Laughlin McDonald Business Card; Cross v. Baxter Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit; Court Orders; Opinion; Supplemental Opinion and Order

    LAUGHLIN MCDoNALD 

DIRECTOR 

AMERICAN CIVIL LIBERTIES UNION 

SOUTHERN REGIONA L OFFICE 

52 FAIRLIE S T., N.W. 

ROOM 355 
ATLANTA. GEORGIA 30303 404 523-2721 



NO. 82-

IN THE 

Supreme Court of the United States 

October Tenn, 1982 

JOHN W. CROSS, JERRY J. DENEGALL and FRANK WILSON, 
individually and on behalf of all others similarly situated, 

Petitioners, 

vs. 

LLOYD BAXTER, HENRY KLAR, DONNIE TURNER, WESLEY 
BALL and SHERROD McCALL, individually and as members of the 
City Council of Moultrie, Georgia; WILLIAM B. WITHERS, in­
dividually and as Mayor of the City of Moultrie, Georgia; MRS. REN­
NIE TUMLIN, individually and as Municipal Election Superintendent 
for the City of Moultrie, Georgia; W.E. KELLEY, W.B. LINDEN and 
E.W. RHODEN, JR., individually and as Election Managers for the 
City of Moultrie, Georgia; and their successors in office, 

Respondents. 

PETITION FOR WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

LAUGHLIN McOONALD* 
NEIL BRADLEY 
CHRISTOPHER COATES 
American Civil Liberties 
Union Foundation 
52 Fairlie Street, NW 
Suite 355 
Atlanta, GA 30303 
(404) 523-2721 

*Counsel of Record 





Questions Presented 

I 
1. Whether amended §2 of the Voting Rights 

Act of 1965, 42 U.S.C. §1973, applies to 

cases pending on the date of its enactment 

with the result that the Court of Appeals 

erred in refusing to consider, or remand 

to the District Court, Petitioners' claim 

that at-large elections for the Mayor and 

City Council of Moultr ie, Georgia, 

resulted in the denial or abridg ement of 

their right to vote in violation of §2? 

2. Whether amended §2 created a standard 

for establishing a denial of voting rig hts 

different from that previously available 

und er the Constitution ? 

3. Whether the Court of Appeals e rr e d in 

affirming the trial c ourt's d ecision that 

at-large elections f o r the Mayor and 

Council did not dilute minority voting 



strength in violation of the Fourteenth 

and Fifteenth Amendments?* 

*This question will be argued in the 
event the Court grants the Petition for 
Writ of Certiorari. 



TABLE OF CONTENTS 

Table of Authorities •. 

Opinions Below. 

Page 

iii 

1 

Jurisdiction of the Court 2 

Statutory Provisions Involved . 2 

Statement of the Case . . . . 3 

Reasons for Granting the Writ 12 

I. The Court of Appeals' 
Failure to Apply Section 2 of the 
Voting Rights Act As Amended to 
Petitioners' Case Deprived Them 
of Due Process and Presents an 
Issue of Exceptional 
Importance . 

Conclusion. 

Appendix. 

1. Opinion of the Court of 
Appeals, March 20, 1981 .. 

2. Supplemental Opinion of 
the Court of Appeals, Septem-
ber 20, 1982 .... 

3. Order of the panel den¥ing 
petition for rehearing, 
August 24, 1982 .. 

4. Order of the court denying 
rehearing en bane, October 
21, 1980 .-..... 

i 

12 

24 

la 

7a 

lOa 

lla 



Table of Content cont., 

5. Opinion of the Court of 
Appeals, October 16, 1979 .. 13a 

6. Opinion of the District 
Court, October 26, 1977 .•. 50a 

7. Opinion of the District 
Court, .March 25, 1980 .... 87a 

8. Section 2 of the Voting 
Rights Act of 1965, 42 U.S.C. 
§1973 ......•..... 108a 

ii 



TABLE OF AUTHORITIES 

Pages 

Cases: 

Bradley v. School Board of City of 
Richmond, 416 U.S. 696 (1974). 13 

Brown v. Reames, 618 F.2d 782 (5th 
Cir. 1980) . . . . . . . . 4, 13 

City of Mobile v. Bolden, 446 u.s. 16, 
55 (1980). . . . . . . . . 17, 18 

Cross v. Baxter, 604 F.2d 875 (5th 
Cir. 1979) . . . . . . . . passim 

Cross v. Baxter, 639 F.2d 1383 (5th 
Cir. 1981) . . . . . . . . 8, 18 

Jones v. City of Lubbock, 640 F.2d 
7 7 7 ( 5th C i r . 19 8 1) . . . . 13 

Lodge v. Buxton, 639 F.2d 1358 
(5th Cir. 1981). . . . . . 8, 9 

McMillan v. Escambia County, 638 
F.2d 1239 (5th Cir. 1981). . . 9 

Rogers v. Lodge, U.S. , 102 8,9,10 
S.Ct. 3272 (1982). -.-.... ·16,17,22 

Thomasville Branch of N.A.A . C.P. v. 
Thomas County, 639 F.2d 1384 
(5th Cir. 1981) . . . . . . 4, 8 

Toney v. White, 476 F.2d 203 (5th 
Cir. 1973), aff'd en bane, 488 
F. 2d 210 (5th Cir .1973)". . . 9 

United States v. Alabama, 
602 (1960) ..... 

iii 

362 u.s . 
13 



Constitutional Provisons: Pages 

Fourteenth Amendment . 3 

Fifteenth Amendment. 3 

Statutes: 

28 u.s.c. §1254 ( 1) . . . . . 2 

28 u.s.c. §1331. . . . . . . 3 

28 u.s.c. §1343. . . . . . . 3 

42 u.s.c. §1973. . . . . . . passim 

42 u.s.c. §1973c . . 3 -

Other: 

128 Cong. Rec. H3839-46 (1982) ... 14 

128 Cong . Rec. H3841 (1982). . 16 

128 Cong. Rec. S7095 (1982). . . 14 

House Rep. No. 97-227, 97th Cong., 
1st Sess. (1981) ........ 15,17, 21 

~ 
Senate Rep. No. 97-417, 97th Cong., 

2nd Sess. (1982) ...•.•.. 

lV 

14,15,16, 
17' 18' 21 



OPINIONS BELOW 

The opinion and supplemental opinion 

of the United States Court of Appeals for 

the Fifth Circuit sought to be reviewed 
I 

are reported at 639 F.2d 1383 and 688 F.2d 

279 respectively and are appended hereto 

at la and 7a. 

The denial of the petition for 

rehearing by the panel is unreported and 

is appended hereto at lOa. The denial of 

the petition for rehearing and suggestion 

for rehearing en bane is reported at 693 

F.2d 135, and is appended hereto at lla. 

The previous opinion of the Court of 

Appeals remanding the case is reported at 

604 F.2d 875, and is appended hereto at 

13a. 

The two opinions of the United States 

District Court for the Middle District of 

Georgia are unreported and are appended 

hereto at 50a and 87a. 

1 



JURISDICTION OF THE COURT 

The opinion and jsupplementary opinion 

of the United States Court of Appeals for 

the Fifth Circuit sought to be reviewed 

were entered on March 20, 1981, and 

September 20, 1982, respectively. A 

timely petition for rehearing and sugges-

tion for rehearing en bane was denied on 

November 12, 1982. 

Jurisdiction to review the opinions 

below is conferred on this Court by 28 

u.s.c. §1254{1). 

STATUTES INVOLVED 

The issues presented by this peti-

tion involve §2 of the Voting Rights Act 

of 1965, 42 u.s.c. §1973, appended hereto 

at l08a. 

2 



STATEMENT OF THE CASE 

Petitioners are black citizens of 

1 . G . 1 Mou tr1e, eorg1a. They commenced this 

action on April 20, 1976, against the 

Mayor and City Council charging that their 

method of election at-large, including the 

use of numbered posts, staggered terms and 

majority vote and run-offs, diluted black 

voting strength in violation of the Four-

teenth and Fifteenth Amendments and §2 of 

the Voting Rights Act of 1965, 42 u.s.c. 

§1973.
2 

Jurisdiction in the District Court 

was invoked under 28 U.S.C. §§ 1331 and 1343. 

1. The population of Moultrie 1s 
14,302 people, approximately 35% of whom 
are black. 53 a. 

2. Petitioners also contended that 
Respondents failed to comply with §5 of 
the Act, 42 U.S.C. §1973c, in implementing 
the majority vote requirement in 1965 
after the first blacks offered for city 
office. R. 133-34, 221-54 ("R" refers to 
the trial record). A district court of 
three judges heard the §5 claim and on 
May 10, 1977, enjoined further use of the 
uncleared practice. Cross v. Baxter, 604 
F. 2d 875, 878 n.l (5th Cir. 1979), 14a, 
n.l. 

3 



The dilution claim was tried on the 

merits before District Judge J. Robert 

Elliot who denied relief on the grounds 

that Kthe Constitution does not require 
i 

that elections must be somehow so arranged 

that black voters be assured that they can 

elect some candidate of their choice." 

3 8 5-6a. 

Petitioners appealed and the Court of 

Appeals reversed. It held there was "sub-

stantial evidence, not discussed by the 

district court, tending to show inequality 

3. Judge Elliott has similarly ruled 
against black plaintiffs in other dilution 
cases on constitutional grounds, e.g. in 
Harris County, Georgia, Brown v. Reames, 
Civ. NO. 75-80-COL (M.D. Ga.), vacated and 
remanded, 618 F.2d 782 (5th Cir. 1980) and 
in Thomas County, Georgia, Thomasville 
Branch of N.A.A.C.P. v. Thomas County, 
Georgia, Civ. No. 75-34-THOM (M.D. Ga.), 
reversed and remanded, 639 F.2d 1384 (5th 
Cir. 1981). On remand, Judge Elliott con­
cluded at-large elections in Thomas County 
were in violation of amended §2. Id., 
Order of January 26, 1983. --

4 



of access,w
4 

that Petitioners "have demon-

strated a history of pervasive discrimina-

tion and. .have carried their burden of 

proving that the past discrimination has 

5 
present effect," and that Petitioners 

4. Evidence of inequality of access 
cited by the Court of Appeals included the 
facts that "the all-white Lions Club super­
vises Moultrie City Council elections"; 
"after substantial numbers of blacks had 
begun to register and vote the City moved 
a polling place from 

1
a location convenient 

to residents of black neighborhoods to a 
less convenient location farther away"; 
"black candidates had encountered diffi­
culties in campaigning in white neighbor­
hoods"; and, "housing conditions, employ­
ment rates, income, and educational levels 
are considerably less advantageous for 
Moultrie blacks than for Moultrie whites." 
604 F.2d at 880-81, 26-8a. 

5. The Court of Appeals found "de 
jure discrimination in many facets of 
Moultrie government, including voting for 
public office"; [t]he number of black mem­
bers on the City Council historically has 
been grossly disproportionate to the per­
centage of blacks in Moultrie's population, 
with only two black elected in the history 
of the town," both after the filing of 
this lawsuit and abolition of the majority 
vote requirement; "literacy tests were used 
in Houltrie until the mid-sixties"; "voting 
and registration were ~arried out on a 
segregated basis until the early sixties"; 

·FOOTNOTE CONTINUED ON FOLLOWING PAGE ... 

5 



"have demonstrated recent pervasive offi­

cial unresponsiveness to minority needs." 6 

Cross v. Baxter, 604 'F. 2d 87 5, 881, 88 3 

(5th Cir. 1979), 27-8, 31-2, 38a. The case 

was remanded to the District Court with 

instructions to address the question of 

intent, an element of proof "in this cir-

cuit that ... is required in voting dilution 

cases based on the Fourteenth and Fifteenth 

Amendments . " 6 0 4 F . 2 d at 8 7 8 n . 4 , 1 7 a . 

A second hearing was held on January 

25, 1980, and Judge Elliott once again 
I 

FOOTNOTE CONTINUED ... "Moultrie schools were 
fully desegregated only in 1970"; and "public 
recreational facilities seg~egated by law 
unit 1968 or 1969." 604 F.2d at 881, 30-la. 

6. The Court of Appeals noted "that 
recreational facilities in the black areas 
of town are inferior to those in white 
areas"; "public housing projects were con­
structed in the 1950's that were segregated 
by law when built and that remain largely 
segregated today"; and cited "segregated 
voter lists"; "the city's delay in complying 
with requirements of §2 to the Voting Rights 
Act of 1965"; "operation of racially segre­
gated jails, and racially selective eriforce­
ment of laws by City police." 604 F.2d at 
8 8 3 , 3 9- 4la . 

6 



denied relief. 87 7 a. The Court of 

Appeals affirmed. It held that "to main-

tain a voting dilution action ... a plain-

tiff must establish that the governmental 

body in question is unresponsive to its 

7. Half of the court's opinion was 
devoted to showing that the Council was 
not unresponsive to minority need s . 
Although unresponsiveness is not a part of 
a plaintiff's case under §2, see p.l5 
infra, the factual premises upon which the 
District Court based its conclusion are 
clearly erroneous. Fpr example, the court 
found there was "no high degree of de facto 
segregation in publ;Lc housing in Moultrie." 
lOOa. The evidence shows, however, that 
the 204 units of public housing in north­
west Moultrie, a black area of town, are, 
.and always have been, occupied exclusively 
by blacks. By the same token, in the pub­
lic housing on the white side of town, 
there is only one black family in residence. 
R. IV 52-3, 126-27. The District Court 
also found that the failure to preclear 
the majority vote requirement "in fact 
operated to Plaintiff's advantage." lOOa. 
Given the facts that the majority require­
ment excluded a plurality winning black 
from office in 1973, and a black first 
became elected to the Council only after 
abolition of the majority vote requirement , 
the court's finding is, quite simply, 
incredible. R. I 139-40, R. III 38-9. 

7 



legitimate needs," Cross v. Baxter, 639 

F.2d 1383 (5th Cir. 1981), 3 a, and that 

since the District Court found Petitioners 

had failed to prove unresponsiveness, a 

finding it deemed not clearly erroneous, 

Petitioners were absolutely foreclosed 

from obtaining relief under the Constitu-

tion. Petitioners' §2 claim was rejected 

because the court concluded it provided 

no protection different from that contained 

in the Constitution itself. 8 

Petitioners filed a suggestion for 

rehearing en bane on the grounds that 

8. Cross II wastone of t~ree companion 
cases heard and decided by the panel: 
Cross was decided in favor of the defen­
dants, Lodge v. Buxton, 639 F.2d 1358 (5th 
Cir. 1981), aff'd sub nom. Rogers v. Lodge, 

U.S. , 102 S.Ct. 3272 (1982), was decided 
in favor of the plaintiffs, and Thomasville 
Branch of NAACP v. Thomas County, Georgia, 
639 F.2d 1384 (5th Cir. 1981), was reversed 
and remanded for further proceedings. It 
was in the Lodge opinion, which was made 
applicable to Cross, that the court ruled 
§2 did not provide a remedy for conduct 
not covered by the Constitution. 639 F.2d 
at 1364 n.ll. 

8 



Cross II conflicted with McMillan v. Escam-

bia County, Flor i da , 638 F . 2d 1239, 1249 

(5th Cir. 1981), which held that r espon-

siveness is "simply irrelevant" in vote 
I 

dilution cases, and Toney v . White 476 

F.2d 203, 207 (5th Cir . 1973) , aff'd en 

bane, 488 F. 2d 210 (5th Cir. 1973), whic h 

held that any intention to discriminate 

was not required for a violation of §2. 

The suggestion was held in abeyance 

pending r.esolution by this Court of the 

appeal in the companion case of Lodge v. 

