City of Pensacola, Florida v. Jenkins Motion to Affirm

    In the

(tart of %  Irntrti Stairs
October Term, 1980

CITY OF PENSACOLA, FLORIDA, et al,

Appellants,
v.

ELMER JENKINS, et al.,
Appellees.

ON APPEAL PROM THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

MOTION TO AFFIRM

Kent Spriggs
Spriggs & Henderson, P.A. 
117 S. Martin Luther 

King Jr. Blvd.
Tallahassee, Florida 32301 
(904) 224-8701

J. U. Blacksher
Counsel of Record 

Larry Menefee 
P.O. Box 1051 
Mobile, Alabama 36633 
(205) 433-2000

W. Edward Still 
Reeves & Still
Suite 400, Commerce Center 
2027 1st Avenue, North 
Birmingham, Alabama 35203 
(205) 322-6631

Jack Greenberg 
James M. Nabrit, III 
Napoleon B. W illiams, Jr.

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Attorneys for Plaintiffs-Appellees
July, 1981



QUESTIONS PRESENTED

1. Whether, after concluding that 
there was an invidious racial purpose 
behind the adoption in 1959 of an at-large 
municipal election system, the courts below 
correctly based their findings of present 
discriminatory effect on proof that as a 
result of the at-large plan black can­
didates are consistently defeated by a 
bloc-voting white majority.

2. Whether the courts below properly 
applied the principles of Arlington Heights 
v. Metropolitan Housing Development Corp. 
to the evidence in this case —  which met 
all the Arlington Heights criteria, includ­
ing open admissions of racial motive —  to 
find invidious intent in the adoption of an 
at-large election scheme.

i



f the finding of racially 
discriminatory intent by the courts below 
was erroneous, whether Pensacola's at-large 
election system nonetheless violates the 
Voting Rights Act of 1965, as amended, the 
fourteenth amendment or the fifteenth 
amendment.

11



TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ..................  i
I. THE QUESTIONS PRESENTED ARE

INSUBSTANTIAL .............. 1
II. THERE ARE ALTERNATIVE STATU­

TORY AND CONSTITUTIONAL 
BASES FOR THE RULING BELOW .. 20

CONCLUSION ...........................  22

- iii -



Table of Authorities
Page

Cases
Arlington Heights v. Metropolitan 

Housing Development Corp.,
429 U.S. 252 (1977) .....  i f 4,1 0 ,14,

15,17 ,21
Branti v. Finkel, 445 U.S 507

(1980) .. 18
City of Mobile V. Bolden, 446 U.S

55 (1980) ---  2,3,4,5 ,6,
00 V

O to ,22
Columbus Board of Education v.

Penick, 443 U.S. 449 (1979) ___ 18
Graver Tank & Mf g. Co. v. Linde Air

Products, 336 U.S 271 (1949) ... 18
Lodge v. Buxton, 639 F.2d 1358

(5th Cir. 1981) .... 4
McMillan v Escambia County, Memo­

randum Decision (unreported,
N.D. Fla. 1978) ........  4,5,6,7,11,

13,14,15,20
McMillan v. Escambia County, 638 

F.2d 1239 (5th Cir.
1981 ) ................  2,5,11 ,13,

15,17,21
Personnel Administrator of Massa­

chusetts v. Feeney, 442 
U.S. 256 (1979) ............ 19



Page

White v. Regester, 412 U.S. 755
(1973) .........................  8

Zimmer v. McKeithen, 485 F.2d 1297 
(5th Cir. 1 973) (jen banc), 
aff'd sub nom. East Carroll 
Parish School Board v.
Marshall, 424 U.S. 636
(1976) ....................  3,4,6,7,8

Constitutional Provisions
Fourteenth Amendment to the Consti­

tution of the United States ... ii,22
Fifteenth Amendment to the Consti­

tution of the United
States .....................  ii,21,22

Statutes

Voting Rights Act of 1965, 42 U.S.C.
§1973, Section 2 ......  ii,20,21,22

v



No. 80-1946
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1980

CITY OF PENSACOLA, FLORIDA, et al.,
Appellants, 

v.
ELMER JENKINS, et al.,

Appellees.

