Supplemental Brief of Defendants-Appellants

    76-4210, 77-2042 
    
  

United States Court of Appeals 
FOR THE FIFTH CIRCUIT 

  

Nos. 76-4210, 77-2042 

  

WILEY L. BOLDEN, ET AL, 

Plaintiffs-Appellees, 

CITY OF MOBILE, ET AL., 

  

Defendants-Appellants. 

Appeal from the United States District Court for the 
Southern District of Alabama 

  

SUPPLEMENTAL BRIEF OF DEFENDANTS-APPELLANTS 
CITY OF MOBILE, ALABAMA, ET AL. 

OF COUNSEL: 

Hand, Arendall, Bedsole, 

Greaves & Johnston 

Post Office Box 123 

Mobile, Alabama 36601 

Legal Department of the 
City of Mobile 

Mobile, Alabama 36602 

Rhyne and Rhyne 
400 Hill Building 
Washington, D.C. 20006 

  

C. B. Arendall, Jr. 

William C. Tidwell, III 
Travis M. Bedsole, Jr. 

Post Office Box 123 

Mobile, Alabama 36602 

Fred G. Collins, City Attorney 
City Hall 
Mobile, Alabama 36602 

Charles S. Rhyne 
William S. Rhyne 
Donald A. Carr 
Martin W. Matzen 

400 Hill Building 
Washington, D.C. 20006 

  

CASILLAS PRESS, INC.—1717 K Street, N.W.,—Washington, D.C.—223-1220 

 



  

: IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCU1IT 

  

Nos. 76-4210, 77-2042 

  

WILEY L. BOLDEN, ET AL., 
Plaintiffs-Appellees, 

versus 

CITY OF MOBILE, ET AL., 
Defendants—~Appellants. 

  

Appeal from the United States District Court 

for the Southern District of Alabama 

  

SUPPLEMENTAL BRIEF OF DEFENDANTS-APPELLANTS 

CITY OF MOBILE, ALABAMA, ET AL. 

  

Following the close of oral argument on June 13,1977, the 

Court invited the parties to submit supplemental briefs on the 

issues presented herein, and specifically requested that such briefs 

address the meaning and application in this context of two recently 

decided cases, Kirksey v. Board of Supervisors of Hinds County, 
  

  

Mississippi, No. 75-2212 (5th Cir. May 31, 1977) (en banc), and 

Ta 1/ — 

  

pavid v. Garrison, No. 75-1731 (5th Cir. June 10, 1977). 
  

  

1/ "This Court also has granted leave (Order, June 22, 19277) oC 

respond to the Amicus Curiae Brief of the United States, served 

four days before oral argument (see Motion for Leave to file, 

June 7, 1977, p. 1). : 

 



  

ey 

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Neither case breaks new legal ground in this Circuit. 

Kirksey is an exercise of this Court's supervisory power over the 

form and effectiveness of electoral plans ordered by the District 

Courts at the relief stage of trial. It repeatedly distinguishes 

between the standards it applies to such court-ordered plans, 

and the less stringent standards to be applied in evaluating the 

constitutionality of legislative plans in the liability stage of 

trial. Slip op. at 3793-94, 3485. Kirksey therefore does not 

touch the crucial issue here presented on appeal -- whether the 

District Court erred in finding Mobile's Commission Government 

constitutionally defective. 

David, in contrast to Kirskey, does have bearing on the 

initial liability stage of actions alleging unconstitutional denial 

of access to the political process. It further reinforces the 

long-established policy of this Court to require clear proof of 

the alleged unconstitutionality of legislative plans before the 

District Courts undertake this legislative function, and to insist 

upon findings below which reflect not merely conclusions, but proper 

analysis of all facts salient to the political realities of the 

plan under scrutiny. S1ip op. at 3703-04, 3707. Accord: Nevett 
  

v. Sides, 5337.24 1361, 1365 {5th Cir. 1976); Bradas v. Rapides 

Parish Police Jury, 508 F.2d 1109, 1112-13 {Sth Cir. 1375). 
  

Conclusory statements on the most important question of 

black access to and participation in the political process in 

Mobile are clear error of the District Court below, 423 F. Supp. 

 



  

-3- oy 
— 

384, 389. The law of this Circuit, most recently expressed 

in David, requires reversal in Mobile. 