Buxton, 639 F.2d 1358 (5th Cir. 1981), 

aff'd sub nom. Rogers v. Lodge, u.s. 

1 0 2 s . c t . 3 27 ?. ( 19 8 2 ) . 

On June 29, 1982, President Reagan 

signed an act amending §2 which provided, 

effective immediately, that voting prac-

tices are unlawful under the statute 

which result in the denial or abridgment 

of the right to vote on account of race 

9 



or color. l08a. Two days later, on July 

1, 1982, this Court decided Rogers v. 

Lodge, supra, which clarified the proof 

standards in constitutional voting rights 

challenges, and expressly reversed the 
I 

ruling by the panel that proof of unrespon-

siveness was an essential element of a 

claim of vote dilution. 102 S.Ct. at 

3280 n.9. 

Petitioners renewed their pending 

motion for rehearing before the panel, 

stressing the controlling importance of 

the intervening amendment of §2 and the 

decision in Rogers v. Lodge, supra. The 

motion was denied without additional 

briefing or oral argument. lOa. On 

September 20, 1982, the panel, in a two 

page per curiam supplemental opinion, held 

the trial court's additional findings were 

not clearly erroneous and that Petitioners 

were not entitled to relief notwithstanding 

10 



Rogers. 7 a. 9 There was no discussion 

9. In concluding I there was' no unconst i ­
tutional denial of equal access, the Dis­
trict Court ignored much of the evidence, 
e.g. that Respondent Ball freely admitted 
"the primary thing" that had caused black 
candidates to lose in local elections was 
their race: "It's been on racial lines , " 
R. IV 67-8; the uncontradicted evidence of 
slating, see n.l5, infra; t h e imposition-­
without preclearance--of a literacy test 
in 1979 for new poll workers, the effect 
of which was to screen blacks under a new 
and more onerous standard than had been 
in effect when elections were r un exclu­
sively by the all white Lions Club, whose 
members continue to be grandfathered in 
as poll workers, R. IV 31-5, 40, P. Ex. 
II D; that the Lions Club has a history 
of discourtesty to blacks and turned away 
registered black voters from the polls 
in 1979, R. IV 239; the timing and effect 
of the majority vote requirement, see n.7, 
supra; the impact of the existing numbered 
post system; that Petitioner Cross was not 
consulted until after the Respondents had 
relocated the polling place to a location 
more distant from the black community, and 
that while Cross had no objection to voting 
being conducted at the new site , his 
preference was "to have polling places in 
all the areas that they have," R. IV 211; 
segregation in clubs, churches, private 
schools, the Junior Chamber of Commerce 
and business patronage, R. III 48-9, 92 , 
94-5, P. Exs. 37, 40 , 44; and the rich 
evidence of racial polarization in voting. 
R. 136, 139-40, 269-70, R. II 296, R. III 
102, P. Exs. 4, ll A, B, C. 

ll 



whatsoever of §2. Petitioners filed a 

second suggestion for rehearing en bane 

requesting the court to consider their §2 

claim. The suggestion was summarily 

denied on November 12, 1982. 

REASONS FOR GRANTING THE WRIT 

I. The Court of Appeals' 
Failure to Apply Section 2 of 
the Voting Rights Act As Amended 
to Petitioners' Case Deprived 
Them of Due Process and Presents 
an Issue of Exceptional Importance. 

The Court of Appeals refused to con-

sider, or remand to the District Court, 

Petitioners' claim that at-large elections 

for the Mayor and Council of Moultrie, 

Georgia, violate §2 of the Voting Rights 

Act, 42 U.S.C. §1973. Section 2, amended 

by Congress on June 29, 1982, is a new 

standard for determining voting rights 

violations, and Petitioners, having 

properly pled the statute ~n their com-

12 



plaint, were entitled to have it applied 

to their case. 

It is well-established that "a court 

is to apply the law in effect at the time 

it renders its decision, unless doing so 

would result in manifest injustice or 

there is statutory direction or legisla-
1 

tive history to the contrary." Bradley v. 

School Board of City of Richmond, 416 u.s. 

696, 711 (1974). Accord, United States v. 

Alabama, 362 U.S. 602, 604 (1960) . 8 The 

legislative history of the 1982 Act makes 

8. The Court of Appeals has complied 
with the rule in other cases. See e.g. 
Jones v. City of Lubbock, 640 F.2d 777 
(5th Cir. 1981) (specially concurring 
opinion of Judge Goldberg) ("due process 
and precedent mandate that when the rules 
of the game are changed, the players must 
be afforded a full and fair opportunity 
to play by the new regulations.") (emphasis 
added); Brown v. Reames, 618 F.2d 782 
(5th Cir. 1980). 

13 



clear beyond any doubt that Congress 

intended for the new statute to apply to 

pending cases. See 128 Cong. Rec. S7095 

(1982) (remarks of Senator Kennedy) ("Sec-
1 

tion 2 ... will take effect immediately, 

and will, of course, apply to pending 

cases in accordance with the well 

established principles of Bradley v. City 

of Richmond, 416 U.S. 686 (1974) and United 

States v. Alabama, 362 U.S. 602 (1960)"); 

128 Cong. Rec. H3841 (1982) (remarks of 

Representative Sensenbrenner) ("Section 

2. . . will take effect irnrned iately, and 

will, of course, apply to pending cases."). 

Moreover it would be a manifest injustice 

not to apply §2 to pending cases given 

Congress' overriding purpose in amending 

the Voting Rights Act to remedy the 

continuing effects of past discrimination 

in the electorate. Senate Rep. No. 97-417, 

97th Cong., 2d Sess., 40 (1982) (herein-

14 



after "Senate Rep."); House Rep. No. 97-

227, 97th Con., 1st Sess., 31 (1981) 

(hereinafter "House Rep.") ("These Section 

2 Amendments also provide an appropriate 
I 

and reasonable remedy for overcoming the 

effects of this past purposeful discrimi-

nation against minorities."). 

Section 2 provides that voting prac-

tices whieh result in the denial or 

abridgement of the right to vote on 

account of race or color are unlawful. 

108a. In determining a violation under 

the results test of § 2, Congress expli-

citly provided that the standard of 

proof was significantly different from 

;that under the Constitution: 

a. Proof of discriminatory pu.I:lpose 

is not required to establish a violation 

of the statute, regardless of the standard 

of proof applicable in constitutional 

challenges. Senate Rep., 27-30; House 

15 



11 Rep., 28-32. Cf. City of Mobile v. Bol-

den, 446 U.S. 55 (1980). 
I 

b. Unresponsiveness is not an element 

of a statutory violation, whatever its 

relevance in constitutional cases. Cf. 

Rogers v. Lodge, supra, 102 S.Ct. at 3280 

n.9. Indeed, Congress provided that the 

use of responsiveness is to be avoided 

because it is a highly subjective factor 

which creates inconsistent results in 

cases presenting similar facts. Senate 

Rep., 29 n.ll6 ("The amendment rejects 

the ruling in Lodge v. Buxton and companion 

cases that unresponsiveness is a requisite 

11. The Senate as a whole adopted the 
version of the Act reported out of the 
Committee on the Judiciary, which was in 
turn adopted in whole by the House of 
Representatives, with the understanding 
that the effect of the §2 amendment was 
identical under either the original 
House bill or the Senate bill. 128 Cong. 
Rec. H3839-46 (1982). 

16 



element."); House Rep., 29 n.94, 30 ("The 
I 

proposed amendment avoids highly subjective 

factors such as responsiveness of elected 

officials to the minority community.") 

c. Foreseeability of consequences, 

while of apparently doubtful relevance to 

a constitutional violation, City of Mobile 

v. Bolden, supra, 446 U.S. at 71 n.l7, 

is "quite relevant evidence" of a statu-

tory violation. Senate Rep., 27 n.lOB. 

d. Whatever limitations may exist on 

the scope of the constitutional bar against 

indirect intereference with the right to 

vote, see ~-~· City of Mobile v. Bolden, 

supra, 446 U.S. at 65, and Rogers v. Lodge, 

supra, 102 S.Ct. at 3276 n.6, Section 2 

embodies a functional view of the politi-

cal process and prohibits a very broad 

range of impediments to minority partici-

pation in the electorate. Senate Rep., 

30 n.l20. 

17 



Not only is the §2 standard, 

which dispenses with the requirement of 

proof of racial purpose, less rigid and 
I 

more lenient than that which the plurality 

in City of Mobile v. Bolden, supra, found 

under the Constitution, but the legisla-

tive history of the Act shows that Con-

gress by specific reference to Cross v . 

Baxter I and II, supra, intended for the 

kind of evidence in this case to establish 

a violation of the statute, whatever the 

result under the Constitution. See 

Senate Rep., 39: "In Cross v. Baxter, a 

cha~lenge to elections in Moultrie, 

Georgia, was rejected even though the evi-

dence showed pervasive discrimination 1n 

the political process." 

The evidence in this case, based 

upon facts which are uncontradicted 

in the record, establishes virtually · 

every one of the factors identified 

18 



in the legislative history as illu-

strative of those which should prove a 

violation of amended §2, e.g. history of 
I 

discrimination--particularly in registering 

d . 12 l . d t . 13 . l an vot1ng, po ar1ze vo 1ng, rac1a 

12. This history was so gross and 
apparent that the District Court chided 
Petitioners' for devoting such "consider­
able time and effort in 'proving' a matter 
which required no proof and of which the 
Court takes judicial notice." 79 a. 
The Court of Appeals found that discrimi­
nation in Moultrie was "recent and perva­
sive". 604 F.2d at 881, 30a. See the 
evidence discussed by the court at n.5, 
supra, of the use of literacy tests, 
segrega.ted voting, .etc. 

13. While the District Court found 
that whites in Moultrie do not vote 
"strictly" along racial lines, 55 a, the 
Court of Appeals concluded that the 
finding "on this record would be clearly 
erroneous" if the "district court intended 
to find that there is such an absence of 
racial bloc voting in Moultrie that a 
finding of dilution is foreclosed .... No 
black candidate has ever received even a 
plurality of white votes and Wilson, the 
first black elected to the Council [after 
abolition of the majority vote require­
ment] appears to have received as little 
as 5% of white votes." 604 F.2d at 880 n.B, 
24a. Evidence of bloc voting was the 
basis of the Department of Justice's 
objection when the majority vote require­
ment was submitted following the three­
judge court's ruling in 1977. R.II 314-16. 

19 



14 15 
campaign tactics, slating, dispropor-

tionate number of blacks elected to 

14. The District Court found in its 
supplemental opinion that "some black 
candidates have not felt comfortable in 
campaigning house to house in white neigh­
borhoods." 94a. Also see 604 F.2d at 
881, 28a, citing "evidence that black 
candidates had encountered difficulties 
in campaigning in white neighborhoods." 
The significance of race in local elections 
was graphically illustrated by a sign 
erected on the place rif business of a 
defeated white candidate the day after 
the 1979 elections: "got beat by a black 
man--business for sale--leaving town." 
R.IV 189. 

15. The evidence of slating, not 
discussed by either court below, involved 
blatant "cuing" by the white electorate in 
two elections. In the first, one of two 
white candidates withdrew from the May 23, 
1978 election for Council Post 5 after a 
black entered the race, insuring that the 
black could not be elected by receiving 
less than a majority of votes as had 
happened following invalidation of the 
majority vote requirement by the three­
judge court. Cross v. Baxter, supra, 604 
F.2d at 878 n.l, 14a, R.II 296, R. III 
102. The black candidate was defeated. 
P. Ex. II A, B, C ("P. Ex." refers to 
Petitioners' trial exhibits). In the 
second election held the following year, 
according to the uncontradicted testimony 
of a local white businessman and former 
candidate for public office, "most 
FOOTNOTE CONTINUED ON NEXT PAGE ... 

20 



office, 16 distinctive minority socio-

. t 17 f . . econom1c s atus, past use o a maJOrlty 

vote requirement and present use of 

18 staggered terms and numbered posts. 

Senate Rep., 28-9; House Rep., 30. 

FOOTNOTE CONTINUED ... businessman around ... 
white businessmen" cued on a black candi­
date--a retired former waiter at a local 
hotel who had a seventh grade education and 
was a total political novice--for Council 
Post 3 to insure his election in order to 
give the appearance of racial fairness to 
city elections and thus defeat Petitioners' 
dilution lawsuit. R. IV 42, 56-8, 187-89. 

16. The District Court in its sup­
plemental opinion found "there has been 
an unquestioned disparity between the 
number of residents and the number of 
minority representatives" on the Moultrie 
City Council. 97 a. 

17. The District Court also found 
in its supplemental opinion "the existence 
of socioeconomic inequities" between the 
races in Moultrie. 95 a. Also see n.4, 
supra. 

18. 604 F.2d at 878 and n.l, 14 a. 

21 



Although Petitioners produced abundant 

and convincing evidence of a violation of 

amended §2, the District Court dismissed 

the complaint and the Court of Appeals 
I 

affirmed without considering the §2 

clai:m. Moreover, both courts applied 

standards developed in constitutional 

cases which Congress has determined are 

not applicable in statutory challenges 

under §2. Both courts, for example, 

placed heavy emphasis on_unresponsiveness. 

The District Court devoted half of its 

supplemental opinion to the issue while 

the Court of Appeals devoted the entirety 

of its March 20, 1981, opinion and very 

nearly all of its September 20, 1982, opi-

nion to unresponsiveness, concluding wit~ 

reference to Rogers v. Lodge, supra, that 

"unresponsiveness is an important element" 

in determining minority vote dilution. 

639 F.2d at 1383, 8 a. Not only is 

unresponsiveness not an element of a 

22 



statutory violation, but Petitioners were 

required to prove racial purpose, a burden 

flatly inconsistent with Congressional 

intent in amending §2. The lower court 

found Petitioners had failed to prove 

intentional discrimination in the adoption 

or maintenance of at-large elections in 

Moultrie, but it did not, and could not 
I 

on the record in this case, find that 

such elections do not result in the 

denial or abridgment of the right to 

vote. 

The failur~ of the Court of Appeals 

to consider Petitioners' §2 claim, or 

remand to the District Court, deprived 

Petitioners of important rights conferred 

upon them by Congress. This deprivation 

justifies the grant of certiorari, and 

ei ther full review in this Court or an 

order remanding ~the Court of Appeals 

for reconsideration under the standards 

23 

( 



of §2 as amended. 

CONCLUSION 

For the foregoing reasons, this Court 

should issue the writ of certiorari, and 

(l) summarily reverse the opinion and 
I 

judgment below, (2) vacate and remand for 

further consideration of Petitioners' 

claim under §2, or (3) set the case for 

argument. 

Respectfully submitted, 

LAUGHLIN McDONALD* 
NEIL BRADLEY 
CHRISTOPHER COATES 
American Civil Liberties 
Union Foundation 
52 Fairlie Street, NW 
Suite 355 
Atlanta, GA 30303 
[404] 523-2721 

*Counsel of Record 

24 







[639 F.2d 1383] 

JOHN W. CROSS, et al., 

Plaintiffs-Appellants, 

v. 

LLOYD BAXTER, et al., 

Defendants-Appellees. 

No. 80-7246 

United States Court of 
Appeals, Fifth Circuit 

Unit B 

March 20, 1981 

Appeal from the United States Dis-

trict Court for the Middle District of 

Georgia. 

Before JONES, FAY and HENDERSON, 

Circuit Judges. 

