731 F.2d 1546 (11th Cir. 1984), 81-7796, United States v. Marengo County Com'n

Docket Nº:81-7796.
Citation:731 F.2d 1546
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. MARENGO COUNTY COMMISSION, et al., Defendants-Appellees.
Case Date:May 14, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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731 F.2d 1546 (11th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellant,


MARENGO COUNTY COMMISSION, et al., Defendants-Appellees.

No. 81-7796.

United States Court of Appeals, Eleventh Circuit

May 14, 1984

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Joan A. Magagna, Asst. Atty. Gen., U.S. Dept. of Justice, Civ. Rights Div., Washington, D.C., Thomas H. Figures, Asst. U.S. Atty., Mobile, Ala., for U.S.

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Hugh A. Lloyd, Demopolis, Ala., and Marengo County Bd. of Education.

Cartledge W. Blackwell, Jr., Selma, Ala., for Marengo County et al.

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

Before TJOFLAT and FAY, Circuit Judges, and WISDOM [*], Senior Circuit Judge.

WISDOM, Senior Circuit Judge:

In 1979 the district court held that the at-large system for electing the Marengo County, Alabama county commission and school board did not violate the Fourteenth and Fifteenth Amendments; the Civil Rights Act of 1870, as amended, 42 U.S.C. Sec. 1971(a) (1976); and section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. Sec. 1973 (1976). Clark v. Marengo County, 1979, S.D.Ala., 469 F.Supp. 1150. Since that time, we have remanded this case once, and the Supreme Court has issued two decisions affecting the standard of proof in constitutional discrimination cases. Rogers v. Lodge, 1982, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012; City of Mobile v. Bolden, 1980, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47. Furthermore, in 1982 Congress amended section 2 of the Voting Rights Act to restore the legal standard that governed voter discrimination decisions before the Supreme Court decided Mobile v. Bolden. 1 We now hold that the 1982 amendment to section 2 applies to this case; that amended section 2 is a constitutional exercise of congressional enforcement power under the Fourteenth and Fifteenth Amendments; and that the district court was clearly erroneous in holding that Marengo County's at-large system had no discriminatory results as of the time of trial. We remand this case to the district court to allow the parties a limited opportunity to update the record and, in the event that the court finds a continuing violation of the Voting Rights Act, to allow the court to devise an appropriate remedy.


Marengo County is a sparsely populated rural county covering 978 square miles in west central Alabama. Its 1950 population of 29,494 had decreased to 27,098 in 1960 and to 23,819 in 1970. Blacks comprised 69% of the population in 1950, 62.1% in 1960, and 55.2% in 1970. The percentage of blacks in the voting age population has likewise declined over the years: from 56.1% in 1960 to 50.8% in 1970. The parties stipulated that at the time of trial 16,000 persons were qualified to vote, of whom 44 percent were black. Blacks have always constituted a minority of registered voters. 2 There are great social and economic

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disparities between blacks and whites. 3

The County Commission (formerly the Board of Revenue) and the Board of Education have five members each. 4 Before 1955 each body had a president, elected at-large, and four members elected from districts. In 1955 the state legislature provided that all members of both bodies would be elected at-large, with the requirement that one member live in each of the four existing districts. 5 In 1966 the legislature provided for staggered four-year terms. 6

Before 1965 no black ran for any office in Marengo County. Between 1966 and 1978 there were 73 county-wide elections in

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which blacks ran against whites. 7 One black was elected County Coroner in 1978 by winning the Democratic primary by a margin of 3,719 to 3,617 over a white candidate. Another black was appointed to the school board. 8

On August 15, 1977 a group of blacks filed a class action alleging that Marengo County's at-large system for electing the county commission and school board unlawfully diluted the voting rights of blacks. One year later, the United States filed suit under the Voting Rights Act. 9 The court tried the case on October 23-25, 1978 and January 4, 1979. On April 23, 1979 the district court issued an opinion and entered judgment for defendants. The court concluded that the plaintiffs had not proved that the at-large system was being maintained with a discriminatory purpose. 469 F.Supp. at 1180.