In Mobile, the District Court, rather, labored under the 

erroneous assumption that only that black political participation 

which led to election of black Commissioners could indicate 

constitutionally sufficient access by blacks to Mobile's poli- 

tical process. {(D.Br. 35-43; D.Rep.Br. a. The Court's findings 

and analyses therefore fail to address the positive and undisputed 

evidence that black Mobilians do participate fully and effectively 

in City politics. (D. Br. 8-12). 

  

2/ The only facts of present access and participation by blacks 

er in the electoral politics of the Mobile city Commission on which 

the District Court below made any finding at all were: 

1) The unsupported conclusion that the structure of the 

Commission form of government effectively discourages 

qualified black citizens from seeking office, 423 

F. Supp. at 389; this unsupported conclusion is 

clearly erroneous as citations to the record show 

{see D.Br. 35-43). 

2) That the only blacks who ran for City Commissioner 

were unqualified and failed to carry even the black 

tracts, 14. at 388. 

All other findings on access and participation by the District 

court involved other jurisdictions, or other races. 

3/ The following abbreviations are used throughout: 

  

"APP. " _ citation to page in joint appendix 

np.Br. " . citation to page in brief of Plaintiffs—-Appellees 

"D.Br., "m _ citation to page in initial brief of 

Defendants-Appellants 

"n.Rep.Br. mn _- citation to page in reply brief of 

Defendants-Appellants 

"Amicus Br. mn _ citation to page in brief of United 
——————— 

States as amicus curiae 
  

 



  

dl 
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[3 

Unless this Court is prepared to adopt a test of representa- 

tion based on the color of one's skin, this positive evidence of 

real anid elfdotive black participation must be determinative, and 

requires reversal. An examination of this evidence from the per- 

spective of the Amicus Brief of the United States shows the clear 

error of the District Court below. 

One further issue merits discussion, an issue in which 

this Court expressed interest at oral argument. Though the Dis- 

trict Court based its decision here only upon the Fourteenth 

Amendment, the Fifteenth Amendment also prohibits abridgement of 

voting rights "on account of race." Plaintiffs have suggested 

that this Court may, despite this explicit language of that 

amendment, conclude that Mobile's facially neutral electoral 

system abridges the voting rights of black Mobilians "on account 

of" their race without any proof whatsoever that the system 

purposefully targets black voters for discriminatory treatment. 

(P.Br. 44-50). 

Not only does the record here clearly refute Plaintiffs’ 

claim that Mobile's at-large electoral plan in any sense has the 

effect of abridging black voting rights; but Plaintiffs' asser- 

tion that Fifteenth Amendment claims require no proof of purpose 

or intent is contrary to both reason and authority. 

T. ' THE CLEAR RECORD OF EFFECTIVE BLACK POLITICAL PARTICIPATION 

HERE REQUIRES REVERSAL. 
  

  

The ultimate issue here is whether black citizens are denied 

access to the political processes of Mobile. In White v. Register, 
  

 



  

-5—- 

412 5.5, 755 (1973), the Supreme Court sustained such a claim 

for the first time, upon findings that Texas' electoral system 

"effectively excluded" Dallas County blacks and "effectively re- 

moved" Bexar County Mexican-Americans from the political process. 

412 U.S. at 767, 769. Thus, "access to the political process” 

is the "barometer of dilution of minority voting strength." 

gimmer v. McKeithen, 485 F.2d 1297, 1303 (5th Cir. 1973) (en banc}, 
  

aff'd sub nom. East Carroll Parish School Board v. Marshall, 
    

  

424 U.S. 636 (1976). Where access and participation are shown in 

the record, the constitutional test is met and "dilution" cannot 

be found. Any less rigorous standard to support overturning a 

government of 66 years' standing would run afoul of the standards 

of prudence set forth in David, Slip op. at 3706. 

The record here contains ample evidence of real and effec- 

tive black political participation which clearly refutes Plain- 

tiffs' claim that they are fenced out of Mobile's political life. 

The United States as Amicus shows in its brief the vigorous parti- 

cipation by black Mobilians. 

A. The Amicus Brief Underscores Black Mobilians' Unfettered 

Access To, And Effective Participation In, The City's 

Political Processes. 