On Appeal From The United States 
Court of Appeals For The 

Fifth Circuit

MOTION TO AFFIRM

I.
THE QUESTIONS PRESENTED ARE INSUBSTANTIAL 

This case does not present the first 
question suggested in the City's Jurisdic­
tional Statement, namely, whether present 
discriminatory effect, as well as discrimi­



2

natory intent, is required to invalidate an 
at-large election system. The Court of 
Appeals interpreted the rule of City of 
Mobile v. Bolden, 446 U.S. 55 (1980), to be 
as follows:

[I]f the purpose of adopting or 
operating [the at-large] system is 
invidiously to minimize or cancel out 
the voting potential of racial minor­
ities, and it has that effect, then it 
is unconstitutional.

McMillan v. Escambia County, 638 F.2d 1239, 
1248 (5th Cir. 1981) (emphasis added). 
After concluding that the evidence in this 
case fully supported the District Court's 
conclusion that Pensacola's at-large system 
had a racially discriminatory purpose, the 
Court of Appeals then affirmed the judgment 
of unconstitutionality "[b]ecause it is 
undeniable that the system] ] [has] in 
fact had that effect." I^d. (Footnote
omitted.)



3

Since the courts below concluded that 
the election system was racially discrimi­
natory in both purpose and effect, the 
Appellant City's challenge of the decision 
cannot ask whether present discriminatory 
effect must be shown, but only whether the 
lower courts' findings of discriminatory 
effect are supported by the evidence. 
Moreover, the Jurisdictional Statement 
makes it clear that the Appellant proposes 
to rehabilitate -- now as a measure of 
discriminatory effect rather than intent —  
the test of Zimmer v. McKeithen, 485 F.2d 
1 297 (5th Cir. 1 973) (en banc) , af f' d sub 
nom. East Carroll Parish School Board v . 
Marshall, 424 U.S 636 (1976), which was 
discredited by City of Mobile v. Bolden. 
The City urges this effect standard un­
daunted by the District Court's conclusion 
that in this case the black plaintiffs



4

satisfied the Z m_e r test, as well as 
the test set out by this Court in Arlington 
Heights v. Metropolitan Housing Development 
Cor£ 4 2 9  U.S. 252, 266-268 (1977). 
Appendix to Appellants' Jurisdictional 
Statement 41a (hereinafter cited as 
"App."). More particularly, the Appellants 
would isolate and elevate to paramount 
status as a measure of discriminatory 
effect the single Zimmer criterion of local 
government unresponsiveness to minority 
group interests, citing Lodge v. Buxton, 
639 F. 2d 1 358 (5th Cir. 1981), which held 
that unresponsiveness was an essential 
element of proving invidious _in J: ent.. 
Appellants' Jurisdictional Statement at 
12-13 (hereinafter cited as "J.S.").

This question has been answered in 
City of Mobile v. Bolden. While there is 
no majority view supporting the decision of 
the Court, one thing is certain from the 
various Bolden opinions; given a discrimi­



5

natory legislative purpose, the unrespon­
siveness of local officials is not the 
measure of the electoral system's effect. 
According to the Bolden plurality, un­
responsiveness "is relevant only as the 
most tenuous and circumstantial evidence of 
the constitutional invalidity of the 
electoral system ..." 446 U.S. at 74. 
This undermines the utility of unrespon­
siveness for proving effect or purpose; if 
it tended to prove adverse impact, it would 
be relevant as an important "starting 
point" for proof of intent. Thus, Bolden 
fully vindicates the holding of the Dis­
trict Court in the instant case that "[t]he 
effect of dilution, however, may exist 
apart from the unresponsiveness of politi­
cians," App. 41a-42a, and the agreement of 
the Court of Appeals that "a slave with a 
benevolent master is nonetheless a slave."
638 F.2d at 1249



6

Whatever may ultimately become the 
minimum test for adverse effect when 
coupled with intent, Bolden certainly says 
that an aggregate of the Z immer factors 
amply carries this burden. None of the 
members of the Bolden Court doubted that 
Mobile's at-large elections had been proved 
to have an adverse impact on blacks. By 
the same token, the findings in the 
instant case are more than sufficient: 
racially polarized voting and at-large 
elections interacting to deny blacks access 
to the political processes, past official 
racial discrimination that shares respon­
sibility for racial polarization and the 
defeat of black candidates, majority vote 
requirements and numbered places. App. 
41a. The District Court thus found that 
"these factors show, in the aggregate, that 
the voting strength of blacks is effec­



7

tively diluted. ..." App. 42a-43a (empha­
sis added) .