FAY, Circuit Judge: 

Plaintiff-appellant brought this 

la 



action to have the at-large electoral 

system for selecting city councilmen in 

Moultrie, Georgia, declared illegal, as 

violative of the First, Thirteenth, Four-

teenth, and Fifteenth Amendments, as 

well as 42 U.S.C. §§ 1971 and 1973. The 
~ 

District Court, holding for the defen-

dants, dismissed the complaint. For the 

reasons set out below, we affirm the 

District Court's judgment. 

This is the third in a series of 

voting dilution cases that we decide 

today. Rather than repeat the extensive 

discussion set forth in the first , of these 

cases, Lodge v. Buxton, 639 F.2d 1358 

(1981), we incorporate by reference 

herein the legal principles established 

in that case. 

Appellants assert that, at a mini-

mum, they are entitled to have this case 

remanded for reconsideration in light of 

2a 



the Supreme Court ' s decision in Mobile v . 

Bolden, 446 u.s. 55, 100 s.ct. 1490, 64 

L.Ed.2d 47 (1980). In light of our 

decision today in Lodge v. Buxton, supra, 

we conclude that such a remand is unneces­

sary. 

We said in Lodge v. Buxton that, in 

order to maintain a voting dilution 

action such as this, a plaintif f must 

es t ablish that the governmental body in 

question is unresponsive to its legiti­

mate needs. Reduced to its simplest 

terms, failure to prove unresponsiveness 

precludes a plaintiff from obtaining 

relief. In.the present case, the Dis­

trict Court concluded that plaintiffs 

had failed to establish that the Moultrie 

City Council was unresponsive to the 

particularized needs of the Black resi­

dents of that city. He based that 

finding on evidence of the following: 

(1) Black areas of the community have 

3a 



recreational programs and facilities 

equal to those in the predominantly White 

areas; (2) public housing is substantially 

integrated; (3) the City Council has made 

"~ffirmative efforts" to increase voter 

registration, and has long since desisted 

from its earlier practice of maintaining 

segregated voting lists; . (4) the jail 

facilities are not operated on a segre­

gated basisr and law enforcement is 

administered without regard to race, 

creed, or color; (5) under the current 

plan the Black neighborhoods will have 

more paved streets than the White 

neighborhoods; and (6) the city has made 

an "active effort" to remedy any past 

disparity in the racial composition of 

its labor force. On the basis of this 

record, the District Court's finding, 

that plaintiff had failed to prove 

unresponsiveness by Moultrie city offi­

cials, is amply supported and not clearly 

4a 



erroneous. Accordingly, the judgment of 

the District Court dismissing plaintiff's 

complaint must be and is AFFIRMED. 

HENDERSON, Circuit Judge, concurring 

in the result: 

I concur in the result reached by 

the majority, but for the reasons set 

forth in my dissent in Lodge v. Buxton, 

639 F.2d 1358 (5th Cir. 1981) decided 

today, I must respectfully disagree with 

the legal principles leading to that 

conclusion. 

The district court order was entered 

prior to the Supreme Court's decision in 

City of Mobile v. Bolden, 446 U.S. 55, 

l 0 0 S . Ct. 14 9 0 , 6 4 L . Ed . 4 7 (19 8 0 ) . . 

Consequently, the district judge did not 

have the benefit of the Mobile opinion 

but was bound by the mandate of Cross v. 

Baxter, 604 F.2d 875 (5th Cir. 1979). 

On remand, he conducted another hearing 

Sa 



in which he evaluated the plaintiff's 

evidence of unresponsiveness and found 

it to be lacking. The majority, reaf­

firming the viability of this Zimmer 

factor, upholds the district judge's 

finding. While I agree with the majority 

that the district court's findings of 

fact are not clearly erroneous, I am 

also of the opinion that the evidence 

does not measure up to the Mobile standard 

for the maintenance of a voting dilution 

case. For this reason, I believe that 

the judgment of the district court 

should be affirmed. 

. 6a 



[688 F.2d 279] 

JOHN W. CROSS, et al., 

Plaintiffs-Appellants, 

v. 

LLOYD BAXTER, et al., 

Defendants-Appellees. 

No. 80-7246 

UNITED STATES COURT OF 
APPEALS, FIFTH CIRCUIT.* 

Unit B 

Sept . 2 0 , 19 8 2 

Appeal from the United States Dis-

trict Court for the Middle District of 

Georgia. 

Before JONES, FAY, and HENDERSON, 

Circuit Judges. 

PER CURIAM: 

Under date of March 20, 1981 we 

issued our opinion in this matter, 5th 

*Former Fifth Circuit case, Section 9(1) 
Public Law 96-452 October 14, 1980. 

7a 



Cir., 639 F.2d 1383. Because both the 

majority and concurring opinions discuss 

the question of "unresponsiveness" by 

the public body in question, we supplement 

our holding by taking specific note of 

the language in footnote 9 of the recent 

case of Rogers y. Lodge, u.s. 

102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982) 

wherein the United States Supreme Court 

states: 

The Court of Appeals held that 
"proof of unresponsiveness by 
the public body in question to 
the group claiming injury" is 
an essential element of a claim 
of voting dilution under the 
Fourteenth Amendment. 639 F.2d, 
at 1375. Under our cases, how­
ever, unresponsiveness is an 
important element but only one 
of a number of circumstances a 
court should consider in deter­
mining whether discriminatory 
purpose may be inferred. 

In a further effort .to clarify our 

holding, we point out that this matter 

v.1as tried subsequent to a remand from 

our court and in accordance with that 

8a 



opinion, 604 F.2d 875 (5th Cir. 1979). 

Thereafter, the trial court made exten-

sive findings of fact and conclusions of 

law. We find these findings of fact to 

be not clearly erroneous. The trial 

court's conclusions of law were based 
I 

upon the mandate set forth above and the 

authorities cited therein including Zim-

mer v. McKeithen, 485 F;2d 1297 (5th 

Cir. 1973) (en bane), aff'd on other 

grounds sub nom. East Carroll Parish 

School Board v. Marshall, 424 U.S. 636, 

9 6 s . ct. 10 8 3 I 4 7 L. Ed. 2d 2 9 6 (19 7 6) . 

The trial court did not have the benefit 

of the Supreme Court's decisions in City 

of Mobile v. Bolden, 446 u.s. 55, 100 

S.Ct. 1490, 64 L.Ed. 47 (1980) nor Rogers 

v. Lodge; however, a review of these 

conclusions refects that the plaintiff's 

case falls short under any yardstick. 

The judgment is AFFIRMED . 

All pending motions are DENIED. 

9a 



IN THE UNITED STATES COURT 
OF APPEALS FOR THE 

ELEVENTH CIRCUIT 

No. 80-7246 

JOHN W. CROSS, et al., 

Plaintiffs-Appellants, 

v. 

LLOYD BAXTER, et al., 

Defendants-Appellees. 

Appeal from the United States 
District Court for the Middle 

District of Georgia 

Before JONES, FAY and HENDERSON, Circuit 

Judges. 

BY THE COURT: 

IT IS ORDERED that the motion of 

appellants for leave to file rehearing 

out of time is GRANTED, 

IT IS FURTHER ORDERED that appel-

lants' alternative extraordinary motion 

for rehearing is DENIED. 

lOa 



IN THE UNITED STATES COURT 
OF APPEALS FOR THE 

ELEVENTH CIRCUIT 

No. 80-7246 

JOHN W. CROSS, et al., 

Plaintiffs-Appellants, 

v. 

LLOYD BAXTER, et al., 

Defendants-Appellees. 

Appeal from the United States 
District Court for the Middle 

District of Georgia 

ON PETITION FOR REHEARING AND SUGGESTION 

FOR REHEARING EN BANC 

(Opinion October 21, 1980, llth Cir., 

198 , F. 2d ) . 

(November 12, 1982) 

Before JONES, FAY, and HENDERSON, Cir-

cuit Judges. 

lla 



PER CURIAM: 

The Petition for Rehearing is DENIED 

and no member of this panel nor Judge in 

regular active service on the Court 

having requested that the Court be polled 
' on rehearing en bane (Rule 35, Federal 

Rules of Appellate Procedure; Eleventh 

Circuit Rule 26), the suggestion for 

Rehear ing En Bane is DENIED. 

ENTERED FOR THE COURT: 

S/PETER FAY 
United States Circuit Judge 

l2a 



( 6 0 4 F • 2d 8 7 5] 

JOHN W. CROSS, et al . , 

Plaintiffs - App e llants, 

v. 

LLOYD BAXTER, et al . , 

Defendants -Appellees . 

No . 77- 3 286 

United States Court of 
Appeals, Fifth Cir cuit 

Oct . 16, 1979 

Appeal from the United States Dis-

trict Court for the Middle District of 

Georgia. 

Before TUTTLE, GODBOLD and RUBIN, 

Circuit Judges. 

GODBOLD, Circuit Judge: 

Members of the Moultrie (Georgia) 

City Council are elected to staggered 

terms from the town at-large by a 

13a 



1 
plurality of votes cast. Plaintiffs, 

black residents of Moultrie, allege that 

use of the at-large multimember district
2 

rather than single-member districts 

unconstitutionally dilutes their votes 

and the votes of all back citizens in 

Moultrie, who make up about 35 % of the 

city's population. The district court 

held that plaintiffs had failed in their 

burden of proving dilution and dismissed. 

We reverse and remand. 

[1,2] An appointment plan is not 

constitutionally infirm merely because 

1. Moultrie had a majority vote 
requirement and run-off elections until 
1977 when a three-judge district court 
enjoined their further use. 

2. We need not for purposes of 
this opinion draw any distinctions 
between "at-large" and "multimember" dis­
tricts. See generally Corder v. Ki r ksey, 
58 5 F . 2d 7 0 8, 713 n. 11 ( CA 5, 19 7 8) . 

14a 



it includes multimember or at-large dis­

tricts. The burden is on the plaintiff 

to prove that such an electoral scheme 

unconstitutionally dilutes the votes of 

minority group members. See White v. 

Regester, 412 U.S. 755, 765-66, 93 S.Ct. 

2332, 2339, 37 L.Ed.2d 314, 324 (1973); 

Zimmer v. McKeithen, 485 F.2d 1297, 1304-

05 (CAS, 1973) (en bane), aff'd on other 

grounds sub nom. East Carroll Parish 

School Board v. Marshall, 424 U.S. 636, 

9 6 s . ct. 10 8 3 I 4 7 L. Ed. 2d 2 9 6 (19 7 6) . 

In a number of cases this court has 

explained the content of the plaintiff's 

burden of proving dilution of a minority's 

votes. We have indicated that four 

specific areas of inquiry are particularly 

important: (1) equality of access of 

minority group members to the political 

process; (2) whether past discrimination 

has the present effect of discouraging 

l5a 



minority members' participation in the 

3 electoral process; (3) whether bhe govern-

mental policy underlying the use of multi-

member districts is tenuous; and (4) the 

responsiveness of the government body in 

question to the needs of the minority 

community. See, ~·~·, Corder v. Kirksey, 

S8S F.2d 708, 712 n.8 (CAS., 1978); 

Nevett v. Sides, S71 F.2d 209, 217 (CAS, 

1978), petition for cert. filed, 47 

3. The first area of inquiry, equal 
access to the election process, entails 
investigation into whether blacks now 
have an opportunity to fully participate 
in all phases of the electoral process-­
nomination, campaigning, and voting. The 
second area of inquiry, the effects of 
past discrimination, entails determining 
whether, although past barriers to parti­
cipation such as the poll tax or white 
primary no longer exist, the residual 
effect of past discrimination is that 
blacks in fact continue to participate 
proportionately less than whites (by 
registering to vote in low number, for 
example). See Kirksey v. Board of 
Education, SS4 F.2d 139, 14S n.l3 (CAS) 
(en bane), cert. denied, 434 u.s. 968, 
38 S.Ct. Sl~4 L.Ed.2d 4S4 (1977). 

16a 



U.S.L.W. 3247 (Sept. 22, 1978) (No. 78-

492); Kirksey v. Board of Supervisors, 

554 F.2d 139, 143 (CAS) (en bane), cert. 

denied, 434 U.S. 968, 98 S.Ct. 512, 54 

L.Ed.2d 454 (1977); Zimmer, 485 F.2d at 

1305. 

The purpose of inquiry into these 

areas is to determine whether an electoral 

system that is unobjectionable in the 

abstract, nevertheless, on the specific 

facts presented, has the effect of 

diluting the impact of a minority's 

voting power, and whether it is intended 

to have such an effect. See Nevett v. 

Sidc=s, 571 F.2d at 221-25 4 . These four 

4. Nevett v. Sides settl ed in this 
circuit that invidious discriminatory 
intent is required in voting dilution cases 
based on the Fourteenth and Fifteenth 
amendments. This issue is pending before 
the Supreme Court. See Bolden v. City of 
Mobile, 571 F.2d 238~A5, 1978) prob. 
jur. noted, 436 u.s. 902. 98 S.Ct~29, 
~L.Ed.2d 399 (1978), scheduled for 
reargument next term, U.S. , 99 
S.Ct. 2048,~L.Ed.2d~8 (197~ On 
remand the district court should address 
itself to the question of intent. 

17a 



areas of inquiry are not exclusive, and 

a plaintiff need not prove that all four 

inquiries produce results tending to show 

unconstitutional discrimination. 

224; Zimmer, 
5 485 F.2d at 1305. 

Id. at 

The dis-

trict court correctly identified the rele-

vant primary areas of inquiry, but, for 

the reasons that we now discuss, its 

decision cannot stand. 

I. Adequacy of findings of fact 

[3] F.R.C.P. 52(a) requires the 

district court to make findings of fact 

and conclusions of law in deciding all 

cases tried without a jury, and these must 

5. This court has also identified a 
number of "enhancing" factors that, if 
present, strengthen the plaintiff's 
case. These include the use of a majority 
vote requirement, an anti-single shot 
voting provision, lack of a geographic 
subdistrict requirement, and the existence 
of large districts. See Nevett, 571 
F.2d at 223; Zimmer, 485 F.2d at 1305. 

18a 



be sufficiently detailed that the court 

of appeals can ascertain the factual and 

legal basis for the district court's 

ultimate conclusion. See, ~-~·, Hydro­

space Challenger, Inc. v. Tracor/J'.1AS, Inc., 

S20 F.2d 1030, 1034 (CAS, 197S). Because 

the resolution of a voting dilution claim 

requires close analysis of unusually com­

plex factual patterns, see Corder v. 

Kirksey, SBS F.2d at 712-13, and because 

the decision of such a case has the poten­

tial for serious interference with state 

functions, see Hendrix v. Joseph, SS9 

F.2d 126S, 1271 (CAS, 1977), we have 

strictly adhered to the rule S2(a) 

requirements in voting dilution cases and 

have required district courts to explain 

with particularity their reasoning and 

the subsidiary factual conclusions under­

lying their reasoning. "[C]onclusory 

findings as to each of the Zimmer crite­

ria are no more helpful than an overall 

19a 



conclusory finding of dilution. The 

factual predicates for such conclusions 

must be clearly stated by the trial 

court." David v. Garrison, SS3 F.2d 923, 

929 (CAS, 1977) . 6 Perhaps in no other 

area of the law is as much specificity in 

reasoning and fact finding required, as 

shown by our frequent remands of voting 

dilution cases to district courts. See, 

e.g., Corder v. Kirksey, supra; Blacks 

United for Lasting Leadership, Inc. v. 

City of Shreveport, S71 F.2d 248 (CAS, 

1978); Hendrix v. Joseph, supra; David 

v. Garrison, supra; Nevett v. Sides, S33 

F.2d 1361 (CAS, 1976). As a general rule, 

6. See Corder v. Kirksey, S8S F.2d 
at 713: "Given the intensely factual nature 
of voting dilution cases, we, as an 
arpellate court, can but speculate whether 
the law was properly applied if we lack 
sufficiently explicative findings." 

