Order and Injunction; Memorandum Opinion

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FILED 
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE 

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION MAY 2 8 1886 

THOMAS C. CAVER, CLER! 
EY - 
  

: DEPUTY CLERK 
JOHN DILLARD, et al., 

Plaintiffs, 

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

CRENSHAW COUNTY, etc., et al., 

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Defendants. 

ORDER AND INJUNCTION 
  

In accordance with the memorandum opinion entered this date, it is 

the ORDER, JUDGMENT, and DECREE of the court: 

(1) That the plaintiffs' February 6, 1986, petition for 

preliminary injunction be and it is hereby granted in part and denied in 

part; and 

(2) That defendants Calhoun County, Coffee County, Etowah County, 

Lawrence County, and Talladega County and their officials, agents, servants, 

employees, and attorneys and those persons in active concert or partici- 

pation with them who receive actual notice of this injunction by personal 

service or otherwise, be and they are each hereby ENJOINED and RESTRAINED 

from failing to submit to the court within 21 days from the date of this 

order their time schedules for the development, approval, and implementation 

by January 1, 1987, of new commission election plans that comply with 

section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973. 

It is further ORDERED: 

(1) That defendants Pickens County and its officials' January 13, 

1986, motion to dismiss be and it is hereby granted to the extent that 

 



  

plaintiffs' claim of intentional discrimination is barred by res judicata 

and that the motion be and it is hereby denied in all other respects; and 

(2) That the following motions be and they are hereby all denied: 

defendants Calhoun County and its officials’ January 16, 1986, motion to 

dismiss or to transfer; defendants Coffee County and its officials’ January 

15, 1986, motion to dismiss; defendants Etowah County and its officials’ 

January 13, 1986, motion to dismiss and January 23, 1986, amended motion to 

dismiss, motion to sever, and motion to transfer; defendants Lawrence County 

and its officials’ January 10, 1986, motion to dismiss or transfer, or in 

the alternative, to sever and rranelor, etc.; defendant Richard I. Proctor's 

January 15, 1986, motion to dismiss; and defendants Talladega County and its 

officials' January 23, 1986, motion to dismiss or to sever and transfer. 

It is further ORDERED: 

(1) That the plaintiffs' February 6, 1986, petition for class 

certification be and it is hereby granted; 

(2) That this action be and it is hereby declared properly 

maintainable as a class action with respect to six plaintiff classes; 

(3) That a class consisting of all black citizens of Calhoun 

County, Alabama be and it is hereby certified as a plaintiff class, to be 

represented by named plaintiffs Earwen Ferrell, Ralph Bradford, and Clarence 

J. Jairrels; 

(4) That a class consisting of all black citizens of Coffee 

County, Alabama be and it is hereby certified as a plaintiff class, to be 

represented by Damacus Crittenden, Jr., Rubin McKinnon, and William S. 

Rogers; 

 



  

(5) That a class consisting of all black citizens of Etowah 

County, Alabama be and it is hereby certified as a plaintiff class, to be 

represented by Nathan Carter, Spencer Thomas, and Wayne Rowe; 

(6) That a class consisting of all black citizens of Lawrence 

County, Alabama be and it is hereby certified as a plaintiff class, to be 

represented by named plaintiffs Hoover White, Moses Jones, Jr., and Arthur 

Turner; 

(7) That a class consisting of all black citizens of Pickens 

County, Alabama be and it is hereby certified as a plaintiff class, to be 

represented by Maggie Bozeman, Jults Wilder, Bernard Jackson, and Willie 

Davis; and 

(8) That a class consisting of all black citizens of Talladega 

County, Alabama be and it is hereby certified as a plaintiff class, to be 

represented by Louis Hall, Jr., Ernest Easley, and Byrd Thomas. 

It is further ORDERED: 

(1) That this cause is set for trial on July 23, 1986, at 8:30 

a.m. in the fourth floor courtroom of the federal courthouse in Montgomery, 

Alabama; 

(2) That the parties are to complete discovery and exchange lists 

of witnesses and exhibits by July 16, 1986; and 

(3) That this cause is set for pretrial on July 16, 1986, at 4:30 

p.m. at the federal courthouse in Montgomery, Alabama. 

DONE, this the 28th day of May, 1986. 

  

UNITED STATES DISTRICT SE 

 



  

* @ 

FILED 
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE 

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION MAY 2 § 1986 

lem av OMAS C. CAVER, CLER 
— DEPUTY CLERK 

JOHN DILLARD, et al., 

Plaintiffs, 

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

CRENSHAW COUNTY, etc., et al., 

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Defendants. 

MEMORANDUM OPINION 
  

This lawsuit is a challenge to the at-large systems used to elect 

county commissioners in nine Alabama counties with significant black 

populations. The court understands that these counties are the last such 

counties that still use at-large systems not already the subjects of federal 

lawsuits. 

The plaintiffs are a number of black citizens in the nine 

counties, and the defendants are the nine counties and a number of their 

officials. The plaintiffs have brought this lawsuit under section 2 of the 

Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973.} The court's 

  

1. The plaintiffs also premise this lawsuit on the fourteenth and 

fifteenth amendments to the U.S. Constitution by way of 42 U.S.C.A. § 1983. 
However, since it appears that the reach of the section 2 claims in this 

lawsuit equals or exceeds that of the claims based on the two comstitutional 

amendments, the court does not reach the plaintiffs' constitutional claims 

at this time. Prudent jurisdictional principles counsel that a court should 

normally "not decide a constitutional question if there is some other ground 
upon which to dispose of the case." Escambia County v. McMillan, 5.S. 

s 5 104 S.Ct. 1577, 1579 (1984). See also Lee County Branch of NAACP 

v. City of Opelika, 748 F.2d 1473, 1478 (11th Cir. 1984). 

  

  

  

 



  

jurisdiction has been properly invoked pursuant to 28 U.S.C.A. §§ 1331, 

1343. 

Since the filing of this lawsuit, the plaintiffs have entered into 

settlements with three of the nine counties. ‘This lawsuit is now before the 

court on several motions filed by the plaintiffs and the six remaining 

counties and their officials. The significant issues raised by the motions 

are whether the plaintiffs are entitled to preliminary injunctive relief; 

whether the claims against three of the counties are barred by res judicata; 

whether the claims against five of the counties should be severed and 

transferred to another district; and whether plaintiff classes should be 

certified. 

For reasons that follow, the court concludes that preliminary 

injunctive relief is warranted in part against five of the six counties; 

that 2 clalm against one county is barred by res judicata; that the 

remaining claims against all six counties should be tried im this district; 

and that plaintiff classes should be certified. 

I. FACTUAL BACKGROUND 

The six counties remaining in this lawsuit are Calhoun County, 

Coffee County, Etowah County, Lawrence County, Pickens County, and Talladega 

Countyss They each have majority white populations and significant black 

  

2. The three counties that settled are Crenshaw County, Escambia 

County, and Lee County. 

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populations, ranging from approximately 137 to 427.° 

Five of the six counties are each governed by a board of 

commissioners elected under at-large systems in both primary and general 

elections. Not all at-large systems are alike, however, and the ones used 

by the five counties have three structural features particularly relevant 

here. The first feature is obvious. A candidate for commissioner must run 

at-large, or county-wide, with all voters in the county allowed to vote for 

the candidate. The second feature is that a candidate must run for a 

numbered post or separate place. Each commissioner position carries a 

separate number, and each candidate qualifies for a specific number and 

place, with each voter allowed to vote for only one candidate in each place. 

The third feature is that a candidate must receive a majority of votes cast 

in the primary to win the nomination of a political party. If no candidate 

receives a majority of votes, a run-off primary election is held. The 

majority vote requirement does not apply to general elections. 

The sixth county, Pickens County, is also govermed by a board of 

commissioners, but the commissioners are elected under az "dual system." 

  

3. According to the 1980 census, the black population of each 

county is as follows: 

Percent Black 

County Total Population Black Population Population 
  

    

Calhoun 119,761 21,074 17.607 

Coffee 38,533 5,532 16.957 

Etowah 103,057 13,809 13.407 

Lawrence 30,170 5,074 16.827 

Pickens 21,481 8,978 41.807 

Talladega 73,826 22.745 30.817  



  

Primary elections are held from four "single-member" districts, with the 

voters in each district restricted to voting only for candidates for the 

commissioner representing that district; whereas, general elections are 

conducted at-large in the same manner the other five counties conduct their 

general elections for commissioners. 

The six counties have a clear history of racially polarized 

elections for both state and county officials, and no black person has ever 

been elected commissioner under the at-large systems used by the counties. 

7. LEGAL BACKGROUND 

It is now generally undisputed that, where there is a history of 

elections polarized along racial or other group lines, at-large systems 

containing features similar to three described above tead "to minimize the 

voting strength of minority groups by permitting the political majority to 

elect all representatives of the district." Rogers v. Lodge, 458 U.S. 613, 
  

616, 102 S.Ct. 3272, 3275 (1982) (emphasis in original). By contrast, a 

minority might be able to elect one or more representatives, even in an 

at-large system, if the election is by a plurality without numbered places. 

For example, a black candidate could have a fair opportunity to be elected 

by a plurality of the vote if the black voters concentrate their vote behind 

one candidate or a limited number of candidates, while the white voters 

divide theirs among a number of candidates. City of Rome v. United States, 
  

446 U.S. 156, 183-84 & n. 19, 100 S.Ct. 1548, 1565 & nw. 19 (1980). See slsc 

Rogers, 458 U.S. at 627, 102 S. Ct. at 3280 ("the requirement that 

candidates run for specific seats...enhances [black voters'] lack of access 

di 

 



  

[to the political system] because it prevents a cohesive group from 

concentrating on a single candidate"); H.R. Rep. Fo. 227, 97th Cong., 1st 

Sess. 18 ("discriminatory elements of the elections process ... [include] 

numbered posts....") Similarly, a minority might be able to elect ome or 

more representatives if, first, the political unit were divided into 

single-member districts, with the voters in each district restricted to 

voting only for candidates for the commissioner representing that district; 

and, second, one or more districts had a sufficient number of black voters 

to elect a black candidate. Rogers, 458 U.S. at 616, 102 s.Ct. at 3275. 

Nevertheless, the Supreme Court has held that, even though such 

at-large systems have a "winner-take-all" aspect and a "tendency to submerge 

minorities and to overrepresent the winning party," Whitcomb v. Chavis, 403 
  

U.S. 124, 158-139, 91 S.Ct. 1858, 1877, (1971), they are not illegal per se. 

Rogers, 458 U.S. at 616-17, 102 S.Ct. at 3275. 