    

  

  

As Amicus correctly points out, former Finance Commissioner 

Joe Langan, a white man "long identified with black interests," 

served as Commissioner continuously from 1953 to 1969. Amicus 

Br. 19. Of the election statistics offered by Plaintiffs to show 

racially polarized voting, those analyzing Langan's races 

 



  

yo 
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"furnished the only significant data with respect 

to city commission elections, for no blacks ran for 

city commission until 1973, and then as minor candi- 

dates." Id. at 19. 

Amicus argues that the 1961, 1965, and 1969 Langan races 

show progressively increasing degrees of racially polarized voting. 

Amicus Br. 19-20. Yet Langan won in both 1961 and 1965, and 

his testimony attributes his defeat in 1969 as much to failure 

of blacks to turn out for him at the polls as to polarized wing ot 

Amicus concedes that by comparison to the Langan races of 

1961 and 1965, the statistics showed "only moderate correlations 

between voting and race" in other races in those years, and that 

income was almost as good an explanatory variable as race during 

that period. Amicus Br. 22 n.74. 

In the most recent Commission elections, held in 1973, 

Commissioner Doyle ran unopposed, both Mayor Mims and Commissioner 

Greenough received the endorsement of the black Non-Partisan Voters 

League, and Greenough won on the margin of the black "swing" 

5/ 
vote. iD. Br. 8-10. "Race was poL manifestly a factor in 1973 

| as between the[se] white candidates." Amicus Br. 21 (emphasis 

original). 

  

4/ Langan testified that black militants "put on a very active 

campaign to keep the people from voting," a campaign which 

included threats to keep other blacks away from the polls. App. 295 

| 5/ Amicus seeks to disparage the significance of the Greenough 

| victory in stating that his opponent Bailey received a larger 

share of the black vote (Amicus Br. 44 n.108), but fails to 

inform the Court that Bailey was the very candidate who defeated 

Langan in 1969. Any suggestion that Langan suffered defeat to 

a candidate objectionable to the black community is therefore 

without merit. : 

      
 



  

-] = 

- 

¥ 

Amicus asserts that the low degree of polarized voting in 

these 1973 elections demonstrates only that the white candidates 

failed to address "the particularized needs of the black community." 

Amicus Br. 44 n.l108. This assertion simply cannot be squared 

with the undisputed fact that the three black candidates who 

opposed Mims and Greenough in 1973 "garnered relatively few votes 

even in predominantly black wards." Id. at 21. The conclusion 

that black voters thought their "particularized interests" would 

be better served by these more experienced white dandidates is 

inescapable. The effective expression of such a preference by 

black Mobilians is all that the Constitution requires. 

‘ In Mobile, then, black voters possess and have exercised 

real electoral clout under the City's present at-large system. 

Indeed, blacks have long enjoyed representation roughly proportion- 

ate to their numbers, i.e., one Commissioner indisputably res- 

ponsive to black interests served continuously from 1953 to 1969; 

and in 1974, black voters chose the winners (Commissioners Mims 

and Greenough) in the only two contested seats in preference tO 

less experienced candidates of their own race. While no interest 

group, racial or otherwise, is constitutionally entitled to pro- 

portional representation, Beer v. United States, 425 U.S. 130, 136 
  

n.8 (1976), any group which achieves roughly proportional repre- 

sentation by "legislators of [its] choice" has certainly not been 

denied access to the political process. Whitcomb v. Chavis, 403 
  

U.5..124, 149 (1971). 

 



  

-8- 

The District Court entirely neglected to consider, much less 

address, the undisputed evidence that black voters have real 

political clout in Mobile and Plaintiff black leaders' own testi- 

mony that such clout has produced responsive Commissioners. D.Br. 

8-10, 40-43. This failure is explicable only on the basis that 

the Court erroneously thought that the only proper proof of "access" 

was the guaranteed election of black Commissioners. 

The holding of the District Court here can be affirmed only 

if the constitutionally relevant political participation is solely 

that which leads to election of a member of one's own race, and 

if constitutionally sufficient representation may be afforded only 

by a legislator of one's:-own color. 

B. Under David v. Garrison, the Record in the District 

Court Below Does Not Support a Mere Judicial Conclusion 

of Dilution. 

