Supplemental Brief for the Appellants on Reargument

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A | IN THE 

Abana Supreme Court of the United States 
OCTOBER TERM, 1979 

  

No. 77-1844 

CITY OF MOBILE, ALABAMA, et al.,         

  

   
  

  

  

  

: te ia LA By Appellants, 
He | WA | ws : Fo i (3 V. 

“+. 
i WILEY L. BOLDEN, et al., 

Appellees. 

ON APPEAL FROM THE UNITED STATES v 
fs Bats 1 3 3 COURT OF APPEALS FOR THE FIFTH CIRCUIT batt setters 

A  . bo 
Ls Fs SUPPLEMENTAL BRIEF FOR THE bl 

APPELLANTS ON REARGUMENT EE 

C.B. ARENDALL, JR. 

WILLIAM C. TIDWELL, III i 

TRAVIS M. BEDSOLE, JR. A Hii 

Post Office Box 123 

Mobile, Alabama 36601 Boonie wiki Ln: 

FRED G. COLLINS pe 

City Attorney, City Hall Po— 

Mobile, Alabama 36602 Aa 

CHARLES S.RHYNE ot pA 
WILLIAM S. RHYNE kbs. a 

1000 Connecticut Avenue, N.W. Py ug 

Suite 800 bth A 

Washington, D.C. 20036 

October 1979 Counsel for Appellants 

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ARGUMENT... cite vi casa bens rnnlanianus sme 2 

I. MOBILE'S COMMISSIONERS DO NOT 

MAINTAIN THE CURRENT FORM OF 

CITY GOVERNMENT FOR THE PUR- 

POSE OF INHIBITING BLACK ELEC- 

TORAL PARTICIPATION. ......c.v. cians ners 

. A REMEDY NOT MERELY MAINTAIN- 

ING, BUT CHANGING MOBILE'S EN- 

TIRE GOVERNMENT TO GUARANTEE, 

PROPORTIONAL REPRESENTATION 

BY RACE IS NECESSARY HERE UN- 

LESS THE JUDGEMENT IS REVERSED 

CONCLUSION 

TABLE OF AUTHORITIES 

Cases: 

Aranda v. Van Sickle, 

600 F.2d 1267 

Beer v. United States, 

425 1.8. 130 

City of Dallas v. United States, 
C.A. No. 78-1666 (D.D.C.), pending 

Columbus Board of Education v. Penick, 

No. 78-610(Jul. 2,979)... oc. cca cin sadiea ana 8 

Mt. Healthy Board v. Doyle, 

429 U.S. 274 

Nevett v. Sides, 

BY PA 200. nh i Devinn vs vs innn ns dhs abseil n 4 2.59 

Personnel Administrator v. Feeney, 

No. 78-233 (Jun. 5, 1979) 

   



  

  

(ii) 

Sandstrom v. Montana, 

No. 78-5384 (Jun. 18, 1979) 

United Jewish Organizations v. Carey, 
430 U.S. 144 

Village of Arlington Heights v. Metropolitan 
Housing Devel. Corp., 

429 U.S. 252 

Washington v. Davis, 
426 U.S. 229 

White v. Regester, ; 
A) aS, ISS tas rE LA ER 3.13 

Williams v. Brown, 

No. 78-357, prob. juris. noted 

Wise v. Lipscomb, 

437 U.S. 535 

Zimmer v. McKeithen, 
485 F.2d 1297 

Miscellaneous: : 

Anti-Defamation League of B'nai Brith, Brief as Amicus 
Curiae in Fullilove v. Kreps, No. 78-1007 

Brest, Palmer v. Thompson: An Approach to the Problem of 
Unconstitutional Legislative Motive, 197] Supreme 
Court Review 95 

Int'l City Mgmt Ass’n, The Municipal Year Book 1979 .. 13 
Sutherland, Statutes and Statutory Construction (4th ed.).... 5 

    
  

  

   



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IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1979 

No. 77-1844 

CITY OF MOBILE, ALABAMA, et al., 

Appellants, 

WILEY L. BOLDEN, et al, 

  

Appellees. 

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

SUPPLEMENTAL BRIEF FOR THE 
APPELLANTS ON REARGUMENT 

SUPPLEMENTAL BRIEF FOR THE 

APPELLANTS ON REARGUMENT 

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Appellants, Appellees and the United States as amicus 

variously state the questions presented in this case, which is 

i" to be reargued in tandem with, but not consolidated with, a 

a case involving the partisan elections of the Mobile County 

School Board.! This brief on reargument is submitted to call 

attention to events occuring since the original argument of 

: "Williams v. Brown, No. 78-357. 