The plaintiffs claim that the at-large election systems used in 

the six counties violate section 2 of the Voting Rights Act of 1965, as 

amended, 42 U.S.C.A. § 1973. A violation of section 2 as recently amended 

in 1982 is established if official action was taken or maintained with a 

racially discriminatory "intent" or the action has racially discriminatory 

"results," determined according to certain Congressionally approved 

enttarie.’ McMillan v. Escambia County (Escambia II), 748 F.2d 1037, 1046 
  

  

4. In order to make out a results claim under section 2, the 

plaintiffs must show that "as a result of the challenged practice or 

structure plaintiffs do not have an equal opportunity to participate in the 

political processes and to elect candidates of their choice.” S. Rep. No. 

417, 97th Cong., 2nd Sess. 28, reprinted in 1982 U.S. (footnote 4 continues) 
  

on, 

 



  

(5th Cir. 1984) (Former Fifth); Buskey v. Oliver, 565 F. Supp. 1473, 1481 & 
  

n. 18 (M.D. Ala. 1983). In this case, the plaintiffs contend both that the 

  

(footnote 4 continued) Code Cong. & Ad. News 177, 206. Factors typically 
considered in evaluating such a claim are: 

1. the extent of any history of official 
discrimination in the state or political sub- 

division that touched the right of the members 

of the minority group to register, to vote, or 

otherwise to participate in the democratic 

process; 

2. the extent to which voting in the 

elections of the state or political subdivision 

is racially polarized; 

3. the extent to which the state or 
political subdivision has used unusually large 

election districts, majority vote requirements, 

anti-single shot provisions, or other voting 

practices or procedures that may enhance the 

opportunity for discrimination against the 

minority group; 

4. if there is a candidate slating process, 

whether the members of the minority group have 

been denied access to that process; 

5. the extent to which members of the 

minority group in the state or political sub- 

division bear the effects of discrimination in 

such areas as education, employment and health, 

which hinder their ability to participate 

effectively in the political process; 

6. whether political campaigns have been 

characterized by overt or subtle racial appeals; 

7. the extent to which members of the 

minority group have been elected to public 

office in the jurisdiction. 

(footnote 4 continues) 

 



  

at-large systems used by the six counties were created with a racially 

discriminatory intent and that the systems have racially discriminatory 

results. They have, however, informed the counties and the court that they 

intend to pursue their intent claims first and that they will pursue a 

results claim against a county only if their intent claim against the county 

fails. 

III. PRELIMINARY INJUNCTION 

The plaintiffs request preliminary injunctive relief against 

continued use of at-large systems in the six counties. Adhering to their 

announced trial strategy, they limit the premise of their request to their 

section 2 intent claims. 

  

footnote 4 continued) 

Additional factors that in some cases have had 

probative value as part of plaintiffs’ evidence 

to establish a violation are: 

[8] whether there is a significant lack of 

responsiveness on the part of elected officials 

to the particularized needs of the members of 

the minority group. 

[9] whether the policy underlying the 
state or political subdivision's use of such 

voting qualification, prerequisite to voting, 

or standard, practice or procedure is tenuous. 

Id. at 28-29, 1982 U.S. Code Cong. & Ad. News at 206-207. There is no 

requirement that any particular one of these factors or number of these 

factors be proved; rather, the court's concern should be the "totality of 

the circumstances." Id. at 207 & n. 118. See also White v. Regester, &12 

U.S. 755, 93 $.Ct. 2332 (1973); Zimmer v., McEeithen, 485 F.2d 1297 (5th Cir. 

1973) (en banc), aff'd on other grounds sub nom. East Carroll Parish Sch. 

Bd. v. Marshall, 424 U.S. 636, 96 5.Ct. 1083 (1976). 

  

  

  

  

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To obtain a preliminary injunction, the plaintiffs must show that 

"(1) there is a substantial likelihood that they will prevail on the merits 

at trial; (2) they will suffer irreparable harm if they are or granted the 

injunctive relief; (3) the benefits the injunction will provide them 

outweigh the harm it will cause the [defendants]; and (4) the issuance of 

the injunction will not harm public interests.” Callaway v. Block, 763 F.24 
  

1283, 1287 (llth Cir. 1985). The plaintiffs have met these requirements as 

to all defendant counties except Pickens County. Pickens County's 

affirmative defense of res judicata precludes preliminary relief, as the 

court explains in part IV of this opinion. 

A. Likelihood of Success 
  

There are, at least, two methods of establishing a section 

”y 2 intent claim. The plaintiffs have shown a substantial likelihood of 

success under both methods. 

i. 

One method by which a plaintiff may establish a prima facie case 

of discriminatory intent under section 2 is by showing, first, that racial 

discrimination was a "substantial" or "motivating" factor behind the 

enactment or maintenance of the electoral system and, second, that the 

: : ; 3 
system continues today to have some adverse racial impact. Hunter v. 

  

  

5. The discriminatory results needed to establish a section 2 

violation in the absence of intentional discrimination should not be 

confused with the present day adverse racial impact needed to establish a 

section 2 intent claim. The former is more a term of art, established 

according to certain Congressionally approved criteria described in footnote 

4, supra; whereas, the latter is less stringent and may be met by any 

evidence that the challenged action is having significant adverse impact on 

black persons today. See Note, The Constitutional Significance of the 

Discriminatory Effects of Ar-large Elections, 91 Yale L.J. 974 (1982), 
  

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Underwood, U.S. . , 105 S.Ct. 1916, 1920, 1923 (1985) (Alabama 
  

constitutional provision disenfranchising persons convicted of crimes cf 

moral turpitude was enacted for racially discriminatory purpose and 

continues to have adverse racial impact in violation of the fourteenth 

amendment); Village of Arlington Heights v. Metropolitan Housing Development 
  

Corporation, 429 U.S. 252, 264-66, 97 S.Ct. 553, 363 (1977) (city did not 
  

deny rezoning for reasons of race in violation of the fourteenth amendment); 

NAACP v. Gadsden County School Board, 691 F.2d 978, 981 (llth Cir. 1982) 
  

(at-large election system for school board members was adopted for racially 

discriminatory purpose and continues to have adverse racial impact in 

violation of the fourteenth amendment). See also Note, The Constitutional 
  

Significance of the Discriminatory Effects of At-large Elections, 91 Yale 
  

L.J. 974, 976-77 (1982). If the plaintiff establishes these two elements, 

the burden then shifts to the scheme's defenders to demonstrate that the 

scheme would have been enacted without the purposefully discriminatory 

factor. Hunter, U.S. at , 105 8.Ct, at 1520. See also Mt, Healthy 
  

  

City School District v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576 (1977). 
  

Of course, in proving discriminatory intent under section 2 a 

plaintiff is not restricted to direct evidence, Rogers, 458 U.S. at 818, 102 

S.Ct. at 3276; rather, "determining the existence of a discriminatory 

purpose 'demands a sensitive inquiry into such circumstantial and direct 

evidence of intent as may be available.'" 1Id., quoting Arlington Heights, 
  

429 0.5, at 266, 97 8.Ct. at 564, 

Furthermore, that the plaintiffs in this section 2 claim have 

placed on this court the task of looking behind legislative action is not an 

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impediment. Admittedly, democratic principles teach that courts should 

ordinarily defer to decisions of legislative or administrative bodies about 

governmental goals and the means for achieving those goals. However, race 

discrimination is a forbidden consideration whose presence in the 

legislative or administrative process taints the process. The usual 

judicial deference thus does not obtain where a plaintiff charges in a 

section 2 claim that invidious race discrimination was a substantial or 

motivating consideration in the legislative or administrative process. As 

the Supreme Court explained in Arlington Heights, "racial discrimination is 
  

not just another competing consideration. Where there is proof that a 

discriminatory purpose has been a motivating factor in the [legislative or 

administrative] decision, this judicial deference is no longer justified." 

429 0.8. at 265-66, 97 S.Ct, at 563. 

For these same reasons, a plaintiff asserting a section 2 intent 

claim need not meet a more exacting standard of proof merely because 

legislative or administrative action is challenged. As the Supreme the 

Court observed in Arlington Heights, the law "does not mTequire a plaintiff 
  

to prove that the challenged [legislative or administrative] action rested 

solely on racially discriminatory purposes," or even that such purposes were 

"dominant" or "primary." 429 U.S. at 265, 97 S.Ct. at 563. The plaintiff 

need establish only that the forbidden consideration of race discrimination 

was a substantial or motivating factor before the burdem of salvaging the 

challenged legislative or administrative action shifts to the defenders of 

the action. Id.; Hunter, supra. As the Court observed, "[l]egislation is 
  

frequently multipurposed: the removal of even a 'subordinate' purpose may 

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shift altogether the consensus of legislative judgment supporting the 

statute." Arlington Heights, 429 U.S. at 265 n. 11, 97 $.0t. at 563 n. 11, 
  

quoting McGinnis v. Royster, 410 U.S. 263, 276-77, 93 S.Ct. 1055, 1063 
  

£1973). 

Admittedly, the court has cited and relied upon such fourteenth 

amendment cases as Hunter, Rogers, Arlington Heights, and NAACP in describ- 
  

ing how a plaintiff may establish a section 2 intent claim. However, the 

legislative history of the 1982 amendments to section 2 clearly indicates 

that the 1982 amendments derive from the fourteenth amendment as well as the 

fifteenth amendment. S. Rep. No. 417, 97th Cong. 2d. Sess. 39, reprinted in 
  

1982 U.S. Code Cong. & Ad. News 177, 217; H.R. Rep. No. 227, 97th Cong., lst 

Sess. 31. Accordingly, it is appropriate that the manner for establishing a 

section 2 intent claim should be along the same lines as that for 

establishing intent under the fourteenth amendment. See Escambia II, 748 
  

F.2d at 1046 ("this court already has determined that the at-large election 

system was maintained for a discriminatory purpose and thus violated the 

fourteenth amendment. ... This showing of intent is sufficient to 

constitute a violation of section 2"). 

With the preceding principles in mind, the court is firmly 

convinced that the plaintiffs have more than adequately shouldered the first 

requirement for a preliminary injunction against Calhoun County, Coffee 

County, Etowah County, Lawrence County, and Talladega County; the plaintiffs 

have shown a clear and substantial likelihood of prevailing on their section 

2 intent claims. First, the court is convinced that in the 1960's the State 

of Alabama enacted numbered place laws with the specific intent of making 

local at-large systems, including those used in county commission elections, 

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more effective and efficient tools for keeping black voters from electing 

black candidates. Second, the court is convinced that the at-large systems, 

as modified in the 1960's and used today by the five counties, are still 

having their intended racist impact. The court is also convinced that the 

five counties have failed to meet their burden of showing that the numbered 

place laws would have been enacted without the discriminatory purpose. The 

evidentiary basis for these conclusions is as follows. 

The testimony and opinions of a well-respected historian, Dr. 

