Presley v. Etowah County Commission Brief of the Appellee

    Nos. 90-711 and 90-712

In The

Supreme Court of the United States
October Term, 1991

----------------♦----------------
LAWRENCE C. PRESLEY, individually and on behalf 

of others similarly situated,
Appellant,

ETOWAH COUNTY COMMISSION,
Appellee.

----------------- ♦ ------------------

ED PETER MACK and NATHANIAL GOSHA, III, 
individually and on behalf of others 

similarly situated,
vs Appellants,

RUSSELL COUNTY COMMISSION,
Appellee.

----------------- ♦ ------------------

On Appeal From The United States District Court 
For The Middle District Of Alabama

----------------- ♦ ------------------

BRIEF OF THE APPELLEE 
RUSSELL COUNTY COMMISSION

----------------- ♦ ------------------

James W. W ebb 
Counsel of Record
K endrick E. W ebb

W ebb, C rumpton, McG regor,
Davis & A lley

One Commerce Street, Suite 700 
Post Office Box 238 
Montgomery, Alabama 36101-0238 
(205) 834-3176
Attorneys for Appellee 
Russell County Commission

August 1991



1

QUESTION PRESENTED

WHETHER LOCAL LEGISLATION WHICH MERELY 
SHIFTS MINISTERIAL ROAD DUTIES FROM INDIVID­
UAL COUNTY COMMISSIONERS ELECTED AT LARGE 
TO A ROAD ENGINEER RESPONSIBLE TO THE 
COUNTY COMMISSION AS A WHOLE IS SUBJECT TO 
PRECLEARANCE UNDER SECTION 5 OF THE VOTING 
RIGHTS ACT?



11

PARTIES IN COURT BELOW

The parties in the court below at the time of the 
judgment were plaintiffs Ed Peter Mack, Nathaniel 
Gosha, III, Lawrence C. Presley, and defendants Russell 
County Commission and Etowah County Commission.



Ill

TABLE OF CONTENTS
Page

Question Presented............................................................... i

Parties in Court B elow ....................................................... ii

Table of C ontents................................................................. iii

Table of A uthorities............................................................. vi

Opinions B elow .....................................................................  1

Jurisdiction...............................................................................  1

Statutory Provisions............................................................. 1

Statement of the C a se ......................................................... 1

Summary of Argum ent....................................................... 5

Argument.................................................................................  8

LOCAL LEGISLATION WHICH MERELY SHIFTS 
MINISTERIAL ROAD DUTIES FROM INDIVID­
UAL COUNTY COMMISSIONERS ELECTED AT- 
LARGE TO A ROAD ENGINEER RESPONSIBLE 
TO THE COUNTY COMMISSION AS A WHOLE 
DOES NOT CONSTITUTE A "CHANGE" WITHIN 
THE MEANING OF SECTION 5 OF THE VOTING 
RIGHTS ACT AND IS, THEREFORE, NOT SUB­
JECT TO PRECLEARANCE..........................................  8

A. The three-judge court correctly found that 
minor reallocations of local governmental 
powers among elected officials where there is 
no change in constituencies fall outside the 
purview of Section 5's preclearance require­
ments because there exists no potential for 
discrimination............................................................. 8



IV

1. The District Court's ruling is not inconsis­
tent with prior Supreme Court cases defin­
ing the scope of § 5 coverage....................  9

2. The District Court's ruling is consistent
with previous district court decisions 
which emphasize the presence of a change 
in constituencies as being evidence of 
potential for discrimination............................  12

3. The District Court's ruling is consistent
with prior positions held by the Justice 
Department emphasizing change in con­
stituencies as indicative of potential for 
discrimination....................................................... 16

B. The County Commission by state law has 
always held general supervisory authority over 
the county road system and therefore, the dele­
gation of "ministerial" road and bridge duties 
to an appointed county road engineer does not 
effect a "change" within the meaning of Sec­
tion 5 .............................................................................  17

1. Under Alabama law the county commis­
sion acting as a unit has always been 
vested with general supervisory authority 
over the county's road system with the 
power to delegate administrative or minis­
terial duties to subordinates..........................  18

2. The delegation of administrative or minis­
terial duties comes within the "administra­
tive or ministerial exception" implicit in 
section 5 coverage decisions..........................  21

TABLE OF CONTENTS -  Continued
Page



V

C. The Voting Rights Act was "aimed" at voter
registration and was never intended to intro­
duce the heavy hand of federal scrutiny into 
routine local enactments which have no appar­
ent nor real impact upon minority voting 
righ ts............................................................................. 23

D. Russell County's 1979 enactments not only
lack a "potential for discrimination", as found 
by the three-judge panel; in reality, the conver­
sion to the unitary road system actually brings 
the most benefit to Russell County's black con­
stituents........................................................................  28

E. The three-judge panel, while according the def­
erence due to the Justice Department's posi­
tion, properly and prudently chose to override 
the Justice Department's position and rule in 
the favor of the Russell County Commission 30

TABLE OF CONTENTS -  Continued
Page

Conclusion...............................................................................  31

Appendix................................................................................. A-l



VI

C ases:

Allen v. State Board of Elections, 393 U.S. 544 (1969) 
...............................................................................10, 12, 24, 25

Beer v. United States, 425 U.S. 130 (1976)......................  28

County Council of Sumter County, South Carolina v.
United States, 555 F.Supp. 694 (D.C. D.C. 1983)___14

Court of Commissioners of Pike County v. Johnson,
229 Ala. 417, 157 So. 481 (1934)............................ 18, 19

Dougherty County Board of Education v. White, 439 
U.S. 32 (1978).................................................................11, 25

Fairley v. Patterson, 393 U.S. 544 (1969).................... 16, 17

Georgia v. United States, 411 U.S. 526 (1973).......... 10, 29

Hadnott v. Amos, 394 U.S. 358 (1969)........................ 11, 25

Hardy v. Wallace, 603 F.Supp. 174 (N.D. Ala. 1985) passim

Horry County v. United States, 449 F.Supp. 990,
(D.C. D.C. 1978)..................................................... 12, 14, 15

Lucas v. Townsend, 698 F.Supp. 909 (M.D. Ga. 1988)___30

McCain v. Lybrand, 465 U.S. 236 (1984)...................... 9, 21

McDaniel v. Sanchez, 452 U.S. 130 (1981)........................  11

Morris v. Gressette, 432 U.S. 491 (1977)..........................  23

NAACP v. Hampton County Election Comm., 470 
U.S. 166 (1985)...............................................................21, 22

Perkins v. Matthews, 400 U.S. 379 (1971) 
...................................................................6, 11, 12, 16, 24, 25

Pleasant Grove v. United States, 479 U.S. 462 (1987)___11

TABLE OF AUTHORITIES
Page



Richmond v. United States, 422 U.S. 358 (1975)............  11

Robinson v. Alabama State Board of Education, 652
F.Supp. 484 (M.D. Ala. 1987)....................  13, 14, 15, 22

St. Louis v. Praprotnick, 485 U.S. 112 (1988)..................  18

South Carolina v. Katzenbach, 383 U.S. 301 (1966)........  25

Sumbry v. Russell County, CV-84-T-1386-E (M.D.
Ala. 1986)...................................................................................4

Thompson v. Chilton County, 236 Ala. 142, 181 So.
701 (1938)........................................................................ 19, 20

Turner v. Webster, 637 F.Supp. 1089 (N.D. Ala.
1986).........................................................................................  28

Statutes:

Act No. 79-652, Acts of Alabama 1979.................................. 4

Alabama Code, 1975, § 11-6-1 (Michie 1989 Repl.
V o l.)........................................................................... r ............. 3

Alabama Code, 1975, § 11-6-3 (Michie 1989 Repl.
V o l.)...................................................................................3, 18

Alabama Code, 1975, § 23-1-80 (Michie 1986 Repl.
V o l.)........................................................................................... 18

Alabama Code, 1975, § 23-1-86 (Michie 1986 Repl.
V o l.)...........................................................................   2

Alabama Code, 1940, Title 12, § 69 (M ichie)...................... 3

Voting Rights Act, 42 U.S.C. 1973 and 1973(c)... passim

V ll

TABLE OF AUTH ORITIES -  Continued
Page



V lll

TABLE OF A UTH ORITIES -  Continued
Page

Statutory H istory M aterials:

Hearings on H.R. 6400 before Subcommittee No. 5 
of the House Committee on the Judiciary, 89th 
Cong., First Sessio n ............................................................ 27

111 Congressional Record 8363 (daily ed. April 23,
1965).........................................................................................  27

S. Rep. No. 417, 97th Congress, second session
(1982).......................................................................................  28

M iscellaneous:

Black's Law D ictionary.......................................................... 26

Corpus Juris Secundum.......................................................... 26



OPINIONS BELOW

The opinion of the district court is unreported. The 
opinion of the district court is reproduced beginning at JS 
A -l.1 The order denying the motion to alter or amend the 
judgment is reproduced beginning at JS A-42.

----------------- * ------------------

JURISDICTION

The district court denied the requested injunction on 
1 August 1990 and denied the motion to alter or amend 
the judgment on 21 August 1990. The Appellants filed 
their respective Jurisdictional Statements in this Court on 
16 October 1990. This appeal is taken under 28 U.S.C. 
§ 1253.

----------------- ♦ ------------------

STATUTORY PROVISIONS

The Fifteenth Amendment to the Constitution, 42 
U.S.C. 1973, and 1973c2 are set out in full in the Appendix 
to this brief.

♦

STATEMENT OF THE CASE

Appellee totally rejects Appellants' Statement of the 
Case. Appellants are traveling on a totally false assumption

1 Unless otherwise noted, references to "JS" may be found 
in the Appendix to Appellants' Jurisdictional Statement at the 
cited page.