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this City of Mobile case in the spring of 1979. These events 

bear on two of the questions presented: (1) the quality of 

proof of discriminatory intent necessary to invalidate on 

Fourteenth Amendment grounds Mobile’s Commission 

form of government which has existed without material 

change since 1911; and (2) the propriety of a judge-made 

remedy gerrymandering the City into wards and writing a 6 3- 

page charter of government for the sole purpose of 

guaranteeing and maintaining proportional representation 

for the black race. 

ARGUMENT 

These are the only two questions necessary to the decision 

of this case. Appellees? and amici® are eager to raise claims 

based on the Fifteenth Amendment and the Voting Rights 

statute. However, the Court of Appeals below held that the 

Fifteenth Amendment required a showing of discriminatory 

intent indistinguishable from that necessary to satisfy the 

Equal Protection Clause of the Fourteenth Amendment;* 

there has been no cross-appeal of that holding. The District 

Court below refused to hold in favor of plaintiffs on any of 

their several statutory claims. The Court of Appeals below 

affirmed that decision,’ and, again, no cross-appeal has been 

taken. This leaves only Appellees’ Fourteenth Amendment 

claim for disposition by this Court. 

Brief for Appellees, p. 2 (Questions Presented, no. 3). 

Brief for the United States as Amicus Curiae, p. 2 (Questions 

Presented, no. 2). 

“Pet., p. 2a, n. | (571 F.2d 238, 241 n. 1), incorporating opinion in 

Nevett v. Sides, 571 F.2d 209, 221. Nevett is pending certiorari here, as 

No. 78-492. 

See Pet., p. 4a, n. 3 (571 F.2d 238, 242 n. 3). 

  

  

  

   



  

  

  

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Appellants therefore submit that the newly decided cases 

discussed below support their position first raised on the 

original argument respecting the intent and remedy issues, 

and that these intervening events counsel even more strongly 

the reversal of the judgment below. 

L 

MOBILE'S COMMISSIONERS DO NOT 

MAINTAIN THE CURRENT FORM OF 

CITY GOVERNMENT FORTHE PURPOSE 

OF INHIBITING BLACK ELECTORAL 

PARTICIPATION. 

The Court of Appeals below held that intent to 

discriminate was an essential element of a Fourteenth 

Amendment claim of vote dilution.® Several alternatives 

were open to the Court in fixing intent on the record of this 

case. The Court made these choices. 

The Court held that the intent of the Alabama legislature, 

rather than that of the City Commissioners, the only 

defendants here, was the relevant intent.” The Court made no 

attempt to reconcile its focus on the legislators in 

Montgomery for this purpose, with its focus on Mobile's 

Commissioners for all other purposes. The Court retained as 

The Court of Appeals then “harmonized” the entire corpus of its 

voting cases decided prior to Washington v. Davis, 426 U.S. 229 

(1976), and interpreted White v. Regester, 412 U.S. 755 (1973) to have 

included an implicit finding of discriminatory intent. See Nevett, supra, 

571 F.2d 209, 219 n. 13. 

"Pet., pp. 14a (571 F.2d 238, 246) and 28b-30b (423 F. Supp. 384. 
397). 

   



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good law its Zimmer® analysis, which, applied here, inquired 

into the City Commissioners’ appointments,® employment, 1° 
paving and drainage!! and citizen complaint!? activities. 

Second, the Court held that an intent to discriminate was 

proved by the failure of the Alabama legislature, sua sponte, 

to change Mobile’s Commission form of government to a 

mayor-council form elected from districts. This, we refer to 

as “‘maintenance intent”. The Court nonetheless affirmed 

the finding and conclusion that Mobile’s preference since 

1911 for at-large Commission elections was a legitimate 

means of insuring city-wide representation, and that the 

Appellees had not satisfied their burden of proving that the 

governmental policy in favor of at-large elections was 

tenuous. '* 
Finally, the Court held that Alabama’s maintenance v 

intent was adequately proved by the tort method: that an 

actor intends the predictable consequences of his actions. As 

applied here, the tort must have been that a government 

which maintains a form of government for 68 years must 

intend the predictable consequences of maintaining the 

status quo." 

    

  

  *Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), 
affirmed (“without approval of the constitutional views expressed”) sub. 
nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636 
(1976). 