20a 



if the district court reaches a conclusion 

on one of the Zimmer inquiries without 

discussing substantial relevant contrar y 

evidence, the requirements of rule 52 

have not been met and a remand may be 

called for if the court's conc lusions on 

the other Zimmer inquiries a re not suffi-

cient to support a judgment. 

II. District court's evaluation 
of the evidence 

The district court held that the 

political process in Moultri e is equally 

open to participation by blacks, that past 

discrimination does not preclude present 

effective participation by blacks in 

Moultrie's electoral system, that the 

Moultrie city government is "not unrespon-

sive" to the needs of the bla ck community, 

and that the policy underlying Moultrie's 

choice of at-large elections was not one 

of racial discrimination. We examine 

2la 



each of these areas to see whether the 

court made full nonconclusory findings of 

fact and conclusions of law and used cor-

rect legal standards in evaluating the 

evidence. 

A. Denial of access to the 
electoral pDocess 

A key issue in a voting dilution case 

is whether the minority group of which 

the plaintiff is a member is denied equal 

access to the various phases of the 

political process, including nomination, 

campaigning, voter registration, and 

voting. If lack of minority input into 

the electoral process can be demonstrated 

then the plaintiff has gone far toward 

proving that the at-large electoral system 

has the effect of diluting minority votes. 

A denial of equal access may take any of 

several forms, ranging from such direct 

governmentally-sanctioned exclusions as 

the poll tax or the white primary, to the 

22a 



existence of a private slating organiza­

tion that uses racist tactics and does 

not seek minority votes (as in White v. 

Regester, supra), to less concrete but no 

less effective barriers to participation 

such as cultural and language differences 

between the majority and minority, see 

White v. Regester, 412 U.S. at 768, 93 

s.ct. at 2340, 37 L.Ed.2d at 325, or a 

disproportion between the levels of 

education, income, employment, and living 

conditions of the majority and minority. 

See Kirksey, 554 F.2d at 144 & 145. 

The district court found no current 

legal barriers (that is, barriers imposed 

by law) to full black participation in 

the Moultrie electoral process. The 

white primary was abolished in Georgia 

over 30 years ago, and blacks are cur­

rently allowed to register and vote in 

all elections. Elections in Moultrie 

are non-partisan, and a person who wishes 

23a 



to run for office in Moultrie need only 

file an intention to run and pay a filing 

fee in order to be placed on the ballot. 

The district court found affirmative evi-

dence of blacks' equal access to the 

Moultrie political process in the recent 

election of a black candidate to the 

City Council
7 

and in the fact that other, 

but unsuccessful, black candidates 

apparently had received some white votes. 

The court concluded that the plaintiffs 

had failed to prove that Moultrie poli-

tical process was not equally open to 

8 participation by blacks. 

7. This candidate, Frank Wilson, 
was the first black elected to the City 
Council in the history of the city. Since 
this appeal was filed, Wilson was defeated 
for reelection by another black man. No 
other seats on the City Council have been 
won by blacks. 

8. The district court also held that 
blacks and whites in Moultrie do not 
~vote strictly along color lines," and 
gave examples of black candidates who had 
FOOTNOTE CONTINUED NEXT PAGE ... 

24a 



(4] The district court's conclusion 

of no denial of access cannot stand, 

first because the court did not make 

findings concerning evidence tending to 

show that official discrimination that 

deters political participation political 

participation by blacks ha s not y et 

FOOTNOTE CONTINUED. .received some white 
votes. The district court viewed this 
as evidence that blacks do have some 
success in campa i gning for office. This 
is per haps evidence that blacks have some 
access to the political process, although 
it alone could not support a finding of 
equal access. 

Evidence of racial polarization in 
voting has been held to be a prerequisite 
in a voting dilution challenge. See 
Nevett, 571 F.2d at 223 & n.l6, citing 
United Jewish Organization v. Carey, 430 
U.S. 144, 166 n.24, 97 S.Ct. 996, 1010, 
51 T.J.Ed.2d 229, 246 (1977). If race 
plc:.ys no part in voters' choices, there 
is no injury to blacks as a group caused 
b~ the use of ~ultimember districts. 
See Comment, Constitutional Challenges 
·to Gerrymanders, 45 U.Chi.L Rev. 845, 856 
(1978). It does not appear that the dis­
trict court intended to find that there is 
such an absence of racial bloc voting in 
0 oultrie that a finding of dilution is 
f oreclosed, however. Such a finding on 
? OOTNOTE CONTINUED NEXT PAGE . 

25a 



ended in Moultrie. Plaintiffs introduced 

evidence that the all-white Lions Club 

supervises Moultrie City Council elections. 

They put in other evidence that after 

substantial numbers of blacks had begun 

to register and vote the City moved a 
I 

poling place from a location convenient 

to residents of black neighborhoods to a 

less convenient location farther away. 

Under the rule 52(a) stanQard, as 

strictly applied in voting dilution 

cases, this seemingly relevant contrary 

evidence was required to be discussed 

and considered. 

[5,6] Moreover, the inquiry i~to 

equality of access should not come to a 

FOOTNOTE CONTINUED ... this record would 
be clearly erroneous. See Nevett, 571 
F.2d at 223 n.l8. No black candidate 
has ever received even a plurality of 
white votes and Wilson, the first black 
elected to the Council appears to have 
received as little as 5% of white votes. 

26a 



halt simply because the evidence shows 

that there are no longer any barrier 

imposed by _law to minority access. Non-

legal barriers may also preclude full 

black participation in the political 

9 process, and plaintiffs introduced sub-

9. Since our opinion in Nevett, the 
Zimmer criteria are required to do double 
duty--they must show that the effect of 
the multimember system is to dilute 
minority voting power and they must show 
discriminatory intent in the institution 
or continuation of this electoral system. 
Some facts unearthed in the course of the 
Zim:ner inquiries will more readily support 
an inference of intent than others. For 
example, proof of a current governmen­
tally-sanctioned barrier to minority 
access to the political process (official 
discouragement of black voter registration, 
for example) would be strong evidence, 
standing alone, of invidious discrimin-
tory intent. On the other hand, proof of 
current socioeconomic barriers to black 
participation would not, standing alone, 
support an inference of invidious intent, see 
Blacks United for Lasting Leadership, Inc. v. 
City of Shreveport, 571 F.2d 248, 253 & 
n.S (CAS, 1978), although such evidence 
of non-government sanctioned denial of 
access could support an inference of 
invidious intent if coupled with evidence 
of unresponsiveness of elected officials 
to minority needs. See Nevett, 571 F.2d 
FOOTNOTE CONTINUED NEXT PAGE. 

27a 



stantial evidence, not discussed by the 

district court, tending to show the 

existence of such non-legal barriers: 

evidence that black candidates had 

encountered difficulties in campaigning 

in white neighborhoods and evidence that 

housing conditions, employment rates, 

income, and educational levels are consi-

derably less advantageous for Moultrie 

blacks than for Moultrie whites. As we 

hel ·l in Kirksey, evidence of socioecono-

mic inequities gives rise to a presumption 

that the disadvantaged minority group 

does not enjoy access to the political 

process on an equal basis with the 

majority. "Inequality of access is an 

FOOTNOTE CONTINUED. .at 223 & n.S. 
The dual goals of the sensitive Zimmer 
factual inquiry make it imperative that 
the district court carefully and pre­
cisely state its findings of fact and 
the legal conclusions it draws from those 
facts. 

28a 



inference which flows from the existence 

of economic and educational inequalities ." 

Kirksey, 554 F.2d at 145. This substan-

tial evidence tending to show inequality 

o f access must be considered and the 

Kirksey presumption applied to it. 

B. Effect of past discrimination 
on present participation in 

political process 

[7) We have recognized that past 

policies of racial discrimination may 

have present impact upon the participa-

tion of the minority in the political 

process. The mere removal of past offi-

cial discrimination does not render the 

present effects of that discrimination 

irrelevant in determining whether an 

electoral scheme dilutes the votes of 

the minority. See Kirksey, 554 F.2d at 

145-46; Zimmer, 485 F.2d at 1306. 

In Moultrie 44.6 % of the whites and 

26.9 % of the blacks are registered to 



vote. The number of black members on the 

City Council historically has been grossly 

disproportionate to the percentage of 

blacks in Moultrie's population, with 

only two blacks elected in the history 

of the town. According to the record 

only one · black sits on the six-member 

Council (a mayor and five Council members), 

although about 35% of the citizens of 

Moultrie are black. Plaintiffs introduced 

much evidence of recent and pervasive 

discrimination. The record contains evi­

dence that literacy tests were used in 

Moultrie until the mid-sixties, that 

voting and registration were carried out 

on a segregated basis until the early 

sixties, that Moultrie schools were fully 

desegregated only in 1970, and that 

public recreational facilities were 

segregated by law until 1968 or 1969. 

[8] Since until the past decade 

there had been de jure discrimination in 

30a 



many facets of Moultrie government, 

including voting for public office, the 

inference is strong that the dispropor­

tions in voter registration and elected 

officials are at least in part a result 

of the past pervasive discrimination in 

Moultrie. The district court found that 

there was no evidence supporting such an 

inference and concluded instead that it 

is equally likely that the reason for the 

disproportion in voter registration is 

that the "leaders in the black community" 

have failed "to ignite the patriotic 

fervor of their brothers." This misal­

located the burden of proof on the issue 

of present effects of past discrimination. 

Once plaintiffs have demonstrated 

a history of pervasive -discrimi-

nation and a present disproportion in 

voting registtation and election of 

minority representatives, they have 

3la 



carried their burden of proving that the 

past discrimination has present effects. 

See, e.g., Hendrix v. Joseph, 559 F.2d 

at 1270; Kirksey, 554 F.2d at 144 & 146; 

Bradas v. Rapides Parish Po~ice Jury, 508 

508 F.2d 1109 1112 (CAS, 1975); Zimmer, 

485 F.2d at 1306. The defendants must 

then come forward with rebutting evidence 

proving that current disproportions are 

not an effect of the past. Kirksey, 554 

F.2d at 144-46. Without a factual basis 

in the record a court may not simply 

atribute present disproportions to lack 

of interest or apathy on the part of 

blacks. Id. at 145. Defendants concede 

on appeal that the district court mis­

pl a ced the burden of proof but contend 

that they introduced sufficient edivence 

to carry their burden of rebuttal. This 

is a matter to be addressed to the dis­

trict court on remand. 

32a 



C. Responsiveness to minority needs 

[9] The district court in a voting 

dilution case must consider whether the 

plaintiffs have proved that elected offi­

cials are unresponsive to minority needs. 

If so, then the plaintiffs have made a 

strong case that the challenged electoral 

scheme has had the effect of depriving 

minority members of equal representation, 

see Wallace v. House, 515 F.2d 619, 622-

24 (CAS, 1975) vacated on other grounds, 

425 U.S. 947, 96 S.Ct. 1721, 48 L.Ed.2d 

191 (1976), and such a showing of 

unresponsive "is strongly corroborative 

of an intentional exploitation of the 

electorate's bias." Nevett v. Sides, 

5 7 1 F . 2d at 2 2 3 . 

[10] The district court held that 

plaintiffs had not proved Council mem­

bers' unresponsiveness to the needs of 

the black community. The evidence intra-

duced that pertained to the Council's 

33a 



responsiveness fell into two categories: 

(1) the provision of governmental services 

to the minority community and (2) the 

distribution of municipal jobs and 

. . . b d 10 appo1ntments to var1ous c1ty oar s. 

With respect to most community ser-

vices provided by the City (e.g., sewage, 

policy protection, fire protection, gar­

bage collection), thi district court 

found that no evidence had been intro-

d d h 
. . 11 uce s ow1ng unrespons1veness. The 

10. Plaintiffs also introduced evi­
dence that individual Council members and 
former Council members belong to racially 
segregated clubs and churches. Such evi­
dence of personal actions is not relevant 
in determining whether an official act 
was undertakne with invidious discrimi­
natory intent. See Palmer v. Thompson, 
403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 
438 (1971). 

11. Appellants argue that the dis­
trict court's finding of responsiveness 
in police protection was clearly erroneous 
because one witness testified that the 
city jail was operated on a segregated 
basis until 1975 and there was some testi­
mony of discriminatory enforcement of the 
law by the police department during the 
FOOTNOTE CONTINUED FOLLOWING PAGE. 

34a 



district court ci~ed specific instances 

of the Council's acting favorably on 

requests for action by black citizens. 

The court found that there are more 

unpaved streets in black neighborhoods 

than white but discounted this as evi-

dence of current unresponsiveness 
I 

because more funds are now spent on street 

improvement in black neighborhoods than 

in white neighborhoods. The court held 

plaintiffs' evidence that city schools 

were desegregated only in 1970, that jury 

lists in county courts contain dispropor-

tionately low numbers of blacks, that 

housing patterns in Moultrie remain segre-

gated, and that blacks are underrepre-

sented in the county government, was irre-

FOOTNOTED CONTINUED ... mid-sixties. Since 
we are remanding the case there is no 
need to decide whether the district 
court's decision on this factual matter 
was clearly erroneous. 

35a 



levant because the City Council has no 

responsibility for these matters and no 

power to remedy them. 

The district court also found no 

evidence of unresponsiveness in the City's 

employment practices, though only between 

24 % and 30 % of the City's employees are 

black (as compared to a 35% black general 

population) and a greater disparity 

exists in supervisory level City jobs. 

The court found this evidence did not 

show unresponsivenss because the City 

had engaged in an affirmative action 

hiring plan and because the City's 

employment advertisements contain the 

phrase "equal opportunity employer." 

The court concluded that the racial 

disparity in the makeup of the City's 

work force was not attributable to a 

lack of responsiveness on the part of 

the City but to "the apparent lack of 

interest on the part of blacks in 

36a 



applying for city jobs." The court also 

found affirmative evidence of Council 

responsiveness in the fact that some 

blacks had been appointed to city boards 

and declined to infer any lack of 

responsiveness from the Council's decision 

to allow vacancies on the Council to 

remain unfilled until the next election 

rather than appointing blacks to serve 

out the unexpired terms. 

Finally, relying on the testimony of 

present Council members and past solicita- ­

tion of black votes by white Council mem­

bers, the district court found that the 

Council is more responsive to black needs 

and concerns under the present at-large 

system than it would be if single-member 

districts were used, because a single­

member district systme "would eliminate 

any political incentive for the other 

[white] members of the Council to give 

active consideration to black concerns 

37a 



because they would be representing only 

a white constituency." 

[ll] The district court's conclusion 

that the plaintiffs failed to prove 

unresponsiveness must be set aside for 

several reasons. Fi~st, as explained in 

!S_irksey, once plaintiffs have demonstrated 

recent pervasive official unresponsiveness 

to minor i ·tY need-s, 
12 

the burden shifts to 

the defendants to demonstrate that the 

unresponsiveness of the past is no longer 
I 

indicative of present governmental unre--

sponsiveness. 

46.13 

Kirksey, 554 F.2d at 144-

12. A present white member of the 
Council testified that prior to his elec­
tion in 1972 the Council had neglected 
the needs of the black community. 

13. The district court is, of 
course, entitled to consider whether past 
examples of unresponsiveness are so far 
distant in time "to permit an inference 
that what was true in the past is no 
longer true." Kirksey, 554 F.2d at 144. 