If this Court should accept Appel­
lants' argument that the District Court's 
finding of discrimination under the 
Z immer analysis is insufficient to prove 
discriminatory effect solely because the 
single factor of unresponsiveness is 
absent, then —  and only then —  would it 
be necessary to consider what constitutes 
the minimum requirements for proving 
effective dilution. To begin with, there 
is a strong suggestion in the Bolden 
plurality opinion that legislative intent 
should be the sole focus in a dilution case 
—  that no proof of adverse effect is 
required thereafter. See City of Mobile 
v. Bolden, supra, 446 U.S. at 90 (Stevens, 
J., concurring). But even if actual racial
impact must be shown, "[sjuch a requirement



8

would be far less stringent than the burden 
of proof required under the rather rigid 
discriminatory-effects test ... in White v . 
Regester, [412 U.S. 755 (1973)]." 446 U.S. 
at 139 n.39 (Marshall, J., dissenting). 
The plurality opinion bears out Justice 
Marshall's observation. It infers that, 
once a discriminatory purpose has been 
established, blacks need prove no more than 
that they have not elected representatives 
in proportion to their numbers. Td. at 66; 
accord, id. at 101 (White, J., dissenting). 
The White v. Regester factors, says the 
plurality, go far beyond evidence of mere 
adverse effect, actually establishing 
invidious purpose. Ici. at 69. The "en­
hancing" factors of Zimmer, standing alone, 
"tend naturally to disadvantage any voting 
minority ... Id. at 74.



9

But neither the District Court nor the 
Court of Appeals based its conclusion 
of effective dilution merely on a measureVof "proportional representation."

The Court of Appeals did not compare 
the number of black city council members 
with the percentage of blacks in Pensa­
cola's population; rather, it based its 
finding of effective dilution on the 
detailed analysis of election returns 
extending over some twenty years, all 
indicating that as a direct result of the 
at-large system, black candidates were 
consistently defeated by a bloc-voting 
white majority. This measure of the 
racially discriminatory effect of the 
at-large plan is a correct one; it depends

*_/ The argument in the Jurisdictional 
Statement notwithstanding (we count no less 
than four references to the term) , this is 
not a "proportional representation" case.



1 0

neither on the concept of proportional 
representation nor on an "amorphous" 
judicial inquiry into the sociological and 
political dynamics of the local community.

The evidence of circumstances leading 
up to and surrounding the 1 959 statute 
and referendum eliminating the use of 
single-member district elections for the 
Pensacola City Council make this case a 
paradigm of the type of proof called for 
by Arlington Heights, supra, 429 U.S. at 
266-68. If the findings of invidious 
intent made by the lower courts here 
cannot be affirmed, then Arlington Heights 
is, indeed, an illusory and impossible test 
of racial discrimination. A_11_ of the 
evidentiary elements of invidious intent 
discussed in Arlington Heights were found
in the instant case:



(1) Adverse racial impact: the 
exclusive use of at-large elections in 
Pensacola effectively dilutes black voting 
strength. 638 F.2d at 1 248 ; App. 53a.

(2) The historical background of the 
1959 change, revealing a series of official 
actions taken for invidious purposes: the 
official disenfranchisement of a substan­
tial majority of black Floridians during 
the first half of the twentieth century; a 
long-standing preference for a mixture of 
single-member district and at-large elec­
tions in Pensacola; Pensacola's adoption of 
the white primary and Jim Crow ordinances; 
and growing apprehension in the 1940's and 
1950's about increasing black voter regis­
tration. 638 F.2d at 1247; App. 47a.

(3) The sequence of events leading up 
to the change: the first black candidate 
in living memory almost defeats the white

- 1 1 -



12

mayor of Pensacola in a close single-member 
district election in 1955; the City Council 
responds in 1956 by gerrymandering more 
whites into the threatening black district; 
and following other such gerrymander 
efforts, the same City Council in 1959 
requests the Florida legislature to elimin­
ate Pensacola's single-member districts 
altogether.

(4) Substantive and procedural 
departures: the combination of single­
member district and at-large elections had 
been satisfactory to Pensacolians for 28 
years, when the district elections were 
abruptly eliminated by direct state legis­
lation, even though the Pensacola City 
Charter authorized modification of the 
election system without reference to the 
legislature by using the more deliberative 
process of apportionment of a charter



13

amendment committee by the City Council 
followed by a public referendum.

