike 

the City Commission races) are conducted on partisan tickets. 

There is no longer any racial impediment of what- 

ever nature to prohibit or hinder in any way a black (as 

such) from registering to vote, voting, qualifying to seek 

office, running for office, or being elected to office. In 

sum, Mobile has an intensive, active, vigorous political 

life, one which, at the present time, is as open to blacks 

as to whites. As the Supreme Court wrote in Chavis: 

The mere fact that one interest 
group or another concerned with 
the outcome of...elections has 

found itself outvoted and without 

legislative seats of its own pro- 

vides no basis for invoking con- 
stitutional remedies where, as 
here, there is no indication that 

this segment of the population is 
o> 

being denied access to the politi- 

cal system. 

403 B.S. at 154-53, 

 



  

“17+ 

To whatever degree (if any) White v. Regester 

differs from? and therefore controls Zimmer, this finding 

  

alone should compel judgment for defendants. The Supreme 

Court in that case wrote, as noted above, that the burden was 

on plaintiffs to prove that their segment of the population 

"had less opportunity than did other residents in the dis- 

trict to participate in the political processes and to elect 

legislators of their choice". 412 U.S. at 677. This finding 

of openness under one of the Zimmer criteria seems to be, 

under White, a finding of non-dilution without the necessity 

of proceeding to other Zimmer factors. 

(b). "Unresponsiveness of legislators to P & 
  

[blacks'] particularized interests'. As an initial matter, 
  

it may be noted that the evidence reflects that on many 

issues of importance to citizens in Mobile there are no 

"particularized interests' of blacks. 

A significant segment of the proof adduced by 

plaintiffs on the responsiveness issue tended to be in the 

form of testimony concerning isolated instances of citizen 

complaints about, for example, drainage or paving in a 

particular area inhabited largely or entirely by blacks. 

As Judge Pointer pointed out in the Fairfield case, 

it should be noted that the in- 
quiry is directed to "unrespon- 
siveness', referring to a state, 
condition or quality of being 

unresponsive, and is not estab- 

lished by isolated acts of being 

unresponsive. 

Nevett v. Sides, ¥.Supp.  _(N.D. Mla, June 11, 1976). 
  

This Court finds that the City of Mobile has 

not, in recent years, evidenced unresponsiveness to particu- 

  

24 ee note 14 Supra. 

 



1 pa pA 

«18 

  

larized needs of blacks. 

(i) City Services. The Court heard a con- 
  

siderable quantity of testimony from both sides regarding 

the nature and extent of various city services in the black 

areas. This is not a case in which the "streets and side- 

walks, sewers and public recreational facilities provided by 

  

the town for its black citizens are clearly inferior to those 

which it provides for its white citizens", Wallace v. House, 
  

515 F.2d at 623 (emphasis added), or one in which the City has 

evidenced "inexcusable neglect of black interests'. Id. In- 

stead, the evidence in this case represents good faith 

efforts to extend public services to both black and white. 

A number of serious drainage problems exist in many sections 

of Mobile, including several black areas; the City has at- 

tempted and is attempting in good faith to remedy such prob- 

lems inherent in a low-lying area such as Mobile. The 

evidence further reflects that street paving, maintenance, 

and repair and cleaning and the like-~to the extent that 

those activities are conducted by the City rather than by 

private developers Dn -ate performed by the City of Mobile 

in a non~-discriminatory fashion. The evidence further reflects, 

and this Court finds, that in several instances of unpaved 

streets in black neighborhoods, the condition was due to the 

fact that the cost of paving non-thoroughfare streets in 

Mobile is normally assessed to abutting property owners, and 

  

25Not all paving of streets in the City of Mobile is per- 

formed by the City with City funds. A significant amount of 

street construction is performed by real estate developers 

in the construction of new subdivisions. There is no allega- 

tion of any improper complicity between the City and such 

developers with respect to such street paving. 

 



  

«1Dw 

that they had been unable or unwilling to be assessed for 

street paving. As Judge Johnson has noted, that unwilling- 

ness or inability to sustain a paving assessment does not 

rise to constitutional levels: 

The evidence...reflects that the 
reason that a larger percentage 

of the white residents are resid- 

ing in houses fronting paved streets 

is due to the difference in the re- 

spective landowners' ability and 
willingness to pay for the property 

improvements. This difference in 

the paving of streets and the estab- 

lishment of sewerage and water lines 
does not constitute racially discrim- 
inatory inequality. The equal pro- 
tection clause of the Fourteenth 

Amendment to the Constitution of the 

United States was not designed to 

compel uniformity in the face of 

difference. 

Hadnott v. City of Prattville, 309 F.Supp. 967, 970 (M.D. 
  

Ala. 1970). 

To the extent (if at all) that a difference 

in quality of city services exists, it may be in part attrib- 

utable to vandalism of public property which, the evidence 

shows, is significantly worse in black areas of town. To 

the extent that is so, any differences in quality are not 

constitutional deprivations. Beal v. Lindsey, 468 F.2d 287, 
  

290-91(2d Cir.1972). 