2 42 U.S.C. 1973c is commonly known as "Section 5."

1



2

that prior to 1979, each commissioner had complete con­
trol of a virtually autonomous district, including a por­
tion of the budget.

Prior to 1979, the road department of Russell County 
operated under a district or semi-district system. In 1979 
the Russell County Commission consisted of five com­
mission members. Two commissioners whose districts 
were contained within the city limits of Phenix City, 
Alabama had virtually nothing to do with direct supervi­
sion of road operations in the county since the roads and 
streets in their district were maintained by the Phenix 
City Road Department. The three commissioners whose 
districts lay outside of Phenix City were personally 
involved in the day-to-day management and direct super­
visory aspects of the county road work in their district.3 
(See A-14, Deposition of John Belk, p. 10). The districts 
were approximately the same size and contained approx­
imately the same miles of rural roads. (See A-14, Deposi­
tion of John W. Belk, page 20.) All county road funds 
were budgeted for the county as a whole and were never 
divided between the districts. (See A-14, Deposition of

3 The streets and roads within the Phenix City, Alabama 
municipal limits are maintained from separate city and state 
funds under control of the municipality. In fact, 20% of Russell 
County's share of the State gasoline tax by general and local 
law goes to the municipalities. (Exhibit 3 to this defendant's 
Motion for Summary Judgment). Counties may, with consent of 
the city government, work on city streets. Alabama Code, 1975, 
§ 23-1-86 (Michie 1986 Repl. Vol.). Since the case was submitted 
to the three-judge lower court on depositions and exhibits, 
there is no formal record. References herein to exhibits and 
depositions are from those submitted to the lower court.



3

John Belk, pp. 8, 9) The three shops were included in a 
single road budget always under the control of the entire 
county commission. (See Id.)

During the latter part of 1978 and early 1979, a 
Russell County grand jury conducted an investigation 
involving misuse of county equipment and personnel. As 
a result, one of the commissioners was indicted by the 
grand jury. The same grand jury recommended that the 
county adopt what is commonly known as the "Unit 
System". (See A-14, Deposition of John W. Belk, page 8). 
Under the Unit System, the county road department is 
operated, without regard to district lines, by the county 
engineer, a professional appointed by and responsible to 
the county commission. See Alabama Code, 1975, § 11-6-1 
(Michie 1986 Repl. Vol.).The duties of the county engineer 
are specified by state law (§ 11-6-3 of the Code).4 The Unit 
system is the system recommended by the Alabama's 
State Highway Department and other authorities. (See 
A-16, Deposition of Charles Adams, pp. 13, 14).5

Following the grand jury's investigation, indictment 
and recommendation, a member of Russell County's 
legislative delegation, Rep. Charles Adams, met with the

4 The specifications for county road engineer have been 
set out by statute in Alabama since 1939. See Alabama Code, 
Title 12, § 69 (Michie 1940).

5 A copy of the pertinent portion of Auburn University 
Professor Lansford C. Bell's recommendation was attached as a 
part of Exhibit 1 to Russell County's response to the Justice 
Department in the Court below. The unit system or a modified 
version of the unit system is currently operating in 45 of 
Alabama's 67 counties.



4

county commission to encourage adoption of the Unit 
System for operating the county road department. During 
a meeting on May 18, 1979, the county commission pas­
sed a resolution reorganizing the road department under 
the Unit System "effective immediately". (Quoted by 
lower court's opinion. See Appellant's JS A-3).

Following the meeting of the county commission, 
Rep. Adams introduced House Bill 977 into the Alabama 
Legislature, which later became Act No. 79-652. (See A-4) 
This bill was introduced by Rep. Adams to prevent the 
county commission from deciding at a later date to 
reverse its resolution of May 18, 1979. (See A-16, page 9 of 
Deposition of Charles Adams).

Approximately seven years later, as a result of a 
consent decree entered March 17, 1986, in Sumbry v. 
Russell County, CV-84-T-1386-E, the county was redis­
tricted into seven commission districts, three of which 
have a predominantly black population. Although past 
discrimination, based on unlawful dilution of black vot­
ing strength was alleged, no such finding was entered. 
Prior to Sumbry, the five commissioners, while residing in 
individual districts, were elected from the county "at 
large". Sumbry divided the county into seven districts and 
each commissioner is now elected by district. Two of the 
commissioners, Mack and Gosha, (Appellants in this 
case) are black and were elected in 1986,6 seven years 
after the contested legislation was enacted.

6 Mack and Gosha were elected to Districts 4 and 5 respec­
tively. District 4 has 1.3 total miles of county-maintained roads 
or .2% ; District 5 has 73.92 miles of county-maintained roads 
or 13.8%. (See A -ll, formerly Exhibit 3.B. to Defendants' 
Motion for Summary Judgment).



5

Appellants instituted an action in the United States 
Federal District Court, Middle District of Alabama, on 
May 5, 1989 alleging, inter alia, a violation of their voting 
rights pursuant to Section 2 of the Voting Rights Act of 
1965. After amending their complaint twice (Joint Appen­
dix pp. 15, 31), the Appellants, under the authority of 28 
U.S.C. § 2284 (West 1978 & 1990 Supp.) requested a three- 
judge court to consider whether the Appellee's legislation 
converting the county to the unit road system was subject 
to the preclearance requirements of the Voting Rights Act, 
found in Section 5. Appellants' motion was granted and 
on August 1, 1990 the three-judge panel issued an order 
which found Russell County's 1979 enactments to be 
exempt from Section 5's preclearance requirements. 
(Before JOHNSON, Circuit Judge, HOBBS, Chief District 
Judge, and THOMPSON, District Judge. J. THOMPSON 
dissented.) It is this order which the Appellants have 
chosen to challenge before this Court. (The three-judge 
court's order is set out in full in Appellants' Jurisdictional 
Statement Appendix, beginning at A-l). Their appeal was 
docketed on October 26, 1990 and probable jurisdiction 
was noted on May 13, 1991.

----------------- « ------------------

SUMMARY OF ARGUMENT

The Court is called upon today to, once again, inter­
pret the scope of the preclearance provisions, commonly 
known as § 5, of the Voting Rights Act of 1965. This 
section provides for federal preclearance of "changes" in 
"voting qualifications or prerequisites to voting, or



6

standards, practices, or procedures with respect to vot­
ing" not in effect on November 1, 1964. The purposes 
behind the Voting Rights Act, as well as its subsequent 
accomplishments, are certainly laudable. However, this 
Court should affirm the lower court's ruling that Russell 
County's conversion to the unitary road system is exempt 
from preclearance and that the application of § 5 is not 
without "limited compass."7

The Appellants are challenging Appellee Russell 
County Commission's 1979 legislative enactments which 
converted the county's road system from a district or 
semi-district system to a unitary system. This legislation 
shifted responsibility for day-to-day supervision of road 
authority in the rural districts from individual commis­
sioners once elected at-large to a county road engineer 
appointed by the county commission as a whole.

The three-judge court below properly recognized that 
its role in assessing Russell County's 1979 legislation was 
to look for "potential for discrimination", the triggering 
mechanism of § 5. The court found that this local legisla­
tion, by which minor government powers are reallocated 
effecting no change in constituency, falls outside the pur­
view of § 5.

The lower court's holding is clearly justified by the 
reasoning implicit in several Supreme Court cases and

7 This term is taken from Justice Harlan's concurrence and 
dissent in Perkins v. Matthews, 400 U.S. 379, 398 (1966).



7

explicit in several district court cases considering the 
"coverage" issue. This reasoning, termed by the Appel­
lees a "change in constituency" analysis, contends that 
where minor powers are merely shuffled among govern­
ment officials who are responsible to the same electorate 
or constituency, there simply is no potential for discrimi­
nation. This case can be contrasted with the "normal" § 5 
case where the proposed change dramatically effects a 
shift in constituency, i.e., a switch from district elections 
to at-large elections.

Moreover, the district court's ruling is clearly correct 
given Alabama's law characterizing the road duties in 
question as being purely ministerial. Since the Russell 
County Commission held general supervisory authority 
over the county road operations both before and after 
1979, only shifting the delegation of routine ministerial 
duties, there really was no change in terms of the Voting 
Rights Act.

Additionally, the Alabama Middle District Court's 
ruling is supported by the statutory construction of § 5 
and the legislative intent behind the Voting Rights Act. 
The impetus behind the Voting Rights Act was the elim­
ination of obstacles to blacks exercising their right to 
vote, i.e., poll tests, and the augmentation of black voter 
registration. The act in general, and § 5 specifically, was 
intended to prevent such states from reimposing obsta­
cles to black voter registration and was not intended to 
intrude upon the day-to-day operation of local govern­
ments.

Finally, in considering the reality behind the imple­
mentation of Russell County's unitary system in 1979, it



8

is significant that the plan advocated by the Appellants, 
equal distribution of road funds and resources between 
the districts regardless of need -  though this has never 
been the law or practice in Russell County -  would 
actually harm many black constituents. It is apparent that 
the Appellant's main complaint is simply a lack of discre­
tionary funding to spend in their districts.

WHEREFORE, PREMISES CONSIDERED, the Appel­
lee Russell County Commission requests that this Court 
affirm the lower court's ruling and hold that Russell 
County's 1979 legislation installing the unitary road sys­
tem is exempt from the Voting Rights Act's preclearance 
requirements.