(5) The legislative history: al­
though there is no official record of the 
debates over the statute, because the 
practice in the Florida legislature is not 
to record such proceedings, one of the 
members of the 1959 Pensacola City Council 
admitted that the council had requested 
the change to ensure against the possibil­
ity of a black person being elected, the 
legislator who introduced the bill admitted 
that another petitioning council member had 
alluded to a desire to avoid "a salt and 
pepper council," and the Pensacola news­
paper editorialized that the "prime" reason 
for the proposed change was to prevent 
blacks from being elected. See generally
638 F.2d at 1247-8; App. 47a-48a.



14

The second question presented in the 
Jurisdictional Statement urges this Court 
to rule that, solely because the District 
Court accepted the sponsoring legislator's 
personal disavowal of discriminatory 
motives, as a matter of constitutional law, 
invidious purpose cannot be proved. 
Appellant City contends that, even where 
the District Court found that the estab­
lished practice of the local legislators 
was to pass no laws concerning city govern­
ment without the unanimous approval and 
petition of the city council, App. 48a, the 
racial motives of the city council members 
may not be considered in the Arlington 
Heights analysis. But, in order to agree 
with Appellants' argument, this Court would 
have to conclude that the lower courts' 
reliance on all the other, overwhelming 
Arlington Heights evidence was of no avail



and that the District Court and the Court 
of Appeals misstated the law by holding 
that " [d]iscriminatory intent at any stage 
[of the formal or informal legislative 
process] infects the entire process." App. 
48a n.9, accord, 638 F.2d at 1246 n.14.

Such a result would fundamentally 
negate the teaching of Arlington Heights 
that " [d]etermining whether invidious 
discriminatory purpose was a motivating 
factor demands a sensitive inquiry into 
such circumstantial and direct evidence of 
intent as may be available." 429 U.S. at 
266, cited in 638 F.2d at 1 243. If there 
is any hope that the inquiry into purpose 
or intent can provide a manageable judicial 
standard for equal protection cases, and 
in particular for racial vote dilution 
cases, courts must be permitted to consider 
the motives of all persons who exercised



16

substantial influence or control over 
the ultimate official decision. If the 
inquiry is required to identify and 
focus on the motives of the single most 
influential actor in the decision-making 
process, then federal judges truly will be 
enmeshed in the political thicket.

For example, in the instant case the 
Appellant City argues that Governor 
(then Representative) Askew's motives alone 
are relevant, simply because he testified 
that he had the power, by informal conven­
tion of the local legislative delegation, 
to "kill" the City Council's proposed bill. 
But the same thing can be said of the other 
two members of the Escambia County legisla­
tive delegation, and the record says 
nothing about their motives in voting 
for the election change. Further extending 
the City's theory to its logical conclusion



1 7

would require proof of invidious motives on 
the part of a majority of the state legis­
lators, who have the ultimate power to 
overrule even local delegation decisions. 
Clearly, Arlington Heights calls for a more 
pragmatic consideration of the concept of 
legislative purpose, and requires courts 
to judge the intent of official actions by 
weighing the entire evidentiary record.

As the Court of Appeals said in this 
case, "[i]t is not easy for a court in 1981 
to decide what motivated people in 1959." 
638 F . 2d at 1 248 . Based on all of the 
direct and circumstantial evidence, the 
Court of Appeals agreed with the District 
Court’s finding that " [t]he conclusion of 
plaintiffs' expert historian that race was 
a concurrent motivating factor in the 1959 
change is inescapable. " I_d. Iff a s 
Appellants contend, the constitutional



18

inquiry requires the courts to determine 
the subjective motives of every one of the 
individual legislators capable of altering 
the outcome of proposed statutes, then 
nothing short of a written statement of 
racial intent within the law itself would 
suffice. Moreover, acceptance of appel­
lants' contention that both courts below 
erred in their assessments of evidence 
probative of discriminatory purpose would 
be contrary to "[this Court's] settled 
practice of accepting, absent the most 
exceptional circumstances, factual determi­
nations in which the district court and the 
Court of Appeals have concurred ..." 
Branti v. Finkel, 445 U.S 507, 512 n.6
(1980); accord, Graver Tank & Mfg. Co. v . 
Linde Air Products , 336 U.S. 271, 275
(1949). S e e , e .g ., Columbus Board of 
Education v. Penick, 443 U.S. 449, 464
(1979).