Peyton McCrary, established that in the 1960's, to meet the growing threat 

of black voters and possible black office holders, the Alabama legislature 

refashioned the at-large electoral systems then in use in many counties and 

cities throughout the state. The discriminatory centerpiece of the new 

at-large systems was the numbered place laws. 

According to the historian, the state was openly and unabashedly 

intent on finding new strategies to keep black persons out of the electoral 

process in the wake of the Supreme Court's 1944 ban of all-white primaries 

in Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757 (1944). Since the winner 
  

of a Democratic primary in Alabama was virtually guaranteed a victory in the 

general election, the all-white primary had been an effective state-wide 

method of denying black persons a meaningful opportunity to participate in 

the election process. 

In response to the judicial ban on all-white primaries, the 

Alabama legislature passed a bill in the 1950's outlawing single-shot voting 

in municipal elections conducted at-large. Single-shot voting generally 

"enables a minority group to win some at-large seats if it concentrates its 

vote behind a limited number of candidates and if the vote of the majority 

is divided among a number of candidates.! City of Rome, 446 U.S. at 184 n. 
  

id. 

 



  

rm | EAN hI ACR Fond or 3B Ne Se ENR) 82 TE ARTA Ent 3 a en ah A © BS a ANAS We AAAS 

19, 100 S.Ct. at 1565 n. 19, quorinz U.S, Commigsion on Civil Righes, "The 
  

Voting Rights Act: Ten Years After," pp. 206-07 (1975). Single-shot voting 

has been described as follows: 

Consider [a] town of 600 whites and 400 

blacks with an at-large election to choose 

four council members. Each voter is able to 

cast four votes. Suppose there are eight 

white candidates, with the votes of the 

whites split among them approximately 
equally, and one black candidate, with all 

the blacks voting for him and no one else. 

The result is that each white candidate 

receives about 300 votes and the black 

candidate receives 400 votes. The black has 

probably won a seat. This technique is 

called single-shot voting. 

City of Rome v. United States, supra. A law banning simgle—shot voting 
  

generally requires that each elector cast votes for as many candidates as 

there are positions. See, e.g., Nevett v. Sides, 571 F.2d 209, 217 n. 10 
  

(5th Cir. 1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916 (1980). Such =   

law seriously disadvantages minority voters "because it may force them to 

vote for nonminority candidates, thus depreciating the relative position of 

minority candidates." Id. 

State Representative Sam Englehart of Macon County, Alabama was 

the sponsor of the state laws banning single-shot votimg. Englehart was the 

founder of the racist White Citizens Council Movement of the 1950's and was 

a notorious segregationist. Englehart was also the author of the infamous, 

racially inspired Tuskegee gerrymander struck down by the federal courts in 

the 1960's. See Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125 (1960) 
  

(holding that a constitutional challenge to the Tuskegee gerrymander could 

be entertained by the federal courts.) The racial purpose behind the laws 

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banning single-shot voting was not kept secret. Englehart's father-in-law, 

then a state senator, explained to a newspaper that the legislature had 

passed the laws because "there are some who fear that the colored voters 

might be able to elect one of their own race to the [Tuskegee] city council 

by 'single shot' voting." For the same racial reasons, the ban on single- 

shot voting was extended in the late 1950's to cover at-large primary 

elections for county commissioners. 

The laws banning single-shot voting were repealed in 1961 and 

replaced with laws requiring that candidates run for numbered places in all 

state, county and municipal at-large elections, both primary and general. 

The numbered place laws had the same effect on black voting strength in 

at-large elections as the laws banning single-shot voting, and there can be 

no doubt that that they sprang from the same motivation. Shortly after the 

enactment of numbered place laws, at a meeting of the State Democratic 

Executive Committee with Englehart presiding, a committee member explained 

the state legislature's open and unabashed racist motive behind the new 

numbered place laws and the significant role the laws were to play in 

keeping black voters from electing black persons in the primary elections to 

be conducted by the Committee: 

[W]e have got a situation in Alabama that we are 

becoming more painfully aware of every passing day, 

that we have a concerted desire and a campaign to 

register Negroes en masse, regardless of the fact 

that many of them ordinarily cannot qualify because 

of their criminal records, or criminal attitudes, 

because of the fact that they are illiterate and 

cannot understand or pass literacy tests.... [I]t 

has occurred to a great many people, including the 

legislature of Alabama, that to protect the white 

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people of Alabama, that there should be numbered 

place laws." 

These racially inspired numbered place laws exist and operate today. 

Therefore, regardless of the reasons for which the at-large 

systems were put into place in various counties, including the five counties 

sued here, the numbered place laws have inevitably tainted these systems 

wherever they exist in the state. In adopting the laws, the state reshaped 

at-large systems into more secure mechanisms for discrimination. And as 

the evidence makes clear, this reshaping of the systems was completely 

intentional. 

This evidence adequately supports the conclusion that the at-large 

systems now being used in the five counties are a product of intentional 

discrimination. Nevertheless, any remaining doubt that the systems were 

racially inspired is dispelled by further evidence that the systems were 

created in the midst of the state's unrelenting historical agenda, spanning 

from the late 1800's to the 1980's, to keep its black citizens economically, 

socially, and politically downtrodden, from the cradle to the grave. See 

Arlington Heights, 429 U.S. at 267, 97 S.Ct, at 364 ("the historical 
  

background of the [challenged] decision is one evidentiary source, 

particularly if it reveals a series of official actions taken for invidious 

purposes"); Ammons v. Dade City, 783 F.2d 982, 988 (llth Cir. 1986) ("a 
  

large body of constitutional jurisprudence ... recognizes that the 

historical context of a challenged activity may constitute relevant evidence 

of intentional discrimination"). 

The plaintiffs have presented considerable evidence demonstrating 

that the state has an extensive history of discriminating against black 

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persons in the area of voting rights and specifically by using at-large 

systems. The plaintiffs’ historical presentation began with evidence dating 

from Alabama's so-called 'redemption' by the white-supremacist Democratic 

party around 1870. In the late 1860's, the Republicans temporarily gained 

control in Alabama and were able both to author a new constitution that 

provided for universal suffrage and to have a significant voice in the state 

legislature. In 1870, however, the Democratic party, which openly and 

vigorously promoted white supremacy, won the governorship and control of the 

house, and, in 1874, the Democrats regained complete control of the state 

government. 

Following this '"redemption' by the white-supremacist Democratic 

party, the state legislature passed a series of local laws that eliminated 

elections for county commission and instead gave the governor the power to 

appoint the commissioners. This system of gubernatorial appointment was 

particularly favored in black belt counties threatened with black voting 

majorities. According to the plaintiffs’ historian, the gubernatorial 

appointment system is widely understood to have been designed to prevent the 

election of black county commissioners. 

The rise of the Populist movement in the 1890's triggered new 

changes in Alabama's election laws. Since the Populist movement had 

considerable support among black persons and poor white persons, steps had 

to be taken to prevent these two groups from joining together in potentially 

powerful coalitions. In 1893, the legislature passed a complex election 

statute known as the Sayre Law, "[t]he express purpose of [which], according 

to its author, was to legally eliminate the Negro from politics in Alabama." 

-lf= 

 



  

Bolden v. City of Mobile, 542 F. Supp. 1050, 1062 (S.D. Ala. 1982). The 
  

Sayre Law apparently had its desired effect, for black voter turnout dropped 

by 22% from 1892 to 1894 and thereafter remained below 50%. Id. at 1062. 

The Populist movement not only inspired the Sayre Law, it also set off the 

first of several shifts between single-member district and at-large 

elections for county commissioners. The plaintiffs' historian testified 

that because at-large elections have the effect of diluting the black vote, 

they are particularly favored when black persons' right to vote is 

relatively unfettered and black voters stand a chance of electing a 

candidate of their choice; when black persons' access to the ballot box is 

circumscribed, on the other hand, single-member districts gain in 

popularity. In 1894, when the Populist movement had just reached its peak 

and black persons were still able to vote fairly freely, numerous counties 

moved from single-member districts to at-large elections, apparently in 

order to undermine possible coalitions between black persons and poor white 

persons. 

This trend toward at-large elections reversed itself after the 

1901 Constitutional Convention. There can be little question but that a 

major purpose of the 1901 Convention was to disenfranchise black persons. 

As the Supreme Court recently commented in another case, expert testimony 

"showed that the Alabama Constitutional Convention of 1901 was part of a 

movement that swept the post-Reconstruction South to disenfranchise blacks. 

.. The delegates to the all-white convention were not secretive about their 

purpose.’ Hunter v. Underwood, B.S. A y 305 S.Ct. 1916, 1920-21 
  

(1985). The 1901 Constitution contained so many different voter 

-17- 

 



  

qualifications that by 1909 all but approximately 4,000 of the nearly 

182,000 black persons of voting age in Alabama had been removed from the 

rolls of eligible voters. Bolden, 542 F. Supp. at 1063 & n. 10. After the 

1901 Convention, counties increasingly moved toward single-member districts; 

since most black persons could no longer vote, the use of single-member 

districts was obviously fairly "safe." In fact, the legislature was so 

confident that black persons had been removed as a political force that in 

1907 it passed a law providing for single-member district elections of 

aldermen in all cities in the state. Id. at 1063. 

A final shift back towards at-large elections began in 1944. 

According to the plaintiffs’ historian, in response to both the Supreme 

Court's ban of all-white primaries and the Civil Rights Acts of 1957, 1964, 

and 1965, many counties shifted back to at-large elections. This shift was 

in substantial measure parallel with the legislature's racially inspired 

decisions to refashion at-large systems to prohibit single-shot voting and 

later to require numbered places. 

Again, state legislators were often open and unashamed of their 

intent. For example, State Senator Clark, who introduced a bill in 1965 to 

shift elections in Barbour County, Alabama from single-member districts to 

an at-large system, explained to a local newspaper that Ma further 

consideration in introducing this bill would be to lessen the impact of any 

bloc vote in any district which has a relatively small number of eligible 

voters"; the term "bloc vote" was commonly used at that time as a code to 

refer to the black vote. According to another local newspaper, supporters 

18 

 



  

of a similar bill for Choctaw County, Alabama "advocate the change because 

of the increasing number of Negro voters that have been qualified in recent 

weeks.... They maintain that by electing the [county] commissioners on an 

at-large basis the threat of an effective Negro bloc vote will be 

eliminated, ? Since black voters once again posed a threat to total control 

of the electoral process by white persons, single-member districts were 

abandoned and at-large systems were put into place. 

