Brodhead v. Ezell, Civ. A. No. 7033-72.
| Decision Date | 21 August 1972 |
| Docket Number | Civ. A. No. 7033-72. |
| Citation | 348 F. Supp. 1244 |
| Parties | Sam G. BRODHEAD et al., Plaintiffs, v. Rainer C. EZELL et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
Hardy B. Smith, J. U. Blacksher, Mobile, Ala., Jack Greenberg, New York City, W. E. Still, Jr., University, Ala., for intervening plaintiffs.
Franklin C. Evans, Butler, Ala., W. A. Kimbrough, Mobile, Ala., Wallace H. Lindsey, III, Butler, Ala., J. R. Bennett, Jr., Birmingham, Ala., for defendants.
This action was commenced by Sam G. Brodhead, Robert Laughlin, Jack DeLoach and Merrill Carlisle, resident citizens of Choctaw County, Alabama, taxpayers and duly qualified and registered voters of said county. The plaintiffs brought the action on their own behalf individually and on behalf of all other qualified electors in Choctaw County, against Rainer C. Ezell, and others as members of the Choctaw County Commission seeking to have the one man one vote principle of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), applied to the election of the members of that county governing body.
Subsequently a Motion to Intervene as plaintiffs was filed by Anthony Butler and Thelma Craig, individually and on behalf of all other qualified black electors residing in Choctaw County. On July 21, 1972, this court entered its order granting the Motion to Intervene and the black electors of Choctaw County appeared by counsel and participated fully in this proceeding as a subclass of the plaintiff class.
In their prayer for relief the plaintiffs ask the court to declare unconstitutional Sections 1 and 2 of Act No. 122, Local Acts of the Alabama Legislature, 1927, page 41, et seq., pertaining to the apportionment of the County Commission of Choctaw County; that the election in 1970 of the commissioners in Districts 2 and 4 be set aside; that the court direct that the County Commissioner of Choctaw County be elected at large and that such at large elections continue until such time as the Legislature of Alabama properly reapportions the membership of the said County Commission in such a manner that the four Commission Districts are as nearly equal in population as may be found practical and constitutional; and for other and further relief.
The intervening plaintiffs adopted the prayer for relief requested by the plaintiffs and further asked that the court order such relief as will protect the interest of subclass and their rights to fair and effective representation.
In their answer the defendants deny the allegations of the complaint wherein it alleges a disparity in the number of qualified electors making up the districts of the Choctaw County Commission and suggest that the burden the plaintiffs have to carry is to show a disparity in populations of the said districts making up the Choctaw County Commission. They further prayed that if the court found the Choctaw County Commission not constitutionally made up, that they be allowed to present a plan for the consideration of the court or in the alternative that if the court reapportions on the basis of registered voters that the court require voter re-identification as a part of its order. The court's pretrial order required each party to present a plan at trial.
The plaintiffs, Sam G. Brodhead, Robert Laughlin, Jack DeLoach and Merrill Carlisle, are represented by counsel. Intervening plaintiffs, Anthony Butler and Thelma Craig, are represented by counsel. Of the defendants, the members of the County Commission and the Probate Judge of Choctaw County are represented by counsel. The Attorney General of Alabama filed a motion to dismiss as to him which motion was granted. An appearance was made on behalf of the Chairman of the Choctaw County Democratic Party. An appearance was made on behalf of the Alabama State Republican Executive Committee. No other appearances by counsel were made.
Choctaw County is located in Southwest Alabama. Butler is the county seat and the largest town in the county. A portion of Butler lies in Districts 1 and 2. Other significant communities in the county are Pennington which lies in District 1; Lisman which lies in District 2; Toxey, Gilbertown and Silas in District 3, and Bladon Springs which lies in District 4. Choctaw County is a predominately rural county. Butler, the largest town, has a population of 2,047.
Act No. 122, supra, (hereinafter referred to as Act No. 122) divided the county into four Commissioners districts. The most recent statistical evidence shows the population and number of registered voters in each district as follows:
Population Registered Voters
District No. 1 (Sparrow) 5,138 (30.9%) 3,282 (29.1%)
District No. 2 (Ezell) 4,298 (25.9%) 2,676 (23.5%)
District No. 3 (Doggett) 4,053 (24.4%) 3,242 (28.7%)
District No. 4 (Moseley) 3,100 (18.7%) 2,084 (18.7%)
______________ ______________
TOTAL: 16,589 11,284
The area, in square miles, and the road mileage in each of the Commissioner's districts are shown below:
District No. 1 (Sparrow) 220 94.9
District No. 2 (Ezell) 220 118.3
District No. 3 (Doggett) 240 105.8
District No. 4 (Moseley) 248 101.8
The Probate Judge is an Ex-Officio member of the Choctaw County Commission, serves as its Chairman, but votes only in the event of a tie.