    
    

  
  

    

  

David Vv. Garrison, supra, highlights the gross deficiency 
  

of the Mobile Court's findings and constitutional analysis. David 

involved a "dilution" challenge to the at-large Commission Govern- 

ment of Lufkin, Texas, a city 28% black. Slip op. at 3703. The 

District Court found that Lufkin had never had a black Commissioner, 

and indeed, that no black had ever been elected to county office 

either, despite its substantial black population. (Finding No. 8 

of District Court opinion, reprinted in full as note 1 to dissent 

of Circuit Judge Tuttle, Slip op. at 3712}. 

The District Court had further found that one black had run 

for Commissioner in 1971 with the overwhelming support of the 

black community, achieved a plurality in the general election, and 

been forced into a runoff against a white by the City's majority 

 



  

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vote requirement. (Finding No. 6, Slip. op. at 3711-12). The 

black candidate lost to his white opponent in an election charac- 

terized by virtually absolute bloc voting along racial lines 

and the "largest voter turnout in the history" of the City. (Id.) 

This Court held these findings insufficient under Zimmer's 
6/ OT 

"access" factor: 

"The district court made no findings as to the 
existence of any organization which was involved 
in the slating process or the method of slating, 

if any, which forecloses minority participation. 
It did discuss the candidacy of Inez Tims, a 
black, for City Commissioner. The presence of 

Mr. Tims on the ballot is suggestive of the fact 
that there is minority access to the nomination 
process. There is no indication that any other 
blacks have since sought election." Slip. op. at 

3707. 

In the absence of any evidence like that in David that quali- 

fied black candidates for the Mobile City Commission had run and 

been defeated as a result of polarized voting, the Mobile Court 

based its decision on a black "discouragement" conclusion impli- 

citly rejected by this Court in Send 

In David, as in Mobile, the City's form of government had 

been in effect without substantial change since the early 1900's. 

  

6/ The Court's concern over the size of the at-large electorate 

— and its effect on "access" (Slip. op. 3705), is inapposite to 
Mobile, where there is conclusive evidence of effective black 

participation and the District Court could find no tendency of 

Mobile's size alone to inhibit such participation. 423 F. 5upp. 

at 393, 401. 

7/ In David, the District Court had found "a decline in interest 

in city politics in the black community" following the dramatic 

defeat of a black candidate who had received the whole-hearted 

support of the black community. (Finding No. 6, Slip.op.2t 3711~- 

12). This Court held that the findings of the District Court 

were "not adequate to support its decision." Slip. op. at 3709. 

 



  

3 Q- 

Slip. op. at 3703. This Court noted that Lufkin had adopted its 

commission Government at a time when its policy favoring at-large 

elections "could not have had racial underpinnings," citing 

McGill v. Gadsden County Commission, 535 F.2d 277 (5th Cir. 1976), and 
  

  

faulted the District Court for its failure to make findings as to 

whether Lufkin's amounted to a strong policy not rooted in racial 

discrimination under Zimmer. Slip. op. at 3708-9. 

David v. Garrison counsels that 
  

"the Courts must be careful to upset the 

legislative plan adopted by the people only 

when the Constitution clearly dictates that 

such plan is unlawful." Slip. op. at 3704. 

This is especially true because the "remedy" of single member 

districting is not only an "uncertain" cure, but potentially a 

8/ 
cure worse than the disease. 1d. at 3704, 3706." 

pavid underscored the point made by Judge Rives in Nevett v. 

Sides, supra, 533 F.24 at 1365: 
  

"Specifically, the trial court's findings may 

be read as indicating that elections must be 

somehow so arranged -- at any rate where there is 

evidence of racial bloc voting -- that black 

voters elect at least some candidates of their 

choice regardless of their percentage turnout. 

This is not what the constitution requires." 

Given the positive evidence that blacks participate fully and 

effectively in Mobile politics, the Mobile Court's opinion can 

only be read as requiring judicial re-arrangement of Mobile's , 

electoral system to guarantee the election of black officials. 

  

8/ "To replace an at-large system with several single member dis- 

ji tricts invites variance from the perfect one person-one. vote 

goal, and forever compartmentalizes the electorate, reinforces 

the bloc voting syndrome, and prevents members of a minority class 

from ever exercising influence on the political system beyond the 

bounds of their single member districts. They remain forever 

a minority in their representative influence." . Slip. op. at 

(} 6 Se 1) Bla 54-850 : 

 



-11~- 

In earlier "dilution" cases, this Court has never hesitated 

to erring the facts closely, and to reverse where the District Court's 

ultimate factual conclusions were either inadequately supported 

by the record or induced by an erroneous view of the law.. See 

Bradas, supra, 508 F.24 at 1112-13; McGill, supra, 535 P.24 at   
  

280-81. Where, as here, a District Court's findings are not only 

refuted by evidence of record but are clearly based on erroneous 

legal premises, reversal is both necessary and proper. 