----------------♦----------------

ARGUMENT

LOCAL LEGISLATION WHICH MERELY SHIFTS MIN­
ISTERIAL ROAD DUTIES FROM INDIVIDUAL  
COUNTY COMMISSIONERS ELECTED AT-LARGE TO 
A ROAD EN G IN EER  R ESPO N SIBLE TO THE 
COUNTY COMMISSION AS A WHOLE DOES NOT 
CONSTITUTE A "CHANGE" WITHIN THE MEANING 
OF SECTION 5 OF THE VOTING RIGHTS ACT AND 
THEREFORE DOES NOT REQUIRE PRECLEARANCE.

A. The three-judge court correctly found that minor 
reallocations of local governmental powers among 
elected officials where there is no change in constit­
uencies fall outside the purview of Section 5's pre­
clearance requirements because there exists no 
potential for discrimination.

The three-judge court below recognized that its duty 
was simply to determine whether the Russell County,



9

Alabama's 1979 road and bridge enactments constituted a 
change under § 5 of the Voting Rights Act of 19658 creat­
ing a "potential for discrimination."9 JS A-8. After fully 
considering the facts before them and applying the rele­
vant law, Alabama's Middle District concluded that a 
reallocation of local governmental authority which does 
not effect a "significant relative change in the powers 
exercised by government officials" and which does not 
change the constituencies to which the officials are 
responsible, is not a "change" within the meaning of § 5 
of the Voting Rights Act. JS A-13, 14.

1. The District Court's ruling is not inconsistent 
with prior Supreme Court cases defining the 
scope of § 5 coverage.

While never having addressed the specific issue of 
whether § 5 would require preclearance of routine real- 
locations of ministerial governmental duties which result 
in no change in constituency, this Court has certainly left 
the door open for the formulation of a "change in constit­
uency limitation" in § 5 coverage. In 1984, the factual 
backdrop of McCain v. Lybrand, 465 U.S. 236, set the stage 
for the Court to determine whether § 5 applied to minor

8 Section 5 has been encoded at 42 U.S.C. § 1973c, hereaf­
ter "§ 5". Section 5 is reprinted in full at A-3.

9 Appellants' contention that the three-judge panel below 
exceeded its scope of review looking past the threshold cover­
age inquiry of "potential for discrimination" into substantive 
considerations is insupportable. Even a cursory review of the 
lower decision indicates that the court did not deviate from 
accepted Section 5 modes of analysis.



10

reallocations of power, including jurisdiction over roads, 
and the impact of a change in constituencies. Id. at 239. 
Unfortunately, because the contested South Carolina act 
put into force more substantial changes (conceded to 
come within § 5's coverage), and the main issue focused 
upon an interpretation of previous Justice Department 
preclearance approval, the Court never reached the minor 
reallocations of power enacted by the South Carolina 
legislation nor the impact of a change in constituency. See 
Id. at 250 n.17. Such questions were left by this Court, 
somewhat prophetically, for "future proceedings." Id. at 
250 n.17.10

Whereas this honorable Court may have never used 
the term "change in constituencies", many of this Court's 
§ 5 rulings appear to be, in fact, rooted in a "change in 
constituency" analysis. For example, when a suspect 
political subdivision converts from district representation 
to at-large representation, the "change" creates a poten­
tial for discrimination because "[v]oters who are mem­
bers of a racial minority might well be in the majority in 
one district, but in a decided minority in the county as a 
whole." Allen v. State Board of Elections, 393 U.S. 544, 569 
(1969). Justice Stewart conducted a similar analysis in 
Georgia v. United States, 411 U.S. 526, 534 (1973), where he 
framed the coverage issue to be "whether such changes 
[single member to multimember districts] have the poten­
tial for diluting the value of the Negro vote." To state the 
obvious: the potential for vote dilution arises when there

10 The Court's meaning was of course that the questions 
listed would be addressed by the district court upon remand.



11

is a change in constituencies. Clearly, Chief Justice War­
ren and Justice Stewart engaged in what the Appellee has 
termed, for want of a better expression, a "change in 
constituency" analysis.

Similarly, reapportionment and annexation schemes 
fall within § 5 because their very purpose is to change the 
makeup of a constituency, thereby creating a potential for 
minority voting strength dilution. See McDaniel v. Sanchez, 
452 U.S. 130, 134 (1981) (reapportionment); and Perkins v. 
Matthews, 400 U.S. 379, 388 (1971) (annexation); accord, 
Pleasant Grove v. United States, 479 U.S. 462, 467 (1987), 
and Richmond v. United States, 422 U.S. 358, 362 (1975).

The remaining § 5 coverage cases decided by this 
Court have addressed legislation of the nature which 
discourages minority candidates from seeking elective 
office, thus making the minority's vote ineffective, see, 
e.g., Dougherty County Board of Education v. White, 439 U.S. 
32, 37 (1978) (rule requiring Board of Education 
employees seeking elective office to take unpaid leave of 
absence during campaign periods), and Hadnott v. Amos, 
394 U.S. 358, 362-65 (1969) (practice requiring minority 
candidates to undergo obstacles not required for white 
candidates). The Alabama District Court specifically 
found that this line of cases was "basically inapposite" 
and factually distinguishable from the Appellants' situa­
tion in the present case. See JS A-15, n.14.



12

2. The District Court's ruling is consistent with 
previous district court decisions which emphas­
ize the presence of a change in constituencies as 
being evidence of potential for discrimination.

Following this Court's lead in conducting what was, 
in essence, a "change of constituency" analysis, see supra, 
the lower courts coined the phrase "different constituen­
cies" or "changed . . . constituency", finding the analysis 
quite helpful in resolving § 5 coverage close calls. Appar­
ently, the first district court case to explicitly rely upon a 
"change in constituency" analysis to define § 5's scope 
was Horry County v. United States, 449 F.Supp. 990, 995 
(D.C.D.C. 1978). The court explained that,

An alternate reason for subjecting the new 
method of selecting the Horry County govern­
ing body to Section 5 preclearance is that the 
change involved reallocates governm ental 
powers among elected officials voted upon by 
different constituencies. Such changes neces­
sarily affect the voting rights of the citizens of 
Horry County, and must be subjected to Section 
5 requirements. Cf. Perkins v. Matthews, supra; 
Allen v. State Board of Elections, supra.

Id. Note that the three-judge district court did not see 
themselves as formulating a "novel" § 5 coverage theory; 
rather, the court was simply relying upon the Supreme 
Court's reasoning in Perkins and Allen, supra. See Id.

The "different constituency" paradigm was elevated 
from "an  altern ate  reason for subjecting . . .  [a 
change] . . .  to Section 5 preclearance", Id. (emphasis 
added), to "the most relevant attribute of the challenged 
act" in Hardy v. Wallace, 603 F.Supp. 174, 178 (N.D. Ala.



13

1985) (emphasis added). In Hardy, the change in constitu­
encies and resultant discriminatory potential created by 
Alabama's Act No. 507 in 1983 is quite illustrative of why 
the "change in constituency" analysis is so particularly 
effective in assessing § 5 coverage. In 1975, the Alabama 
legislature created the Greene County Racing Commis­
sion whose members were to be appointed by the all 
white legislative delegation representing Greene County 
at the time. Id. at 175. The powers of the commission were 
significant since the county racetrack would become the 
county's largest employer and would be responsible for 
63% of the county's tax revenue. Id. at 176. In 1983, when 
it became clear that a reapportionment plan gave blacks 
the power to elect black candidates to the Greene County 
le g is la tiv e  d e le g a tio n ,11 the Alabam a leg isla tu re  
responded by transferring the power to appoint racing 
commission members from the Greene County legislative 
delegation to the Governor of Alabama, George Wallace, a 
white male. The "potential" for discrimination existed 
because the appointive powers and its corresponding 
influence were taken away from the legislative delegation 
responsible to the majority black Greene County voters 
and bestowed upon a governor who was responsible to 
the state-wide voters, 99% exclusive of Greene County 
voters and majority white in makeup. Id. at 176, 179.

The most recent district court decision overtly relying 
on a "change of constituency" analysis is Robinson v.

11 Compare the timing of this legislation with Russell 
County's 1979 reallocation of day-to-day road and bridge 
authority which occurred seven years before appellants Mack 
and Gosha or any other black was elected to the Russell 
County Commission.



14

Alabama State Board of Education, 652 F.Supp. 484 (M.D. 
Ala. 1987) (three-judge panel). The district court was 
called upon to analyze Perry County's shift in Marion 
city school authority from a county board of education 
elected county-wide by a black majority to a city board of 
education appointed by Marion City Council members 
who were, in turn, elected by the city's white majority. Id. 
at 485. The panel's order, drafted by Judge Thompson12, 
extended § 5 coverage "[fjirst," because "the resolution 
changed the constituency that selected those who super­
vised and controlled public schools within the city." Id. at 
486 (emphasis in original). The court continued to explain 
that "[pjrior to the resolution, county voters elected the 
board members who controlled public schools in the city; 
under the resolution, however, the city council selected 
the board members who controlled city schools." Id. 
(emphasis in original).

The common denominator in Horry, Hardy and Robin­
son,13 all cases where § 5 coverage was extended, is a 
potential for discrimination which arises out of a change 
in constituencies whereby minority voting strength can 
be either overtly or covertly diluted. This "relevant attrib­
ute"14 is conspicuously absent from the Russell County 
legislation in the case at bar. Before 1964 and up until

12 Judge Thompson, ironically, was a dissenter in the 
lower court's ruling in the case at bar.

13 Arguably, County Council of Sumter County, South Caro­
lina v. United States, 555 F.Supp. 694 (D.C.D.C. 1983) relies on a 
change in constituency analysis for its holding also but not as 
explicitly as Horry, Hardy, and Robinson.