The said Act requires that each of the Commissioners shall be a qualified elector of the district he represents and that each shall be elected by the qualified electors residing within the district. Each member of the Commission has direct supervision of the construction, repair and maintenance of the public roads and bridges in his district not embraced within the state highway system or under the maintenance of the State Highway Department, except those within the corporate limits of Butler, Pennington, Toxey, Gilbertown and Silas, the incorporated municipalities in the county. In addition, the Commission exercises general governmental powers over all the residents of the county and provides governmental services to the towns and communities in the county. Among its several responsibilities, the County Commission is required to furnish space for elected officials the Register in Equity, the Driver's License Division of the Department of Public Safety, Civil Defense Agency, the V. A. Director, Department of Pensions & Securities, the Food Stamp Program, F.H.A., Selective Service, Department of Education, Extension Service, A.S.C.S. Office, Board of Registrars, Board of Equalization and the Jury Commission. The Commission is obligated to furnish the Sheriff with sufficient deputies, automobiles, and other supplies to maintain peace and harmony. The Commission may appropriate money for the Food Stamp Program, the Public Library and the Regional Health Program.
The revenue derived by the county is received from residents who live in the towns and communities as well as those who live outside the same.
On the hearing on this cause, the defendant elected officials of Choctaw County proposed a redistricting plan. This plan divides the County into four Commissioner districts. As is required by Act No. 122, to be eligible to run a candidate must reside in the district and be elected by the people of that district. Under this plan District No. 1 would have a total population of 4,167, of whom 822 reside in Butler, a road mileage of 99.7, and 223 square miles; District No. 2 would have a total population of 4,187, of whom 710 reside in Butler, a road mileage of 95.4, and 174 square miles; District No. 3 would have a total population of 4,074, none of whom reside in Butler, a road mileage of 111.2, and 252 square miles; and District No. 4 would have a total population of 4,161, of whom 522 reside in Butler, a road mileage of 114.5, and 279 square miles.1 The plan contains a map indicating the new lines of the four Commissioner districts.2 The evidence before the court, including the testimony of each member of the Choctaw County Commission and its Chairman, the Probate Judge, indicates that the proposal of the defendants is a fair and equitable division of the county considering the population, road mileage, total area making up each Commissioner's district, political, social and economic factors, and is nondiscriminatory as to race. To the extent possible, the new plan follows the geographical lines of the old commission districts. Ideally, based on a total population of 16,589, there would be 4,147 persons in each of the districts. Under the proposal of the defendants, District No. 1 is "under-represented" to the extent of 0.48%, District No. 2 is "under-represented" to the extent of 0.96%, District No. 3 is "over-represented" to the extent of 1.76%, and District No. 4 is "under-represented" to the extent of 0.34%. The result is a variance from absolute equality of 2.72% (113 people).
The Legislature in Act No. 122 provides for staggered terms. The preponderance of the evidence is that staggered terms are preferable. Staggering the terms insures continuity on the board from election to election. Act No. 122 provides that Commissioners for Districts 1 and 3 will be elected in November of 1972, and the election for Commissioners in Districts 2 and 4 will take place in 1974.
Candidates have been nominated by the Democratic party primary to fill the vacancies on the commission that will occur in January, 1973, in Districts 1 and 3. The Republican party did not run candidates for this position. The election of these places will be in November, 1972.
The plan of the defendants does not disturb the positions presently held by the Commissioners in Districts 2 and 4 nor the nomination of candidates for the position of Commissioner in Districts 1 and 3.
Act No. 122 established a ...
To continue reading
Request your trial
-
Yelverton v. Driggers
...86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Zimmer v. McKeithen, 485 F.2d 1297, 1303 n.11 (5th Cir. 1972) (en banc); Brodhead v. Ezell, 348 F.Supp. 1244, 1251-1252 (S.D.Ala.1972). It is evident that the use of registered voter statistics as a base for the one man-one vote portion of this case wou......