Pet., p. 6b (423 F. Supp. 384, 387). 

1%Pet., p. 11b (423 F. Supp. 384, 389). 

UPet...p. 15h (423 F. Supp. 384, 391). 

"Pet., p. 17b (423 F. Supp. 384, 392).   '*As the District Court below found, a Commission government could 

not be elected by districts. Pet., Sb (423 F. Supp. 384, 387). 

“Compare United Jewish Organizations v. Carey, 430 U.S. 144,162 
(1977) (plurality opinion) (government may change siatus quo to 
guarantee proportional representation by race) with Beer v. United 

(continued) 

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Some comments concerning the first two choices of the 

Court of Appeals in divining a discriminatory intent are in 

order. 

First, the choice of the Alabama legislators, rather than 

the City Commissioners, was jurisdictional and substantive 

error. This is not a suit to invalidate the Commission form of 

government throughout Alabama, or to remove the Alabama 

legislative authorization for cities, on a local option basis, to 

organize themselves according to the Commission form. 

Indeed, under the “redemption” of the Zimmer factors in the 

companion Nevett opinion, it is unlikely that any court in the 

Fifth Circuit could entertain a suit challenging the organiza- 

tion of local governments on a state-wide basis; each city . 

must be considered on its facts. No State legislator or official 

was sued here.'® The only defendants were the three Mobile 

City Commissioners. Theirs is the relevant intent, and it is 

most appropriately demonstrated by thé Commissioners’ 

(footnote continued froin preceding page) 

States, 425 U.S. 130, 136 n. 8 (1975) (Constitution does not require 

government to change status quo so as to guarantee proportional 

representation by race). 

Appellees devote pages 25 to 33 of their Brief to a demonstration, 
from the federal jurisprudence involving Alabama, that plaintiffs alleging 

invidiously motivated state action know how to obtain proper jurisdiction 

over state officials. 

“The evidence of legislators’ intent consisted of the testimony of a 

sponsor of a pending bill concerning the traditions and habits of the 

legislature, as well as his recollection of the comments of other legislators 

outside the chamber. See I Appendix, pp. 248,254. In a more traditional 

legislative intent case, where the intent of the legislature is clearly 

relevant, this record would not do to prove intent. See 2A Sutherland, 

Statutes and Statutory Construction § §48.16 and 48.17 (4th ed. C. 

Sands 1973). ; 

Here, the proffered explanation was not of the meaning of a statute, but 

the meaning attending the absence of a statute changing the status quo. 

   



activity in electoral campaigns.’ 
Having held it proper to ignore the intent of campaigning . 

Commissioners, neither Court below made the findings feos di edi 

which the unrebutted record of testimony compel: '® that the \ 

plaintiffs and other black community leaders in the City, who 

have never run for Commissioner, participate in the electoral 

system by endorsing candidates and collecting the cor- 

responding political debts after election day by influencing 

municipal policy. No less self-serving than the testimony of 

these black leaders was the unrebutted testimony of the 

Commissioners that they campaigned actively for the black 

vote and fully recognized the effective marshalling of that 

vote by the plaintiffs. No one can say on the record of this, 

case that a black candidate who would have been elected 

from a black-majority district was defeated in or by the at- 

large electoral system.'® 

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"See Nevett, 571 F.24200,22: 
“Perhaps the most useful approach to analyzing the Zimmer 

criteria as they relate to the existence of intentional discrimination 
is to assume that an at-large scheme is being used as a vehicle for 

achieving the constitutionally prohibited end. The objective of such 
a scheme would be to prevent a group from effectively participating 
in elections so that the governing body need not respond to the 
group's needs. This objective would be achieved by insuring that a 

cohesive group remains a minority in the voting population, thus 
preventing that group from electing minority representatives or 
from holding nonminority representatives accountable.” 

'8See Brief for the Appellants, pp. 6-10. 

“The only 3 black candidates for Commissioner failed to carry the 

areas populated by blacks according to the census tracts. Pet., p. 8b (423 

F. Supp. 384, 388). 
Prediction of a white backlash,sce Pet..p. 8b(423 F. Supp. 384. 388), 

if a qualified black were to run for a Commission seat is just that, a 
prediction. Moreover, it is the product of a school of voter psycho- 

analysis which also gave us the headline" Dewey Defeats Truman.” The 
historical facts are that a qualified black can be elected at-large in a black 
minority city. See Brief for the Appellants, p. 11 n. 14 (examples from 
Detroit, Newark. East Orange. Berkeley, Richmond (California), Los 

Angeles, Atlanta, Raleigh, Richmond (Virginia), New Orleans and 

Birmingham. 