In addition to implementing and maintaining at-large elections, 

reinforced by laws banning single-shot voting and laws requiring numbered 

places, the state passed a number of other statutes designed to discriminate 

against black voters. For example, starting shortly after the all-white 

primaries were struck down, the state passed a series of laws requiring 

black persons who wished to register to vote to satisfy different and more 

stringent standards and tests than white persons. See, e.g., United States 
  

v. Parker, 236 F. Supp. 511 (M.D. Ala. 1964); United States v. Penton, 212 
  

  

F. Supp. 193 (M.D. Ala. 1962); Davis v. Schnell, 81 F. Supp. 872 (S.D. 
  

Ala.), aff'd 336 U.S. 933, 69 S.Ct. 749 (1949). Other barriers placed in 

the way of black voters after 1944 include racial gerrymandering, Sims v. 

Baggett, 247 F. Supp. 96 (M.D. Ala. 1965), discriminatory administration of 

the poll tax, United States v. Alabama, 252 F. Supp. 95 (M.D. Ala. 1966), 
  

and appointment of disproportionately few black poll officials. Harris v. 
  

Graddick (Harris II), 601 F. Supp. 70 (1984); Harris v. Graddick (Harris I), 
  

  

  

6. Although the Choctaw County voters defeated the proposed 

change in a local referendum for reasons unrelated to race, this evidence 

makes clear that there was widespread understanding that at-large elections 

have an adverse impact on the black vote. 
—10- 

 



    

593 PF. Supp. 128 (M.D. Ala. 1984). 

These efforts to keep black persons from voting and being elected 

to office paralleled and complemented the state's efforts to discriminate 

against black persons in all other areas of their lives. As children, black: 

persons were required to go to segregated schools, see, e.g., Lee v. Macon 
  

County Bd. of Ed., 231 F. Supp. 743 (M.D. Ala. 1964) (three-judge court), 
  

play in segregated parks, Gilmore v. City of Montgomery, 176 F. Supp. 776 
  

(M.D. Ala. 1959), modified, 277 F.2d 364 (5th Cir. 1960), and use segregated 

recreational facilities. Smith v. Y.M.C.A., 316 F. Supp. 899 (M.D. Ala. 
  

1970), aff'd as modified, 462 F.2d 634 (5th Cir. 1972), As they grew up, 
  

black persons faced continued discrimination in education, United States v. 
  

Alabama, 628 F. Supp. 1137 (N.D. Ala. 1985), and were also discriminated 

against in state employment, see, e.g., Paradise v. Prescott, 585 F. Supp. 
    

72 (M.D, Ala 1383), aff'd, 767 F, 24 1514 (ilth Cir. 19835) {racial 

discrimination in promotion of state troopers); NAACP v. Allen, 340 F. Supp. 
  

703 (M.D. Ala. 1972), aff'd, 493 F. 24 614 (5th Cir, 1974) (ragial 

discrimination in hiring of state troopers); United States v. Frazier, 317 
  

F. Supp. 1079 (M.D. Ala. 1970) (four departments of Alabama state government 

with a total of approximately 3,000 employees engaged in pattern or practice 

of employment discrimination against blacks); Marable v. Alabama Mental 
  

Health Board, 297 F. Supp. 291 (M.D. Ala. 1969) (three-judge court) (state 
  

mental health board discriminated against black employees), cultural 

opportunities, Cobb v. Montgomery Library Board, 207 F. Supp. 880 (M.D. Ala. 
  

1962) (blacks excluded from public library and museum), and even their 

private lives. United States v. Britain, 319 F. Supp. 1058 (N.D. Ala. 1970) 
  

(miscegenation laws). 

 



    

Furthermore, no matter what form of putlic transportation they 

chose, black persons were subjected to segregation. See, e.g., United 
  

States v. City of Montgomery, 201 F. Supp. 590 (M.D. Ala. 1962) 
  

(state-imposed segregation in municipal airport facilities); Lewis v. 

Greyhound Corp., 199 F. Supp. 210 (M.D. Ala. 1961) (state policy of 
  

maintaining segregated bus terminals); Browder v. Gayle, 142 F. Supp. 707 
  

(M.D. Ala.) (three-judge court), aff'd mem., 352 U.S. 903, 77 S. Ct. 145 
  

(1956) (segregated city buses required by state statute and city ordinance). 

Black mental patients were placed in segregated and inferior public 

hospitals, Marable, 297 F. Supp. at 294, and black persons were 

discriminated against on both sides of the legal system; they were routinely 

excluded from juries, see, e.g., Black v. Curb, 464 F.2d 165 (5th Cir. 
  

1972), and they were kept in segregated quarters in the state's jails and 

prisons. Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966) (three-judge 
  

court), aff'd, 390 U.S. 333, 38 8.Ct., 994 (1967). 

As the late Judge Richard T. Rives stated, "from the 

Constitutional Convention of 1901 to the present, the State of Alabama has 

consistently devoted its official resources to maintaining white supremacy 

1 
and a segregated society." United States v. Alabama, 252 F. Supp. 95, 101 

  

(M.D. Ala. 1966) (three-judge court). 

On this extensive historical record based on both direct and 

circumstantial evidence, the conclusion is inescapable that in the 1960's 

the state superimposed numbered place requirements on all at-large systems 

with the specific intent of discriminating against black persons. 

=3tl 

 



  

The state's adoption of numbered place laws as a means of discrimination was 

also entirely consistent with its longstanding history of discrimination. 

From the late 1800's through the present, the state has consistently erected 

barriers to keep black persons from full and equal participation in the 

social, economic, and political life of the state. 

The plaintiffs have therefore established a substantial likelihood 

of prevailing on their section 2 intent claims against Calhoun County, 

Coffee County, Etowah County, Lawrence County, and Talladega County. The 

plaintiffs have met all requirements for such claims. First, in the 1960's, 

the State of Alabama passed sunberad place laws with the specific intent of 

making at-large election systems more effective and efficient instruments 

for keeping black voters from electing black candidates. Second, these 

systems, as redesigned, are still having their intended racist impact. In 

the racially polarized political atmosphere of the five counties, black 

voters are still unable to elect black candidates to commission seats 

because of the systems. And third, the five counties have failed to show 

that the numbered place laws would have been enacted in the absence of the 

discriminatory intent behind them. 

ii. 

As the court stated earlier, there are, at least, two methods of 

establishing a claim of intentional discrimination under section 2. The 

- 0 

 



  

second method is based primarily on the evidentiary concept of pattern and 

practice. 

Again borrowing from fourteenth amendment law and other, similar 

law, a plaintiff may establish a prima facie case of intentional 

discrimination by showing, first, that those responsible for the enactment 

or maintenance of the challenged electoral scheme have engaged in a pattern 

and practice of enacting and maintaining other, similar schemes for racially 

discriminatory reasons; and, second, that the challenged scheme has some 

present day adverse racial impact. The plaintiff need mot show that race 

discrimination was the sole reason for these other schemes; rather, the 

plaintiff need show only that race discrimination was a substantial or 

motivating factor behind these schemes. If the plaintiff establishes both 

these elements, the burden then shifts to the defenders of the challenged 

scheme to show either that the scheme was not a product of race 

discrimination or that, if it was, it would have been emacted or maintained 

even in the absence of the discriminatory purpose. See Xeyes vw. School 
  

District No. 1, 413 U.S. 189, 208, 93 S.Ct. 2686, 2697 (1973) (where 
  

plaintiffs show that school authorities have effectuated an intentionally 

segregative policy in a meaningful portion of the school system, the court 

may infer that similar impermissible considerations have motivated their 

actions in other areas of the school system, and burden shifts to the school 

authorities to show otherwise as to other areas); see also International 
  

Brotherhood of Teamsters v. United States, 431 U.S. 324, 362, 97 S.Ct. 1843, 
  

=D Fu 

 



  

1868 (1977) (where plaintiffs prove that employer engaged in a pattern and 

practice of discrimination in violation of Title VII of the Civil Rights Act 

of 1964, as amended, 42 U.S.C.A. §§ 2000e through 2000e-17, burden then 

shifts to employer to show that individual applicant was denied employment 

for lawful reason); Lee v. Washington County Board of Education, 625 F. 2d 
  

1235, 1239 (5th Cir. 1980) (once purposeful discrimination in hiring is 

proved against class in an employment discrimination action under 42 

U.S.C.A. §§ 1981, 1983, burden then shifts to the employer to show that the 

individual members of class seeking relief would not have been hired absent 

the discrimination). 

The plaintiffs have shown a substantial likelihood of prevailing 

on this second method of establishing a section 2 intent claim, for they 

have established a prima facie case of race discrimination which the 

defendants have not rebutted. First, the preceding evidence shows that the 

Alabama legislature, which was responsible for the at-large systems in the 

five counties, has consistently enacted at-large systems for local 

governments during periods when there was a substantial threat of black 

participation in the political process. This evidence, set against the 

  

7. The plaintiffs contend that a plaintiff should not have the 

burden of establishing present day adverse racial impact, but rather that 

once the plaintiff establishes a pattern and practice of race discrimi- 

nation the defenders of the challenged action should have the burden of 

establishing no present day adverse impact. The court disagrees. See 

International Brotherhood of Teamsters, 431 U.S. at 362, 97 S.Ct. at 1868 

(to shift burden to employer with respect to individual employees entitled 

to relief, plaintiffs in Title VII pattern and practice suit must "show that 

the alleged individual discriminatee unsuccessfully applied for a job"); 

Keves, 413 U.S. at 208, 93 S.Ct. at 2697 (presumption of discriminatory 

intent based on evidence of segregative intent in one portiom of a school 

system is created only with respect to "other segregated schools within the 

system). 

  

-24- 

 



  

background of the state's unrelenting and undisputed history of race 

discrimination, convinces the court that the enactment of the at-large 

systems during such periods was not adventitious but rather racially 

inspired. The evidence therefore reflects that the legislature has engaged 

in a pattern and practice of using at-large systems as an instrument for 

race discrimination. Second, as already stated, the evidence shows that the 

at-large systems used by the five counties to elect commissioners have a 

present day adverse racial impact. The counties have not at this time 

satisfactorily met their burden of refuting this prima facie case. The 

counties have not shown that thelr at-large systems were not a product of 

race discrimination, nor have they shown that their systems would have been 

enacted in the absence of race discrimination. 

iid. 

In light of these conclusions, the next issue the court must 

consider is what preliminary injunctive relief would be appropriate against 

the five counties. Four of the five counties are to elect one or more 

county commissioners this year. The primary elections are scheduled for 

June 3, 1986, with runoff elections, if necessary, scheduled for June 24; 

and the general elections are to be held in November. The plaintiffs seek a 

preliminary injunction requiring the counties to implement single-member 

districts immediately and to postpone any primary and general elections for 

county commissioners until such time as the plans are implemented. In 

addition, the plaintiffs seek to shorten the terms of incumbents who are 

«25 

 



  

now scheduled to remain in office past the end of this year, and they seek 

to require Coffee County, the one county that does not have commission 

elections this year, to hold elections at the same time as the other four 

counties. : 

For several reasons, the court refuses to order the five counties 

to implement new election plans, including possibly single-member district 

plans, until after this lawsuit has been finally heard on the merits. 