The United States appealed to the Fifth Circuit. On April 22, 1980, the United States Supreme Court decided City of Mobile v. Bolden, 1980, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47. Mobile v. Bolden held that in vote dilution cases discriminatory intent must be shown to establish a constitutional violation, and it raised doubts about the methodology used by the Fifth Circuit in vote dilution cases. This Court accordingly remanded the case to the district court "for further proceedings, including the presentation of such additional evidence [as] is appropriate, in light of [Mobile v. Bolden ]". United States v. Marengo County Commission, No. 79-2525 (5 Cir. Aug. 6, 1980), Record 448.

On May 20, 1981, the Fifth Circuit decided Lodge v. Buxton, 5 Cir.1981, 639 F.2d 1358. Lodge held that Mobile v. Bolden does not require direct evidence of discriminatory intent but stated, "An essential element of a prima facie case [of unconstitutional vote dilution] is proof of unresponsiveness by the public body in question to the group claiming injury." 639 F.2d at 1375. On July 30, 1981, the district court in the present case again ordered judgment for defendants on the ground that the plaintiffs had not established unresponsiveness. The court rejected the United States' offer to present additional evidence, including evidence concerning the reasons for the adoption of at-large elections in Marengo County, because it concluded that this evidence "would add nothing" to show unresponsiveness. Record 499-501.

The United States again appealed, and we granted its motion to hold this appeal in abeyance pending review of Lodge v. Buxton (sub nom. Rogers v. Lodge ) by the United States Supreme Court. On July 1, 1982, the Supreme Court affirmed the result in Lodge, but held that unresponsiveness is not an essential element of a claim of unconstitutional vote dilution. Instead, the court held that "unresponsiveness is an important element but only one of a number of circumstances a court should consider in determining whether discriminatory purpose may be inferred". Rogers v. Lodge, 458 U.S. at 625 n. 9, 102 S.Ct. at 3280 n. 9. 10

The 1982 amendment to section 2 of the Voting Rights Act became effective on

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June 29, 1982. Pub.L. No. 97-205, sec. 6, 96 Stat. 131, 135. Congress redefined the scope of section 2 of the Act to forbid not only those voting practices directly prohibited by the Fifteenth Amendment but also any practice "imposed or applied ... in a manner which results in a denial or abridgement of the right ... to vote on account of race or color ...." 42 U.S.C.A. Sec. 1973(a) (West Supp.1983) (emphasis added). See S.Rep. No. 417, 97th Cong., 2d Sess. (1982), reprinted in 1982 U.S.Code Cong. & Ad.News 177 [1982 Senate Report]. The United States urges us to apply the amended statute to the existing record and hold as a matter of law that Marengo County's at-large system has a discriminatory "result". In response, the defendants argue that the 1982 amendment does not or should not apply to this litigation; that section 2 does not apply to vote dilution claims; that the 1982 amendment is unconstitutional; and that the findings of the district court are not clearly erroneous.


"[A] court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. Richmond School Board, 1974, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476, 488. This principle goes back as far as United States v. Schooner Peggy, 1801, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49, in which Chief Justice Marshall stated,

"It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns ... the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside."

5 U.S. (1 Cranch) at 110. The defendants argue that "manifest injustice" would be done if the amended version of section 2 were applied here. We find, however, that the legislative history of the amendment, and the vital public interest in insuring effective participation in the political process for every citizen, mandate our application of the law in effect now.

In general, it is unnecessary to find affirmative support in a statute or its legislative history for applying it to pending cases. A statute will be assumed to apply to cases pending at the time of its passage unless there is a "clear indication" that it is not to apply. Bradley, 416 U.S. at 712-716, 94 S.Ct. at 2016-2018. Here there is certainly no such indication in either the statute or its legislative history. On the contrary, the available evidence suggests that Congress expected the amendment to govern a case such as the one now before

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the Court. Both Representative Sensenbrenner and Senator Kennedy explicitly stated during debate that

"Section 2, unlike the bailout procedure added by this bill, will take effect immediately, and will, of course, apply to pending cases in accordance with the well established principles of Bradley v. City of Richmond. 416 U.S. 686 [94 S.Ct. 2006, 40 L.Ed.2d 476] (1974) and United States v. Alabama. 362 U.S. 602 [80 S.Ct. 924, 4 L.Ed.2d 982] (1980)."


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