14 This term is taken from Hardy v. Wallace, supra, at 178.



15

1979, the county commission as a whole held general 
supervisory authority over the county road system and 
delegated direct or day-to-day supervision of the road 
system to three rural district county commissioners 
elected at large and responsible to the county as a whole. 
The 1979 enactments maintained the vestment of general 
supervisory authority in the Russell County Commission, 
but delegated the direct or day-to-day authority over 
county road operations to a professional county engineer 
appointed by, and under the authority of the same county 
commission. The three judge panel put it most succinctly 
when it found that "[bjoth before and after the 1979 
change, the official responsible for road operations in 
each district was elected by, or responsible to, all the 
voters of the county." JS A-16.

While Horry, Hardy and Robinson all use the constitu­
ency analysis to extend § 5's coverage, Judge Vance 
implicitly recognized in Hardy that the same reasoning 
could be used to limit § 5 coverage when he, in dictum, 
opined:

The ordinary or routine legislative mod­
ification of the duties or authority of elected 
officials or changes by law or ordinance in the 
makeup, authority or means of selection of the 
vast majority of local appointed boards, com­
missions and agencies probably are beyond the 
reach of section 5, even given its broadest inter­
pretation.

Hardy at 178, 179. The instant lower court in its wisdom 
recognized the Russell County scenario as the vehicle in 
which Judge Vance's cautionary dictum in Hardy would 
ripen into a ruling.



16

3. The District Court's ruling is consistent with 
prior positions held by the Justice Department 
emphasizing change in constituencies as indica­
tive of potential for discrimination.

While the Justice Department has decided to support 
the Appellants in the instant case, their position generally 
upon reallocation of authority and the impact of a change 
in constituency is far from settled. This conclusion is 
evident not only from the Department's failure to pro­
mulgate applicable regulations on the subject, see JS A-15, 
but also from its position in earlier cases which is con­
trary to its stand today. As recently as 1985, the United 
States Attorney General wrote the Alabama Attorney 
General concerning the Hardy legislation, described supra. 
The Justice Department first objected, then withdrew its 
objection to the Hardy legislation stating, "[i]t is certainly 
not the case that every reallocation of governmental 
power is covered by Section 5 ."15 See Appendix B to 
Hardy v. Wallace, 603 F.Supp. at 181. While the Justice 
Department may claim that its position in Hardy favoring 
such a § 5 limitation is merely a recent aberration, the 
truth is that as early as 1969 the Department embraced 
the position that, "Section 5 applies to laws [that] sub­
stantially change the constituency of certain officials . "
Perkins v. Matthews, 400 U.S. at 391, n.10, quoting the 
Justice Department's amicus brief in Fairley v. Patterson, 
393 U.S. 544 (1969). From any fair reading of the Justice

15 It appears that, to some extent, it was Hardy v. Wallace 
that led Alabama's Attorney General to decide that it was 
unnecessary to submit Russell County's legislation for federal 
preclearance. (Stipulated Testimony of Lynda K. Oswald, 
A-10). The unit system or modified unit system is currently 
operating in 45 of Alabama's 67 counties.



Department's position in both Hardy and Fairley, one is 
caused to wonder why the Department did not choose to 
write its amicus brief in favor of Appellee.

B. The County Commission by state law has always 
held general supervisory authority over the county 
road system and therefore, the delegation of "minis­
terial" road and bridge duties to an appointed 
county road engineer does not effect a "change" 
within the meaning of Section 5.

While the Alabama District Court focused on the linkage 
between changes in constituency and potential for discrimi­
nation, the Appellee has, throughout the proceedings, 
asserted a subtly different additional ground for the denial of 
§ 5 coverage in this case: given Alabama's history of inves­
ting the county commission with ultimate or general super­
visory authority over county road operations, the 1979 
Russell County enactments simply did not effect a "change" 
within the meaning of § 5. A comparison with the ruling of 
the district court is helpful. The district court found, in terms 
of constituency, "[b]oth before and after the 1979 change, the 
official responsible for road operations in each district was 
elected by, or responsible to, all the voters of the county. 
Thus, there was no change in potential for discrimination 
against minority voters." JS A-16 (emphasis in original). The 
Appellee's proffered alternative ground is similar. Both 
before and after 1979, the county commission was clothed 
with the ultimate authority over county road and bridge 
systems. The fact that in 1979 ministerial or administrative 
road duties once delegated to rural district commissioners 
were rerouted to a county employee, the county engineer, is 
irrelevant in terms of § 5.



18

1. Under Alabama law the county commission act­
ing as a unit has always been vested with gen­
eral supervisory authority over the county's 
road system with the power to delegate admin­
istrative or ministerial duties to subordinates.

The appellants have attempted to convince the Court 
that prior to 1979 Russell County commissioners were 
autonomous road bosses who reigned sovereignly over 
their road district "fiefdoms". While this has never been 
the practice in Russell County or anywhere in Alabama; 
more significantly, it has never been the law in Alabama.16 17 
Although admittedly the rural district commissioners 
exercised direct supervision16 17 18 over his residency district's 
road maintenance, the county commission has always 
been entrusted with "general superintendence of public 
roads and bridges." See Court of Commissioners of Pike 
County v. Johnson, 229 Ala. 417, 419, 157 So. 481

16 The relevant sections of Alabama's code which describe 
the road and bridge authority of the county commission and 
what authority, duties, or functions may be delegated to a 
county road engineer or supervisor are set out in Appellee's 
appendix. See A-5, Alabama Code, 1975, § 23-1-80 (Michie 1986 
Repl. Vol.) and A-8, Alabama Code, 1975, § 11-6-3 (Michie 1989 
Repl. Vol.)

17 In other contexts, this Court has looked to state law to 
determine the authority and function of local officials, see, e.g., 
Sf. Louis v. Praprotnick, 485 U.S. 112, 124 (1988) (Section 1983).

18 Appellee employs the term "direct supervision" to 
mean day-to-day responsibility for completion of tasks and 
overseeing of workers as opposed to "general supervision" 
which denotes a responsibility for the formulation of long 
range objectives and major budget allocations.



19

(1934). Any duty or power held by the individual district 
commissioner was "administrative in character" and 
would be "subordinate to, in co-operation with, and in aid 
of this court [of commissioners], which is still vested with 
general jurisdiction and supervision. . . . "  Id. at 420 
(emphasis added). The state's supreme court in Court of 
Commissioners unequivocally rejected the notion of auton­
omous district commissioners.

. . . [T]here was no intention to transfer 
these governmental powers from the governing 
body of the county and vest them in the com­
missioner of each district. Such construction 
would destroy the unity of county government, 
and set up several rival government units of one 
man each, which, with undefined powers, 
would lead to great confusion.

Id. at 419. Clearly, no individual commissioner wielded 
the kind of autonomy over road and bridge matters, even 
within his residency district, that is suggested by Appel­
lants.

Further, the creation of the post of county road engi­
neer who would be responsible for direct supervision of 
road construction and maintenance took nothing away 
from the county commission in terms of road and bridge 
authority. In Thompson v. Chilton County, 236 Ala. 142, 181 
So.701 (1938), Alabama's Supreme Court interpreted a 
statute apparently very similar to the 1979 Russell 
County legislation at issue. The Thompson opinion 
described the limitations of the county road supervisor's 
authority (precursor to the county road engineer) in 
terms virtually identical to Court of Commissioner's



20

description of an individual commissioner's road author­
ity limitations, supra.

To be sure the Road Supervisor is charged 
with the duty of supervising the construction, 
maintenance and repairing the public roads in 
said county, but this does not mean that he 
displaces, in this respect, the Court of County 
Commissioners. . . . This supervisor is required 
to be a civil engineer, and his duties and author­
ity in no wise conflict with the general powers 
of the court [of commissioners]. He is in imme­
diate charge of the construction, maintenance 
and repair of the roads, but his duties are purely 
ministerial, and subordinate to the Court of 
County Commissioners.

Thompson at 145 (emphasis added).

If the pre-1979 district commissioner exercised only 
"administrative" road duties which were "subordinate 
to" the county commission's road superintendence and 
the post-1979 county engineer can only exercise "purely 
ministerial" functions "subordinate to" county commis­
sion road authority, there was no "change" which could 
trigger preclearance under § 5. The county commission as 
a whole as well as each individual commissioner main­
tained the same general supervisory superintendence 
powers before 1979 as they did after 1979. There simply 
was no change in the substantive powers held by the
commission.



21

2. The delegation of administrative or ministerial 
duties comes within the "administrative or min­
isterial exception" implicit in section 5 coverage 
decisions.

Although neither this Court nor any district court has 
explicitly relied upon an "administrative or ministerial 
exception" to limit the coverage of § 5, the framework has 
been laid for the formulation of such an exception. In 
McCain v. LybrandA9 465 U.S. at 239, this Court considered 
the description of a county commission's powers as 
"administrative and ministerial" significant enough to 
note the description within its opinion. The Court never 
was presented with the opportunity to comment upon the 
impact such a designation might have on § 5 coverage 
because of the procedural posture of the case.19 20 In 
NAACP v. Hampton County Election Comm., 470 U.S. 166, 
175 (1985), this Court extended § 5 coverage to legislation 
creating a two week filing period for a school district 
election to be held six months later. The lower court 
found that preclearance was unnecessary because "the 
scheduling of the election and the filing period were 
ministerial acts necessary to accomplish the statute's pur­
pose." Id. at 174 (internal quotation marks omitted) 
(emphasis added). Interestingly, this Court, in striking 
down the lower decision, did not hold that there was no

19 McCain is discussed in a slightly different context supra, 
in part A.

20 Besides the fact that the contested legislation in McCain 
enacted numerous "changes" in voting practices conceded to 
fall within the ambit of Section 5, See McCain at 239-240, 250 
n.18, the primary issue before the court involved the inter­
pretation of the Justice Department's approval of an earlier 
submission. Id. at 239.