It is also worth noting that, to the extent 

there is any inequity in the respective quality of city ser- 

vices in black and white areas, plaintiffs have a direct 

pin~-point remedy in a suit for equalization under Hawkins 

v. Town of Shaw, Miss., 437 F.2d 1286(5th Cir.1971), aff'd 
  

on rehearing en banc, 461 F.2d 1171(5th Cir.1972), at 
  

least to the extent that any difference in service levels 

 



20 

  

was purposeful. Washington v. Davis, U.S. . hl 
  

  

U.S.L.W. 4789, £793 n.12(U.8, June 7, 1976). To the extent 

that any such inequity may be of significance to Mobile's 

black citizens, the remedy might more appropriately be the 

limited one of equalization rather than the radical one of 

changing the entire form of the city government. Whitcomb 
  

v. Chavis, 403 U.S. 124, 160(1971); Note, 37 HARV.L.REV.. 
  

1851, 1859 n.50(1974). 

(ii) Boards and Commissions. Plaintiff 
  

has presented evidence reflecting that blacks are not re- 

presented on the City's various boards and commissions in 

proportion to their percentage of the population. Defendants 

concede that to be so, and there has been no dispute over 

that fact. 

The discretionary appointments to city 

boards and commissions, are as a matter of comity, either 

entirely beyond federal judicial review, or very nearly so. 

Mayor of Philadelphia v. Educational Equality League, 415 
  

U.S. 605, 614-15(1974) (suit to insure bi-racial array of 

city appointees); James v. Wallace, 7.24 {5th Cir. 
  

June 21, 1976) (suit to compel Governor of Alabama to appoint 

more blacks). That being so, back-door judicial relief in 

the form of a finding of lack of responsiveness based on 

appointments seems particularly inappropriate. There are, 

in any event, several black board members, and an increase 

in their number cannot be instantaneous under any form of 

government. The Commissioners are "sowerless to appoint 

blacks to boards and commissions until the appearance of 

vacancies'. Yelverton v. Driggers, 370 F.Supp. 612, 619 
25 

  

 



  

-Z2]l~ 

(M.D. Ala. 1974). Additionally, the overwhelming majority 

of these boards are simply irrelevant to the "particularized 

needs of blacks'. 

(iii) Disparity in Employment Statistics. 
  

The city employment statistics indicate a disparity between 

the percentages of white and black employed on the one hand, 

and their respective percentages in the population on the 

other. 

The City of Mobile is limited in its 

ability to employ those whom it might otherwise choose; 

strictures are placed upon its hiring freedom by the fact 

that the Mobile County Personnel Board (which is not a 

department of the City) presents employment lists to the city 

from which hiring is effected. 

“To the extent that there might have been 

improprieties in hiring, plaintiffs have and have had a re- 

medy in this Court, in the form of lawsuits directly aimed 

at remedying those violations rather than at a change in 

the form of goverment, 20 

Additionally, the Supreme Court has re- 

cently noted in Washington that mere disproportionate 
  

hiring by the city, without more, does not indicate a Con- 

stitutional violation, = ‘U.S, ar .,44 1.8,L.¥. at 

4794. That being so, it seems inappropriate to find a 

constitutional violation by a back-door approach which in- 

stead holds the form of government unconstitutional upon the 

  

26 : : ; 
See Allen v. City of Mobile, Civ. No. 5409-69-P(S.D. 

Ala.) ; Anderson v. Mobile County Commission et al., Civ. No. 
  

  

7385-72-H(8.D. Ala.). 

 



0G 

  

theory that there is a disparity in employment which is, in 

itself, constitutional. A holding changing the form of gov- 

ernment ought not to be based upon such gossamer, backward 

logic. 

In sum, the Court finds that there has 

been no significant, general "lack of responsiveness' of the 

city government in Mobile in recent years to the particularized 

needs of blacks. 

(c). "A tenuous state policy underlying the 
    

reference for multi-member or at-large districting. 
‘ 

oD 
  

There is no clearcut state policy either for or against 

multi-member districting in the State of Alabama, consid- 

ered as a whole; hence, the "ambivalent state policy in 

this regard must be considered as a neutral factor in our 

consideration". Yelverton v. Driggers, 370 F.Supp. at 619. 
  

Just as in Yelverton, however, it is appro- 
  

priate to look at the state policy, as expressed by the 

state legislature, with specific reference to Nobile. 

A summary of each form of government obtain- 

ing in the City of Mobile since prior to Alabama statehood 

is attached as Appendix A. As that Appendix suggests, the 

government of the City of Mobile throughout its history 

for more than a century and a half has contained, at least 

in part, some multi-member feature. For sixty-five years 

the City Commission form of government with at-large elections 

has been in effect in Mobile. 

