GREENE COUNTY RACING COM'N v. City of Birmingham

Decision Date26 August 1991
Docket NumberNo. CV-91-N-1930-S.,CV-91-N-1930-S.
Citation772 F. Supp. 1207
PartiesThe GREENE COUNTY RACING COMMISSION, et al., Plaintiffs, v. The CITY OF BIRMINGHAM, et al., Defendants.
CourtU.S. District Court — Northern District of Alabama

COPYRIGHT MATERIAL OMITTED

Rose Mary Sanders, Carlos A Williams, Chestnut Sanders Sanders Williams & Pettaway, Selma, Ala., John H England, Jr., England & Bivens P.C., Tuscaloosa, Ala., for plaintiffs.

Tony Cooper, pro se.

James K Baker, William M Slaughter, James C Huckaby, Jr., Haskell Slaughter Young & Johnston, Birmingham, Ala., Fred D Gray, Gray Langford Sapp McGowan & Gray, Tuskegee, Ala., for defendants.

Before DUBINA, Circuit Judge and PROPST and NELSON, District Judges.

EDWIN L. NELSON, District Judge:

I. Statement of the Case.

The Voting Rights Act of 1965, 42 U.S.C. § 1973, et seq., (the Voting Rights Act) prohibits any state or political subdivision of a state from imposing or applying any "qualification or prerequisite to voting or standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen ... to vote on account of race or color." 42 U.S.C. § 1973.1 Section 5 of the Voting Rights Act provides that when certain states and political subdivisions designated by the United States Attorney General2 "shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, or practice, or procedure with respect to voting different from that in force or effect on November 1, 1964 ... no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure" unless and until such state or political subdivision shall have sought and obtained a declaratory judgment in the United States District Court for the District of Columbia "that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. Alternatively, the affected state or political subdivision may preclear any proposed change by submitting it to, and securing the approval of, the United States Attorney General. Id.

In this civil action the plaintiffs claim the defendants did not preclear certain alleged changes in voting procedures to be used in connection with a public referendum. They seek injunctive and declaratory relief to prevent the defendants from conducting a referendum among the voters of Jefferson County, Alabama, on Tuesday, August 27, 1991, to determine whether greyhound racing and pari-mutuel wagering thereon will be legalized in that county.3 The plaintiffs are: the Greene County Racing Commission, a public corporation formed for the purpose, inter alia, of regulating greyhound racing and pari-mutuel wagering in Greene County, Alabama; the Greene County Board of Education, a beneficiary of certain income from the proceeds derived from pari-mutuel wagering on greyhound racing in Greene County, Alabama; the Greene County Commission, the governing body of Greene County, Alabama; and Cynthia Harris, a registered voter in Birmingham, Jefferson County, Alabama.4 The defendants are: the City of Birmingham, Alabama; the Jefferson County Commission, the governing body of Jefferson County, Alabama; the Birmingham Racing Commission, a public corporation organized and empowered to regulate thoroughbred horse racing and pari-mutuel wagering thereon in Birmingham, Alabama; Birmingham Sports Management and Milton McGregor, a corporation and one of its principal shareholders.5

The requested relief will be denied and the Voting Rights Act claims will be dismissed with prejudice.

II. The Facts.

Except to the extent that it is authorized by specific statute, gambling, including pari-mutuel wagering on horse racing and greyhound racing, is prohibited in the State of Alabama as being in violation of the state's criminal code. (Ala.Code §§ 13A-12-20 to -31 (1975).6 The Greene County Racing Commission and pari-mutuel wagering on greyhound racing were authorized by Act No. 75-376 on September 19, 1975 and a greyhound racing facility apparently has operated in Greene County for a number of years. In 1984 the Alabama legislature authorized the establishment of a racing commission in the City of Birmingham and also legalized horse racing and pari-mutuel wagering on such horse racing in that city. 1984 Ala. Acts P. 159 (codified at Ala.Code § 11-65-1 et seq.) (Horse Racing Act) The Horse Racing Act provided that it would be effective only if horse racing and pari-mutuel wagering thereon were approved at an election conducted in the City of Birmingham and in the county or counties in which the City, "or any part thereof," was located. The act further required approval by both "a majority of all the voters casting votes in such referendum and ... a majority of the voters casting votes in such referendum who reside in the City of Birmingham" before it could become effective. Ala.Code, § 11-65-46. At an election conducted on June 12, 1984, majorities of the voters in Jefferson County and in Birmingham approved the establishment of the Birmingham Racing Commission and horse racing with pari-mutuel wagering. (Defendants' Exhibit 2) Under the provisions of the Horse Racing Act, the Birmingham Racing Commission issued a license for the ownership of a horse racing facility located in Birmingham, Alabama and an operator's license to conduct horse racing and pari-mutuel wagering thereon at such racing facility. The holders of those licenses and related interests constructed a horse racing facility and instituted a horse racing program including pari-mutuel wagering.