22

"ministerial exception" -  though the opportunity to do so 
was clearly before the court. Rather, the Court rejected 
the lower court's characterization of the acts as ministerial 
in light of the Voting Rights Act's objectives. Id. at 175.21

Similarly, in Robinson v. Alabama State Board of Educa­
tion, supra, 652 F.Supp. at 486, the three-judge federal 
court from Alabama addressed a "change" in city school 
authority which the defendants characterized as merely 
"administrative" in nature. Again, the door was open for 
the court to rule that there simply was no "administrative 
exception" within § 5. The Robinson court, mimicking 
NAACP, chose not to do so; but instead, disagreed "with 
the defendants' characterization." Id. It is certainly not 
unreasonable to conclude from the NAACP and Robinson 
holdings, that in the right factual context, an act which 
can be fairly characterized as ministerial or administrative 
may not require preclearance under § 5.

Therefore, in the case at bar, where the challenged 
acts can be fairly characterized as "m inisterial" or 
"administrative"22 , the right fact situation is before the 
Court to explicitly recognize an exception that has to this 
point remained implicit. This Court should hold that the

21 The Court did rule that "minor alterations" in voting 
practices were not exempt from Section 5. NAACP at 176. 
Appellee's reading of the ruling in NAACP is justified on the 
ground that while the terms "minor" and "ministerial" are 
similar, they are not synonymous.

22 Appellee would go so far as to assert that the designa­
tion of the road authority in question has been conclusively 
characterized as "ministerial" or "administrative" by the Ala­
bama Supreme Court cases cited supra.



23

daily supervisory responsibility over a county's road 
maintenance program is clearly ministerial or administra­
tive in nature and therefore should be excluded from the 
"potential severity"23 of § 5 preclearance burdens.

C. The Voting Rights Act was "aimed" at voter regis­
tration and was never intended to introduce the 
heavy hand of federal scrutiny into routine local 
enactments which have no apparent nor real impact 
upon minority voting rights.

On August 6, 1965, the legislation commonly known 
as The Voting Rights Act went into effect. This legislation, 
passed by Congress pursuant to § 2 of the Fifteenth 
Amendment to the United States Constitution24 man­
dated that,

No voting qualification or prerequisite to 
voting, or standard, practice, or procedure shall 
be imposed or applied by any State or political 
subdivision to deny or abridge the right of any 
citizen of the United States to vote on account of 
race or color, or in contravention of the guaran­
tees set forth in section 1793b(f) (2) of this title.

42 U.S.C. § 1973. The task of this Court today is to 
interpret the meaning and intent behind one of the many 
enforcement provisions of the Voting Rights Act, § 5, the

23 This term is taken from Morris v. Gressette, 432 U.S. 491, 
504 (1977).

24 The text of the 15th Amendment is set out, in full, at
A-l.



24

preclearance provision. This section mandates pre­
clearance or prior approval to be sought and obtained 
from the United States Attorney General or the Federal 
District Court of the District of Columbia "[w]henever a 
[suspect] State or political subdivision . . . shall enact or 
seek to administer any voting qualification or prerequi­
site to voting, or standard, practice, or procedure with 
respect to voting different from that in force or effect on 
November 1, 1964 . 42 U.S.C. § 1973c.

While it is one thing to convey to Congress an intent 
to give the Voting Rights Act "the broadest possible 
scope"25 of application; it is quite another matter to emas­
culate the section of any meaningful limit.26 Although 
this Court has never been confronted with the right facts 
justifying § 5's limitation, such does not indicate that the 
provision is without boundary. Arguably, this Court has 
never had the occasion to comment upon legislation, like 
the 1979 Russell County enactments, which have such a 
de minimis (if any) impact on voting rights. Certainly, this 
Court has described the breadth of § 5 in sweeping terms; 
however, these descriptions of § 5 must be interpreted in 
the context of the facts before the Court. In each case, the 
Court was addressing legislation that had a clear and 
undeniable impact on minority voting strength. For 
instance, the opinions in Katzenbach, Allen and Perkins 
arose out of patent attempts by a political subdivision to 
dilute minority voting strength: voter registration tests

25 Allen v. State Board of Elections, 393 U.S. at 565.
26 See Perkins v. Matthews, 400 U.S. at 398 (J. Harlan con­

curring in part and dissenting in part).



25

and devices,27 shifts from district to at-large representa­
tion,28 and annexations.29 Admittedly, Hadnott30 31 and 
Dougherty County3'1 took this Court's interpretation of § 5 
one step further when it applied § 5 to legislation 
discouraging minority candidacy. Russell County's 
enactments present something totally new: a challenge to 
legislation which has no discernible impact on minority 
voting practices, procedures or patterns. The idea that 
these changes, like the ones in Dougherty, "reduce[d] 
in some manner the autonomy or political potency of 
. . . th e  c o u n t y  c o m m i s s i o n e r s  in R u s s e l l  
. . . Count[y]" is plainly inconsistent with an appreciation 
of the facts in this case, as found by the three judge panel. 
See JS A-15 at n.14.

The most relevant indication of the intent of the 89th 
Congress in drafting this legislation, the text itself, 
plainly places the emphasis on voting qualifications, pre­
requisites, and voting standards, practices or procedures. 
See 42 U.S.C § 1973. The phrase "any voting standard, 
practice, or procedure with respect to voting" must be 
interpreted in this light. See 42 U.S.C. § 1973c. The phrase 
"with respect to voting" only has meaning within the 
context of voting qualifications, prerequisites, standards, 
practices or procedures. The farther one gets away from

27 South Carolina v. Katzenbach, 383 U.S. 301, 329-30 (1966). 
This case was a bill in equity which challenged the constitu­
tionality of the Voting Rights Act in its entirety.

28 Allen, 393 U.S. at 569.
29 Perkins v. Matthews, 400 U.S. at 387, 388.
30 Hadnott, 394 U.S. 358, 362-365.
31 Dougherty County v. Board of Education, 439 U.S. 32, 37.



26

the items listed in § 1973, the more tenuous is the applica­
tion of § 1973c,32 even though there is some, broadly 
defined impact upon voting. To give the phrase "with 
respect to voting" any other meaning is to presume the 
89th Congress intended the absurd33 -  the Voting Rights 
Act would apply to every local law, ordinance, or regula­
tion virtually without exception, because it had an 
"impact" on minority voting strength.

Appellee's reading of § 1973c, in light of § 1973, is 
equally supported by sources of legislative intent outside 
the text. Attorney General Katzenbach, who is widely 
recognized to have played a large role in the drafting and 
passage of the Voting Rights Act, stressed that the "bill

32 The rule of construction, Ejusdem generis, is applicable 
here. Black's Law Dictionary defines Ejusdem generis as:

Of the same kind, class, or nature. In the con­
struction of laws, wills, and other instruments, the 
"ejusdem generis rule" is, that where general words 
follow an enumeration of persons or things, by 
words of a particular and specific meaning, such 
general words are not to be construed in their widest 
extent, but are to be held as applying only to persons 
or things of the same general kind of class as those 
specifically mentioned . . . .

33 Attributing to Congress such a presumption is in direct 
contravention of normal rules of statutory construction. See 82 
C.J.S. Statutes, § 316 (1953).



27

really is aimed at getting people registered. . . . " 34 1965 
House hearings 21, cited in Hardy v. Wallace, 603 F.Supp. 
174, 182 (J. Propst concurring). Senator Jacob Javits, one 
of the principal sponsors of the Voting Rights Act, 
explained that § 5's purpose was to prevent states from 
substituting new methods of voting qualifications and 
procedures for proscribed tests and devices suspended by 
§ 4.35 Another principle advocate, Senator Tydings, on the 
same day, explained that the suspension of voting tests 
and appointment of Federal examiners were "the heart of 
the bill."36

34 Assistant Attorney General Burke Marshall concurred. 
In House hearings, he answered a congressman's question by 
stating, "the problem that the bill was aimed at was the prob­
lem of registration, Congressman. If there is a problem of 
another sort, I would like to see it corrected, but that is not 
what we were trying to deal with in the bill." Hearings on H.R. 
6400 before subcommittee No. 5 of the House Committee on 
the Judiciary, 89th Cong., first session, page 74.

35 Senator Javits commented that,

Section 5 deals with attempts by States or politi­
cal subdivisions whose tests or devices have been 
suspended under Section 4 to alter voting qualifica­
tions and procedures which were in effect on 
November 1, 1964. Section 5 permits a State or politi­
cal subdivision to enforce new requirements only if it 
submits the new requirements to the Attorney Gen­
eral and the Attorney General does interpose objec­
tions within sixty days thereafter.

I l l  Cong. Rec. 8363 (daily ed. April 23, 1965).
36 111 Cong. Rec. 8366 (daily ed. April 23, 1965).



28

It was not the intent of Congress to intrude upon 
local legislative processes far removed from any colorable 
impact upon voting rights. Bill proponent Senator Javits 
protested that the act was "not introduced to federalize 
the voting process, but to aid the disenfranchised Ameri­
can to exercise the franchise." Id. at 8363. When Congress 
extended application of the Voting Rights Act in 1982, the 
official Senate report stated that Congress had originally 
intended for the act to "cover voting rights while allow­
ing the legitimate processes of government to go on."37

Therefore, this Court should, while maintaining § 5's 
broad application to voting practices, reject the Appel­
lants' all encompassing interpretation of § 5 which pro­
vides no reasonable limit to its coverage. Affirmation of 
the lower court's ruling is proper, if for no other reason, 
because, "[t]he language of section 5 clearly provides that 
it applies only to proposed changes in voting pro­
cedures." Beer v. United States, 425 U.S. 130, 138 (1976).