First, while it is clear that the existing at-large systems are infirm, it 

is inappropriate at this time to order a single remedy for all of the 

counties. The court simply does not have sufficient evidence about the 

individual characteristics of each county. Second, even if it were clear 

that all of the counties should be required to adopt simgle-member 

districts, it would be unfair and infeasible to require them to do so by 

June. The plaintiffs did not even seek preliminary injunctive relief until 

February 1986 and were unable to produce all of the evidence necessary to 

consider the motion until late March, less than three months before the 

primaries are scheduled to begin. Finally, given that the plaintiffs’ 

requested injunction goes well beyond merely preserving the status quo while 

the litigation is pending, the very nature of their request demands that the 

court proceed with caution. See, e.g., Martin v. International Olympic 
  

Committee, 740 F.2d 670, 675 (9th Cir. 1984) ("[i]ln cases ... in which a 
  

party seeks mandatory preliminary relief that goes well beyond maintaining 

the status quo pendente lite, courts should be extremely cautious about 
  

issuing a preliminary injunction"); Harris v. Wilters, 596 F.2d 678, 680 
  

(5th Cir. 1979) ("[olnly in rare instances is the issuance of a mandatory 

-26- 

 



  

preliminary injunction proper"); Jordan v. Wolke, 593 F.2d 772, 774 (7th 
  

Cir. 1978) ("mandatory preliminary writs are ordinarily cautiously viewed 

and sparingly issued"). : 

While the court refuses to order the counties to implement new 

election plans in time for the June elections, the court does recognize that 

with each election the at-large systems impermissibly dilute the vote of 

thousands of black citizens and thus must be eliminated as soon as possible. 

The court will therefore set a trial date for mid-summer of this year and 

will enter a preliminary injunction requiring that, pending trial, each 

county must submit a time schedule for developing a new election plan, 

obtaining approval of the plan from the U.S. Department of Justice pursuant 

to section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. 

§ 1973c, and Sp lementity the new plan. These schedules will be due 21 days 

from the date of this order and must provide that the development, approval, 

and implementation of the plans will all be completed by January 1, 1987. 

The only question that remains is whether all scheduled elections 

should be postponed until such time as they may be conducted in accordance 

with the new plans. Many of the considerations leading the court to refuse 

to order immediate implementation of new plans also lead it to refuse to 

postpone the scheduled elections. Moreover, without having alternative 

election plans ready to be implemented immediately, the court is unwilling 

to enjoin the scheduled elections. Numerous unforeseen events could delay 

the implementation of alternative plans, ranging from disagreement over 

where district lines should be drawn to failure to get approval from the 

Department of Justice. Given that five different counties are involved and 

YY 

 



  

that the counties' election systems may all have to be completely 

reorganized, there can be no absolute assurance that new plans will be fully 

implemented before January 1987, when some of the present commissioners’ 

terms will end. The court does not wish to be left in the position of 

having either to extend the terms of incumbents or to appoint temporary 

replacements to serve until the new plans are in place. Both alternatives 

would effectively deny the entire electorate the right to vote and thus seem 

to offend basic principles of representative government. 

The court cautions the counties, however, that they should not 

take the preceding statements as a suggestion that the court will easily 

entertain and grant extensions of the January 1 deadline. Om the present 

record, the court fully expects that all five counties will develop new, 

nondiscriminatory election plans and hold elections under those plans by the 

first of next year. 

B. Irreparable Injury to the Plaintiffs 
  

The plaintiffs have clearly satisfied the seccmd requirement for a 

preliminary injunction, which is that they will suffer irreparable harm 

unless they obtain immediate relief. An injury is irreparable "4f it cannot 

t 
be undone through monetary remedies." Deerfield Medical Center v. City of 

  

Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Nov. 13, 1981) (Unit B). The 
  

injury alleged here is denial of the right to vote. As the Supreme Court 

recognized long ago, the right to vote is "'a fundamental political right, 

because preservative of all rights.' ... [E]ach and every citizen has an 

inalienable right to full and effective participation im the political 

processes of his State's legislative bodies.” Reynolds v., Sims, 377 C.S. 
  

28 

 



  

533, 562, 565, 84 S.Ct. 1362, 1381, 1383 (1964) (citation omitted). Given 

the fundamental nature of the right to vote, monetary remedies would 

obviously be inadequate in this case; it is simply not possible to pay 

someone for having been denied a right of this importance. Cf. Elrod v. 

Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690 (1976) ("[tlhe loss of First 

Amendment freedoms, for even minimal periods of time, unquestionably 

constitutes irreparable injury"). Therefore, as this court observed in 

Harris I, plaintiffs seeking preliminary injunctive relief under section 2 

"should not be and are not required to make the usual showing of irreparable 

injury as a prerequisite to relief; rather, such injury is presumed by law." 

593 ¥. Supp. at 133, 

C. Relative Harms 
  

The court also concludes that the plaintiffs have met the third 

requirement for preliminary injunctive relief, which is that the benefits to 

the plaintiffs of preliminary injunctive relief outweigh any possible harm 

to the counties. To be sure, the relief imposed will inconvenience five of 

the counties in some measure, for the counties will have to proceed 

immediately with development of new plans. However, the administrative 

burden on the five counties cannot begin to compare with the further 

subjection of black citizens of the counties to denial of their right to 

full and equal political participation beyond January 1, 1987, the date by 

which the court believes the counties can reasonably implement new election 

plans. The latter alternative is morally as well as legally indefensible. 

«20. 

 



  

D. Public Interest 
  

Finally, the plaintiffs have met the fourth requirement. for 

preliminary injunctive relief. Without question, the public interest would 

not be harmed by the preliminary injunctive relief awarded today. Section 

2, as amended, represents "a strong national mandate for the immediate 

removal of all impediments, intended or not, to equal participation in the 

election process. Thus, when section 2 is violated the public as a whole 

suffers irreparable injury." Harris I, 593 F. Supp. at 135. The public 

interest, therefore, mandates the relief afforded by the court today. 

IV. RES JUDICATA 

Three of the defendant counties--Coffee County, Pickens County, 

and Talladega Connty-snbtntain that all of the claims against them are due 

to be dismissed from this lawsuit on the grounds of res judicata. Coffee 

and Talladega Counties' defenses of res judicata lack merit completely. 

Pickens County's res judicata defense has merit, but in part only. The 

defense has merit as to the plaintiffs' section 2 intent claim but not as to 

their section 2 results claim. Furthermore, as indicated earlier, Pickens 

County's defense prohibits the plaintiffs from securing preliminary 

injunctive relief against the county; this result obtains because the 

premise for the plaintiffs' preliminary injunctive request is limited to the 

barred claim. 

30 

 



  

A. Pickens County 
  

In Nevada v. United States, D.S. s y 3103 'S.Ce. 2906, 
  

2918 (1983), the Supreme Court explained that 

the doctrine of res judicata provides that 

when a final judgment has been entered on the 

merits of a case, '[i]t is a finality as to 

the claim or demand in controversy, concluding 
parties and those in privity with them, not 

only as to every matter which was offered and 

received to sustain or defeat the claim or 
demand, but as to any other admissible matter 

which might have been offered for that 

purpose.’ ... The final 'judgment puts an 
end to the cause of action, which cannot again 

be brought into litigation between the parties 

upon any ground whatever.'" 

  

In order for res judicata to apply, the prior judgment must have been 

rendered by a court of competent jurisdiction, there must have been a final 

judgment on the merits, the parties or those in privity with them must be 

identical in both suits, and the same cause of action must be involved in 

both suits. Rav v. Tennessee Valley Authority, 677 F.2d 818 (llth Cir. 
  

1987), cert. denied, 439 U.S5. 1147, 103 S.Ct. 788 (1983). 
  

According to Pickens County, the question of whether Pickens 

County intentionally discriminated against black voters through the use of 

an at-large system for electing commissioners was decided in the Corder v. 
  

Kirksey litigation. Corder v. Kirksey (Corder IV), 688 F.2d 991 (5th Cir. 
  

1982) (per curiam) (Former Fifth), cert. denied, 460 U.S. 1013, 103:8.Ct. 
  

1253 (1983); Corder v,. Kirksey {Corder ITI), 639 F.24 1191 (5th Cir. March 
  

16, 1981); Corder v. Kirksey (Corder II), 625 F.2d 520 (5th Cir. 1980) 
  

~-31l- 

 



  

(per curiam); Corder v. Kirksey (Corder I), 5385 F.24 708 (5th Cir. 1978). 
  

In Corder, black residents of Pickens County challenged the constitu- 

tionality of the at-large method of electing county commissioners and school 

board members; as the present plaintiffs apparently concede, the litigation 

focused on the question of racially discriminatory intent. After years of 

litigation, including several appeals, the appellate court finally affirmed 

the district court's finding that the plaintiffs had failed to prove 

discriminatory intent. Corder IV, supra; Corder III, supra. 
  

The plaintiffs in the present action appear to concede that the 

prior suit against Pickens County resulted in a final judgment on the merits 

rendered by a court of competent jurisdiction and that the parties in the 

: 8 a 
two suits were the same. However, the plaintiffs argue that because they 

raise a section 2 claim of intentional discrimination while the Corder 
  

plaintiffs raised a constitutional claim of intentional discrimination, the 
  

two suits simply do not involve the same cause of actiem. 

  

8. The plaintiffs in Corder were the class of black residents of 

Pickens County; the plaintiffs here are the class of black citizens of 

Pickens County. There is obviously considerable overlap between the two 

classes. To the extent that any of the present plaintiffs were for some 

reason not members of the plaintiff class in Corder, they are nonetheless 

bound because their interests are so closely related to those of the Corder 

plaintiffs. "Under the federal law of res judicata, z person may be bound 

by a judgment even though not a party if one of the parties to the suit is 

so closely aligned with his interests as to be his virtual representative." 

Aerojet-General Corporation v. Askew, 511 F.2d 710, 719 (5th Cir.), cert. 

denied, 423 U.S. 908, 96 85.Cr, 210 (1975). 
  

32 

 



  

The former Fifth Circuit recognized that "the principal test for 

comparing causes of action is whether the primary right and duty or wrong 

are the same in each action." Kemp v. Birmingham News Co., 608 F.2d 1049, 
  

1052 (5th Cir. 1979). In chis case, it is clear that the primary rights and 

duties are the same. Despite the nominal difference between the claim in 

Corder and that raised here, the plaintiffs in both suits were asserting the 

same right--namely, the right to be free from intentional racial 

discrimination. See Nilsen v. City of Moss Point, 701 F.2d 556 (5th Cir. 
  