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Second, proof of discriminatory intent by maintenance of 
the status quo has been rejected recently. Aranda v. Van 
Sickle, 600 F.2d 1267 (9th Cir. 1979). Having rejected the 
argument that the failure of the city council to submit a 
districting plan to the electorate was intentional discrimina- 
tion, the Court in Aranda found the only evidence of vote 
dilution remaining to be the dismal failure of minority 
candidates in elections over 25 years. That showing was 
insufficient, and compelled summary judgement for the city. 
600 F.2d at 1275 (Kennedy, J. concurring.) 

We have argued that the third choice of the Court of 
Appeals, the tort theory of intent, is inconsistent with 
Washington v. Davis®® and its progeny, such as Arlington 
Heights.” The Feeney case last Term lends additional 
support to the rejection of the tort theory. 

In Personnel Administrator v. Feeney, No. 78-233,2* Ms. 
Feeney challenged a preference in public hiring given to 
veterans, citing the disproportionate representation of 
women among veterans. Focusing on the positive re- 
enactments of the preference (not merely a failure to rescind 
earlier legislation), the Court in terms rejected the tort 
method of proof.’ Here, as there, “discriminatory purpose’... 
implies more than intent. . . as awareness of consequences. It 
implies that the decisionmaker . . . selected or reaffirmed a 
particular course of action at least in part “because of,’ not 
merely ‘in spite of” its adverse effects upon an identifiable 
group.” 2 

2426 U.S. 229 (1976). 
Willage of Arlingion Heights v. Metropolitan Housing Devel, 

Corp., 429 U.S. 252 (1977) 

2200 8..Ct. 2282 

$See slip op., p. 13, No. 78-233 (Jun. §, 1979). 
“Feeney, supra, slip op., pp. 21-22. 
See also Sandstrom v. Montana, No. 78-5384 (99 S. Ct. 2450), slip 

op., pp. 11-13 (June 18, 1979) (criminal instruction based on tort proof 
of intent, unconstitutional). 

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  The finding and conclusion of the governmental interest of 

Mobile in retaining the functional specialization and city- Pv este 

wide representation attending at-large Commission elections EAS Re 

forecloses, under Feeney, a holding of discriminatory haul 

electoral intent. For, unlike the case in Columbus Board of 

Education v. Penick, “adherence to a particular policy. . . 

‘with full knowledge of the predictable effects. . . upon racial 

imbalance’ > was not * ¢ one factor among others. . . in 

determining whether an inference of segregative intent 

should be drawn.’ 26 Here, the tort inference was the only 

factor supporting the finding of purposeful maintenance of an 

at-large Commission government. 

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A REMEDY NOT MERELY MAIN- 

TAINING, BUT CHANGING MOBILES 

ENTIRE GOVERNMENT TO GUARAN- 

TEE, PROPORTIONAL REPRESENTA- 

TION BY RACE IS NECESSARY HERE 

UNLESS THE JUDGEMENT IS RE- 

VERSED.   
PRR re 3 The desideratum of both courts below was to create for 

Mobile an electoral plan in which votes would be counted not 

for candidates, but for racial interests. At-large elections 

conform perfectly to one-person — one-vote. Where a 

change to at-large?’ is proved to have been racially 

motivated, an appropriate remedy is to undo the change.?® 

  

25No. 78-610 (99 S.Ct. 2941) (Jul. 2, 1979). 

2% Penick, supra, slip op., p. 13, No. 78-610. 

See, e.g. Zimmer v. McKeithen, 485 F.2d 1297, 1301 (Sth Cir. 

1973) (en banc). 

This is the office of the Voting Rights Act, which is not applicable 

here. and whose applicability is not presented by any cross-appeal. See 

footnote 5 supra. : 

  

  

   



    

  

    

    

          

   

    

    

  

    

    

  

    

  

9 

Here, there is no change to undo. We have addressed the 

inappropriateness of holding that maintenance of an at-large 

system without any change or any other electoral act (such as 

campaigning against black support or black interests and 

maintaining the at-large system to preserve effective power 

to do so with electoral impunity) requires that the system be 

changed. ?® 
But, beyond the liability phase of this litigation, the 

creation of a remedy for the sole purpose of counting votes so 

as to guarantee representation of special interests, racial or 

otherwise, is frought with dangers, both practical and 

constitutional. 

Both courts below had this remedial goal: to “‘provide 

blacks a realistic opportunity to elect blacks to the city 

governing body.”’*® But, the proof had shown no meritorious 

black candidate to have offered himself for election. The 

remedial goal is one of guaranteeing the representation of a 

An article by Paul Brest has been cited by the Court below on the 
intent question. Nevert, 571 F.2d 209, 224 nn. 20,22; and 571 F.2d at 

233 n.1 (Wisdom, J., concurring specially). 

Brest also addresses the remedy problem in a way which distinguishes 

maintenance intent from action intent. He points out that the evil of an 

illicitly motivated decision is to rob the governed of a proper official 

assessment of the factors governing a decision to act. The proper remedy 

is to invalidate the illicit decision, forcing the official to decide properly. 

Brest, Palmer v. Thompson: An Approach to the Problem of 

Unconstitutional Legislative Motive, 1971 Sup. Ct.. Rev. 95, 116-18. 

Here, the assertedly illicit conduct of the government officials was to 

fail to guarantee proportional representation by race, a desideratum no 

decision of this Court requires. By finding and concluding a strong 

governmental interest in the at-large system, the courts below have 

already conceded that maintenance of the at-large system was a proper 

course of conduct. See Mt. Healthy Board v. Doyle, 429 U.S. 274, 285- 
87 (1977). 

3%Pet., p. 42b (423 F. Supp 384, 403). 

  

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black interest — however that is to be determined — by any 

candidate who is black. But, beyond the offensive notion that 

a candidate should be favored in spite of, rather than because 

of, his qualifications, administration of the remedy will 

provoke troubles which should not lightly be unleashed. 

We have pointed out before that the presumption that any 

black is better able to represent black interests than is any 

white, is not a presumption shared by all political scientists 

who have studied the jurisdictions.?’ 

Moreover, the remedial order dilutes black political 

power in Mobile. Blacks in Mobile, including Appellees, 

filled this record with their many visits to the Commissioners 

and how effective those visits had been in securing fulfillment 

of black needs. Now blacks meet with Commissioners who 

can “‘do it all” in that they are clothed with all the executive 

and legislative power the City of Mobile has under state law. 

Blacks under the orders of the Courts below get 3 

guaranteed black, part-time, poorly paid representatives in a 

9-person legislative council. These new black representa- 

tives are required to meet one time per week for a few hours. 

They are provided no staff. Why should the 6-person white 

council majority do very much for the blacks who cannot vote 

them in or out of office? 

To be blunt about it, blacks lose the “clout” they now 

testify they have due to their votes and the electoral 

participation of Appelles other than by standing election, and 

through which they now get their needs met. Under the 

District Court’s plan and order they get an almost powerless 

and almost worthless 3 out of 9 votes. What can the 3 court- 

ordered black district councilmen do for their segregated 

district in a city legislative body where 6 other councilmen 

are there to represent whites only? 

1Brief for the Appellants, pp. 32-33. 

  

  

  

   



  

  
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Instead of guaranteeing blacks “effective participation” in 
Mobile’s political processes, the court orders below herein 
effectively strip them of that “guarantee.” Those orders 
effectively dilute that participation. In sum, the lower courts 
destroy a system of government that serves blacks much 
better than the 3 guaranteed blacks out of 9 on the court- 
ordered council can possibly serve them. If dilution of 
political access and participation and power is the true 
constitutional test, then one must conclude the court orders 
are flagrantly misrepresented if claimed to be an enhance- . 
ment of black rights. Reasonable analysis proves the 
opposite is true. 

We have pointed out that a single-member district plan + 
maximizes guaranteed black representation — even if it were 
to be effective representation — only where blacks constitute 
a residentially segregated minority.*? If Mobile becomes a 
black majority city, guaranteed representation by race for 
blacks would be maximized by returning to-at-large elections 
in which the majority could vote as a racial block for each 
candidate in the City. Perhaps, in that event, the courts 
would entertain a suit by whites or some non-black minority 
claiming that their rights to proportional representation by 
race require a district plan. 

At the same time, if blacks achieve the goal of the melting 
pot and of the several federal community development 
programs, the goal of residential integration, then the single- 
member district remedy will no longer serve them as well. If 
blacks become truly integrated, it will not serve them at all. 

Therefore, a court conscientiously attempting to — 
guarantee and preserve a remedy of proportional repre- 
sentation by race will have to keep abreast of these trends. 

2d. p. 31. 