  

27A10ng the lines of the "intensively local appraisal 

suggested in White, it may be noted that Mobile has long 

been considered a political island outside the mainstream of 

Alabama politics. That fact makes particularly appropriate 

the consideration of the policy of the city itself regarding 

these districts, in addition to that of the state as a whole. 

 



«73. 

  

Therefore, whatever the policy of Alabama has 

been with respect to other municipalities in the state, its 

manifest policy as to the City of Mobile has been, for a 

significantly long period, multi-member districting. 

(d)."The existence of past discrimination in 
  

general precludes the effective participation in the election 
  

system''. The City of Mobile in this litigation candidly ad- 

mitted at the outset that, in the past, there were signifi- 

cant levels of official discrimination by the City. There 

is, of course, no doubt about that as Mobile's history in 

this regard is similar to that of Southern cities generally. 

The question, however, is not whether there was 

discrimination in the city's history [admittedly there was], 

but whether that discrimination today ''precludes the effec- 

tive participation in the election system'. 

The Court's finding is that the history of pre- 

1965 discrimination does not presently preclude effective 

participation in the political system. Every phase of the 

processes of registration, voting, qualification, and run- 

ning for a position on the City Commission 1s just as open 

to blacks as to whites. Past discrimination does not ''pre- 

clude effective participation' in Mobile City political 

affairs, nor in, for example, legislative races where blacks 

have been elected. As in the Fairfield case, '[t]lhe plain- 

tiffs have not proved that past discrimination precludes the 

effective participation by blacks in the election system. 

Nevett v. Sides, F.Supp. (X.D. Ala, June 11,1976), 
  

To the extent that blacks do not register, vote, or run for 

 



ay Te 

  

office to the same degree as whites, it is a product of 

their own choice in the matter. 

Virtually every Southern city or county (and 

many Northern ones) has a sad history of racial discrimina- 

tion; Mobile is not unusual in that respect. The concern is 

with present facts; in this case we should avoid if possible 

a result cintvolied by "legal standards...heavily weighted 

in favor of past events'. Yelverton v. Driggers, 370 
  

F.Supp. at 619. 

(e). Summary of Findings on 'Primary'' Factors. 
  

It is therefore seen that, for whatever value the Zimmer 

criteria may be after Washington, none of the four "primary" 
  

criteria of Zimmer are present in this case. 

Ever under Zimmer, these negative findings 

should mandate judgment for defendants. However, to com- 

plete the record, the Court will also make findings herein 

on the "enhancing' factors. 

11 2. '"Enhancing'' Factors. 
  

(a). Large Districts. The multi-member dis- 
  

trict in this case constitutes the City of Mobile as a whole. 

As Judge Pointer ruled in the Fairfield case, ''the election 

district must be considered 'large', at least in a relative 

sense. The district is as large as it can be''. Nevett v. 
  

Sides, F.Supp. (N.D., Ala, June 11, 1976). The 
  

same is obviously true in Mobile. 

However, the district in Chavis which passed 

constitutional muster was much larger than Mobile, contain- 

ing 300,000 voters in 1964. 403 U.S. at 133, n.1l. The 

two at-large counties in White v. Regester were also much 
  

 



  

=25,. 

larger, containing populations of 1,300,000 and 800,000. 

Graves v. Barnes, 343 F.Supp. 704, 720(W.D.Tex.1972), aff'd 
  

in part & reversed in part sub.nom. White v. Regester, 412 
  

U.S. 755(1973). While Mobile is not ''large' in comparison 

to those districts, it is probably large enough to be con- 

sidered "large" within the meaning of this enhancing factor, 

and this Court so finds. 

  

(b). Majority Vote Requirement. Under Section 

11 of Act 281, a majority vote is required for election, 

(¢). Anti-Singleshot Voting Provisions. There 
  

is in Act 281 no "anti-singleshot" voting provision; neither 

is there one in its current codification [ALA.CODE tit. 37, 

28 
§89 et.seq.] or in Act 8523. In a sense, as Judge Pointer 

29 
held in the Fairfield case, the numbered-position provision 

  

28pn "anti-singleshot' provision obtained in all city 

elections in Alabama from 1951 to 1961: 

A ballot commonly known or referred to as 

"a single shot" shall not be counted in 

any municipal election. When two or more 

candidates are to be elected to the same 

office, the voter must express his choice 

for as many candidates as there are places 

to be filled, and if he fails to do so, his 

ballot, so far as that particular office is 

concerned shall not be counted and recorded. 

ALA.CODE tit. 37, §33(1l), repealed September 15, 1961. 

29 judge Pointer held that: 

(3) There is no anti-single shot voting pro- 

vision since candidates run for numbered 

positions. The numbered position approach 

does have some of the same consequences how- 

ever as an anti-single shot, multi-member 

race; because a cohesive minority is unable to 

concentrate its votes on a single candidate. 

The numbered position approach does, however, 

eliminate the problem caused when a minority 

group is unable to field enough candidates 

in anti-single shot, multi-member races. 