D. Russell County's 1979 enactments not only lack a 
"potential for discrimination" as found by the 
three-judge panel; in reality, the conversion to the 
unitary road system actually brings the most bene­
fit to Russell County's black constituents.

While a three-judge panel may, in the abstract, opine 
that the motive behind and the actual effect of a chal­
lenged enactment are "irrelevancfiesj", Turner v. Webster, 
637 F.Supp. 1089, 1092 (N.D. Ala. 1986) (three-judge

37 S. Rep. No. 417, 97th Congress, Second Session (1982) at
8.



29

court), this Court has said that Section 5's main concern is 
"the reality of changed practices as they affect Negro voters." 
See Georgia v. United States, 411 U.S. 526, 531 (1973). In other 
words, though the judiciary's responsibility in determining 
§ 5 coverage is to focus upon the "potential for discrimina­
tion" and not the substantive aspects of the Voting Rights 
Act; in assessing the "potential for discrimination", it is 
necessary to have an appreciation of the facts surrounding 
Russell County's 1979 enactments.

The "reality" behind Russell County's 1979 "changed 
practices" is simple: the people of Russell County made a 
decision that the unitary road maintenance system was supe­
rior to the district system of road management. The district 
system had generated duplication and waste, lacked accoun­
tability and invited corruption. As a direct response to the 
indictment of a county commission for abuse of his office, 
the choice for the unitary system was made -  all this nearly 
seven years before a black candidate was elected to the 
Russell County Commission. Governmental integrity bene­
fits black constituents as well as white. The Appellants have 
strained to implicate some sort of racial animus in a situation 
where it just does not exist.

Further, Appellants Mack and Gosha apparently do 
not have a problem with the unitary system as much as 
they want "discretionary funds" to spend in their dis­
tricts.38 Both Mack and Gosha voted in favor of the road 
budgets.39 Their common complaint is that they do not

38 See A-18, Deposition of Nathaniel Gosha, pages 35, 36, 
82, 84 and see A-21, Deposition of Jerome Gray, page 21. Jerome 
Gray is the Field Director for the Alabama Democratic Confer­
ence, the black caucus of the Alabama Democratic Party.

39 See A-18, Deposition of Nathaniel Gosha, page 17 and 
A-20, Deposition of Ed Mack, page 17.



30

have an "equal share" of revenue to spend in their dis­
tricts. Such political dilemmas -  so completely devoid of 
racial overtones -  are not the "stuff" of which Voting 
Rights Act challenges are made.

Finally, it is interesting to note that the plan advocated 
by Appellants to divide road funds equally between the 
districts, regardless of need, would actually be less beneficial 
to most black Russell County constituents. District 7, one of 
the more heavily populated rural districts and containing 
almost 60% of the county's roads40, is predominantly black 
though their chosen representative Commissioner Allen is 
white. Thus, Appellants' plan to equally divide road 
resources regardless of need would actually take away 
resources from this majority black district.

E. The three-judge panel, while according the defer­
ence due to the Justice Department's position, prop­
erly and prudently chose to override the Justice 
Department's position and rule in the favor of the 
Russell County Commission.

Certainly, the position of the Justice Department is to 
be accorded considerable deference due to the major role 
it played in the drafting of § 5; yet, its view is not 
dispositively binding upon a three-judge court's deter­
mination of § 5 coverage cases. Lucas v. Townsend, 698
F. Supp. 909, 911 (M.D. Ga. 1988). It is not rare for a court, 
after carefully considering the Department's position, to

40 District 5, represented by Appellant Mack, has 13.8% of 
the county roads. District 4, represented by Appellant Gosha, 
has only 1.3 miles of county roads within its borders. See 
breakdown of road mileage by district in A-ll.



31

reject the Department's leading and make what it views 
to be the most accurate application of § 5. See, e.g., Hardy 
v. Wallace, 603 F.Supp. 174, 177, n.5 and 181-182.

The instant three-judge panel carefully weighed the 
Attorney General's opinion but because the department's 
position on the matter had not been settled enough even 
to promulgate new regulations for guidance in this area, 
the court felt justified to make an independent judgment 
of the issues presented. JS A-15.

----------------- ♦------------------

CONCLUSION

Based upon the foregoing, Appellee request that this 
court affirm the lower court's holding which found the 
Appellee Russell County Commission exempt from the 
preclearance requirements of § 5 of the Voting Rights Act 
of 1965.

Respectfully submitted,

James W. W ebb,
Counsel of Record

K endrick E. W ebb

Counsel for Appellee 
W ebb, C rumpton, McG regor,

Davis & A lley

One Commerce Street, Suite 700 
P.O. Box 238
Montgomery, Alabama 36101-0238 
(205) 834-3176



APPENDIX



1

APPENDIX
TABLE OF CONTENTS

Page
Fifteenth Amendment to the U.S. Constitution.......... A-l

42 U.S.C.A. § 1973 (West 1981)........................................ A-l

42 U.S.C.A. § 1973c (West 1981)............................ A -l, 2, 3

Act No. 79-652, Acts of Alabama 1979 .................. A-4, 5

Alabama Code, 1975, § 23-1-80 (Michie 1989 Repl.
V o l.).................................................................................A-5, 6

Alabama Code, 1923, § 1347 (Michie)........................ A-6, 7

Alabama Code, 1940, Title 23 § 43 (Michie)............ A-7, 8

Alabama Code, 1975, § 11-6-3 (Michie 1989 Repl.
V o l.)........................................................................................ A-8

Alabama Code, 1940, Title 12 § 69 (Michie)..................A-9

Stipulated Testimony of Lynda K. Oswald. .A-10, 11, 12

Breakdown of Roadway Mileage Maintained or 
Under Jurisdiction of Russell County by Com­
mission Districts...............................................................A-l 3

Deposition of John B e lk .......................................... A-l 4, 15

Deposition of Charles Adam s................................ A-16, 17

Deposition of Nathaniel Gosha.............................. A-l 8, 19

Deposition of Ed P. Mack.................................................A-20

Deposition of Jerome Gray................................................A-21



A-1

FIFTEENTH AMENDMENT TO THE U.S. CONSTITU­
TION

Section 1. The right of citizens of the United States 
to vote shall not be denied or abridged by the United 
States or by any State on account of race, color, or pre­
vious condition of servitude.

Section 2. The Congress shall have power to 
enforce this article by appropriate legislation.

42 U.S.C.A. § 1973 (West 1981)

No voting qualification or prerequisite to voting, or 
standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision to deny or 
abridge the right of any citizen of the United States to 
vote on account of race or color, or in contravention of the 
guarantees set forth in section 1973b(f)(2) of this title.

42 U.S.C.A. § 1973c (West 1981)

Whenever a State or political subdivision with 
respect to which the prohibitions set forth in section 
1973b(a) of this title based upon determinations made 
under the first sentence of section 1973b(b) of this title are 
in effect shall enact or seek to administer any voting



A-2

qualification or prerequisite to voting, or standard, prac­
tice, or procedure with respect to voting different from 
that in force or effect on November 1,1964, or whenever a 
State or political subdivision with respect to which the 
prohibitions set forth in section 1973b(a) of this title 
based upon determinations made under the second sen­
tence of section 1973b(b) of this title are in effect shall 
enact or seek to administer any voting qualification or 
prerequisite to voting, or standard, practice, or procedure 
with respect to voting different from that in force or effect 
on November 1, 1968, or whenever a State or political 
subdivision with respect to which the prohibitions set 
forth in section 1973b(a) of this title based upon deter­
minations made under the third sentence of section 
1973b(b) of this title are in effect shall enact or seek to 
administer any voting qualification or prerequisite to vot­
ing, or standard, practice, or procedure with respect to 
voting different from that in force or effect on November 
1, 1972, such State or subdivision may institute an action 
in the United States District Court for the District of 
Columbia for a declaratory judgment that such qualifica­
tion, prerequisite, standard, practice, or procedure does 
not have the purpose and will not have the effect of 
denying or abridging the right to vote on account of race 
or color, or in contravention of the guarantees set forth in 
section 1973b(f)(2) of this title, and unless and until the 
court enters such judgment no person shall be denied the 
right to vote for failure to comply with such qualification, 
prerequisite, standard, practice, or procedure: Provided, 
That such qualification, prerequisite, standard, practice, 
or procedure may be enforced without such proceeding if



A-3

the qualification, prerequisite, standard, practice, or pro­
cedure has been submitted by the chief legal officer or 
other appropriate official of such State or subdivision to 
the Attorney General and the Attorney General has not 
interposed an objection within sixty days after such sub­
mission, or upon good cause shown, to facilitate an expe­
dited approval within sixty days after such submission, 
the Attorney General has affirmatively indicated that 
such objection will not be made. Neither an affirmative 
indication by the Attorney General that no objection will 
be made, nor the Attorney General's failure to object, nor 
a declaratory judgment entered under this section shall 
bar a subsequent action to enjoin enforcement of such 
qualification, prerequisite, standard practice, or pro­
cedure. In the event the Attorney General affirmatively 
indicates that no objection will be made within the sixty- 
day period following receipt of a submission, the Attor­
ney General may reserve the right to reexamine the sub­
mission if additional information comes to his attention 
during the remainder of the sixty-day period which 
would otherwise require objection in accordance with this 
section. Any action under this section shall be heard and 
determined by a court of three judges in accordance with 
the provisions of section 2284 of Title 28 and any appeal 
shall lie to the Supreme Court.