II. THIS COURT'S RECENT EN BANC DECISION IN KIRKSEY DOES 

NOT TOUCH THIS CASE. 
  

  

Kirksey v. Board of Supervisors of Hinds County, Mississippi, 
  

supra, "concerns the establishment by a court-ordered plan of voting 
  

districts for the election of county officers elected by single- 

member ‘districts . . ." 8lip. op. 378) (emphasis added). The 

pre-existing plan was clearly defective under the one-man, one- 

vote standard, and the court-ordered replacement plan was designed 

£0 correct that malapportionment. Slip. op. at 3782, 3793. The 

constitutional liability of the pre-existing plan was unquestioned, 

and this Court directed its attention to the form and sufficiency 

of judicial relief. 

The Kirksey Court found that the court-ordered plan properly 

consisted of single-member districts of substantially equal popu- 

lation, but held the plan defective for 

"fragmenting a geographically concentrated 
but substantial black minority in a community where 
bloc voting has been a way of political life." 

14, at 3795. 9/ 
  

The Court strongly criticized the trial court for its readiness 

to accept "thin evidence and "gossamer possibilities" that blacks 

would enjoy effective participation under the court-ordered plan. 

Slip. op. at 379%. In contrast, the record in Mobile demonstrates 

that black citizens are in fact an effective political force 

within the City. (See infra, pp. 4-8).  



  

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similar claims of "fragmentation" were also made by appellants 

in Connor v. Finch, U.5. , 454 U.S, LW. 4528 {U.5. May 31, 1977), 

  

  

where a court-ordered plan reapportioning the Mississippi Legis- 

lature was under scrutiny. Within Hinds County, this plan 

employed the same districts at issue in Kirksey. 45 U.S.L.W. at 4532. 

Although the Supreme Court in Connor disapproved the judicial 

plan for its deviations from population equality, 45 U.S.L.W. at 

4530-31, the Court deemed it appropriate to "give some further 

guidance" to the District Court in connection with the charges that 

its districting had diluted the black vote: 

"In view of the serious questions raised 
concerning the purpose and effect of the present 

decree's unusually shaped legislative districts 

in areas with concentrations of Negro population, 

the District Court on remand should either 

draw legislative districts that are reasonably 

contiguous and compact, so as to put to rest 

suspicions that Negro voting strength is being 

impermissibly diluted, or explain precisely 

why in a particular instance that goal cannot 

be accomplished." Id. at 4533. 

The Court noted that where the Federal Courts must undertake 

the usually legislative chore of reapportionment, 

"the court's task is inevitably an exposed and 

sensitive one that must be accomplished cir- 

cumspectly, and in a manner free from any taint 

of arbitrariness or discrimination. Roman v. 

Sincock, 377 U.S. 695, 710 [1%964}." 

45 U.8.L.W. at 4530. 

The Kirksey Court, too, repeatedly stressed that court- 

ordered plans such as the one there under scrutiny are subject to 

stricter standards than legislative plans. Slip. op. at 3793-94, 

3795. See Chapman v. Meier, 420 U.S. 1, 18 (1975). As this 

Court recently adminished in David v. Garrison, supra, 
  

 



  

"We should not, however, confuse the standard 
by which to judge a legislatively-enacted scheme 
of election for dilution with the standard by which 
to judge a court-ordered scheme which is to be substi- 

tuted for a constitutionally infirm system." 
Slip« Op. at 3704-05. 

The absolute necessity for avoiding such a confusion is 

highlighted by comparison of Kirksey to two recent decisions in 

which the Supreme Court scrutinized legislative electoral plans 

applying both statutory (Voting Rights Act of 1965) and constitu- 

tional standards. 1n Beer v. United States, 425 U.S. 130 (1976), 
  

the Court upheld a New Orleans' redistricting plan which retained 

two at-large seats and which contained single-member districts 

drawn in a pattern which the Attorney General urged would slice 

up predominantly black districts and "almost inevitably" dilute 

the effectiveness of the black vote. 425 U.S. at 136. 