Nevett v. Sides, F.Supp. at (M.D. Ala, June 11, 1976), 
  

 



  

wll 

of Act 823 [or, if Act 823 is invalid, tit. 37, §94] may 

have to some extent the same result. This Court therefore 

finds that, at least in part, the practical result of an 

anti-singleshot provision obtains in Mobile. 

(d). Lack of Residence Requirement. Act 281 
  

does not contain any provision requiring that any commis - 

sioner reside in any portion of town. If Act 823 is valid, 

a residence requirement would be at a minimum anomalous 

and probably even unconstitutional, as it would require that 

the Commissioner in command of each particular function 

(for example, Public Safety) reside in and be elected from 

one particular side of town, accountable only to one third 

of the population notwithstanding jurisdiction over the 

entire city. 

If Act 823 is not valid, on the other hand, 

similar problems could likely ensue. In that event, the 

majority of the Commissioners could apparently assign 

whatever tasks it wanted to the third commissioner, ALA. 

CODE tit. 37, §§95-96, or even perhaps no administrative 

functions, leaving the district which he represents effec- 

tively unrepresented in the administrative affairs of 

the City. There are no apparent, explicit state law limits 

upon such a practice contained in the optional commission 

form of government statute. ALA.CODE tit. 37, §89 et.seq. 

In sum, it appears that the enhancing factor 

dealing with residence requirements is intended to be con- 

sidered in cases involving city councilmen or the like 

with identical duties, and is irrelevant to cases which, 

like this, involve the City Commission form of government. 

 



  

«27 

If the factor should be deemed relevant, however, there 

is none. 

(e). Summary of Findings on "Enhancing Factors,' 
  

and "Ageregate' of All Factors. There are in this case no 
  

"srimary' factors present, but each relevant "enhancing" 

factor is present, for whatever value the Zimmer factors may 

have after Washington. 
  

Even prior to Washington, under Zimmer criteria 
  

alone, defendants would be entitled to judgment in this 

case. Since none of the "primary" factors are present, 

plaintiffs cannot be said to have proved an "aggregate" of 

the Zimmer factors, and their claim must therefore fail on 

that ground alone, even under cases formulated prior to 

Washington v. Davis. 
  

But there are also other considerations which, 

for purposes of completeness of the record, merit consider- 

ation. 

III. DEFENSES AND OTHER PERTINENT CONSIDERATION 
  

A. Traditional Constitutional Tolerance of Various 
  

Forms of Local Government. It may be appropriate to note 
  

that as a matter of constitutional law, the more "local" a 

government, the greater the leeway which has been given to 

it in constitutional/political cases. See, e.g., Abate v. 

Mundt, 403 U.S. 182, 185(1971). The Supreme Court has been 

particularly alert to avoid inflexible federal limitations 

upon the form of local government: 

Viable local governments may need many 
innovations, numerous combinations of 

old and new devices, great flexibility 
in municipal arrangements to meet chang- 

ing urban conditions. We see nothing in 
the constitution to prevent experimentation. 

 



  

28 

Sailors v. Bd. of Edve., 387 0.5, 105, 110-11(1967). The 
  

City Commission form of government was itself an experiment, 

the evidence reflects; doubtless every form of local govern- 

ment was once in some degree experimental. To the extent 

that it is possible, cities should be allowed some measure 

of freedom in their attempts to solve or mitigate govern- 

mental problems. The Constitution should be flexible 

enough to allow that experimentation: 

Frequent intervention by the Courts in 

state and local electoral schemes would 

seem to run counter to the Supreme Court's 

...concern for innovation and experimenta- 

tion at the local level. 

Note, 87 HARV.L,REV. 185, 1860(1974). 

The second, third and fifth defenses raised by defend- 

ants reflect this policy of comity and feduenalisng 0 as in 

Mayor of Philadelphia, "[t]here are...delicate issues of 
  

federal-state relationships underlying this case’. 415 

U.S. at 615. The federalism problem is made most acute by 

the fact that, if this Court were to impose single member 

districts, in all probability the Court would have to 

order that the very form of government be changed, from a 

commission form to another and different form, such as 

Mayor /Council. 

B. Necessity for Change in Form of City Government 
  

if Single-Member Districts Ordered. As enacted in 1911, as 
  

already noted, the Commissioners of the City of Mobile ap- 

portioned among themselves the duties of city government. 

    

Technically, these federal/state relations cases do 
& that 

      

2 

the federal government. Jackson, The Political Questior 

Doctrine: Where Does It Stand After Powell wv. McCormack 

73 1 [ + r= ETE 2 SN NA Try 7 . Vas - {HTT 

O'Brien v. Brown, and Gilligan v. Morgan? 44, U.COL.1..REV, 
  

    

  
  

477, 508-510(1973). 

 



<20. 

  

In 1965, Act 823 was passed, providing that Commissioners 

be elected to specific posts for specific jobs. 

As already noted, since plaintiffs have not prevailed 

under either Zimmer alone or Zimmer as modified by Washington, 
  

it has not been necessary for this Court to ask that a Three- 

Judge District Court be convened to consider the validity of 

Act 823. Whether or not Act 823 is valid under §5, the 

Procrustean imposition of single-member districting, as al- 

ready noted, would bring on absurd results caused by the 

fact that liv commissioners, unlike aldermen or councilmen, 

each perform different administrative functions. In order 

to avoid such an anomaly, attendant on the imposition of 

single-member districting upon the Commission form of govern- 

ment, the Court would have to change the form of the city 

government. The problem is fraught with difficulty, and 

would clearly silicate against the imposition of single- 

member districting as a remedy even assuming that plaintiffs 

had prevailed on the merits. 

C. "Swing Vote'. Testimony in this case suggests, 
  

and this Court so finds, that blacks in Mobile not infre- 

quently comprise a ''swing' vote able to decide close elec- 

tions to a degree significantly beyond their percentage in 

the population. While the actual effect is local in nature, 

it is a phenomenon which is not uncommon in multi-member 

district situations. E.g., Lipscomb v. Wise, 369 F.Supp. 
  

782. 793(N.D.Tex.1975) (multi-member election permitted 
3 

- - ro : > - 

Mexican/Americans "as a group to operate in a 'swing-vote 

manner and give them opportunity they might not otherwise 

have had"). Asone legal commentator has written: 

 



«30 

  

A group of voters that influences many 

legislators in a small way is not in- 
herently less desirable than a group 

that has a large impact on one legis- 
lator. Indeed, when other voters in a 

district in which the blacks constitute 
a minority are in a state of political 

equilibrium, it may be that the black 
group will wield political clout dis- 
proportionately large for its numbers. 

Carpeneti, Legislative Apportionment: Multi-Member Districts 
  

and Fair Representation, 120 U.PA.L.REV. 666, 692-93(1972). 
  

The swing vote factor is entitled to evidentiary weight in 

support of multi-member districting. 

D. Banzhaf Theory. Defendants also offered proof upon 
  

the statistical propriety of the Banzhaf theory, explained 

fully in Whitcomb v., Chavis, 403 U.S. 124, 145 n.23(1971); 
  

Banzhaf, One Man, ? Votes: Mathematical Analysis of Voting 
  

Power and Effective Representation, 36 GEO.WASH.L.REV. 808 
  

(1968) ; Banzhaf, Multi-Member Electoral Districts-~-Do They 
  

Violate the '"One Man, One Vote' Principle, 75 YALE L.J. 
  

1309(1966). The thrust of the theory is that if voting 

power is defined as the chance that a voter will be able to 

cast a decisive vote, then individual voters in multi-member 

districts have more voting power than do individual voters 

in single-member districts. The theory is purely a statis- 

tical one, necessarily severed from the hard facts of 

political life, and is separate and distinct from the find- 

ing respecting the black vote as a swing vote, supra, which is 

factually based upon the Mobile political experience. The 

Supreme Court in Chavis declined to base its decision on 

the Banzhaf theory, noting that it was ''theoretical', 403 

U.S. at 145, but did not deny that the theory was entitled 

to some (if not decisive) evidentary weight. This Court 

 



  

“31 

finds that the Banzhaf theory is entitled to be accorded 

some evidentiary weight in favor of the retention of multi- 

member districting in the City of Mobile. 

E. City-wide Perspective. Evidence adduced by defend- 
  

ants suggests, and this Court so finds, that the City of 

Mobile has a legitimate governmental interest in having 

Commissioners with a city-wide, non-parochial view of city 

affairs. The evidence further suggests, and this Court so 

finds, that such a city-wide perspective would be in signi- 

ficant measure lost with the imposition of single-member 

districting. The city-wide perspective has been found to be 

a legitimate governmental interest by both courts and com- 

mentators. In Lipscomb v. Wise, the District Court found 
  

a "legitimate governmental interest' in having some city 

council members with a "city-wide view on those matters 

which concern the city as a whole', 399 F.Supp. at 795, and 

suggested correctly that "[bjudget and services certainly 

do not stop at district boundaries'. Id. at n.15. One 

commentator has similarly written that: 

The district-wide perspective and alle- 

giance which result from representatives 
being elected at-large, and which enhance 

their ability to deal with district-wide 

problems, would seem more useful in a 

public body with responsibility only for 

the district than in a state-wide legis- 

lature. 

Note, 87 HARV.L.REV. 1851, 1857(1974). 

The desire of the City for a city-wide geographic 

perspective is a factor entitled to some evidentiary weight 

in this case in favor of the present form of government. 

 



  

“32 - 

F. Increased Polarization and Possible "Minority 
  

Freeze-out'' Under Single Member Plan. Defendants have ad- 
  

duced testimony, and this Court so finds, that if a single- 

member plan of city government representation were adopted, 

the degree of racial/political polarization would in all 

likelihood at least stay at the same level, and perhaps 

increase, with the result that the white majority in the 

city would likely be able to elect a majority of the Commis- 

sion. That, along with the fact that a single "black" 

commissioner and each 'white" commissioner would likely 

espouse narrow, parochial views of principal inEroRE: to 

constituents of their single, racially homogeneous districts, 

would cause nighly visible clashes in city government which, 

inevitably, would be seen as principally racial in nature. 

The probable result would be a virtual freeze-out of the 

single black commissioner and his constituents. The same 

problem was found by the Court in Lipscomb: 
  

The Court is particularly concerned with 
the prospect of district sectionalism 

which usually occurs in an exclusive 
single-member district plan. The Court 
is convinced that no matter how many 
single-member districts are drawn in 

Dallas, black voters in all probability 
would never elect more than 257 of city 
council so long as the present pattern 

of voting exists. With all single- 
member districts and the present voting 

pattern, it would be possible for a ma- 

jority of council to "freeze out" this 
25% and for all practical purposes ig- 
nore minority interests. 

  

  

399 F.Supp. at 795, n.l6(emphasis in original). The Court 

has the same concern here, and finds that the significant 

possibility of such a minority freeze-out is entitled to 

evidentiary weight against a single-member districting plan. 

 



«33 

  

G. Single-Member Districting and New Constitutional 
  

Problems. This Court finds that single-member districting 
  

would import into Mobile city government two new and differ- 

ent constitutional problems which the City has so far been 

able to avoid: reapportionment and gerrymandering. 

1. Reapportionment. One very significant factor 
  

in favor of multi-member districting is that, with the ex- 

ception pro tanto presented by the Banzhaf theory, multi- 
  

member districting without a residence requirement presents 

perfect numerical apportionment. Regardless of where a 

voter lives, his vote will exactly equal every other vote, 

even up to the end of each decade when post-census popula- 

tion shifts have malapportioned most single-member districts. 

Because of the notorious unwillingness of governmental bodies 

in Alabama and elsewhere to apportion themselves, >t there is 

a significant Hehe that a United States District Court 

would ultimately be called upon to reapportion the city. 

The possibility or even likelihood of that decennial necess- 

ity certainly gives pause when considering whether to impose 

single-member districting as a constitutional requirement. 

That possibility 1s properly to be considered when deter- 

mining the propriety of single-member relief. 

2. Gerrymandering. A multi-member district does 
  

not and cannot present the problem of gerrymandering of 

Lnternals district lines. The imposition by this Court 

  

3lpor the record of Alabama in that respect, see Stewart, 
Reapportionment With Census Districts: The Alabama Case, 24 

ALA.L.REV, 693, 694 n.6(1972). 

32. ; : : 
It is of course always possible for any city to attempt 

to draw its perimeter so as to include or exclude certain 

persons, see Gomillion wv. Lightfoot, 364 U.S. 339(1960), but 

  

  

a multi-member district by definition has no internal district 
lines. 

 



  

3 

of single-member districting would for the first time in 

many decades introduce into Mobile the problem of gerry- 

mandering. Whether ultimately brought into Federal Court 

as a constitutional matter or not, see Wright v. Rockefeller, 
  

376 U.S. 52(1964), the problem would be a significant one. 

And, it is entertwined with the problem of reapportionment, 

since the difficulty of political line drawing after each 

decennial census inevitably suggests inaction by incumbent 

officeholders. 

The related problems of reapportionment and 

gerrymandering have so far not been imported into the City 

of Mobile. The imposition of single-member districting by 

this Court would do so for the first time in recent history. 

That 1s a factor of evidepiinng weight tending against the 

imposition of single-member districting. 

H. Flexibility of Federal Equitable Relief. Even if 
  

the plaintiffs were to have made out a claim for equitable 

relief, that would not necessarily entitle them to a change 

in the form of government, or to the imposition by this 

Court of single-member districts. Chavis makes clear that 

the Court, upon finding for plaintiffs in a case of this 

nature, ought to attempt if possible to remedy the wrong by 

action less drastic than the wholesale imposition of single- 

member districting: 

[I]t is not at all clear that the remedy 
is a single-member district system with 
its lines carefully drawn to ensure rep- 
resentation to sizeable racial, ethnic, 

economic or religious groups and with 
its own capacity for overrepresenting 

parties and interests and even for per- 
mitting a minority of the voters to con- 
trol the legislature and government of 

a state... 

 



  

«35 

Even if the District Court was correct 

in finding unconstitutional discrimina- 

tion against...[plaintiffs,] it did not 

explain why it was constitutionally com- 
pelled to disestablish the entire county 
district and to intrude upon state policy 

any more than necessary to ensure repre- 

sentation of ghetto interest. The 
Court entered judgment without express- 

ly putting aside on supportable grounds 
the...possibility that the Fourteenth 
Amendment could be satisfied by a simple 
requirement that some of the at-large 
candidates each year must reside in 

the ghetto. 