A-4

Act No. 79-652 H. 977 -  Adams (C), Whatley
AN ACT

Relating to Russell County: to provide that all func­
tions, duties and responsibilities for the construction, 
maintenance and repair of public roads, highways, 
bridges and ferries in the county shall be vested in the 
county engineer and shall be maintained on the basis of 
the county as a whole, without regard to district or beat 
lines, and to prescribe certain duties for the county engi­
neer.

Be It Enacted by the Legislature of Alabama:

Section 1. All functions, duties and responsibilities 
for the construction, maintenance and repair of public 
roads, highways, bridges and ferries in Russell County 
are hereby vested in the county engineer, who shall, 
insofar as possible, construct and maintain such roads, 
highways, bridges and ferries on the basis of the county 
as a whole or as a unit, without regard to district or beat 
lines.

Section 2. The county engineer shall assume the 
following duties, but shall not be limited to such duties:

(1) to employ, supervise and direct all such assis­
tants as are necessary properly to maintain and construct 
the public roads, highways, bridges, and ferries of 
Russell County, and he shall have authority to prescribe 
their duties and to discharge said employees for cause, or 
when not needed; (2) to perform such engineering and 
surveying service as may be required, and to prepare and 
maintain the necessary maps and records; (3) to maintain 
the necessary accounting records to reflect the cost of the



A-5

county highway system; (4) to build, or construct new 
roads, or change old roads, upon the order of the county 
commission; (5) insofar as is feasible to construct and 
maintain all country [sic] roads on the basis of the county 
as a whole or as a unit.

Section 2. The provisions of this act are severable. If 
any part of this act is declared invalid or unconstitu­
tional, such declaration shall not affect the part which 
remains.

Section 3. All laws or parts of law which conflict 
with this act are hereby repealed.

Section 4. This act shall become effective imme­
diately upon its passage and approval by the Governor, 
or upon its otherwise becoming a law.

Approved July 30, 1979

Time: 6:00 P.M.

Alabama Code, 1975, § 23-1-80 (Michie 1989 Repl. Vol.)

The county commissions of the several counties of this 
state have general superintendence of the public roads, 
bridges and ferries within their respective counties so as 
to render travel over the same as safe and convenient as 
practicable. To this end, they have legislative and execu­
tive powers, except as limited in this chapter. They may 
establish, promulgate and enforce rules and regulations, 
make and enter into such contracts as may be necessary 
or as may be deemed necessary or advisable by such



A-6

commissions to build, construct, make, improve and 
maintain a good system of public roads, bridges and 
ferries in their respective counties, and regulate the use 
thereof; but no contract for the construction or repair of 
any public roads, bridge or bridges shall be made where 
the payment of the contract price for such work shall 
extend over a period of more than 20 years. (Code 1923, 
§ 1347; Acts 1927, No. 347, p. 348; Code 1940, T. 23, § 43; 
Acts 1953, No. 729, p. 984.)

Alabama Code, 1923, § 1347 (Michie).

1347. (5765) Powers of courts of county commission­
ers with regard to roads, bridges and ferries. -  The
courts of county commissioners, boards of revenue, or 
other like governing bodies of the several counties of this 
state have general superintendence of the public roads, 
bridges and ferries within their respective counties, and 
may establish new, and change and discontinue old 
roads, bridges and ferries in their respective counties so 
as to render travel over the same as safe and convenient 
as practicable. To this end they have legislative, judicial, 
and executive powers, except as limited in this article. 
Courts of county commissioners, boards of revenue, or 
courts of like jurisdiction are courts of unlimited jurisdic­
tion and powers as to the construction, maintenance and 
improvement of the public roads, bridges and ferries in 
their respective counties, except as their jurisdiction or 
powers may be limited by the local or special statutes of 
the state. They may establish, promulgate and enforce



A-7

rules and regulations, make and enter into such contracts 
as may be necessary, or as may be deemed necessary or 
advisable by such courts, or boards, to build, construct, 
make, improve and maintain a good system of public 
roads, bridges and ferries in their respective counties, 
and regulate the use thereof; but no contract for the 
construction or repair of any public road, bridge or 
bridges shall be made where the payment of the contract 
price for such work shall extend over a period of more 
than ten years.

Alabama Code, 1940, Title 23 § 43 (Michie).

§ 43. (1347) Powers of courts of county commission­
ers with regards to roads, bridges and ferries. -  The
courts of county commissioners, boards of revenue, or 
other like governing bodies of the several counties of this 
state have general superintendence of the public roads, 
bridges and ferries within their respective counties so as 
to render travel over the same as safe and convenient as 
practicable. To this end they have legislative, judicial and 
executive powers, except as limited in this chapter. 
Courts of county commissioners, boards of revenue, or 
courts of like jurisdiction are courts of unlimited jurisdic­
tion and powers as to the construction, maintenance and 
improvement of the public roads, bridges and ferries in 
their respective counties, except as their jurisdiction or 
powers may be limited by the local or special statutes of 
the state. They may establish, promulgate and enforce 
rules and regulations, make and enter into such contracts



A-8

as may be necessary, or as may be deemed necessary or 
advisably by such courts, or boards, to build, construct, 
make, improve and maintain a good system of public 
roads, bridges and ferries in their respective counties, 
and regulate the use thereof; but no contract for the 
construction or repair of any public roads, bridge or 
bridges shall be made where the payment of the contract 
price for such work shall extend over a period of more 
than ten years. (1927, p. 348.)

Alabama Code, 1975, § 11-6-3 (Michie 1989 Repl. Vol.)

It shall be the duty of the said county engineer or 
chief engineer of the division of public roads, subject to 
the approval and direction of the county commission to:

(1) Employ, supervise and direct such 
assistants as are necessary to construct and 
maintain properly the county public roads, 
highways and bridges;

(2) Perform such engineering and survey­
ing services as may be required to prepare and 
maintain the necessary maps, plans and records;

(3) Maintain the necessary accounting 
records to reflect the cost of constructing and 
maintaining the county highway system; and

(4) Perform such other duties as are neces­
sary and incident to the operation of the county 
highway system as directed by the county com­
mission. (Acts 1971, No. 1945, p. 3143, § 4.)



A-9

Alabama Code, 1940, Title 12 § 69 (Michie)

§ 69. Duties under supervision of county govern­
ing body. -  It shall be the duty of said county engineer, 
subject to the approval and direction of the court of 
county commissioners or like governing body of the 
county to: (1) Employ, supervise and direct such assis­
tance as are necessary to properly maintain and construct 
the county public roads, highways and bridges; (2) per­
form such engineering and surveying service as may be 
required and to prepare and maintain the necessary maps 
and records; (3) maintain the necessary accounting 
records to reflect the cost of the county highway system, 
and (4) perform all other duties necessary and incident to 
the operation of a county highway system. (Ib.)



A-10

ED PETER MACK, et al.

Plaintiffs, 

vs.

RUSSELL COUNTY 
COMMISSION, et al.

Defendants.

STIPULATED TESTIMONY OF LYNDA K. OSWALD

COME NOW parties to the foregoing cause of action 
and stipulate that if Lynda K. Oswald were present, she 
would testify as follows:

"I am Lynda K. Oswald, an assistant attor­
ney general with the Office of the Attorney Gen­
eral, State of Alabama, and have been so 
employed for over ten years.

"As a part of my duties I review all legisla­
tive acts to determine which should be submit­
ted for preclearance under Section 5 of the 
Voting Rights Act of 1965. I reviewed Act No. 
79-652 at the time of its passage to determine if 
it should be submitted for pre-clearance under 
the Voting Rights Act. It was my determination 
that the provisions of Act No. 79-652 had no 
effect on voting or elections in this state. There­
fore, I concluded that it was not necessary to 
submit Act No. 79-652 to the Justice Department 
for pre-clearance, and it was not submitted.

"Act No. 79-652 concerns Russell County 
and provides that the functions, duties and

IN THE UN ITED  STATES DISTRICT COURT
FOR THE M IDDLE DISTRICT OF ALABAMA

EASTERN  DIVISION

CIVIL ACTION 
NO. 89-T-459-E



A -ll

responsibilities for construction, maintenance 
and repair of public roads and bridges in that 
county are to be vested in the county engineer 
and maintained on the basis of the county as a 
whole without regard to district or beat lines. I 
have reviewed other acts of similar nature estab­
lishing what is known as the unit system, and it 
has been my opinion, as it is now, that such acts 
do not come within the ambit of the Voting 
Rights Act of 1965 so as to require pre-clearance.

"I concluded that Act No. 79-652 had no 
effect on voting or elections in this state, and I 
determined that Act No. 79-652 was a modifica­
tion of duties relating to the maintenance of 
roads in Russell County and did not affect or 
dilute the voting power of any group of voters. 
Act No. 79-652 provided that the functions, 
duties and responsibilities relating to roads in 
Russell County were to be vested in the county 
engineer and maintained on the basis of the 
county as a whole without regard to district or 
beat lines. I am aware of the decision in Hardy v. 
Wallace, 603 F.Supp. 174 (N.D. Ala. 1985) and 
that court ruling does not change my opinion 
that it is not necessary to obtain preclearance of 
Act No. 79-652."



A-12

As a result of this stipulation, parties hereto consent 
to this testimony being used in lieu of a deposition.