Horse racing in Birmingham proved to be an economic failure and the original holder of the licenses eventually sought the protection of the bankruptcy laws of the United States. Through an arrangement not entirely clear from the record, but seemingly with the approval of the bankruptcy court, a second horse racing operator was permitted to conduct horse racing and pari-mutuel betting operations at the racing facility. It, too, was an economic failure. According to legislative findings made in 1991, the original holder of the licenses and its successor incurred total losses of $22,500,000 from the time the track opened until horse racing ended there in 1990. Act of July 28, 1991, No. 187, § 1; Plaintiffs' Exhibit 4.

At the time Act No. 84-131 was enacted, the City of Birmingham was situated entirely in Jefferson County, Alabama, and the referendum on the approval of horse racing and pari-mutuel betting was limited to that county. The City has since extended its boundaries by annexation into neighboring Shelby County.

At its regular session in 1991, the legislature enacted Act No. 91-187 (Dog Racing Act)7 which substantially amended Act No. 84-131, inter alia, to authorize greyhound racing and pari-mutuel betting thereon in the City of Birmingham.8 Issues have been raised under the Voting Rights Act with regard to a number of passages and provisions in Act No. 91-187. Section 4(b)9 of the act, amending Ala.Code § 11-65-4, provides where an election has previously been held "that authorized either horse racing and pari-mutuel wagering thereon or greyhound racing and pari-mutuel wagering thereon, but not both such racing activities," as it has in Birmingham, the City is "mandated" to call for an election prior to January 1, 1992 "to determine whether greyhound racing and pari-mutuel wagering thereon shall be permitted in Birmingham."10 Section 4(b) further provides that no voters who live outside Jefferson County shall be permitted to vote in the referendum. No election called for the purpose of considering either horse racing or greyhound racing may be "held on the date the City of Birmingham holds an election for its mayor or for two or more members of its governing body." Act of July 28, 1991, No. 187, § 4(c); Plaintiffs' Exhibit 4.

The mayor of Birmingham recommended, and its council adopted, Resolution No. 1257-91 by which the Jefferson County Commission was requested to call an "election to be held throughout the county on August 27, 1991, for the purpose of determining whether or not greyhound racing and pari-mutuel wagering thereon shall be permitted in the part of the City located within the County." (Defendants' Exhibit 2) As requested, the Jefferson County Commission promptly set the election for August 27, 1991. The question to be presented to the voters is:

Do you favor the authorization of greyhound racing and pari-mutuel wagering thereon in that part of the City of Birmingham located in Jefferson County, as provided in Chapter 65, Title 11, Code of Alabama 1975? (Plaintiffs' Exhibits 2 and 3)

The only other measures on the ballot in any part of the county concern the renewal of certain ad valorem taxes dedicated to public school use. There are no candidates for public office listed on any ballot in the county. The greyhound racing question is not on the ballot to be used in that part of Birmingham that is situated in Shelby County, Alabama. (Plaintiffs' Exhibit 1)

Approximately one week before the scheduled vote, the relevant voter roles reflected the following with regard to total voters and the racial composition of the electorate:

                 ==============================================================================
                ||                              |  Total  |  White  |  %    |  Black  |  %    ||
                ||------------------------------|---------|---------|-------|---------|-------||
                ||        Jefferson County      | 344,638 | 234,264 | 67.9  | 102,282 | 32.1  ||
                ||------------------------------|---------|---------|-------|---------|-------||
                ||  Birmingham/Jefferson County | 133,977 |  53,810 |  40   |  75,300 |  60   ||
                ||------------------------------|---------|---------|-------|---------|-------||
                ||         Shelby County        | 56,150  |  51,879 | 92.4  |  3,854  |  7.6  ||
...

To continue reading

Request your trial
2 cases
  • Lucero v. Operation Rescue of Birmingham
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 5, 1992
    ... ...    Alan Pollack, Pollack & Green, New York City and David Elliott Hodges, Fligel & Hodges, ... ...
  • Boxx v. Bennett, Civil Action No. 98-A-1280-N.
    • United States
    • U.S. District Court — Middle District of Alabama
    • May 18, 1999
    ...was a "plausible consequence" of the voting change to determine if section 5 applies. In Greene County Racing Comm'n v. City of Birmingham, 772 F.Supp. 1207, 1212 (N.D.Ala.1991)(three-judge court), judgment vacated, 505 U.S. 1201, 112 S.Ct. 2986, 120 L.Ed.2d 864 (1992), the court noted that......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT