Bolden v. City of Mobile, Ala.

Citation571 F.2d 238
Decision Date29 March 1978
Docket NumberNos. 76-4210,77-2042,s. 76-4210
PartiesWiley L. BOLDEN et al., Plaintiffs-Appellees, v. CITY OF MOBILE, ALABAMA, et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Wm. C. Tidwell, Charles B. Arendall, Jr., Mobile, Ala., Charles S. Rhyne, Washington, D. C., S. R. Sheppard, City of Mobile Legal Dept., Mobile, Ala., William S. Rhyne, Washington, D. C., Travis M. Bedsole, Jr., Mobile, Ala., Fred G. Collins, City Atty., Legal Dept. of the City of Mobile, City Hall, Mobile, Ala., Donald A. Carr, Martin W. Matzen, Washington, D. C., for defendants-appellants.

Gregory B. Stein, J. U. Blacksher, Larry Menefee, Mobile, Ala., Edward Still, Birmingham, Ala., Jack Greenberg, James M. Nabrit, III, Charles E. Williams, III, Eric Schnapper, New York City, for plaintiffs-appellees.

Dennis J. Dimsey, Atty., Civil Rights Div., Appellate Sect., U. S. Dept. of Justice, Washington, D. C., for United States.

Miriam R. Eisenstein, Brian K. Landsberg, Walter W. Barnett, Attys., Drew S. Days, Asst. Atty. Gen., Appellate Section, Civil Rts. Div., Dept. of Justice, Washington, D. C., for amicus curiae.

Appeals from the United States District Court for the Southern District of Alabama.

Before WISDOM, SIMPSON and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

This is the second of four consolidated voting dilution cases we decide today. See Nevett v. Sides (Nevett II), 571 F.2d 209, 213 n.1 (5th Cir. 1978). Black citizens of Mobile, Alabama, brought this class action to challenge the constitutionality of their city's at-large method of electing its commissioners. The district court sustained the challenge, declared the city's commission government unconstitutional, and ordered the establishment of a mayor-council plan requiring that councilmen be elected from single-member districts. Bolden v. City of Mobile, 423 F.Supp. 384 (S.D.Ala.1976). The city and its commissioners take this appeal, asserting that the district court erred in its conclusion that the at-large commission elections impermissibly diluted the votes of black Mobilians and in its ordering of the single-member plan. We find the appellants' arguments unpersuasive and therefore affirm the judgment below.

The district court's opinion sets forth the factual background of this case in detail and at length. 423 F.Supp. at 386-94. Therefore, we will discuss only the salient findings below. We also incorporate the portions of our opinion of today in Nevett II that explicate the legal principles applicable to voting dilution cases. 1

I

A city commission consisting of three members, all of whom are elected at-large, governs the City of Mobile. Government by commission of this type was established in 1911 by state law, 1911 Ala.Acts no. 281, which requires commission candidates to run for numbered positions and win by majority vote. Commission elections are nonpartisan, and therefore there are no primaries. There is no requirement that commissioners reside in specified subdistricts.

In 1965, a specific city-wide function was assigned to each position by statute. 2 1965 Ala.Acts no. 823. These functions include the administration of the following departments: the Department of Finance and Administration, the Department of Public Safety, and the Department of Public Works and Services. Commissioners are elected for four year terms, and the mayoralty is shared equally among the commissioners during their terms.

On June 9, 1975, the appellees commenced this action to invalidate Mobile's city commission. They claimed that the at-large feature of commission races combined with the various electoral devices set out above operated to dilute their votes in violation of the first, thirteenth, fourteenth, and fifteenth amendments to the Constitution, of the Civil Rights Act, and of the Voting Rights Act. 3 The case went to trial in July of 1976, and the district court entered judgment for the appellees on October 22, 1976, ordering that the next city elections, scheduled for August, 1977, conform with a yet-to-be-determined mayor-council plan incorporating single-member council seats. 4 The court entered a remedial order on March 9, 1977, abolishing the commission government and expounding a mayor-council plan. On April 7, 1977, however, the district court stayed its injunction that had ordered that the August elections conform to the mayor-council plan. We declined to dissolve this stay, and we stayed the holding of any city elections pending this appeal.

II

In concluding that Mobile's system of electing its city commissioners worked an unconstitutional dilution of the votes of black Mobilians, the district court relied upon the test set forth in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 294 (1976). 5 The court determined that the appellees established all the primary indicia of dilution except for the existence of a tenuous state policy behind the at-large plan. The evidence under the state policy criterion was found to be "neutral." 423 F.Supp. at 393. Under the enhancing criteria, the appellees demonstrated, and the court found, that Mobile is a large district (its 1970 population was 190,026, 35.4% Of which was black), that the city has a majority vote requirement, that the commission candidates run for numbered positions, and that there are no subdistrict residency requirements. Id. at 393-94. We find the district court's determinations under the Zimmer criteria not clearly erroneous and the court's ultimate conclusion of dilution amply supported by its findings.

The district court gave careful consideration to each of the primary Zimmer criteria. It found a lack of black access to the political processes in Mobile. The court noted "massive official and private discrimination" prior to federal intervention in the form of the Voting Rights Act of 1965, 423 F.Supp. at 387, and found that although "(t)here are no formal prohibitions against blacks seeking office in Mobile . . . , the local political processes are not equally open to blacks." Id. No black had achieved election to the city commission due, in part, to racially polarized voting of an acute nature. Few blacks sought office because of the prospect of certain defeat in the at-large elections. Id. at 389. Although the failure of black candidates because of polarized voting is not sufficient to invalidate a plan, United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977); McGill v. Gadsden County Commission, 535 F.2d 277 (5th Cir. 1976); Bradas v. Rapides Parish Police Jury, 508 F.2d 1109 (5th Cir. 1975); Robinson v. Commissioners Court, 505 F.2d 674 (5th Cir. 1974), it is an indication of lack of access to the political processes. It is one piece of the circumstantial evidence puzzle, whose successful completion supports the illation of dilution. See Nevett II, 571 F.2d at 224.

The district court determined that the city commissioners have been unresponsive to the needs of blacks in Mobile. The city has employed relatively few blacks in the higher levels of city service, and the city has been enjoined by federal court order to desegregate its fire and police departments and to open city facilities to allow equal accessibility to blacks. Various city committees whose members are appointed by the commission have evidenced a severe underrepresentation of blacks. As the court concluded, "(n)o effort has been made to bring blacks into the mainstream of the social and cultural life by appointing them in anything more than token numbers." 423 F.Supp. at 390.

The court found not only that the city had been insensitive to the need for black participation in city government but also that the commission had been less responsive to black areas than white ones with respect to providing municipal services. These services included temporary relief from drainage problems, construction and resurfacing of roads, and construction of sidewalks. The court was careful to consider and weigh all the evidence.

Although the city has not been totally neglectful, and the expense and problems are monumental, there is a singular sluggishness and low priority in meeting these particularized black neighborhood needs when compared with a higher priority of temporary allocation of resources when the white community is involved.

423 F.Supp. at 392. The court also made note of incidents of police brutality against blacks, mock lynchings, and cross burnings. The city commission reaction was found to be sluggish, evincing "a failure by elected officials to take positive, vigorous, affirmative action in matters which are of such vital concern to the black people." Id.

We think the evidence fairly supports a finding of unresponsiveness. The district court's task in considering evidence under the responsiveness criterion is a singularly factual one. Given the court's attentive consideration of the voluminous evidence on this issue, we cannot find its conclusion of unresponsiveness clearly erroneous. See Nevett II, 571 F.2d at 226.

As to the weight of the state policy behind at-large districting of city governments, the court found that the State of Alabama had no particular preference for such schemes. 6 Given the longstanding at-large feature of Mobile's commission government, however, the court concluded that the "manifest policy of the City of Mobile has been to have at-large or multi-member districting." 423 F.Supp. at 393. We appreciate the traditional deference the federal courts have accorded local governments, and we recognize "that viable local governments may need considerable flexibility in municipal arrangements if they are to meet changing societal needs." Abate v. Mundt, 403 U.S. 182, 185, 91 S.Ct. 1904, 1907, 29 L.Ed.2d 399 (1971). City-wide representation is a legitimate interest, and at-large districting is...

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35 cases
  • Jones v. City of Lubbock, 83-1196
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 5, 1984
    ...intentionally diluted. Id. at 226. On the same day as the decision in Nevett II, the same panel of this court decided Bolden v. City of Mobile, 571 F.2d 238 (5th Cir.1978), rev'd and remanded, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Applying the standards articulated in Nevett, t......
  • United States v. Dallas County Com'n, Civ. A. No. 78-578-H.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • September 10, 1982
    ...or the white candidate identified with the black". Bolden v. City of Mobile, 423 F.Supp. 384, 388 (S.D.Ala., 1976), aff'd 571 F.2d 238 (5th C.C.A., 1978), rev. 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). As previously discussed, black support has generally been actively and publicly ......
  • United States v. Dallas County Com'n, Civ. A. No. 78-578-H.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • September 3, 1982
    ...or the white candidate identified with the black". Bolden v. City of Mobile, 423 F.Supp. 384, 388 (S.D.Ala., 1976), aff'd 571 F.2d 238 (5th C.C.A., 1978), rev. 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). As previously discussed, black support has generally been actively and publicly ......
  • Clark v. MARENGO CTY., Civ. A. No. 77-445-H
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • April 23, 1979
    ...there can be no question, as this Court noted in Bolden v. City of Mobile, 423 F.Supp. 384, 387 (S.D.Ala.1976), aff'd, 571 F.2d 238 (5th Cir. 1978) (per Pittman, Ch. J.), but that "the pervasive effects of past discrimination still substantially affects political black There is no allegatio......
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1 books & journal articles
  • The multimember district: a study of the multimember district and the Voting Rights Act of 1965.
    • United States
    • Albany Law Review Vol. 66 No. 1, September 2002
    • September 22, 2002
    ...system was closed to African Americans, and elected officials were unsympathetic to minority groups). (75) See Bolden v. City of Mobile, 571 F.2d 238, 245 (5th Cir. 1978) (concluding that Mobile's election system depreciated and diluted the African American vote), rev'd, 446 U.S. 55 (1980).......

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