/s/ John C. Falkenberry 
John C. Falkenberry, 
one of the Attorneys 
for Plaintiffs

JOHN C. FALKENBERRY 
Fifth Floor, Title Building 
300 North 21st Street 
Birmingham, Alabama 35203

/s/ James W. Webb 
James W. Webb 
Attorney for Defendant 
Russell County

OF COUNSEL:

WEBB, CRUMPTON, McGREGOR,
SASSER, DAVIS & ALLEY 
One Commerce Street, Suite 700 
P.O. Box 238
Montgomery, AL 36101-0238 
(205) 834-3176



A -13

BREAKDOWN OF ROADWAY MILEAGE MAINTAINED OR UNDER JURISDICTION OF RUSELL COUNTY BY COMMISSION DISTRICTS

PAVED ROADS DIRT ROAD AREA
DISTRICT NO. TOTAL MILES TOTAL MILES TOTAL MILES SQUARE MILES

1 6.25 1.1% ** 6.25 2% 0 0 3.8 .6%
2 51.87 9.5% 42.17 15% 9.7 3.7% 18.4 3.0%
3 2.45 .4% ** 2.45 .9% 0 0 4.48 .72%
4 1.3 .2% ** 1.1 .4% .2 .08% 2.32 .37%
5 73.92 13.8% * 46.02 16% 27.9 10.7% 76.08 12.3%
6 138.15 25.2% 72.3 25.5% 65.85 25% 143.36 23.2%
7 271.40 49.6% 113.05 40% 158.35 60.% 370.44 59.9%

545.34 283.34 262.00 618.88

* 20.12 square miles of District 5 lies within U.S. Government property (Ft. !Benning). This area is not
included in the above breakdown.

** Maintained by Phenix City Public Works Department.

WORK DISTRICTS

PAVED ROADS UNPAVED ROADS
DISTRICT NO. TOTAL MILES TOTAL MILES TOTAL MILES

1 179.49 126.98 52.51
2 213.89 92.10 121.79
3 151.96 64.26 87.70

545.34 283.34 262.00
Exhibit B



A-14

ED PETER MACK, ET AL.,

Plaintiffs, 
vs.

RUSSELL COUNTY 
COMMISSION, et al.,

Defendants.

DEPOSITION OF JOHN BELK

The deposition of JOHN BELK was taken pursuant to 
stipulation and agreement before Jackie Parham, court 
Reporter and Commissioners for the State of Alabama at 
Large, at the Russell County Courthouse, Phenix City, 
Alabama, on Friday, January 26, 1990, commencing at 
approximately 9:00 a.m.

[p. 8] Q. Prior to passage of Act Number 79-652?

A. Yes, sir. we implemented the Unit System at that 
time. And, of course, Mr. Adams was going to -  
to get the necessary legislation to make it a law.

Q. Tell me, what brought this about?

A. Well, the main thing that brought it about was 
one commissioner was indicted and charged 
with an illegal use of county funds. I would say 
that's the last thing that brought it on.

Really, generally, the fact that we needed a little 
bit more control over expenditures and work 
orders was basically the reason for going -  not 
having three different county shops and three

IN THE UNITED STATES DISTRICT COURT
FOR THE M IDDLE D ISTRICT OF ALABAMA,

EASTERN DIVISION

CIVIL ACTION 
NO. 89-T-459-E



A-15

different county commissioners in charge of 
three different areas.

Q. All right, sir. Did you ever divide the budget [p. 
9] prior to that when you -  When you were 
under the District System did you divide the 
budget up according to the districts?

A. No, sir.
* * *

[p. 10] Q. . . .  is it your testimony and do I under­
stand correctly that prior to May 18, 1979 there 
was a unified budget for the county with respect 
to the -  to the three separate, what I would call, 
road camps?

A. Yes, sir. There was never any discretion between 
the three. It was always adopted as far as a 
general budget for the county.

Q. How many commissioners were there?
A. Five.
Q. Five at that time?
A. Yes, sir.
Q. Is it true that prior to May 18, 1979 only three of 

them had responsibilities for overseeing the 
operatic of these road camps?

A. Yes, sir.
*  *  *

[p. 20] Q. In size were they relatively the same in 
terms of the physical area and also the number 
of employees?

A. Yes, sir. In fact, the districts were established 
according to road miles. So they all had pretty 
much the same number of miles and the same 
number of bridges to maintain.



A-16

ED PETER MACK, ET AL„

Plaintiffs,
vs.

RUSSELL COUNTY 
COMMISSION, et al„

Defendants.

DEPOSITION OF CHARLES ADAMS

The deposition of CHARLES ADAMS was taken pur­
suant to stipulation and agreement before Jackie Parham, 
court Reporter and Commissioners for the State of Ala­
bama at Large, at the Russell County Courthouse, Phenix 
City, Alabama, on Friday, January 26, 1990, commencing 
at approximately 9:30 a.m.

[p. 8] Q. In view of the fact that the county had 
already adopted the resolution prior to -

A. So in discussing it with them -  and I believe the 
suggestion was even made that they would do it 
by resolution, wouldn't be any further act. But 
we felt we needed something stronger in place. 
We needed something in place that would assure 
that it would be complied with, that -

Q. That the commission wouldn't backtrack?

A. That they wouldn't come back and pass another 
resolution at the next meeting and say, no, we've 
changed our mind.

* * *

IN THE U N ITED STATES DISTRICT COURT
FOR THE M IDDLE D ISTRICT OF ALABAMA,

EASTERN DIVISION

CIVIL ACTION 
NO. 89-T-459-E



A -17

[p. 13] Q. All right. And was that, as I understand 
it, due at least in some measure to the problems 
that commissioner -  then Commissioner Lake 
had had?

A. To some degree. And with recommendations by 
[p. 14] the Highway Department, you know, and 
the stories they would relate about the benefits 
of this system and the experiences in some other 
counties and that type thing.



A-18

ED PETER MACK, ET AL„

Plaintiffs, 

vs.

RUSSELL COUNTY 
COMMISSION, et al.,

Defendants.

DEPOSITION OF NATHANIEL GOSHA

The deposition of NATHANIEL GOSHA was taken 
pursuant to stipulation and agreement before Jackie Par­
ham, court Reporter and Commissioners for the State of 
Alabama at Large, at the Russell County Courthouse, 
County Commission Hearing Room, Phenix City, Ala­
bama, on Thursday, January 29, 1989, commencing at 
approximately 9:00 a.m.

[p. 17] Q. Did you vote for the budget:

A. Yes, sir.

* * * *

[p. 36] A. . . .  Let's back up one notch. Talking 
about the system, the unit system, if we're going 
to run a unit system, I prefer and the black 
citizens of Russell County prefer, let's give it all 
to Mr. James McGill and let Mr. James McGill 
administrate it.

IN THE U N ITED STATES DISTRICT COURT
FOR THE M IDDLE DISTRICT OF ALABAMA,

EASTERN  DIVISION

CIVIL ACTION 
NO. 89-T-459-E

*



A -19

[p. 82] A. From this thing here, I would like for the 
Court to look into and if they find any irregu­
larity in it, where the city district could have 
some type of funds that they could help the 
citizens of this county, that I will certainly appre­
ciate it. That we have some type of way that they 
will allocate a said amount of money if it's noth­
ing but forty thousand dollars where a man can 
spend forty thousand dollars in his district with­
out [p. 83] getting the majority of the votes.

*  *  *



A-20

IN THE U N ITED  STATES D ISTRICT COURT FOR THE
M IDDLE D ISTRICT OF ALABAMA,

EASTERN DIVISION

ED PETER MACK, ET AL„ 

Plaintiffs,

vs.

RUSSELL COUNTY 
COMMISSION, et al.,

Defendants.

)
)
)
)
)
)
)
)

CIVIL ACTION NO. 
89-T-459-E

DEPOSITION OF ED P. MACK

The deposition of ED P. MACK was taken pursuant 
to stipulation and agreement before Jackie Parham, Court 
Reporter and Commissioners for the State of Alabama at 
Large, at the Russell County Courthouse, County Com­
mission Hearing Room, Phenix City, Alabama, on Thurs­
day, January 29, 1989, commencing at approximately 
10:45 A.M.

[p. 17] Q. Now, you voted for the budget, too, and you 
had a copy of the budget at the time, did you 
not?

A. Right.

Q. You did vote in favor, did you not? 

A. Right.



A-21

IN THE U N ITED  STATES DISTRICT COURT FOR THE
M IDDLE DISTRICT OF ALABAM A,

EASTERN  DIVISION

ED PETER MACK, ET AL„ 

Plaintiffs, 

vs.

RUSSELL COUNTY 
COMMISSION, et al.,

Defendants.

)
) CIVIL ACTION NO. 
) 89-T-459-E
)
)
)
)
)

DEPOSITION OF JEROME GRAY

The deposition of JEROME GRAY was taken pur­
suant to stipulation and agreement before Jackie Parham, 
Court Reporter and Commissioners for the State of Ala­
bama at Large, at the law offices of Webb, Crumpton, 
McGregor, Sasser, Davis & Alley, Montgomery, Alabama, 
on Tuesday, December 12, 1989, commencing at approx­
imately 10:35 a.m.

[p. 21] Q. What type of relief did Mr. Mack want?

A. In Mr. Mack's case it appears that he wants 
some discretionary money or some money 
from -  being able to really -  well, some 
money. Have a budget whereby he would be 
able to determine how some dollars are 
spent without everything being thrown in a 
common pot that he had -  seemingly had no 
influence over how it was spent, partic­
ularly with other commissioners. The major­
ity of whites could out-vote him.

Q. Have you ever heard that Mr. Mack had 
financial problems?



A-22

A. No, I have not. I don't see how it would be 
germane to this issue anyway even if he did.

Q. Okay. And what was Mr. Gosha's com­
plaint?

A. Similar to Mr. Mack's.

Q. He wanted some discretionary money him­
self?

A. Right. Be able to influence how some dollars 
are spent, have some direct control over it 
themselves.