Certainly, even if plaintiffs had prevailed in the 

instant case, relief on less-than-a wholesale scale would 

accord with the precepts of equity, encompassing '"[f]lexi- 

bility rather than rigidity'. Hecht v. Bowles, 321 U.S. 
  

32, 329-30(1944). Judge Johnson, for example, in an 

analogous but pre-Washington case, upon finding for plain- 
  

tiffs, merely ordered periodic reports to be made upon 

the issues of trial (street paving, etc.), upon the ground 

that the City was making good-faith efforts and "the appli- 

cable legal standards are heavily weighted in favor of the 

consideration of past events'. Yelverton v. Driggers, 370 
  

F.Supp. at 619. In sum, single-member districting is not 

necessarily the proper equitable remedy even if a constitu- 

tional violation exists. 

IV. AVAILABLE POLITICAL REMEDY 
  

While the availability of a political remedy for 

plaintiffs’ alleged wrongs by no means mandates abstention, 

it is certainly worth consideration for whatever signifi- 

cance it may have. 

A. Legislative Remedy. The form of city government 
Gn 
  

presently obtaining in Mobile was, of course, passed by 

 



-36= 

  

the Alabama legislature in 1911. The record in this case 

shows that under the prevailing custom in the legislature 

called "legislative courtesy', that body will enact virtually 

any local government provision agreed upon by the local 

delegation. 

The Alabama legislature is elected under a court- 

ordered plan approved by the Supreme Court, from single- 

member districts of near-perfect numerical apportionment, 

Several of the members of the Mobile legislative delegation 

are black and, plaintiffs would no doubt admit, represent 

any "particularized interests' of Mobile blacks in that body. 

In the course of the never-ending process of municipal gov- 

ernment experimentation in Alabama and elsewhere, it does 

not seem inappropriate to suggest that "relief" from a 

legislatively~imposed government may well be available to 

plaintiffs and their class from the legislature. 

B. Abandonment. There is also available to the 
  

citizenry of Mobile a state procedure styled "abandonment, 

pursuant to which the voters can abandon the commission 

form of government and return to the aldermanic system 

obtaining prior to the adoption of the commission form of 

government. ALA.CODE tit. 37, §120 et.seq. That abandon- 

ment may be initiated by signatures of only three percent 

  

33 
Sims v. Amos, 336 F.Supp. 924(M.D.Ala.1972)(3-judge 

court), aff'd, 409 U.S. 942(1973). 
  

3% he legislature, for example, recently provided for 

the City of Montgomery (which voted acceptance) a Mayor/ 

Council form of government to replace its Commission form. 

Ala. Acts No. 618(1973). See also Robinson v. Pottinger, 
    

512 F.2d 775(5th Cir.1975) (validity of that statute under 

state law). 

 



“37 

  

of the registered voters of the city. Id. at §120. It may 

be noted that the aldermanic form of government obtaining 

in Mobile prior to 1911 had a residence requirement for 

councilmen, so that a return to this form of government 

would provide the very relief (residence requirement) the 

imposition of which the Chavis Court said should be con- 

sidered ae 0 possibly the appropriate form of relief 

if plaintiff prevails in a case of this nature. 403 U.S. 

at 160. Certainly the availability of this political relief 

to plaintiff under state law, while not determining the re- 

sult here, should be of evidentiary weight in this case. 

/ YK, 

[LS f) (LL Lill / 

CB. ABENDALL, JR. /' 
30th Floor, First National Bank Bldg. 

Mobile, Alabama 36602 

  

Attorney for Defendants 

OF COUNSEL: 

HAND, ARENDALL, BEDSOLE, 
GREAVES & JOHNSTON 

S. R. SHEPPARD// 
{ L A a £x Lo 

  

Attorney for Defendants 

OF COUNSEL: 

LEGAL DEPARTMENT OF THE 

CITY OF MOBILE 

CERTIFICATE OF SERVICE 
  

I do hereby certify that I have on the (£7 day of 

{¢ , 1976, served a copy of the foregoing document 
7   

on counsel for all parties to this proceeding, by mailing 

the same by United States mail, properly addressed, and 

first class postage prepaid. 

A 7A / | / / 
/ // , Z yy) 7 : 

i 
|! 

  

 



  

APPENDIX A: 

CITY OF MOBILE GOVERNANCE 
  

[contains basic organizational statutes only] 

1. 1814: [At-large]: Seven Commissioners were elec- 

ted at-large for the town of Mobile; they elected a President 

from their number. rot 0 Legislature of the Territory of 

Mississippi, January 23, 1814. (Source: Toulmin's Digest, 

r+. 780). 

2. 1819 [At-large]: City of Mobile was incorporated, 

governed by a Mayor and six aldermen to be elected at-large 

annually. Ala. Acts No. (1819) (passed December 17, 

1819). (Source: Toulmin's Digest, p. 784) (Alabama became 

a state in 1819). 