19

Finally, Appellants argue that the 
plaintiffs in a vote dilution case must 
prove that the racial motives outweighed 
the nonracial motives. They are therefore 
asking this Court to reject its formulation 
of proof of intent in Personnel Adminis­
trator of Massachusetts v. Feeney, 442 U.S. 
256, 279 (1979):

'Discriminatory purpose' ... implies 
that the decisionmaker ... selected 
or reaffirmed a particular course of 
action at least in part 'because of,' 
not merely 'in spite of,' its ad­
verse effects upon an identifiable 
group.

(Footnote omitted). This formula was 
adopted by the Bolden plurality, 446 U.S. 
at 71 n. 1 7. Feeney requires more than 
lip-service to the usual "good government" 
rationales of a "city-wide perspective" and 
elimination of ward heeling. Otherwise, no 
at-large electoral system could be chal-

The inability orlenged by minorities.



20

refusal of the lawmakers here to justify 
how the racial consequences of their 
actions were outweighed by the need for a 
city-wide perspective supports the trial 
judge's conclusion that the "good-govern­
ment" rationale was a pretext for discrimi­
nation, "at least in part."

II.
THERE ARE ALTERNATIVE STATUTORY AND 
CONSTITUTIONAL BASES FOR THE RULING 
BELOW
Plaintiffs contended below that §2 of 

the Voting Rights Act of 1965, 42 U.S.C. 
§1973, allowed them to sue to enforce 
their voting rights and that this right did 
not depend upon a finding of purposeful 
discrimination. The trial court agreed 
that the plaintiffs had proved a violation 
of 42 U.S.C. § 1 973 , but did not decide 
whether proof of intent was necessary under 
that statute. App. 55a. The Court of



21

Appeals disagreed with the District Court's 
conclusion that at-large vote dilution 
violated the fifteenth amendment and held 
that plaintiffs could sue only under the 
fourteenth amendment to support such a 
claim. 638 F.2d at 1242-3 nn. 8 and 9.

The Court of Appeals rejected the 
Voting Rights Act and fifteenth amendment 
predicates of the trial court's judgment on 
account of the Court of Appeals' adoption, 
in toto, of the plurality opinion in City 
of Mobile v. Bolden. By concluding that 
the evidence of invidious intent in the 
adoption of Pensacola's at-large system 
satisfied the requirements of Arlington 
Heights, the lower courts grounded their 
judgments of unconstitutionality on the 
single theory that would clearly satisfy a 
majority of the members of the Bolden
Court. But there was no majority agreement



22

with the plurality opinion's views of the 
Voting Rights Act and fifteenth amendment 
causes of action. Consequently, if this 
Court were to disapprove the findings of 
invidious intent made below, it would then 
become necessary for it to reexamine the 
difficult statutory and constitutional 
questions that were not resolved in Bolden. 
In this event, Plaintiffs-Appellees would 
contend that at-large election systems 
which have a demonstrably discriminatory 
impact on a racial minority violate the 
fourteenth amendment, the fifteenth amend­
ment and §2 of the Voting Rights Act of 
1965, whether or not an invidious racial 
purpose could be proved.

CONCLUSION
This Court should decline to note 

probable jurisdiction, and, on the merits, 
affirm the judgment of the Court of 
Appeals.



Respectfully submitted,

KENT SPRIGGS
Spriggs & Henderson, P.A. 
117 S. Martin Luther 
King Jr. Blvd.
Tallahassee, Florida 32301 
(904) 224-8701

J.U. BLACKSHER
Counsel of Record LARRY MENEFEE
Blacksher, Menefee &Stein, P.A.
P.O. Box 1051 
Mobile, Alabama 36633 
(205) 433-2000

W. EDWARD STILL 
Reeves & Still 
Suite 400, Commerce Center 
2027 1st Avenue, North 
Birmingham, Alabama 35203 
(205) 322-6631

JACK GREENBERG 
JAMES M. NABRIT, III 
NAPOLEON B. WILLIAMS, JR.

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Attorneys for Plaintiffs-Appell



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