38a 



[12] Second, several items of evi-

dence not discussed by the district 

court must be considered pursuant to 

Rule 52(a). Plaintiffs introduced uncon-

tradicted testimony that recreational 

facilities in the black areas of town are 

. h . h't 14 
infer1or to t ose 1n w 1 e areas. They 

introduced evidence that public housing 

projects were constructed in the 1950's 

that were segregated by law when built 

and that remain largely segregated today. 

Though there is no evidence that d~ jure 

seyregation remains today in Moultrie 

public housing, if a high degree of de 

14. The court did discuss one inci­
dent in which a request for improvements 
in the condition of a swimming pool in a 
black community had been complied with by 
the Council. The district court properly 
found this to be affirmative evidence of 
responsiveness, but it must be considered 
along with countervailing evidence of 
nonresponsiveness with regard to recrea­
tional facilities. 

39a 



facto segregation continues today and is 

traceable to past intentional discrimi­

nation by the Council, 15 it would be 

evidence of current unresponsiveness. As 

we have noted before, the Supreme Court 

has used this approach in other areas of 

desegregation. See Kirksey, 554 F.2d at 

145, n. 12, citing Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 
I 

l I 2 6 I 19 s . c t . 12 6 7 , 12 8 l I 2 8 L . Ed . 2d 

554, 572 (1972) (burden on school district 

to justify plan containing racially 

imbalanced schools, where school district 

has history of past intentional segre-

gation). Appellants go further and argue 

if any racial inequality exists in the 

town that the Council has failed to 

15. It is not clear from the record 
before us what degree of control the 
City Council now has, or had in the 
fifties and since, over public housing. 

4()a 



remedy, a finding of unresponsiveness is 

compelled~ This is unsound. Where the 
I 

racial discrimination in question was not 

caused by the acts of the local govern-

mental body involved, the body is not 

necessarily unresponsive to minority 

needs merely because, with its limited 

resources, it has not attempted to remedy 

every existing inequality. 

[13] There is other evidence, some 

of it t:emporally remoted, that arguably 

demonstrated Council unresponsiveness 

and must be considered: ~-~·, segregated 

vote r lists, the City's delay in comply ing 

with the requirements of §5 of the Voting 

Righ ts Act of 1965, operation of racially 

segregated jails, and racially selective 

enforcement of laws by City police. 16 

16. It is possible that the segre­
gated private housing patterns in Moultrie 
~re also attributable to past intentional 
discrimination by the City. The district 
~OOTNOTE CONTINUED FOLLOWING PAGE. 

4la 



The district court should also fur-

ther address itself to wh~ther the Coun-

cil's expenditures for paving in black 

neighborhoods show unresponsiveness. The 
l 

court did not consider the dispropor~ 

tionately large number of unpaved streets 

in black areas as indicative of unrespon-

siveness because at present 'more is spent 

on street improvements in the black corn-

rnunity than in the white. That current 

expenditures are greater in black neigh-

borhoods does not necessarily show 

. 17 responslveness. 

FOOTNOTE CONTINUED •.. court found that they 
were not, but this finding was not ade­
quately supported by subsidiary findings 
of fact. On remand the district court 
should address this question again. 

17. For example, if 95 % of the need 
for street improvements is for streets in 
the black community, allocating only 
60 % of street improvement funds for work 
in black areas would be evidence of 
unresponsiveness, not responsiveness. 

42a 



[14] Finally, the conclusion that 

plaintiffs had failed to prove unrespon­

' siveness cannot stand because the court 

relied in part on a finding that Council 

members would be less responsive to black 

concerns if elected from single-member 

districts than they are under the existing 

at-large system. Comparisons of various 

electoral configurations in order to 

ascertain which alternative most fairly 

assures responsiveness to black concerns 

and best ensures black access to the 

political system is appropriate when 

choosing the appropriate remedy for an 

unconstitutional electoral system. See 

~.g., U.S. v. Board of Supervisors, 571 

F.2d 951, 956 (CAS, 1978). However, when 

considering whether an existing system is 

unconstitutional such comparisons are 

not called for--the crucial question is 

whether government officials at present 

43a 



are, or are not, unresponsive to black 

needs. 

[15] One argument advanced by plain­

tiffs on appeal is patently without merit 

and need not be considered by the district 

court on remand. Plaintiffs argue that 

any action taken by Council members out 

of concern for their "mere political self­

interest, i.~., soliciting votes" cannot 

be considered responsive to the needs of 

the black community. It is characteristic 

of representative democracy that elected 

officials are sensitive to the concerns 

of the voters at least in part because 

they want to receive votes when they run 

for reelection. 

Plaintiffs also argue that the dis­

trict court erred in not. considering the 

disparity in the city's hiring to be 

prima facie evidence of unresponsiveness 

that must be rebutted by the city. Cases 



cited in support of this proposition 

involve the burden of proof in Title VII 

employment cases. Since a mere statistical 

disparity generally cannot establish a 

constitutional violation in constitutional 

cases, see Washington v. Davis, 426 u.s. 

229, 96 S.Ct. 2040, 48 L.Ed. 2d 597 (1976), 

we are not convinced that the wholesale 

importation of Title VII principles into 

voting rights cases based on the Fourteenth 

and Fifteenth Amendments is appropriate. 

It is particularly difficult to see how a 

bare statistical disparity shows a lack of 

responsiveness where there is a finding 

that the governmental body is attempting 

to remedy the disparity by use of an 

affirmative action plan. Since the case is 

to be remanded, however, it would be 

appropriate for the district court to 

spell out the precise content of the city's 

current willingness to hire without regard 

45a 



to race. If this is the extent of the plan 

and the current statistical disproportion 

is attributable to past intentional discrimi-

nation by the city, an affirmative action 

plan calculated to do away with the 

disparity may be required in order to rebut 

an inference of unresponsiveness. 

D. State policy 

[16] The district court found that 

there was no state policy favoring either 
I 

single-member or multimember districting 

and that many Georgia municipalities use 

multimember districting. The court 

noted that the at-large scheme had been 

instituted in Moultrie in 1859 when no 

blacks voted so that no inference could 

be made of racially discriminatory moti-

vation in institution the scheme. The 

district court thus properly placed no 

weight on this factor. The purpose of 

the Zimmer state policy inquiry is to 

46a 



decide whether . an inference can be drawn 

that the use of multimember districts is 

rooted in racially discriminatory motives; 

the reason for inclusion of "tenuous state 

policy" in the Zimmer listing is that a 

state policy in favor of at-large districts 

that is shown to be "tenuous" is eviden­

tiary of invidious intent. See Nevett v. 

Sides, 571 F.2d at 224; Zimmer, 485 F.2d 

at 1307 (state policy said "tenuous" where 

long tradition against at-large districts 

reversed shortly after large numbers of 

blacks began to vote) . Where the circum­

stances will not support an inference of 

invidious motivation either in the insti­

tution or continuation of the at-large 

system, the absence of a state-wide policy 

favoring at-large districting is not in 

itself evidence of dilution. 

47a 



III. Other issues 

[17] The district court's conclusion 

that the aggregate of the Zimmer criteria 

does not show dilution of the black mino-

rity's voting power in Moultrie City Coun-

cil elections obviously must be reconsi-

dered, since we have set aside the findings 
I 

on three of the four criteria. Extended 

discussion of other errors asserted by 

the plaintiff& is not necessary. Brief 

discussion of one claim of error may be 

useful to the district court on remand, 
/ 

however. The plaintiffs contend · that the 

district court erroneously held that the 

election of a single black official fore-

closes any possible dilution claims, and 

arguably the last sentence of the district 

court's opinion can be so read. Just as 

the election of disproportionately few 

minority members does not necessarily 

48a 



mean that the minority vote is diluted, see 

Zimmer, 485 F.2d at 1305, the election of 

a single black official does not mean that 
I 

the black vote is necessarily not diluted. 

See Kirksey, 554 F.2d at 149 n.21. 

REVERSED and REMANDED. 

49a 



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

THOMASVILLE DIVISION 

JOHN W. CROSS, et al., 

Plaintiffs 

v. 

LLOYD BAXTER, et al., 

Defendants. 

CIVIL ACTION NO. 76-20-THOM 

[October 26, 1977] 

0 P I N I 0 N 

The Plaintiffs in this case are three 
I 

black citizens who are registered voters 

in the City of Moultrie, Georgia. The 

Defendants in the case are the Mayor, the 

members of the City Council and the super-

intendents and managers of elections in 

Moultrie. 

50 a 



As originally filed this class action 

presented certain issues which required 

the convening of a three judge court, but 

all of those issues have been heretofore 

disposed of to the satisfaction of all 

concerned and there remains for conside-

ration only the contention of the Plain­
! 

tiffs that the system of electing the mem-

bers of the City Council in Moultrie has 

the effect of diluting ~the relative 

strength of black voters in the City in 

violation of constitutional requirements. 

The Moultrie City council consists 

of a Mayor and five Council members who 

are elected on an at-large voting basis 

to staggered terms by a plurality of 

votes cast. There is no majority vote 

requirement. The prayer of the Plain-

tiffs' complaint is that this Court order 

the Defendants to cease using the at-large 

voting system and establish a single mem-

5la 



ber district plan of election. 

In a voting dilution case such as 

this the Plaintiffs have the burden of 

showing that their group has been denied 

access to the political process equal to 

the access of other groups, and in a num­

ber of cases, the most recent of which are 

David v. Garrison, 553 F.2d 923 (decided 

June 10, 1977), and Hendrex v. Joseph, 

~0. 76-1725 in the Court of Appeals 

(decided September 12, 19 7 7) , the Fifth 

Circuit Court of Appeals has set out the 

standards that control such cases in this 

Circuit and has indicated that the correct 

approach to a claim of dilution is to 

examine the situation in light of certain 

ipecific factors, these factors being: 

minority access to the election process, 

including the slating process; responsive­

ness of the elected body in providing 

governmental services to minority com-

52 a 



munities; whether there is a state policy 

which favors one system in preference to 

another; whether past discrimination which 

may have existed precludes present effec-

tive participation by minority groups; and 
I 

finally, a consideration of the aggregate 

of all factors. The Court will deal with 

these factors in the order listed. 

Access to the Political Process 

According to the 1970 census of popu-

lation the population of Moultrie is 

14,302 persons, of whom 9,319 (65.2%) are 

white and 4,975 (34.8%) are black. This 

is not a large district in the context of 

Georgia elections. The total number of 

registered voters in the city is 5,550 of 

whom 4,163 (75.7%) are white and 1,337 

(24.3%) are black. It is thus obvious 

that blacks have not registered to vote in 

proportion to the black population, but 

53a 



there is no evidence that this failure of 

blacks to register is brought about by any 

impediment to their freedom to do so. The 

"Democratic White Primary" in Georgia was 

abolished more than thirty years ago and 

black have registered and voted in all pri-

maries and general elections since that 
I 

time. There has also been no lack of access 

to the process of slating candidates for 

office in the City of Moultrie. There are 

no screening organizations, petit i on 

requirements or other barriers to discou-

rage minority candidates. The perfunctory 

process of qualifying as a candidates is 

the same for blacks as for whites and a 

number of blacks have qualified as 

candidates in municipal elections in 

Moultrie in recent years and have actively 

campaigned without difficulty. Indeed, 

Frank Wilson, one of the Plaintiffs in 

this case, was a candidate for election 

to the Moultrie City Council earlier this 

54a 



year and was elected and is now serving 

as a member of that body. Since this suit 

was brought against the members of the 
I 

Council Wilson is now in the unique posi-

tion of being Plaintiff and Defendant. 

The Plaintiffs have contended that 

blacks and whites vote strictly along 

color lines and that this has the practi-

cal effect of excluding them from the 

election process, but the evidence does 

not support this contention. In the 

election for City Council held in May, 

1976 Sherrod McCall, a white,received 

1,382 votes, and Marion Graham, a black, 

received 865 votes. 2,284 persons voted 

in that election and of these 481 were 

blacks. It is, therefore, apparent that 

Graham received almost as many white votes 

as black votes, even if it is assumed that 

he received all of the black votes, and 

there is no basis for that assumption. 

Amos Ryce, a black, was a candidate for 

ssa 



the City Council in 1969 and he got about 

800 votes and by his own estimate approxi­

mately 25% of the votes which he received 

were votes which were cast by whites. In 

the 1977 election 2,054 persons voted, of 

whom 540 were blacks. Frank Wilson, the 

successful black candidate, received 628 

votes, so of necessity must have received 

a significant number of white votes. 

While the evidence shows that the 

blacks in the community have not held 

seats on the City Council in proportion to 

their voting potential, this does not 

justify a conclusion that the political 

process, including registering, voting 

and slating candidates, was not equally 

open to participation by them. 

Responsiveness 

The Plaintiffs complain that the City 

Council has been unresponsive to the legi­

timate complaints and needs of the black 

56a 



community. An analysis of the responsive­

ness question requires consideration of 

two distinct problems. The first is the 

provision of governmental services to 

minority communities. 

The City of Moultrie provides the 

following community services for its citi­

zens: police protection, fire protection, 

garbage collection, water, sewage, drain­

age, street maintenance, electricity, 

natural gas, recreational facilities, 

health services (mosquito control, dog 

catcher, etc.) and civil defense. With 

regard to police protection, fire protec­

tion, garbage collection, water, sewage, 

drainage, electricity, natural gas, health 

services and civil defense, there is no 

evidence whatever in the record indicating 

that the City government has been unrespon­

sive to the needs of the black community. 

As respects street maintenance the evi-

57 a 



dence shows that there are more unpaved 

streets in that part of the city princi -

pally occupied by blacks than in that part 

of the city principally occupied by whites, 

and that this has been a legitimate basis 

of complaint, but the evidence also shows 

that substantial strides have been made in 
I 

recent years in correcting this imbalance 

and that more funds are now being spent 

on street improvements in the black com-

munity than in the white community. 

With regard to recreation facilities, 

one of the Plaintiffs, Jerry Denegall, 

complained to the City Council about the 

condition of a municipal swimming pool in 

the black community and requested certain 

improvements and he himself testified that 

the improvements which were requested 

were made and that he later complimented 

the City Councilmen on helping him bring 

it about. 

58a 



As to general responsiveness, Amos 

Ryce, a witness who was subpoenaed by the 

Plaintiffs who is a black minister and 

Executive Director of two housing projects, 

testified that in 1971 he wished to deve-

lop an apartment complex for the housing 

of residents in the black community and 

when he acquainted the City Council with 

his plans and desires the Citi sold him 

some land which the City owned .which he 

used for this purpose and thereafter made 

all of the utilities available to him and 

he affirmed that he received complete 

cooperation from the Mayor and the Council 

in the handling of the project, the fol-

lowing question and answer concluding his 

testimony: 

Q. Do you feel the Mayor and Council 
have been responsive to you? 

A. Very much so. 

Some of the "unresponsiveness" 

referred to by the Plaintiffs and some of 

59 a 



their witnesses during the course of their 

testimony had to do with matters over 

which the Defendants neither have had nor 

now have any control and concerning which 

they have not had and do not now have any 

power to take "corrective action". One of 

the complaints made by the Plaintiffs is 

that the schools in the city should have 

been desegregated sooner, but this is not 

the business of the City Council. All the 

schools in the City of Moultrie and 

throughout Colquitt County are admini­

stered by the Colquitt County School 

Board, which is itself an elected body. 

Another complaint is that there have not 

been enough blacks on jury lists in Col­

quitt County. Here again, the Moultrie 

City Council has no control whatever over 

the make-up of the County jury lists. 

The Plaintiffs also complain of "segre­

gated housing" patterns. It is true that 

60a 



the majority of blacks in the community 

live in the northwestern part of the city 

and the majority of whites live in the 

southeastern part of the city, but the 

City Council has not dictated this nor can 

it dictate a change in the pattern. 