Although New Orleans' plan clearly afforded blacks less than 

maximum voting power, it passed the statutory standard of §5, 

42 U.8.C. 81973¢c., 425 U.8. at 141. Aang it did not even "remotely 

approach a violation of the constitutional standards" set forth 
1g/ 

in such dilution cases as White v. Register, supra. Id. 0k 1420.04. 
  

  

10/ While Beer demonstrates that legislative plans need not under 
me the Constitution be so drawn as to assure proportional rep- 

resentation, 425 U.S. at 136 n.8, the more recent case of 
United Jewish Organizations of Williamsburgh v. Carey, '. B.S 

, 97 S.Ct. 996 (1977), holds that a legislature may consti- 
tutionally gerrymander along racial lines to assure proportion- 
al representation. There, the Supreme Court upheld a New 
York legislative districting plan in which the State had 
purposefully created districts containing 65% black population 

majorities to guarantee blacks "safe" legislative seats. 97 
S.Ct. at 1004. The decision does not resolve whether such 
"benign" gerrymandering is permissible by jurisdictions not 
subject to the mandate of the Voting Rights Act and to the 

resultant supervision of the Attorney General. 

  

  

  
  

 



  

wld 

The point is, quite simply, that Rirksey is entirely inapposite 

where, as here, the validity of a legislative electoral plan is 

at issue. If Rirksey requires that judicial plans district in 

such a way as to maintain racial concentrations sufficient to 

guarantee black voters "safe" seats proportional to their popu- 

lation, its application to legislative plans would not only be 

contrary to Beer,but overrule sub silentio such Fifth Circuit 
  

cases as Bradas, McGill, Nevett, and David. Application of such 
  

a standard to any at-large electoral system with a substantial black 

population minority would amount to no less than the per se approach 

to constitutional analysis repeatedly rejected by this Court. E.g., 

Zimmer, supra, 485 F.2d at 1304.   

Kirksey distinguishes between the standards applicable to 

legislative and court-ordered electoral plans, and indicates that 

it is applying the latter. Slip. Op. at 3793-94, 3795.  'This 

demonstrates that the en banc Court intended no such upheaval in 

the law of voting "dilution." 

Kirksey clearly has no bearing on the central issue here on 

appeal -- whether Mobile's existing form of government and at- 

large electoral system, legislated into being some 66 years ago, 

unconstitutionally denies blacks access to the City's political 

processes. 

III. THE FIFTEENTH AMENDMENT HERE PROVIDES NO ALTERNATIVE 
  
  

  

The Fifteenth Amendment proscribes denial or abridgement of 

the right to vote "on account of race, color or previous condition 

of servitude." Not only does the record here preclude the conclusion 

 



  

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[J 

that Mobile's existing at-large system abridges black voting 

rights (infra, pp.4-8), but Plaintiffs' contention (P.Br. 44-50) 

that no proof of racial purpose is necessary to establish vio- 

lation of the Fifteenth Amendment is entirely without support in 

either the language of the Amendment or the decisions applying 

11/ 
ic. 

For example, in Gomillion v. Lightfoot, 364 U.S. 338 (1960), 
    

the Court struck down on Fifteenth Amendment grounds an act of 

the Alabama legislature which had redrawn the city boundaries of 

Tuskeegee to shut out all but a few black citizens while excluding 

few whites. The Court found that this act "singles out a readily 

isolated segment of a racial minority for special discriminatory 

treatment . . .," 364 U.S. at 346, and "despoil[s] colored citizens, 

and only colored citizens, of their theretofore enjoyed voting 

rights.” Id.at 347. In Viilage of Arlington Heights v. Metro- 
a —_—— 

  

  
p—— 

politan Housing Development Corp., U.S. 37 S.Ct: 555, 

(1977), a decision instructive on the manner in which the purpose 

or intent requirement of the Fourteenth Amendment may be met, 

11] 

the Court cited Gomillion as a case where the "stark" pattern, 
  

"unexplainable on grounds other than race," makes the evidentiary 

inquiry into racial purpose "relatively easy." 97 S.Ct. at 564. 