3. 1825 [neither at-large nor single-member districts]: 

A Mayor and six aldermen were to be elected at-large, after 

which they were to divide the city into three or more wards, 

from each of which two or more aldermen would be elected, 

not to exceed a total of nine aldermen. Ala. Acts No. 

(1826) (passed January 9, 1826). 

4, 1833 [no change]: The legislature provided for 

election of commissioners whose only duty it would be to 

divide the city into wards. No change was otherwise made 

in the Zorn of government. Ala. Acts No. 68(1833). 

5. 1840: The change made in 1840 cannot be located. 

Apparently a form of government substantially identical 

to the 1844 statutory form was adopted. 

 



  

ii 

6. 1844 [mixed plan]: This statute consolidated a 

number of prior statutes. It provided that the city would 

be governed by a Mayor and seven-member Common Council, to 

be elected at-large, with a provision that one common council- 

man reside in (but not be elected from) each ward. There was 

also a Board of Aldermen, to consist of three members elec- 

ted by the voters of each ward, or, a total of rani Seine 

aldermen. Ala. Acts No. __ (1844) (January 15, 1855) 

[ Source: CODE OF MOBILE (1858)]. 

7. 1866 [mixed]: The number of wards was increased 

from seven to eight, but the form of government was not 

changed. Ala. Acts Wo, (1856), 

8. 1868 [At-large]: This statute provided that the 

Governor was to appoint a Mayor, twenty-four aldermen, and 

eight common councilmen until their successors were elected. 

The statute did not limit appointments to geographic areas 

and was therefore apparently an at-large form. Ala. Acts 

No. (1868Y(p.4), 

9. 1868 [At-large]: This repealed the earlier 1868 

act. It provided that the Governor was to appoint twenty- 

four aldermen and eight common councilmen who would then 

assemble in convention and elect the Mayor. The statute 

"under this act the Governor may explicitly provided that 

appoint any inhabitant of the City of Mobile, without 

reference to the ward in which he may reside." Ala. Acts 

Vo. 71 (1868). 

10. 1870 [At-large]: This statute repealed the former 

act, declaring the former offices vacant. It provided that 

the Governor would appoint the Mayor, twenty-four aldermen, 

 



  

111i 

and eight members of the common council, and also provided 

that the Governor might appoint these officials without 

reference to which ward the appointee resided in. Ala. Acts 

No. 97. (1870). 

11. 187% {vo change}: This repealed section 3 of the 

1868 act, which appears to have been already repealed in 

any event. Ala. Acts No. 148 (1871). 

12. 1874 [At-large]: This statute provided that all 

of the city officials wad be elected at-large, with a 

requirement that the aldermen and common councilmen must be 

residents of the wards for which [but not by which] they 

were elected. Ala. Acts No. 365 (1874). 

13. 1879 [At-large]: This statute abolished the 

City of Mobile, and provided that the Governor, with the 

advice and consent of the Senate, would appoint three 

commissioners to liquidate the city. Ala. Acts No. 307 

(1879). The same session of the legislature [Ala. Acts 

No. 308 (1879)] incorporated the "Port of Mobile'. The 

Port of Mobile was to be governed by eight commissioners 

elected at-large, one for each ward who must reside in that 

ward. The Commission would then elect a President. 

14. 1886 [At-large]: This statute, re-establishing 

Mobile as a city, provided a Mayor, a Board of Aldermen, 

and a Board of Councilmen, all of whom were elected at- 

large, [Id. at §12], although one councilman had to reside 

in, but not be elected by, each ward. The Mayor, Board 

of Aldermen, and Board of Councilmen met together as 

"The Mayor and General Council", in which legislative 

power was vested. Ala. Acts No. 152 (1866). 

 



iv 

  

15. 1897 [At-large]: No change significant to this 

case; same form of government was retained. Ala. Acts No. 

214 (15897). 

16. 1901 [At-large]: No change significant to this 

case; same form of government was retained. Ala. Acts No. 

1039 1/2 (1902). 

17. 1911 [At-large]: The Commission form of govern- 

ment was established in 1911, the at-large feature of which 

has been continually in effect. Ala. Acts No. 281 (1911). 

18. 1940 [specific duties]: This amendment provided 

that a Mayor would be elected specifically to that position, 

and a division of the administrative tasks was made by sta- 

tute between the two associate commissioners, one of whom 

was assigned by the majority of them to each set of tasks. 

ALA.CODE tit. 37, $95 (1940). 

19. 1945 [numbered posts, no apportionment]: In 

1945, the apportionment of administrative tasks by statute 

was repealed, but numbered posts were instituted. Ala. Acts 

No. 295 (1945). 

20. 1965 [specific duties]: Specific duties were 

assigned to specific numbered commission posts, and a sys- 

tem of rotation of the mayoralty was established. Ala. 

Acts No. 823 (1965).