     

  

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The court will have to identify citizens by race,*® and 

determine where they live. The court will have to satisfy itself 

that the goal of continued black electoral success is indeed 

working to inhibit residential racial integration. Then, the 

court can retain electoral districts. But, as people move, the 

court must redraw the districts if it is to perpetuate the 

guarantee of the holding of the courts below. 

These considerations are not fanciful, as proceedings in 

a currently pending case in this city illustrate. At the Term - - 

.— before last, this Court held Dallas’ mixed single-member ; 

district and at-large plan for electing city councilmen to be 

constitutional as a legislative plan.** Thereupon, Dallas filed 

suit in the District of Columbia under §5 of the Voting Rights 

Act to have the plan approved.® Blacks and Mexican- 

American groups intervened. Blacks wanted either 11 single- 

member districts or a redrawing of lines for the 8 districts frm smtp 

extant, a remedy neither unexpected (given the degree of ; 

black residential segregation) nor catastrophic to the 

governance of Dallas. The Mexican-Americans, on the 

other hand could not so easily profit from the drawing of 

  

  

  

  

  

    

  

See Brief of Anti-Defamation League of B'nai B'rith, Amicus Curiae, 
pp. 6-12, in Fullilove v. Kreps, No. 78-1007 (statutory preference for 
“citizens. .. who are... Negroes...” unconstitutionally arbitrary, vague 

and overbroad) (citing cases of disputed racial identity). 

That the remedy in this case is a judicial one assertedly compelled by 

the Constitution while the statute in Fullilove is a congressional remedy 

assertedly compelled by the Constitution, makes no less applicable these 

words (Anti-Defamation League Brief, pp. 9-10): 
“Moreover, stamping the imprimatur of the Federal government 

upon a particular racial or ethnic definition. . . calls to mind 
notorious attempts by other governments to define racial or ethnic 
groups |and| establishes the government as a sort of racial * 3 
Inquisition, even if for a benign purpose.” 

“Wise v. Lipscomb, 437 U.S. 535 (1978). 

“City of Dallas v. United States, C.A. No. 78-1666 (D.D.C.. filed 

Sep. 5, 1978). 

  

  

      
  

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district lines; constituting on] 10% of the city’s population, g only 
they are well dispersed within Dallas. 36 Claiming the same abuse of dilution, and the same right to a remedy as Appellees here, the Mexican: Americans in Dallas urged the court to create 20 districts so that they might have a majority in one of them. 
A 20-member council is beyond the point at which a reviewing court can approve a remedy as reasonable. 38 Indeed, the ward-heeling of large single-member councils is precisely the reason for the establishment of Mobile's Commission form in 1911.39 

*The Dallas City demography was part of the Dallas County demography presented to this Court in 1973 as White v, Regester, 412 U.S. 755. 

Y Stipulation of Facts, Nos. 32-34, City of Dallas, supra (filed Jul. 18, 1979). 

“Twelve percent of mayor-council cities, and 0.2% of council- manager cities have councils of 16 or more members. Int'l City Mgmt. Ass'n, The Municipal Year Book 1979, p. 100 (Table 4/3). 
¥See Jurisdictional Statement, p. 10. 

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CONCLUSION 

We have reached the point in America where the qualifi- 
cations of candidates rather than the color of their skin 
determine elections. We urge that this Court so hold and in 
doing so uphold Mobile’s Commission form of government 
with its at-large elections. Thus will the people in Mobile 
continue to choose to vote on a candidate’s qualifications as 
will the voters who reside in 67% of our cities which now 
have elections at-large. This is real equality: one person, one 
vote. That is what the Constitution requires. All voters are 
entitled to that equal vote and now get it in Mobile. The 
court-ordered 6-white 3-black district plan dilutes the black 
vote rather than enhancing it. So, on the record and remedy 
of this case, if the black Appellees win in this Court, they lose 
political and electoral power in Mobile. 

Respectfully submitted, 

C.B. ARENDALL, JR. 

WILLIAM C. TIDWELL, III 

TRAVIS M. BEDSOLE, JR. 

Post Office Box 123 

Mobile, Alabama 36601 

FRED G. COLLINS 

City Attorney, City Hall 

Mobile, Alabama 36602 

CHARLES S. RHYNE 

WILLIAM S. RHYNE 

MARTIN W. MATZEN 

1000 Connecticut Avenue, N.W. 

Suite 800 

Washington, D.C. 20036 

October 1979 Counsel for Appellants 

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