And in Wright v. Rockefeller, 376 U.S. 52 (1.964), another 
  

Fifteenth Amendment decision, the Court upheld a New York congressional 

  

11/ Plaintiffs assert that the language of the Amendment "does not 

pg itself suggest a motive or purpose requirement." P.Br. 46. 

They offer no explanation as to how this Court may conclude 

that voting rights are here being abridged "on account of race’ 

without any finding that blacks are the target of this facially 

neutral electoral system, which neither impedes exercise of 

the franchise nor values any person's vote differently than 

any other's. 

 



  

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i 

apportionment against claims of racial gerrymandering. Plain- 

tiffs lost there because they failed to prove that the legislature 

"was either motivated by racial considerations or in fact drew 

the districts on racial lines." 376 U.S. at 56. ‘Thus, there 

was no "state contrivance to segregate on the khasis of race . . ." 

Id. at 58. In Waghington v. Davis, 426 U.S. 229 (1976), which   

held proof of racial purpose essential in Fourteenth Amendment 

actions under Equal Protection, the Court cited Wright as an ex- 

ample that this "rule is the same in other contexts." 426 U.S at 

240. 

In Paige Vv. Gray, 538 F.2d 1108 {5th Cir. 1976), this Court 

itself recognized that "it is likely that the Supreme Court will 

require circumstantial proof of unlawful motive" in Fifteenth 

Amendment cases, citing Davis. 538 F.2d at 1110. This Court also 

noted that the Davis Court had cited Wright "for the proposition 

that proof of racial purpose ie necessary to establish a Fourteenth 

Amendment. viclation." Id. at 1110 n.3. 

The recent decision of the Supreme Court in United Jewish   

Organizations, supra, demonstrates that Paige was correct. A   

white community of Hasidic Jews which had been split in two by 

New York's "benign" racial redistricting challenged the plan under 

both the Fourteenth and Fifteenth Amendments. 97 S.Ct. at 1005. 

The Court upheld the plan, finding no evidence of invidiously 

discriminatory intent with respect to "whites or anv other race,’ Ir 

despite the legislature's clear use of racial criteria. 97 S.Ct. 

 



  

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i 

at 1009-10. Plaintiffs' had made no showing that 

"the redistricting scheme was employed as part 

of a 'contrivance to segregate'; to minimize or 

cancel out the voting strength of a minority 

class or interest; or otherwise to impair Or 
burden the opportunity of affected persons to 
participate in the political process.” 97 5.Ct. 
at 1017 (Stewart, J. concurring). 

The racial "awareness" of the New York Legislature was not "the 

equivalent of discriminatory intent." Id. 
EN — 

As the Supreme Court noted in Beer, supra, 425 U.S. at 142 n.14, 
  

"There is no decision of this Court holding a 

legislative apportionment or reapportionment 

violative of the Fifteenth Amendment." 

the "case Ul
 

The Court cited Wright, and noted that Gomillion i 
  

closest to so holding... .". 14. 

If there is ever to be such a case, plaintiffs will quite 

clearly have to meet the burden of proving racial purpose or intent 

at trial, as Plaintiffs here clearly did not. (D. Rep. Br. 3-11). 

IV. CONCLUSION 
  

As the record here amply demonstrates, Plaintiffs have 

failed utterly to prove that Mobile's existing form of govern- 

ment and electoral system deny black citizens effective access to 

and participation in the City's political processes, much less 

that the system was adopted or maintained with any such racially 

invidious purpose. 

 



  

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- 

¢ 

This Court should therefore reverse the judgment and resultant 

orders of the District Court and order immediate dismissal of 

this case. 

Respectfully submitted, 

  

B ale It. Urs Satie 
fe Ce Tidwell. Il 
Travis M. Bedsole, dr. 

Post Office Box 123 
Mobile, Alabama 36601 

Fred G. Collins 

City Attorney 
City Hall 
Mobile, Alabama 36601 

Charles S. Rhyne 
William S. Rhyne 

’ Donald A. Carry 
Martin W. Matzen 

400 Hill Building 
Washington, D. C. 20006 

Attorneys for Defendants—-Appellants 

 



  

CERTIFICATE OF SERVICE 

I certify that two copies of the foregoing brief have been 

served upon opposing counsel of record, and upon Amicus, by 

placing the same properly addressed in the United States Mail 

with adequate postage affixed thereto this | day of July, 19717. 

   
a 

Attorney for