Another complaint is that blacks do not 

have adequate representation in the County 

government of Colquitt County. Since the 

County Commissioners are elected by the 

people of the County the City Council of 

Moultrie has no control over the make-up 

or the operation of the County government. 

Some other matters complained of are 

either under the exclusive jurisdiction of 

the County government or certain federal 

agencies. 

It has already been noted that there 

is now one black member of the City Coun­

cil and the statistics show that for a 

number of years past the black vote has 

6la 



affected the outcome of city elections, and 

this fact has been recognized by both the 

minority group and candidates for Mayor 

and Council. The white members of the 

Council testified that they are aware that 

because of the significance of the black 

vote they must be responsive to the black 

community and this is consistent with the 

fact that the white candidates actively 

solicit black votes. 

The Plaintiffs have asked that this 

Court order the establishment of a single 

member district plan of election on the 

theory that this would make for more 

responsiveness from the City government, 

but it is not clear to the Court that sin­

gle member districts would enhance the 

political strength of black voters. There 

are five members of Council and about 24% 

of the registered voters are black. A 

single member districting system would 

62a 



assure blacks one (and perhaps two, 

depending on how the lines were drawn) 

seat on the Council, but this would elimi-

nate any political incentive for the other 

members of the Council to give active 
( 

consideration to black concerns because 

they would be representing only a white 

c"onstituency. Under the present at-large 

system every candidate recognizes the 

existence of a black constitutency and 

the practical necessity of being respon-

sive to that constituency in order to be 

elected. Every elector now has the right 

to vote for all five members of the Coun-

cil. The system suggested by the Plain-

tiffs would limit the electors to one 

vote for one member. 

While the adoption of the Plaintiffs' 

suggested plan would doubtless guarantee 

that there would always be a black member 

of City Council, it would in the Court's 

63a 



view make the other members of the Council 

less responsive to the interests of the 

black community. Stated otherwise, to 
I 

adopt a single member plan would permanently 

compartmentalize the electorate in the 

city, reinforce patterns of racial 

separateness and prevent members of the 

minority class from ever exercising 

influence on the political system beyond 

the bounds of their single member district 

or districts. They would forever remain 

a minority in their political influence. 

A change which would guarantee that a 

black candidate would be elected would 

obviously be good for that candidate, 

but it does not necessarily follow that it 

would be good for the black community. 

The second problem faced in making a 

responsiveness analysis concerns the 

distribution of municipal jobs and appoint-

ments to various boards. There are appro-

64a 



ximately 250 municipal employees in Moul­

trie. There were introduced in evidence 

the results of breakdowns of this employ­

ment by race which were made on two diffe­

rent occasions during the last eighteen 

months. One of these analyses showed that 

something more than 69% of the city 

employees were white and something more 

than 30% were black. Another of the 

analyses made at a different time showed 

that the make-up was something more than 

75% white and something more than 24% 

black. It is reasonable to deduce from 

this that on an average the city employees 

are something more than 72% white and 

something more than 27% black. This is 

not sharply disproportionate to the 

racial composition of the population 

(65.2% and 34.8%) and is a surprisingly 

good ratio when consideration is given 

to the apparent lack of interest on the 

65a 



part of blacks in applying for city jobs 

when they are available. The City has 

adopted an affirmative action plan to 

increase minority employment and for 

several years has followed the practice of 
I 

running newspaper advertisements notifying 

the public of job openings, inviting 

applications and stating in the advertise-

ments that the City is "an equal opportu-

nity employer". A sample of these adver-

tisements follows: 

CITY OF r:.GUlli:l£ 
::ow utu::c r.rruc.m~r:s 

FO~ POSITIOII OF ",. 

* BUtLO!::G I::SPECTOn 
CONTACT lhfl P!!mnnPcl 
oa 1>ao•lfolaolt, Clly I !.sll to 
lind out . II you qua lily for 
this excellent job op­
portunity. 

CITY OF r.10UlTniE 

· - ~- . .Y'· 

66a 



La~~[L[~ VJ t~~~P'u~lD 
Cc~y o~ MoM~·~c-uc 

Is now taking applications 
for the following openings: 

*Patrolmen 
*Heavy Equipment Operator 
* Diesel C. Gas Mechanic: 

If you would like to find out If you qualify for ·one of these 
excellent lob opporlunltles, with many fringe benef its, 
paid holidays, good pay, paid Insurance, retirement to 
list only a few. Contact the Personnel Depi!rtment, City 

Hall, Moultrie, Georgia , A. f/"" .. 111r-j' 
Your equal oppof1unlty employer "fl.-f-ie?. "" 

L~dl:~C' \'\7 ANu-aC::~ 
Co~·y 0·~ P-/uo~~~-~~oe 

Is now taking applications 
for the following openings: 

*Patrolmen 
* ~ircmcn · * Mo~or Grader Operator 
* t:!cctric: Lineman Helper 

If you would like to find oullf you qualify for one of these 
excellent Job opportunities, with many fringe benefits, 
paid holidays, good pay, paid Insurance, retirement to 
list only a few. Contact the Personnel Dcp.utment, City 
Hall, Moultrie, Georgia. 50'/?Z. 

Your equal opportunity employer,-/ r j 

67a 



CITY Of t-:OULTRIE 
l:0\'1 T nlit::G APPUCn 1101'S 

FOR POSITIOtl Of 

~h POLICE CLEm~ 
CONTACT the Personnel 
Department, City Hall to 
find out if you qualify for 
lhis excellent lob ·op­
portunity. 

CITY . OF r.lOUL TntE 

CITY GF r.10UL mtE 
t:O~J Tf,:m:c APPUCATIO::s 

fOU POSIT!O:I OF · 
..)..,. /("" t. c.r,,r•rr.r-, 
} .. X.,.(l.~ ........ l. ~~~~~.~ ·~ 

IMMEDIATE OPENING. 
Must be able to type 40· 
words per minute. 
CONT.I\CT the Personnel 
D~ !~tlr!!!!r:n!, Cl!~ !1illl In 
'''"' t>ul II you qUIIIIIY lor 
this excellent job oppor-
tunity. ,q ·"'!] /CJ/.. 

/ -;....<. - /7.? 
CITY Of r:.o~~ T~[E ~ 
Equal Opportunlly I! mp1ovtr 

CITY Of i.:OUL TniE 

t:OW TA!\H:G hPrLIChT:O::s 
i
v fO~ POS!TION OF 

!lOW Tht:tt:G hPPLICATIO:lS 
FOR POStTIO!l OF 

._ r·"c" nr·•rl' , ' .. :: ~,, .. .-~l\Jll 

CONTACT the Personnel 
Department, City llall to 
find out if you qualify for 
this excellent lob op­
portunity, 

CITY Of r.iOUl TniE 

~ 

£qual Opportuu_!ty I::Mploy•r., . .I 1 
.. . (j. "'-~-- -';1/ /, 

CITY OF MOUL TniE 
~0\'1 T hl\li:G hPPliCATIO~S 

fOR POSITIOll Of 
"* rr,rr.nwm * POLICE CLEnK * nw.:m * Uuilllin~ Enforcement 

Otliccr 
CONTACT the Personnel 
Deparlment, City Hall to 
lim\ out if you qvilllly for 
lhh eKcellent (ob op. 
porlunily. 

CITY Or i,~OUL Tn!E 
£qu.al Orportunlly Employer 

6Ra 

·h FE:G.~m: 
.. k O~ESEL t~ECnAmC 
~( r.~am r.;mo 
CONTACT the Personnel 
Department, City Hall to 
find out if you qualify for 
this excellent lob op­
portunity . 

CITY OF r.:CULTntE 
r Equ~l Opportunity Employer 

. - ~~ - 7~ 7-,-?A·?.}, 



Cll¥ Of r.:OUlll:IE 
r:ow T~t:mG r.rPumiO:ls 

FOP. POSIIIOt: Of 

..,,{ r.~nm nE~Dm 
CONTACT the flt>r~onnel 
Ocpi\rlm~nl, C1ly llall lo 
find out 1f you qua lily for 

~ th is excellent job op­
. portunity . 

cnv oF r:.ouL miE 
f:qu.tl Oppurtun~ly Employtr 

CITY Or ;, ~ um:E 
;:u·,·/ T~;u;:G :.i?liCATlC:lS 

FOa POSH.~ il:l OF 
~o.-c•r ., "''CS ·h NL:. fl.,;. · ~· ;, 

CONTACT lh2 'Personnel 
' Department, Ci~y Hall to 

lind out if you ;:ualily lor 
I this excellen1 job op -

1 
portunity. -:/-/7-c, 

0 .-~·· · · TD'E i CITY F lti~1 . : L Ill 
Eqv.ar Oppor\un\1 .. Errplovtr 

·-~ · ~----11 .... 
~II ( ~r .. . :; J l ••:t 

;:a~·: T,;;::::: XHIC.H!G::s 
ron p;;::;rm:t or 

* LA~CR~~S 
~·-c··· A"'II,.S ~ * r.1:; ,.;; l "'" r.s 

.J._ CEf!Tifi:.D \'!ELDEnS '~ 
CONTACT t:nc Personnel 
Ocparlmen'- City Hall lo 
lind out if 1,;1u qualify lor 
this exce'L~nl job op­
portunity. 

CITY OF ;:.:GULTRlE 
EquJI Opom"lunih Employtr 

~·ur u:u::G Arrllr.;\T:o:·s 
FOa POSITIO:I OF 

L ADQ'"'r.;~ .... )t; •' ·\ '• .... '~. ·~) 
(~liT ACT the Per,onn~l 
' ••partment, City Hall fo 
fond out if you qu~lily lor 
th,:; excellent job op ­
w•rlunity . .... ,,,~6~z 

CITY OF r.;ai~LTU.E 

:T! rt.::J:: G APfliCJ\TlC:;s 
FO:: POSITIO:I OF 

(Electricity, GJS, W.1lcrl 

CONTACT the Pcrsonn~l 
Department, City H~ll to 
lind out il you quJhly lor 
this excellent job 0 P· 

po~~fv:~~ .. !~1.~YEL1E!~. I 
·--------cnr Gr ::J~m;~ 

I:D;'J n~1;;:; AfPl!GMle:~s 
FOR POSiiiO:: Of 

* PCLICE f',WnU:A/1 
CONTACT th~ Fer:;onnel 
D~p.1rlmenl. C' ly H~ll b 
lind out if you qooJ iily lor 
this excellent job op. 

1porlunity, ~/..:>S'b, 

' CITY oF :;,uuL fmr-} I Equol Opp · lunlr• ~mplo••• 

69a 



~©:n:rra- --1 
The C;ty of Moul;rie ~ill tak• ap-

11 

plications Thursday at 2:00P.M. at the ~ 
Recreation Department Office loc,3ted 'lj 
on 5th Ave. S.W. for summer heJ;p. . 

All applicants interested in sumJmer ,j 
employment please be there. IJ 

I he;;e luk .. ·:1lll I••-· uc.tleJ llll'.''.'rJII ;1 p 
federal grant and family incom~ will 1 
be considered. j 

. f 

. Cn·:-y 0~ 1'-Ao~s~:Tk~ . ! 
L~--~~~r.:.~ .... . _,-J!~/? . .:.;;;.::~;.;;.._;··~-J_. _: __ _ 

nt~tv'~E[l)~A.:fE O:rC:~~~~ ~~c:;s' 
for Position Of ? -v? '/ ·? 3 

. 1' Utmty J~1•ah~tcnancc t .. ~cn 
Contact the Personnel Oc~artment, City llall to 

see if you qualify for one of these excellent jobs. 

~~::-:~n--==~· ::eu·uv or= l;,10~J Lu"R~~ 
I• '"•;-nr ~l E r') ~;;i.lW,/, 

\\ O"ri~I' 1 "S (( l l iU 

~ For Positions Of 

~ * f,i,IH Readers 
* l~borers 

CONTACT lh~ Personnel 
I· l "l flll ·'~•l, rjl 1 11.11 f . 
• , .. .. II Y"" 'l'talllt '"' , ..... •· 
these exccl!cnl jobs. \ 

CITY Of 1f.OUmiE 
Equal Opportunity 

Employer 
--~~---rrnr~~7:':' 

Equal Opportunity Employer · 

70a 



cnv or- i·:ounr~:r: 
N•w Tekln51 Appli,•tlona 
• For •j;;A.'I ·'I.Ji 

POliCE 
* POUGE 

rr1matr.:w 
. Pl\lr.OU·1At! 

1-,,-. ?I) 
Arlll'f to ""''' tiwtul (JIIIi=ll 

Cl'fY cr r.:cunmc: 
"-'"'7'".!'~-:~--- ... , ... 7 

' • 

. ; 

,__. •. ...__-MI . .,/,;;;:_ . __ ...._._, 

CITY OF MOULTRIE 
HAS JOB OPWI::G ron 
* Police P6trolman 

/,7- ~3··7.5 
Cont•ct Peflon~llrl Otpat1metU 

At Cuy Uftll . 
Equ•l O~porh1u11w Emplorer 

- -·· ··· - ·-··-··- .... __ _ 
f.\\n'i!~~ rnr. r.r.f'!\1'rf' .. l.["['[ 
\l.:Ju u u UJJ~· b~· ~ut~· .: .. · ~ . 