1983) (en banc) (res judicata bars plaintiff's claims of sex discrimination 

in suit based on fourteenth amendment because she had previously brought 

same claims under Title VII). Furthermore, the Eleventh Circuit has more 

recently explained that the bar of res judicata "extends not omiy to the 

precise legal theory presented in the previous 1ictgation, but to all legal 

theories and claims arising out of the same 'operative nucleus of fact." 

Olmstead v. Amoco Oil Co., 725 F.2d 627, 629 (llth Cir. 1984). Since the 
  

plaintiffs in both suits challenged the same election system im the same 

county, it would appear that their claims did arise out of the identical 

"operative nucleus of fact." The principles of res judicata may therefore 

apply regardiess of the fact that the plaintiffs in the first suit relied on 

the constitution, whereas the plaintiffs in the present suit rely on section 

2 ~ 0 

The present plaintiffs also argue that their section 2 intent 

claim is not barred by res judicata because the applicable law has changed 

since the Corder litigation. In general, "changes in the law after a final 

33 

 



    

judgment do not prevent the application of res judicata and collateral 

estoppel, even though the grounds on which the decision was based are 

subsequently overruled." Precison Air Parts, Inc. v. Aveo Corp., 736 F.2d 
  

1499, 1503 (11th Cir. 1984), cert. denied, 3.8. s 105 8.Ct. 965 
  

(1985). However, the former Fifth Circuit recognized an exception to that 

rule in cases involving constitutional law. 'Faced with changing law, 

courts hearing questions of constitutional right cannot be limited by res 

judicata. If they were, the Constitution would be applied differently in 

different locations." Parnell v. Rapides Parish School Bd., 563 F.2d 180, 
  

185 (5th Cir. 1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144 (1978). See 
  

also Jackson v. DeSoto Parish School Bd., 585 F.2d 726 (5th Cir. 1978); Moch 
  

v. East Baton Rouge Parish School Bd., 548 F.2d 594 {5th Cir.), cert. 
  

denied, 434 U.S. 859, 98 S.Ct. 183 (1977). This exception applies to cases 

involving section 2 as well. Kirksey v. City of Jackson, 714 F.24 42, 44 
  

(5th Cir. 1983). The plaintiffs may therefore be able to escape the 

application of res judicata by demonstrating that the relevant law has 

undergone "momentous ... [and] significant" changes since the Corder 

litigation concluded. Precision Air Parts, Inc., 736 F.2d at 1504, 
  

The changes in the law upon which plaintiffs rely are the 1982 

amendments to section 2. While these amendments were indeed quite 

significant, they actually had little effect on the charge of intentional 

discrimination presented here and therefore do not bar application of res 

judicata. 

34 

 



  

Before the 1982 amendments, a plaintiff challenging at-large 

systems had to prove that the system was created or maintained with the 

intent to discriminate. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 
  

1490 (1980). After the 1982 amendments, by contrast, a plaintiff could 

prevail on a section 2 claim by showing either that the challenged practice 

was motivated by a discriminatory intent or that the practice had 

discriminatory results. To the extent the plaintiffs in the present action 

seek to pursue a claim based on intent rather than results, the 1982 

amendments had no practical effect on their position. A plaintiff bringing 

a results case essentially had an entirely new cause of action, Kirksey wv. 
  

City of Jackson, 714 F.2d at 44; whereas, a plaintiff pursuing an intent 
  

theory could as easily have brought the claim before the 1982 amendments. 

Indeed, the Fifth Circuit twice remanded Corder to the district court so 

that that court could reexamine the evidence on intent, Corder II, supra; 
  

Corder I, supra; and on the second remand the appellate court specifically 
  

directed the district judge to "entertain any application plaintiffs may 

care to make to present further evidence" on the intent issue. Corder II, 
  

625 F.2d at 521. Admittedly, there is dicta in this circuit to the effect 

that a plaintiff might not have been able to bring a vote dilution claim at 

all under section 2 prior to the 1982 amendments, McMillan v. Escambia 
  

County, Fla. (Zscanbia I), 638 F.24 1239,. 1243 n, 9 {5th Cir. Feb. 19, 
  

1981), cert. dismissed sub nom. City of Pensacola v. Jenkins, 453 U.S. 946, 
  

102 S.Ct. 17 (1981), but a plaintiff could have brought the identical claim 

under the fourteenth amendment at any sine.” City of Mobile v. Bolden, 
  

  

9. Prior to its amendment in 1982, there was some question as to 

whether section 2 permitted a challenge to an (footnote 9 continues) 

«35 

 



  

supra. The mere fact that section 2 was amended in 1982 is therefore not 

sufficient to bar the application of res judicata to the present claim of 

intentional discrimination. 

The plaintiffs’ third argument against the application of res 

judicata to their section 2 intent claim is that during the Corder 

litigation, a plaintiff simply could not present the type of historical 

evidence used here. This argument is without merit. In Arlington Heights, 
  

the Supreme Court explicitly endorsed the use of historical evidence and 

legislative histories for the purpose of demonstrating discriminatory 

intent. 429 U.S. at 267-68, 97 S.Ct. at 564-65. Arlington Heights was 
  

decided in 1977, one vear before the first remand of the Corder suit. While 

the usual method of proving intentional voting discrimination was to satisfy 

a number of criteria laid out in Zimmer v. McKeithen, 485 F.2d 1297 (5th 
  

Cir. 1973) (en banc), aff'd on other grounds sub nom. East Carroll Parish 
  

School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083 (1976), there was 
  

nothing to prevent the plaintiffs from attempting to present an alternative 

form of proof. Indeed, the second appeals court decision in Corder made 

clear that after City of Mobile v. Bolden plaintiffs might have to do more 
  

than merely satisfy the Zimmer factors in order to prevail; Corder II almost 
  

  

(footnote 9 continued) at-large system. Escambia I, 638 F.24 at 1243 nn. 9. 

However, there is no question that the 1982 amendments now permit such a 

challenge. United States v. Marengo County Commission, 731 F.2d 1546, 1556 

(11th Cir.), cert. denied, > U.8, ., 105:.8.Cr. 375 (1984). See also 

Lee County Branch of NAACP v. City of Opelika, 748 F.2d at 1479; Escambia 

II, 748 F.2d at 1046; S. Rep. No. 417, 97th Cong., 2d Sess., reprinted in 

1982 U.S. Code Cong. & Ad. News 177; H.R. Rep. No. 227, 97th Cong., Ist 

Sess. 

  

  

  

  

  

«3fw 

 



  

invited the plaintiffs to attempt an alternative approach. Corder II, 625 
  

F.2d at 521. The plaintiffs have pointed to no particular development in 

the law since the Corder litigation that makes it possible for them to use 

evidence that they could not have used previously. 

The final argument against applying res judicata to the 

plaintiffs' section 2 intent claim is that it would be unjust and against 

public policy to do so. The court is particularly concerned by two 

considerations. First, the rights at stake here are fundamental and are 

being denied to a large group of individuals; application of res judicata 

principles in this case could well preclude an entire class of black 

citizens from enjoying a basic constitutional right on an equal basis with 

white citizens. Second, since the court has already found a discriminatory 

intent on the part of the state that was manifested through the county 

election schemes, it seems somewhat anamolous to dismiss the intent claim 

against Pickens County; the state's discriminatory purposes were certainly 

carried out in Pickens County to the same extent as they were in the other 

counties involved in this suit. 

The court is also reluctant to use the bar of res judicata for 

policy reasons. As the legislative history to the 1982 amendments makes 

clear, Congress intended to eradicate as soon as possible all racial 

discrimination, both intentional and unintentional, in the area of voting 

rights. Applying the bar of res judicata despite a finding of intentional 

discrimination by the state could be viewed as frustrating Congressional 

policy. 

“37 

 



  

Despite these concerns founded on both justice and public policy, 

the court concludes that it has little choice but to dismiss the intent 

claim against Pickens County on the grounds of res judicata. In Federated 
  

Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424 (1981), the 
  

Supreme Court held that res judicata bars relitigation of an unappealed 

adverse judgment even though other plaintiffs in similar actions against 

common defendants had actually prevailed on appeal. In reaching this 

conclusion, the Court explicitly rejected the argument that a court may 

refuse to apply the res judicata doctrine merely because it believes that 

injustice might result. According to the Court, 

"Simple justice" is achieved when a complex 
body of law developed over a period of years 

is evenhandedly applied. The doctrine of res 

judicata serves vital public interests beyond 

any individual judge's ad hoc determination of 

the equities in a particular case. There is 

simply "mo principle of law or equity which 

sanctions the rejection by a federal court of 

the salutary principle of res judicata." 
  

Federated Department Stores, 452 U.S. at 401, 101 S.Ct. at 2429 (citation 
  

omitted). 

The mere fact that a suit involves a large number of plaintiffs 

claiming a deprivation of their rights also makes little difference. Im 

Nevada v. United States, U.S. » 103 S.Ct. 2906 (1983), the Supreme 
  

Court held that an entire Indian tribe was barred from litigating a water 

rights claim on the ground of res judicata. Furthermore, a judgment in a 

class action will generally bind all members of the class, even in civil 

rights cases, see, e€.g., Gilchrist v. Bolger, 733 F.2d 1551, 15356 n. 4 (llth 
  

Cir. 1984); Kemp v. Birmingham News Co., 608 F.2d 1049, 1054 (5th Cir. 
  

1979); the size of the class apparently makes little difference. The fact 

that a plaintiff asserts a fundamental constitutional right also does not 

38. 

 



  

affect the application of res judicata. See, e.g., Harmon v. Berry, 776 
    

F.2d 259 (llth Cir. 1985) (per curiam) (prisoner's claim of denial of access 

to court dismissed on grounds of res judicata); Jones v. Texas Tech 
  

University, 656 F.2d 1137 (5th Cir. Sept. 25, 1981) (Unit A) (due process 
  

claim dismissed on grounds of res judicata); Kemp v. Birmingham News, 608 
  

F.2d 1049 (5th Cir. 1979) (Title VII claim of race discrimination in 

employment practices dismissed on grounds of res sudteata).}? 

The court is also barred from creating an exception to res 

judicata on the grounds of public policy. First, Federated Department 
  

Stores makes clear that res judicata is to be given weight as a public 

policy in its own right. 