- • • J ... • . ... 
~ o~tmg ,.!..~;:mcc:bon:; :·r:r 

* ~~~J~l: 
~ & ¥~@~r~~E~~ 

... .. ... 
. Apply to Personnel Omce 

7la 



'"'"7 .... 4ol.-.. ..:.. .... __ , ..... __ ..., 

nEWARDING 
CAREER 

OPPORTUNITY . 
Police Officers 

and 
Dispatchers 

Are Dvallable to right In· 
d lvlduals . Excellent saluy 
and fringe benefits . 
Package Includes . paid 
vacations, sick leave, In• 

1 surance and retirement . 

' Apply Personnel Office, 

l City Hall, Moultr ie, Ga. 
I: qual Oppor1unlty EJ"~loytt 

~- "z. .;?,;.c., ~-,.,:' .'~· :'1, 

~--- .. ··-TflE .. ~ .... ".J'·?:J 

CITY OF r.:OUlm!E 
·Is Now Ta~th1g 
t~~plications For The 
follo~Jing Positions . 
* 2-lincmcn !:tlpcrs 
* 1-\~atcr f. Se\'lcr 

· llclper 
* 1-Draftsman 
Fringe benefits, paid 
vacation, insurance. 

Ap;>ly 
Personnel Omcc 

An Equel Oppwtuntry Empley•r 

REWA!WING 
CARE£.~ 

OPPORTUNITY 

· Pollcu Ofr-icor~ 
and 

Dispatch~rs 
/-,/$ · ?? 

Are llvDIIable .to .rlghl In· 
dlvlduals . Excellent sa lary 
and 1rlngo benefits. 
Package Includes paid 
vacations, sick lellvc, In· 
surance and retirement . 

Apply Personnel Office, 
City HDII, Moullrlc, Ga . 

Eqv•l Opperlunl1y En1vloyer 

A".L..SJ ~: •. ~.~..:_-~ 
Cln' OF r.:JULTt:lE 
Hf,S OPEm::G FGP. 
oEQmPr~HJT 
rr:r:crr (1 nrli" 
,ui.:. ;il .~o~v 

Excellent salary ond 
fringe benefits, pal<! vaca· 
!ian. ~lrtl l~nvG 1111!1 in• 
lll~tJIIIi-P , Artt.- lr' ''"' ,., ,q·•un• 
net Office City Hall. Equa l 
opportunlly employer . A~ 
pllcAiions will be taken 
thrtough Mondoy Mnrcll 
21. _'( /!· . 1 ' I 

~...;,..~_~,-,·.·-~,..-;o r_,_._ 

72a 



New Tekln11 Appli<ollono 
.' For •J;;A.'J · 'I~ 

POllCE . 

)~ POUGE . Pt\mou.u~u 

r mr.Dlr.:m 
/-,')-·7.1i 

ArP.I'f TO I'.:Hti,ullil 01111=11 
cnv cr r.:cuum' 

"-"'':"'-'~=-:---- ... ,_:::?" 
~··-..W4.:.;:: _ __ ....,._......._, 

CITY OF MOULTRIE 
HAS JOB OPE!il::u fOn 

* Pulice Pt:tralman 
/.:?- .?3-75 

Cont•ct Peraonill!l Department 
AICii'1H._II , 

£qw•l Ot~porhwlt"t Emplotwr 
· -·····-··- .. .. __ _ 

C~ ... ~ ~~~ ~~ r.·• b,r\f'r,~rDI r[•["[[ I l ) ~o' · !•l · l . l, . . : ...... \...:. .... ... . 

, ; 

':·· ·· . · · Apply to Personnel O{{:ice 

7la 



""-........ -... ..:.. ..... __ ..... _... ... 
REWARDING 

CAREER 
Of'f'OR. TUNITY . 
Police Officers 

and 
Dispatchers 

Are evallable to right In· 
dlvlduals. Excellent solery 
and fringe benefits . 
Package Includes •Paid 
vacillions, sick leave, In• 

1 surance and retirement. 

' Apply Personnel Office, 

I City Hall, Moultrie, Ga. 
_ t:qual OppoJ1unl1y E/'~loyar 

~-~~?~~:~ . 

Tf:E ~4' ..,."j' -11 

CITY Of r.~OUlTr.!E 
·Gs Now T a;lir;g 

· l~pplications for The 
follo~Jing Positions . 
* 2-linemcn l:c:pm * 1-\~atcr r. Sc\'/cr 

Helper 
* 1-Drilftsman 
fringe bcnllfits, ~aid 
vacation, insmnce. 

Ap;>ly 
Clcrsormc! omcc 
CE·~ c .. 3~u~ 
An Equel Oppwlv"lty Empleyer 

L:::: .• , .. _,...:: ~~· - .,; .. .',~ . '"':'::;... 
REWAP.DING 

CARECP. 
OPPORTUNITY 

· PollcQ OWcor{i 
and 

Dispatch~rs · 
/-/$ -?? 

Are llvallable to rlghl In· 
dlvlduals. Excellent salary 
end frln90 bene f its . 
Package Includes paid 
vacations, sick leave, In· 
surance and retirement. 

Apply Personnel Office, 
City Hell, Moultrie, Ga . 

Equal Opperhmlty E"'t-loyat 

Excellen t sa lary ond 
fringe bencll h , paid vaca· 
!111n. 11r11 l ~ nvc nnd in• 
~~~~tf:l t t i-P, Ar~t~l t t..a r•dft.un~ 
nel Office City Hall . EquiSI 
opportunity employer . Ap­
pllc~>lions will be taken 
through Monday M~> rcll 

21 . ·"' /!·. 1 ,, 
~···":"i··.-~ .. -:-r~.,..._., 

~~rJ ~ 6.~"\ ";) . 
~ -\1.. ,\'\, 1'6- 1~'1'\ 

72a 



E.L T •. t'JHh . t/.~crionc~ Prc~crrc~ 
... CONTACT" ID/liD}1b 

Co·u}7 tv1~~u-a(]gerr 
? .0. Gox 580 · Mou~~tie, Ga. 

Equal Opportunity Emplcyer lA-~ J) . 

..... ; ;~.~:.,"""f~"""£"'"'· : ...... '."~. ~ ~' ...... '"'7''•'- . o 0 •· . I~~-::;.:: . 

--~.~~~;-~:~~~;-~~;~ 
· HAS 
IMMEDIATE OPEN ING 

·. FOR 

* Cl\ 1-;rl)r-t 
'··-h· ~' I 

Excellent ~aiary anu 
f r in ge bcncflh. Paid 
va cation, ~lc:k leave, ln-
5ur ance. · 

Apply to Penonnel Of· 
flee, City Ha ll, 

CITY OF MOULTRIE 
. HAS 

IMMIZDIATU OPENING 
FOR 

*CU~Rt( 
· Excellent salary and 

fringe benefiU. Paid 
vacation, liCk leave, In· 
luranc:e. 

Apply to Penonnel Oi· 

I lice, Clly Ha_ll. \In q!11 
Equal Opportunity Employer \ 1-

______ _/~P,.!. P?.___ f . qual Opport.!'~!IY_ ~mp loyer . 

The r esponse by blacks t o thes e 

adv ertisements has bee n minimal. Some 

memb e r s of the Ci ty Counci l on occasions 

have urged some of the Plaintiffs i n t hi s 

case t o s end b l ack app l i cants to the City 

personnel off i ce to apply for availab l e 

jobs. When these efforts to stimulate 

interest in job a pplications have failed 

to produce results the City has at times 

run advertisements of the same nature in 

the newspaper in nearby Albany, Georgia 

73a 



- and the City Manager has notified the 

officials of Albany State College, where 

the student body is predominantly black, 

that job opportunities are available in 

Moultrie for the graduates of that school. 

This also has produced minimal results. 

The evidence shows that not many 
I 

blacks hold supervisory or "white collar 

jobs" with the City and the Plaintiffs 

emphasize this fact, but there is no 

evid ence that any qualified black has been 

denied employment for any particular 

supervisory job nor even that a qualified 

0lack has made a pplication for any parti-

cular supervisory or "white collar" job. 

In the past ten years some blacks 

have been appointed to some City boards 

such as the City Planning Commission, 

Stadium Commission, Housing and Building 

Bo~rd of Adjustments and Appeals, Board 

of Registrars, Urban Renewal Committee, 

74a 



Citizens Advisory Committee and Sowega 

Planning Commission. During the same 

period no blacks have been appointed to 

other City boards, such as the Airport 

Authority, Industrial Development Autho­

rity, Moultrie-Colquitt County Development 

Authority and Moultrie-Colquitt County 

Library Board. 

It is thus clear that blacks as a 

group have not been "shut out" of consi­

deration for appointment to municipal 

boards and no evidence was presented which 

would indicate that any black or blacks 

had either equal or superior qualifica­

tions for appointment to any particular 

board to which blacks were not appointed. 

The Plaintiffs point out that there 

have been some instances in recent years 

when vacancies have occurred in the City 

Council as a result of death or other 

causes and that blacks have suggested 

75a 



that a black be appointed to serve the 

unexpired terms, but that in these 

instances whites were appointed and the 

Plaintiffs contend that this is evidence 

of unresponsiveness. The evidence shows 

that in June, 1969 L. G. Rowell was 

appointed to fill a vacancy for an unexpired 

term after a special election was held for 

the full term and he was the successful 

candidate for the full term. The same 

situation arose in 1973 when Jimmy Reeves 

was appointed in June, 1973 to fill an 

unexpired term after he was elected in a 

special election to the full term. It 

thus appears that race was not the deciding 

factor in these appointments, but that the 

Council did what appears to the Court to 

have been reasonable in the circumstances, 

the action assuring continuity and stabi­

lity in the administration of the City's 

affairs. 

76a 



The fact that blacks do not hold super­

visory jobs or board memberships in mathe­

matical proportion to the black population 

does not reflect a lack of governmental 

responsiveness if the white City employees 

and board members see to it that the black 

community receives equal City ser vices, and 

we have already observed that the black 

community in Moultrie does receive equal 

services. City jobs do not necessarily 

have to be allocated at every employment 

level 1n number proportionate to every 

group in the electorate to show govern-

mental responsiveness. Hiring disparity 

is relevant at all only if it is shown 

that the City Council feels that it can 

treat black citizens unequally with 

impunity. History has demonstrated that 

the black vote cannot be ignored in 

Moultrie and the evidence shows that the 

members of the City Council are keenly 

77a 



aware of this fact. 

State Policy with Regard 
to At-Large Districts 

In our federal system states can 

choose those techniques for election offi-

cials which suit their local requirements, 

and it is only in those instances where a 

plan is unusual or not often used that a 

suspicion may arise that it is a tool for 

dilution of the minority vote. 

Political subdivisions in Georgia are 

governed by Acts of local legislation and 

there is no state policy favoring either 

at-large districting or single member 

districting. Many municipalities in the 

State use the at-large plan and many 

others use a single member or ward plan. 

There are no statistics in the record 

which would enable the Court to determine 

which plan is more widely used. In any 

event, in this case there can certainly 

78a 



be no suspicion that the at-large system 

was adopted as the result of any racial 

motivation because this is the s ystem that 

has been used in Moultrie for 118 years. 

Since 1859 the Mayor and Council in Moul-

trie have been elected on an at-large 

basis and since there was no black vote in 

1859 the plan could not have diluted it. 

Does Past Discrimination 
Preclude Present Effective 

Par tic ipa tion? 

The Plaintiffs devoted considerable 

time and effort in "proving" a matter 

which required no proof and of which the 

Court takes judicial notice. That is, 

that in years past the schools, the hospi-

tals, the jails and all other public faci-

lities in Moultrie and throughout the 

State of Georgia were operated on a 

racially segregated basis. However, the 

white primary went out in the 1940's and 

79a 



segregation in various public facilities 

and in schools went out in the 1950's and 

1960's. The factual question is whether 

that past discrimination precludes effec-

tive participation by blacks in the electo-

ral system today, and if so whether a change 

in the system would remedy the situation. 

Since we have seen that the slating 

process is now and has been for a number 

of years completely open to blacks and that 

blacks are now and have been for a number 

of years as free to register to vote as 

are whites 1 and that blacks are now and 

have been for a number of years free to 

vote in all municipal elections in Moul-

trie, the only piece of evidence which 

might be regarded as indicating some 

lingering effect of past discrimination 

l. John Cross, one of the Plaintiffs, 
testified that he registered as a voter 
in Moultrie in 1946 and that he could have 
registered before that date. 

BOa 



is the fact that not as many blacks as 

whites have registered in proportion to 

their respective populations and the fact 

that until recently blacks have not been 

elected to office . 

The statistics show that 44.6 % of the 

whites are reqistered and 26.9 % of the 

blacks are registered. We can only specu-

late as to the cause of this difference 

just as we can only speculate as to the 

reason why the whites have not registered 

in greater number. We have already noted 

that no obstacle .has been placed in the 

way of any citizen. On the contrary, the 

City government on a number of occasions 

placed display advertisements in the local 

newspaper urging registration and voting. 

Registrars have set up registration faci­

lities in the high school which is 

attended by both races and have made regis­

tration possible on Saturday for the 

convenience of the working population, 

8la 



and to further encourage the registration 

of blacks have appointed John Cross, one 

of the Plaintiffs in this case, a Deputy 

Registrar and have designated his place of 

business in the black community as a place 

of registration. 

Amos Ryce, a black minister who testi­

fied for the Plaintiffs, and to whom 

reference has already been made, moved 

away from Moultrie a number of years ago 

and returned to again live in Moultrie in 

1968 and he testified that he found that 

there is no problem "with dialogue" between 

the races in Moultrie today and that he feels 

that conditions in Moultrie today are "far 

different" from what they were in years past. 

He gave it as his opinion that a black candi ­

date in Moultrie today can get substantial 

support in the white community, although he 

doubts that a black candidate could win in a 

head to head race with a white opponent. 

82a 



We have already noted that a black 

has recently been elected to and is now a 

member of the City Council. 

In summary, there is no evidence 

before the Court wh ich would justify a 

finding that the election system in Moul­

trie "suffers from lingering effects of 

previous racial discrimination". The 

failure of the blacks in Moultrie to 

register in large numbers might be attri­

buted to a number of causes and if we are 

to guess at it we might just as reasonably 

speculate that the explanation lies in the 

failure of the leaders in t h e black com­

munity to ignite the patriotic fervor of 

their brothers. 

The Aggregate of the Factors 

In this case a federal court is being 

asked to inject itself into a state­

created electoral system and to replace 

83a 



it with a radically different scheme 

because of supposed constituional infir-

mities. Before engaging in such aggressive 

interference with what has traditionally 

been regarded as a state function a prepon­

derance of the evidence must demonstrate 

the infirmities claimed and the Plaintiffs 

have the burden of making this demonstra ­

tion. A consideration of all of the evi­

dence in the case causes the Court to 

conclude that the Plaintiffs have not 

carried this burden. Indeed, a considera-

tion of the aggregate of the factors 

hereinabove discussed justifies a deter­

mination that this is not a diluted sys­

tem. This is true because the facts are: 

(1) Blacks have free access to the poli-

tical process. (2) The City government 

is not unresponsive to the needs of the 

black community. (3) The at-large system 

is neither unusual nor contrary to state 

84a 



policy. (4) Past discrimination does not 

preclude effective participation by blacks 

in the electoral system today. 

Conclusion 

In David v. Garrison, supra, t .he 

Court stated that in cases of this type if 

the district is extremely large and a 

majority vote is required to elect and 

black citizens are excluded from the 

slating process, there would be ample rea­

son for a federal court to be skeptical 

about the validity of the at-large voting 

scheme. In this case none of these fea-

tures are present. On the contrary, the 

district is small, election is by plura­

lity and blacks have free access to the 

slating process. 

In that same opinion (David v. 

Garrison) the Court also made it clear 

that the Constitution does not require 

85a 



that elections must be somehow so arranged 

that black voters be assured that they can 

elect some candidate of their choice and 

that an at-large system of election is not 

to be regarded as unconstitutional merely 

because a minority of voters cannot elect 

a candidate from among themselves. A 

fortiori, that at-large system in Moultrie 

is not to be condemned when the minority 

group can - and has - elected a candidate 

from among its members. 

The prayers of the Plaintiffs' com-

plaint are denied and it is directed that 

t~a complaint be dismissed. Judgement 

will be entered accordingly. 

This 26th day of October, 1977. 

S/J. Robert Elliott 
UNITED STATES DISTRICT 
JUDGE 

86a 



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

THOMASVILLE DIVISION 

JOHN W. CROSS, et al., 

Plaintiffs 

v. 

LLOYD BAXTER, et al., 

Defendants 

Civil Action No. 76-20-THOM 

[March 25, 1980] 

SUPPLEMENTAL OPINION AND ORDER 

By its opinion the Court of Appeals 

found that this Court's opinion previously 

filed in this case did not deal with evi-

dentiary matter with that degree of speci-

ficity required by Rule 52 of the Federal 

Rules and remanded the matter for further 

elaboration in certain areas. The Court 

87a 



held a further evidentiary hearing on 

January 25, 1980 and now files this 

opinion which is intended to be supple-

mental to this Court's prior opinion. In 

the interest of clarity we will address 

the areas which the Court of Appeals 

deemed deficient in the same order in 

which they were mentioned by the Court of 

Appeals. 

A. Denial of access to the electoral 
process. 

After a careful consideration of all 

the evidence the Court again finds no 

denial of access. 

As stated by the Court of Appeals, 

certain evidence at the first hearing 

tended to show that "official discrimina-

tion that deters political participation 

by blacks has not ended in Moultrie" . 

The supervision of elections by the all-

white Lions Clubs and the moving of a 

88a 



polling place are pointed out. 

The Court finds that a number of years 

ago local officials were having difficulty 

in obtaining qualified workers to hold 

elections and were approached by the all­

white Lions Club which wished to and did 

undertake the job as a civic project. In 

recent years Plaintiffs and other blacks 

have complained that no blacks have parti­

cipated in the conduct of the elections. 

Several years ago a white councilman who 

is no longer serving went to the Lions 

Club and made arrangements for blacks to 

assist in holding elections and relayed 

this information back to black citizens. 

It appears that blacks did attempt to 

assist in the election, approached an 

election manager other than the one whom 

the councilman had contacted, and were 

refused, but this information was not 

relayed back to the councilman, who 

89a 



assumed that no effort had been made by 

the blacks to assist in that election. 

Prior to a recent election, blacks again 

asked for an opportunity for citizens other 

than members of the Lions Club to partici­

pate in supervising the election, and in 

response to this the City advertised for 

assistance from any electors. As a 

result of this ad only three people 

responded, two whites and one black, and 

all worked at that election. The council 

in a meeting on June 20, 1978, in response 

to a letter from the Plaintiff Cross, as 

President of the Moultrie Mens Club, 

unanimously agreed to seek a way for one­

third of the people involved in the con­

duct of an election to be chosen from the 

city at large. Councilman Ball, the pre­

sent black member of the council, 

approached the Woman's Federated Club, a 

black women's organization, and that 

90a 



club has now agreed to and has been 

designated by the council to supervise 

the conduct of the 1980 municipal election 

and future elections jointly with the 

Lions Club. Based upon the foregoing 

findings of fact the Court concludes that 

such conduct did not constitute imper­

missible discrimination. 

Based upon the evidence adduced at 

the hearing held on January 25 the Court 

finds that the polling place in question 

was moved from the city hall for logical 

reasons of conveninece and was not racially 

motivated. The only place in the city 

hall large enough to accommodate the elec­

tion was the fire department, and it 

necessitated moving equipment out of the 

fire department and the firemen operating 

around the crowds at the polls. Further, 

both the city and the county governments 

adopted the use of voting machine instead 

9la 



of paper ballots and wanted to find a loca­

tion for the Moultrie precinct where the 

machines might be kept on a permanent 

basis so that they would not have to be 

moved from storage to city hall for city 

elections and from storage to the county 

polling place for county elections. The 

city gymnasium suited this purpose and is 

centrally located, as indicated by the 

maps introduced into evidence by the 

Defendants. Further, the Court finds 

that the question of moving the polling 

place was submitted to the United States 

Department of Justice for approval at the 

time the move was contemplated and that 

the Justice Department communicated with 

the Plaintiff Cross and that no objection 

was made to moving the polling place. It 

appears that all candidates offer rides 

to the polls for voters, and that voters 

only have to call a number in order to 

92a 



receive a free ride to the polls. Finally, 

the moving of the polling place appears to 

have had no effect on black participation, 

as is more fully discussen below. Based 

upon the foregoing, the Court finds that 

both of these matters pointed out by the 

Court of Appeals, while suspect on their 

face, when examined do not constitute 

discrimination. 

In the last analysis, actual parti­

cipation in the electoral process is 

most indicative of access. According to 

the 1970 census (the last period for which 

accurate figures are available), there 

were 9,065 persons of voting age residing 

in Moultrie. Of these, 6,375 or 70.3 % 

were white and 2,683 or 29.7 % were black. 

The total number of persons registered 

to vote in the 1979 election was 4,788. 

Of those, 3,321 or 69.4% were white and 

1,467 or 30.6% were black. 2,436 electors 



voted in the 1979 election. Of those, 

1,693 or 69.5 % were white and 743 or 30.5% 

were black. Thus, it appears that slightly 

more eligible blacks were registered to 

vote than were eligible whites and that 

50.6 % of the registered blacks voted and 

51 % of the registered whites voted, a 

variance so slight as to be insignificant. 

It is interesting to note that in 

that election the winning candidate, a 

black, received 965 votes. Wilson, the 

black incumbent, received 842 votes, and 

the white candidate received 603 votes. 

Assuming that all black votes were cast 

for black candidates, 62.8 % of the white 

votes were, of necessity, cast for the 

two black candidates. 

While, as stated by the Court of 

Appeals, some black candidates have not 

felt comfortable in campaigning house to 

house in white neighborhoods, the last 

94a 



successful black candidate, Councilman 

Ball, indicated that he had no problem in 

seeking white support. The Court also 

recognizes the existence of socioeconomic 

inequities and past educational inequali-

ties (since corrected), but finds that in 

spite of these problems the statistics 

show that blacks are participating with 

equal access in the political process in 

Moultrie. 

B. Effect of past discrimination 
on present participation in 
political process. 

While in its former opinion this Court 

stated that in Moultrie 44.6 % of the whites 

and 26.9 % of the blacks were registered to 

vote, as shown above there were 6,375 

whites of voting age, of whom 3,321 or 

52 % were registered to vote in the 1979 

election, and 2,683 blacks of voting_ age, 

of whom 1,467 or 54.7% were registered to 

~Sa 



vote in the 1979 election. Based upon the 

stipulation of the parties at the June 3, 

1977 hearing, there were then 5,500 

registered voters, of whom 4,163 were 

white and 1,337 were black, Thus, at 

that time 65.3% of the eligible whites 

were registered and 49.8 % of the eligible 

blacks were registered. 

There is much evidence in the record 

of efforts on the part of blacks to 

increase the number of registered blacks 

and the evidence also shows that the 

predominately white council has in recent 

years been supportive of this effort in 

extending hours of registration and 

designating locations within the minority 

community to afford easy access to regi­

stration. The figures set out above 

indicate that such efforts have been 

successful; indeed, proportionately, 

slightly more blacks than whites are 

registered. 

96a 



While there has been an unquestioned 

disparity between the number of minority 

residents and the number of minority 

representatives, the Court finds that such, 

standing alone, is not conclusive in this 

case. Zimmer v. McKeithen, 485 F.2d 1297, 

1305. 

The Court concludes that past dis­

crimination does not have a present 

effect of diluting the minority vote in 

the political process. 

C. Responsiveness to minority needs. 

Here the Court of Appeals lists 

several items requiring further discus­

sion. These include (1) a comparison of 

recreational facilities in black and 

white areas, (2) the racial composition 

of the various public housing projects. 

(3) segregated voter lists, (4) compli­

ance with §5 of the Voting Rights Act of 

196 5, ( 5) operation of racially segregated 

97a 



jails, (6) racially selective enforcement 

of laws by city policy, (7) paving in black 

neighborhoods and (8) city hiring practices. 

Recreational facilities. At ' the 

January 25, hearing the director of the 

city recreational program testified with 

regard to the relative quality of the phy­

sical facilities and programs in the 

various areas of the city. He testified 

that the city has acquired from the school 

system the gymnasium located adjacent to 

its pool and between the pool and the 

youth center in northwest Moultrie (the 

predominately black area) and is renovating 

it for use in that community, has taken 

bids for the rebuilding of the youth 

center which was recently damaged by 

fire, described the location and number of 

facilities in northwest Moultrie as being 

fewer but equal to those in other areas, 

described the facilities in southwest 

~8a 



Moultrie and the present renovation of the 

swimming pool located in that area, and 

described the complex in southeast Moul­

trie which is the newest and which is 

located in the vicinity of a minority group 

living in that neighborhood, as indicated 

in the shaded area on Defendants' exhibit, 

and adjacent to an integrated apartment 

complex. He further described the exten-

sive participation in the present program 

at all complexes by whites and blacks 

alike. Based upon these facts, the Court 

concludes that the city recreational pro­

gram is responsive to all elements of the 

community. 

Public housing. While there is no 

statistical evidence showing the exact 

racial composition of the various housing 

projects within the city, witnesses at 

the January 25 hearing testified that the 

amount of racial integration is substantial 

Q~a 



in all housing projects within the city 

with the excep tions of one project 

located in a predominately black neighbor­

hood. The Court finds no high degree of 

de facto segregation in public housing in 

Mou l trie, and there is no unresponsiveness 

in connection therewith. 

Voter lists and non-compliance with 

Voting Rights Act. Voter lists have not 

been segregated since sometime prior to 

1967 and while the city did not comply 

with the requirements of §5 of the Voting 

Rights Act of 1965 in submitted an amend­

ment to its charter enacted in the spring 

of 1965 requiring a majority vote fo r 

election, it is interesting to note that 

that failure has in fact operated to 

Plaintiffs' advantage. The State Munici­

pal Election Code, submitted to and 

approved by the Justice De partment , con­

tains a majority vote requi r ement if no 

lOOa 



contrary charter requirement obtains. 

Moultrie's charter required only a plura­

lity prior to 1965, and the elimination of 

the majority vote requirement enabled 

Councilman Wilson to become the first 

successful black candidate. Because of the 

foregoing, and in view of the council's 

affirmative efforts to increase black 

voter registration as discussed above, 

the Court finds no unresponsiveness here. 

Racially segregated jails and racially 

selective enforcement of laws. The Court 

of Appeals noted and this Court recognizes 

that at the original evidentiary hearing 

Plaintiffs presented a former policeman 

who testified with regard to segregation 

in the city jail and with regard to dis­

criminatory enforcement of the law by the 

police department during the mid-1960's. 

At the January 25 hearing there was uncon­

tradicted testimony by the chief of 

lOla 



police that the jail has not been operated 

on a segregated basis since the new City 

hall was constructed in the mid-1960's and 

that law enforcement within the city is 

administered without regard to race, 

creed or color. The Court finds that such 

is at least the official policy of the city 

and has been in recent years. 

Paving in black neighborhoods. This 

Court noted in its prior opinion that 

expenditures for paving in black neighbor­

hoods exceed such expenditures in white 

neighborhoods, but as stated by the Court 

of Appeals, if the need was greater in 

black neighborhoods than in white, allo­

cating a mere majority of the paving funds 

to black neighborhoods would indicate 

unresponsiveness rather than responsive­

ness. At the January 25 hearing the 

Defendants introduced maps and testimony 

which show that upon completion of the 

city's current paving program there will 

102a 



be more unpaved streets in white neighbor­

hoods than in black neighborhoods, and 

that the remaining unpaved streets in the 

predominately black section of town will 

almost all lie in an uninhabited area 

lying east of the town's west by-pass. 

This evidence is clearly indicative of 

responsivenss. 

City hiring practices. The Court of 

Appeals notes that this Court's former 

opinion is not clear as to the content of 

the city's affirmative action plan, and 

suggests that the precise content of that 

plan be spelled out. As introduced in 

evidence at both hearings, the plan con-

sists of some 22 typed pages. It is best 

summarized in its "statement of policy" 

and contains statistical information valid 

at September 30, 1976. The statement of 

policy is as follows: 

103a 



"Statement of Policy 

The City of Moultrie recognizes 
that equal employment opportuni­
ties in the city government can 
only be fully achieved through 
a firm commitment to the concept 
of affirmative action. The city 
further recognizes that it has 
a moral as-well-as legal obli­
gation to its minority citizens 
to provide equal emp loyment 
opportunity. 

Therefore, 
the above, 

in accordance with 
the City of Moultrie: 

l. Reaffirms its policy that 
there shall be no discrimination 
on the basis of race, color, reli­
gion, national origin, marital 
status, age or sex in hiring of 
applicants or treatment of city 
personnel. 

2. Will attempt to establish a 
ratio of minority and female 
employees which reflects their 
actual qualified presence in the 
general working population. 

3. Will es ta b li s h proc Gdur es 
Fo r- pc~ ti oclic a ll ·/ iltnn itor i nq 
j · i U•J l 0~:.; ( 0 \Vi.l l' I .1 . 1 .1:, •·' . ,. (· o f 
li t iS LilLi e.~. 

-1 . ~ -Ji ll o~·;L ii ; Ji.l t J•" l ':'' i ll i 0 1 

1 . t C.1• ~ ~~<J ' , 1 · 1 ,, s a n rl " " , ·· • · 1 H · 1 'i. -· 
c i f·S 1 .. i ,,,; UI ( . ••i' ' ,, ,,( I. I J I'.l 

C U ll t L l l ll i l ". j C\il l ·d l .i I ,j ; ., , I h • I' l l!: 
fitl l uti I i .,, , (· i Ul ! ,) 1· ll t.i. , ,, l ,· i Ii ... 
•.! II: I Ii i i l l , ): ;! " 'r: t ~:> O ! 

I , I 1 !h !'tf. f-' 1,; I h e;: (lli () )' ( 
1 

· i 1 ,, '" ·"'-· ' vc...: c.~. c t:i o n .... ~ t torts ::; ltull 

l04a 



be directed toward city 
recruiting efforts, selection 
and advancement of employees, 
and all other aspects of the 
city personnel policy including 
but not limited to layoffs, 
retirement, training, transfers, 
compensation determinations, 
and employee benfits." 

The city manager testified that all 

employees of the city have been encouraged 

to assist the city administration in its 

efforts to find qualified blacks and 

females to fill vacancies in city jobs, 

that the city has advertised extensively 

for such persons, and has actively 

recruited at Albany State College, a 

predominately black institution. Increases 

in minority representation have occurred 

in all but one category. The Court again 

finds there to be an active effort on the 

part of the council to remedy the disparity 

in the make-up of the city's labor force, 

sufficient to rebut any inference of 

unresponsivenss. 

lOS a 



Finally, the Court of Appeals had 

directed this Court to make subsidiary 

findings of fact with regard to whether 

or not segregated private housing patterns 

in Moultrie are attributable to past inten-

tional discrimination by the city. There 

is no evidence in the record that such 

patterns have been planned, suggested or 

dictated by the city government; indeed, 

there was evidence introduced at the 

January 25 hearing showing that the city, 

in obtaining housing for blacks displaced 

by the city's program to eliminate 

substandard housing, has sought and 

obtained such replacement housing in 

formerly all-white neighborhoods. Racially 

identifiable neighborhoods are a fact of 

life in most American cities and town. 

Moultrie appears to be no better and no 

worse than most. 



The Court has aga~n carefully consi-

dered the evidence in this case, with 

special emphasis on those matters enume-

rated by the Court of Appeals. Again, 

this Court finds that blacks have free 

access to the electoral process, that past 

discrimination does not preclude effective 

participation by blacks in the electoral 

system today, that the city government is 

not unresponsive to the needs of the black 

community, and that the at-large system is 

neither unusual nor contrary to state 

policy. 

The prayers of the Plantiffs' com-

plaint are denied, and the complaint is 

dismissed. 

IT IS SO ORDERED this 24th day of 

March, 1980. 

S/J. ROBERT ELLIOTT 
-=-=::=-:=-==---UNITED STATES DISTRICT 

JUDGE 

l07a 



Section 2 of the Voting Rights Act, 42 

usc §1973: 

(a) No voting qualification or prere­

quisite to voting or standard, practice, or 

procedure shall be imposed or applied by 

any state or political subdivision in a 

manner which results in a denial or 

abridgement of the right of any citizen 

of the United States to vote on account 

of race or color, or in contravention of 

the guarantees set forth in section 4(f) 

(2), as provided in subsection (b). 

(b) A violation of subsection (a) is 

established if, based on the totality of 

circumstances, it is shown that the 

political pr-ocesses leading to nomination 

or election in the state or political 

subdivision are not equally open to 

participation by members of a class of 

citizens protected by subsection (a) in 

that its members have less opportunity 

l08a 



than other members of the electorate to 

participate in the political process and 

to elect representatives of their choice. 

The extent to which members of a pro­

tected class have been elected to office 

in the state or political subdivision is 

one "circumstance" which may be considered, 

provided that nothing in this section 

establishes a right to have members of a 

protected class elected in numbers equal 

to their proportion in the population. 

l09a 







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