The Court of Appeals' reliance on "public 
policy" is ... misplaced. This Court has long 
recognized that "public policy dictates that 
there be an end of litigation; that those who 

have contested an issue shall be bound by the 

result of the contest, and that matters once 

tried shall be considered forever settled as 

between the parties.” ... [The] "doctrine of 

res judicata is not a mere matter of practice 

  

10. The three more recent decisions of the former Fifth Circuit 

in which the court found an exception to res judicata based on 

considerations of justice do not help the present plaintiffs. Admittedly, 

in Parnell v. Rapides Parish School Bd., 563 F.24 1380, 185 (5th Cir. 1977), 

cert. denied, 438 U.S. 915, 98 S.Ct. 3144 (1978), the court refused to apply 
res judicata because, among other reasons, "[t]o bind forever class members 

to a deprivation of their constitutional rights because some class members 

failed to enter enough evidence to meet their burden of proof is unjust." 
However, in light of Gilchrist and Kemp, in which class members were bound 

by res judicata, it appears that the e Eleventh Circuit has abandoned the 

Parnell dicta. In both Jackson v. DeSoto Parish School Bd., 585 F.2d 726 
(5th Cir. 1978), and Moch v. East Baton Rouge Parish School ie. 548 F.24 

5094 (5th Cir.), cert. denied, 434 U.S. 859, 98 S.Ct. 183 (1977), on the 

other hand, the court found that it would be unjust to apply res judicata 

because the applicable law had undergone a significant change. No such 

injustice threatens here, of course, because any change in the applicable 

law did not directly affect plaintiffs' intent claim against Pickens County. 

  

  

  

  

  

  

30 

 



  

or procedure inherited from a more technical 

time than ours. It is a rule of fundamental 

and substantial justice, 'of public policy and 

of private peace,' which should be cordially 

regarded and enforced by the courts.” 

Federated Department Stores, 452 U.S. at 401, 101 S.Ct. at 2429 (citations 
  

omitted). Furthermore, courts have frequently applied res judicata where 

policies equally important as those embodied in section 2 were at stake. 

See, e.g., Kemp v. Birmingham News, 608 F.2d 1049 (5th Cir. 1979) (Title 
  

vil). 

The court therefore concludes that the intent claim against 

Pickens County must be dismissed because of the Corder litigatiom. The 

requirements for the application of res judicata have been met, and no 

possible exceptions to the doctrine appear to apply. Accordingly, the court 

will dismiss the plaintiffs' section 2 claim of discriminatory intent 

against Pickens County. 

Pickens County also contends that the plaintiffs’ section 2 

results claim is barred by the Corder litigation. This contention is 

without merit. This court agrees with the new Fifth Circuit that a 

results claim is not barred by an intent claim brought prior to the 1982 

amendments to section 2. Kirksey v. City of Jackson, 714 F.2d at 44. As 
  

stated already, a plaintiff bringing a results claim has an entirely new 

cause of action, which is a recognized exception to res judicata.” Id. The 

court will therefore proceed to trial on the plaintiffs’ results claim 

against Pickens County. 

t= 

 



  

B. Coffee and Talladega Counties 
  

Coffee and Talladega Counties argue that the plaintiffs’ claims 

are barred on grounds of res judicata because of the prior decisions in Sims 

v. Baxley, No. 1170-S (M.D. Ala. Dec. 22, 1971), and Brown v. Gallion, No. 
  

  

69-697-E (N.D. Ala. Feb. 18, 1970), respectively. Neither Sims nor Brown 

bars the present litigation, however, for they both involved one person, one 

vote claims rather than claims of vote dilution premised on either 

intentional racial discrimination or discriminatory results. Furthermore, 

it appears that black voters, as black voters specifically, did not 

participate in either Sims or Brown. Therefore, since the present action 
  

involves new parties raising new claims, res judicata dees not apply. 

Coffee and Talladega Counties appear to argue also that this 

action is barred because the courts in Sims and Brown retained continuing 

jurisdiction. This argument is without merit. The courts retained 

jurisdiction only over the particular claims presented In those actions; 

they did not--indeed, could not--retain jurisdiction over every possible 

claim related to voting rights that might arise in the Future. 

The court therefore concludes that it may proceed with the claims 

against Coffee and Talladega Counties despite the decisions in Sims and 

Brown. 

V. TRANSFER AND SEVERANCE 

Etowah County contends that joinder of all the counties and their 

officials in one action is improper. In addition, all of the counties 

except Coffee County contend, first, that venue properly lies in the 

-4]- 

 



  

Northern District of Alabama rather than the Middle District and, second, 

that it would be inefficient and inconvenient to try all of the plaintiffs’ 

claims in a single proceeding in this district. The five counties making 

these contentions are all located in the Northern District and they seek 

severance and transfer of their claims to that district. As explained 

below, all of these contentions are meritless. 

A. Joinder 

Under the Federal Rules of Civil Procedure, "joinder of claims, 

  

parties and remedies is strongly encouraged." United Mine Workers v. Gibbs, 

383 U.S. 715, 724, 86 S.Ct. 1130, 1138 (1966), Fed.R.Civ.P. 20(a) provides 

in relevant part that 

All persons ... may be joined in one action as 

defendants if there is asserted against them 

jointly, severally, or in the alternative, any 

right to relief in respect of or arising out of 

the same transaction, occurrence, or series of 

transactions or occurrences and if any question 

of law or fact common to all defendants will 

arise in the action. 

There is no strict rule for determining what constitutes the same 

transaction or series of transactions for purposes of Rule 20(a). Mosley v. 
  

General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974); United States v. 
    

Yonkers Bd. of Ed., 518 F. Supp. 191, 195 (S.D.X.Y. 1981); 7 Wright §& Miller 
  

  

Federal Practice and Procedure § 1653, at 270. Courts have allowed joinder 

of defendants where "[t]lhe operative facts are related even if the same 

transaction is not involved," C.A.B. v. Carefree Travel Inc., 3513 F.2d 375, 
  

384 (2d Cir. 1975), where there are "enough ultimate factual concurrences 

that it would be fair to the parties to require them to defend jointly," 

  

Ball vw. E.1. DuPont De Nemours & Co., 343 F. Supp. 353, 381 (£.D.B.Y. 1972), 

4D 

 



  

and where the claims are "reasonably related." Mosley, 497 F.2d at 1333. 

In this case, the plaintiffs' claims arise cut of the state's 

enactment of at-large systems and numbered place laws that enhanced the 

discriminatory effects of the at-large systems. Under any of the various 

interpretations of Rule 20, it seems clear that the plaintiffs’ claims 

against all of the counties do arise from a single transaction or series of 

transactions. 

Plaintiffs' claims also raise common questioms of law or fact as 

to all the defendants. For example, both the results and the intent claims 

involve alleged violations of the Voting Rights Act, of course, and they 

both require a close examination of the workings of at-large systems and 

numbered place laws. Moreover, several of the factors used to make out a 

results claim require consideration of the very same evidence used to 

support the intent claims. Examples of results factors that overlap with 

the evidence used for the intent claims include: 

the extent of any history of official discrimi- 

nation in the state or political subdivision 

that touched the right of the members of the 

minority group to register, to vote, Or other- 

wise to participate in the democratic process; 

... the extent to which the state or political 

subdivision has used ... majority vote require- 

ments, anti-single shot provisions, or other 

voting practices or procedures that may enhance 

the opportunity for discrimination against the 

minority group; ... [and] whether the policy 

underlying the state or political subdivision's 

use of such voting qualification, prerequisite 

to voting, or standard, practice or procedure 

is tenuous. 

S. Rep. No. 417, 97th Cong., 24 Sess. 28-29, reprinted in 1982 U.S. Code 
  

Cong. & Ad. News 177, 206-07. Furthermore, the evidence of present day 

-43- . 

 



  

adverse impact needed to support an intent claim would also support a 

results claim. The plaintiffs therefore appear to have satisfied both 

requirements of Fed.R.Civ.P. 20(a); their claims arise out of the same 

transaction or series of transactions and raise common questions of law and 

fact. It makes no difference that the defendants from one county may have 

little interest in the claims asserted against the other counties, for Rule 

20(a) expressly provides that '[a] plaintiff or defendant need not be 

interested in obtaining or defending against all the relief demanded." 

Particularly in light of the Supreme Court's statement that 

joinder rules should be interpreted to encourage "the broadest possible 

scope of action consistent with fairness to the parties,” United Mine 
  

Workers, 383 U.S. at 724, 86 S.Ct. at 1138, the court has no trouble 

concluding that joinder is proper here. Indeed, joinder seems especially 

_ fitting in this case, for, by preventing multiple litigation, the joinder of 

all the defendants in one action will help carry out the expressed policy of 

the Voting Rights Act that voting discrimination be dealt with "not step by 

step, but comprehensively and finally". See S. Rep No. 417, 97th Cong., 2d 

Sess. 5, reprinted in U.S.Code Cong. & Ad. News. 177, 182. Accordingly, the 
  

court concludes that Etowah County's contention that there is improper 

joinder lacks merit. 

B. Venue 

2 

In a civil action in which jurisdiction is not based solely on 

diversity of citizenship, venue is proper in the judicial district "in which 

ell 

 



  

the claim arose....” 28 U.S5.C.A. § 1391(b). The plaintiffs’ claims of 

intentional discrimination clearly arose in this district. The thrust of 

these claims is that the state legislature intended to discriminate against 

black persons when it passed the numbered place laws in the early 1960's and 

when it enacted at-large systems in five of the six counties. The claims 

therefore arose in Montgomery, which is in this district, because 

that is where the legislature met and where it passed the challenged laws. 

Furthermore, since the plaintiffs' results claims are based on these same 

laws, although the focus is on the result of the laws rather than the intent 

behind them, it is reasonable to conclude that the results claims arose in 

this district as well. Cf. Myers v. American Dental Ass'n, 695 F.2d 716, 
  

723 (34 Cir. 1982), cert. denied, 462 U.S. 1106, 103 S.Ct. 2433 (1983) {in 
  

antitrust action challenging professional code of ethics, venue lies in 

Chicago, where ethics code was passed, rather than in Virgin Islands, where 

alleged restraint of trade actually occurred). 

Even if there is some validity to the argument that the claims 

must have arisen in the counties where the plaintiffs actually vote, the 

court still finds that venue is proper here. According to the Supreme 

Court, 

the broadest interpretation of the language of 

§ 1391(b) that is even arguably acceptable is 
that in the unusual case in which it is not 

clear that the claim arose in only one specific 

district, a plaintiff may choose between those 

two (or conceivably even more) districts that 

with approximately equal plausibility--in terms 

of the availability of witnesses, the accessi- 

bility of other relevant evidence, and the comn- 

venience of the defendant (but not of the 
plaintiff)--may be assigned as the locus of 

the claim. 

Leroy v. Great Western United Corp., 443 U.S. 173, 185, 99 S.Ct. 2710, 2717 
  

iS 

 



  

his czse, the Middle District is at least zs 

plausible as the locus of the claims as the Northern District. While the 

defendants' witnesses are from the Northern District, they certainly are not 

unavailable for a trial in the Middle District; this simply is not a 

situation in which the defendants will be forced to travel unreasonable 

distances. Cf. Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 760 
  

F.2d 312, 317 (D.C. Cir. 1985) (venue improper in District of Columbia in 

part because large number of witnesses will be from California). Further- 

more, some of the plaintiffs' witnesses are from the Southern pistrict,l? 

which means that, if anything, the Middle District is the better choice. 

The Middle District is also a plausible choice with respect to the 

"accessibility of other relevant evidence." Given the proximity of all of 

the counties to this district, the relevant evidence for all of the 

plaintiffs’ claims should be sufficiently accessible; indeed, none of the 

defendants pointed to any evidence that would be inaccessible or even just 

less accessible if the claims are tried in this district. Finally, although 

it may be somewhat more convenient for the defendants to be in the Northern 

District rather than the Middle District, the court finds that the two 

district are at least "approximately equal" in this respect. Cf. Noxell, 

760 F.2d at 317 {where defendant resides in California, and has done only 

minimal business in District of Columbia, venue is improper in District of 

Columbia because of hardship on defendant). 

  

11. Indeed, witnesses travelling to the courthouse from certain 

points in the Northern District might actually have a shorter trip than 

witnesses travelling from the southernmost areas of the Middle District. 

12. One of the plaintiffs’ witnesses actually lives in Montgomery 

during the week but officially resides in Conecuh County, which is in the 

Southern District. 

bb 

 



  

~ Tne it mes oe found with zpproximate.y eque. piausibili 

either of two districts is the locus of the claim, it is up to the plaintiff 

to choose between them. Here, either the Northern or the Middle District 

could be the locus, and the plaintiffs have chosen the Middle District. The 

court sees no reason to disturb that choice. 

it, 

Venue is also proper in this district under 28 U.S.C.A. § 1392(a), 

which provides that "[alny civil action, not of a local nature, against 

defendants residing in different districts in the same State, may be brought 

in any of such districts." Since all of the defendants are from Alabama and 

one of the defendant counties is located within this district, it appears 

that the action may be brought here if the defendants are properly joined. 

For the reasons given in Part A above, the court concluded that joinder is 

proper in this case. As a result, venue in this district is also proper 

under 28 U.S.C.A. § 1392(a). See United States v. Mississippi, 380 U.S. 
  

128, 142, 85 S.Ct. 808, 815-16 (1965) (where county registrars from 

different judicial districts acted "as part of a state-wide system designed 

to enforce [voter] registration laws in a way that would inevitably deprive 

colored people of their right to vote solely because of their color,” 

joinder of all registrars is permissible and venue is therefore proper as to 

all registrars). Venue is therefore proper in this district under either of 

two theories. 

C. Convenience and Efficiency 
  

Calhoun County, Etowah County, Lawrence County, Pickens County, 

Ty 

 



  

and Talladega County have also challenged trial in the Middle District on 

the grounds of inconvenience and inefficiency. In making these assertions, 

the counties rely on Fed.R.Civ.P. 20(b), which allows a court to order 

separate trials to "prevent a party from being embarrassed, delayed, or put 

to expense by the inclusion of a party ... who asserts no claim against 

him;" Fed.R.Civ.P. 42(b), which allows a court to order separate trial of 

any claim "in furtherance of convenience or to avoid prejudice, or when 

separate trials will be conducive to expedition and economy;" and 28 

U.S.C.A. § 1404(a), which provides that "[f]or the convenience of parties 

and witnesses, in the interest of justice, a district court may transfer any 

civil action to any other district or division where it might have been 

brought." 

The court fails to see why it would be inconvenient or inefficient 

to try the plaintiffs' claims in a single proceeding in this district. 

Since the plaintiffs’ claims of intentional discrimination rely on the same 

legal theories and on primarily the same evidence for each county, it would 

obviously be less convenient and less efficient to sever and transfer these 

claims; the plaintiffs would be forced to present the same evidence and 

arguments over and over, the defendants would lose the opportunity to work 

together to develop a defense, and several different judges would have to 

decide virtually identical claims. Similarly, since, as explained above, 

there is considerable overlap between the evidence used to support results 

claims and intent claims, it would also be less convenient and efficient to 

sever the results claims. An order severing any of the claims would also 

tend to hinder rather than help the cause of efficiency because of the great 

«47 

 



  

lamiziericy this court has already cGeveloped with the issues and evidence in 

this case. In determining whether transfer is appropriate under Fed.R.Civ. 

P. 42(b), "[i]t is the interest of efficient judicial administration that is 

to be controlling, rather than the wishes of the parties." 9 Wright & 

Miller, Federal Practice and Procedure ; 2388, at 279. Finally, none of the 
  

counties has shown why trial in this district would be particularly 

inconvenient, and, in light of the geographical proximity of the Northern 

and Middle Districts, the court doubts that any real inconvenience exists. 

In any case, a single proceeding in the Middle District is clearly more 

convenient for the plaintiffs, and section 1404(a), unlike the venue 

provisions, does not distinguish between the convenience of the plaintiffs 

and the convenience of the defendants. 

The court concludes that to the extent there will be any 

inconvenience at all, it is not sufficient to justify a transfer. The court 

also concludes that, if anything, the interests of efficiency and judicial 

economy would be disserved by an order severing and transferring the 

plaintiffs' claims. Since the defendants have raised no other grounds for 

13 
their motions to sever and transfer, these motions are due to be denied. 

  

13. The court recognizes that since the intert claim against 

Pickens County is barred by res judicata, Pickens County's arguments with 

respect to joinder, venue, and convenience and efficiency differ somewhat 
from those raised by the other counties. However, two considerations lead 

the court to conclude that Pickens County's arguments are equally without 

merit. First, as explained above, there will be considerable overlap 

between the evidence the plaintiffs have already presented and will present 

on the intent claims and the evidence they will have to present on the 

results claim against Pickens County. Second, the court is reluctant to 

prolong the alleged denial of the right to vote to black citizens of Pickens 

County any longer than necessary, and forcing the plaintiffs to start all 

over in a new court in the Northern District could well produce just such a 

result. 

=4G~ 

 



  

VI. CLASS CERTIFICATIONS 

The plaintiffs seek certification pursuant to Fed.R.Civ.P. 23(a) 

and (b) (2) of separate plaintiff classes for Calhoun County, Coffee County, 

Etowah County, Lawrence County, Pickens County, and Talladega County. They 

ask that the court certify a class of all black citizens for each of the six 

counties, with the named plaintiffs from each county representing the black 

citizens of that county. In order to obtain certification of a class under 

Rule 23(a) and (b)(2), a plaintiff must satisfy five requirements. 

The first requirement is that the proposed class must be so 

numerous that joinder of all members is impracticable. Fed.R.Civ.P. 23 

(a) (1). According to the 1980 census, the black population in each of the 

six defendant counties ranges from a low of 5,074 in Lawrence County to a 

high of 22,745 in Talladega County. While there is no established rule for 

how large a class must be to satisfy the numerosity requirement, classes 

ranging in size from approximately 5,000 members to 22,000 members clearly 

are sufficiently numerous to make joinder impracticable. Each of the 

proposed six classes thus meets the numerosity requirement. 

The second and third requirements are that there must be questions 

of law or fact common to the class, Rule 23(a)(2), and that the claims or 

defenses of the representative plaintiff must be typical of the claims of 

the class. Rule 23(a)(3). These two requirements of commonality and 

typicality "tend to merge." General Telephone Co. of the Southwest v. 
  

Falcon, 487 0.8. 147, 137: n, 13, 102 8.Ct. 2364, 2370 n. 13 (1982), They 

"serve as guideposts for determining whether under the particular circum- 

stances maintenance of a class action is economical and whether the named 

plaintiff's claim and the class claims are so interrelated that the 

=50~ 

 



  

interests oi the clad members will be fairly and adequately protected in 

their absence." Id. The plaintiffs from each county have met the 

commonality and typicality requirements for the black citizens of the county 

whom they seek to represent. The plaintiffs and class members from any 

given county are all subjected to and challenging the same electoral scheme 

and they all rest their challenge on the same facts and theories. 

The fourth requirement is that the representative plaintiffs will 

fairly and adequately protect the interest of the class they seek to 

represent. In determining this issue, the court must inquire into "first, 

the adequacy of the representative, and second, the adequacy of his 

counsel." 3B Moore's Federal Practice ¥ 23.07{1], at 23-202. 
  

As to adequacy of the representative, 

the traditional approach has been to consider 

(1) whether the interest of the named party 

is coextensive with the interests of the 

other members of the class; (2) whether his 

interests are antagonistic in any way to the 

interests of those whom he represents; 

(3) the proportion of those made parties as 

compared with the total membership of the 

class; (4) any other facts bearing on the 

ability of the named party to speak for the 

rest of the class. 

Id. ar 23-203 (footnotes omitted). First, for reasons already given, the 

interest of representative plaintiffs for a given county is coextensive with 

that of the other members of the class they seek to represent. Second, 

there is no apparent conflict between the interest of the representative 

plaintiffs for each class and those of other members of the class: they all 

challenge the same electoral scheme under the same theories. And, third, 

while each class is very large, there are enough representative plaintiffs 

for each class to provide adequate representation. The representative 

5] 

 



  

<3
 

+
 

1]
 

fu
 

+ 8 rt
 

H-
 

Hh
 

H
h
 

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h
 

or a.. classes are thus adequate class representatives for the 

classes they seek to represent. 

The court also finds that counsel retained by all representative 

plaintiffs are adequate. They have successfully brought many voting rights 

suits and are quite experienced in civil rights and class action litigation 

generally. 

The fifth and final requirement is that the party opposing a class 

must have acted or refused to act on grounds generally applicable to the 

class, thereby making appropriate final injunctive relief or corresponding 

declaratory relief with respect to the class as a whole. Rule 23(b)(2). In 

each of the six proposed classes, the parties opposing the class are the 

county and various county officials. In each case, the county and its 

officials have acted on grounds generally applicable to all black voters in 

the county, thereby making appropriate final injunctive relief with respect 

to the county. 

Since the plaintiffs have therefore met the requirements of Rule 

23(a) and (b) (2), the court will certify six classes with the named 

plaintiffs from each county representing the black citizens of that county. 

VII. CONCLUSION 

In conclusion, the court will, first, enter a preliminary 

injunction against five of the six counties remaining in this lawsuit. The 

injunction will require that Calhoun County, Coffee County, Etowah County, 

Lawrence County, and Talladega County submit time schedules for the 

development, approval, and implementation of new election plans by the first 

of next year. Second, the court will dismiss the plaintiffs’ section 2 

intent claim against Pickens County because the claim is barred by res 

52 

 



  

ml gre 

judicata. Third, the court will retain and set for trial the 

remaining claim against Pickens County and all claims against the other five 

counties. Fourth and finally, the court will certify plaintiff classes for 

each of the six counties remaining in this lawsuit. 

An appropriate order and injunction will be emtered. 

DONE, this the 28th day of May, 1986. 

  

UNITED STATES DISTRICT SG