Hawthorne v. Baker, Civ. A. No. 89-T-381-S.

• Decision Date: 20 August 1990
• Docket Number: Civ. A. No. 89-T-381-S.
• Citation: 750 F. Supp. 1090
• Parties: Thomas HAWTHORNE and Emory Newman, individually and on behalf of all other persons similarly situated, Plaintiffs, v. John BAKER, in his official capacity as Chairman of the State Democratic Executive Committee of Alabama; State Democratic Executive Committee of Alabama; J. Holt Etheridge, Chairman of the Henry County Executive Committee; Henry County Democratic Executive Committee, as a committee and all county Democratic executive committees similarly situated; and Democratic Party of the United States, Defendants.
• Court: U.S. District Court — Middle District of Alabama

750 F. Supp. 1090

Thomas HAWTHORNE and Emory Newman, individually and on behalf of all other persons similarly situated, Plaintiffs, v.John BAKER, in his official capacity as Chairman of the State Democratic Executive Committee of Alabama; State Democratic ExecutiveCommittee of Alabama; J. Holt Etheridge, Chairman of the Henry County Executive Committee; Henry County Democratic Executive Committee, as a committee and all county Democratic executive committees similarly situated; and Democratic Party of the United States, Defendants.

Civ. A. No. 89-T-381-S.

United States District Court, M.D. Alabama, S.D.

August 20, 1990.

Terry G. Davis, Terry G. Davis, P.C., Montgomery, Ala., James U. Blacksher, John C. Falkenberry, Leslie Proll and Edward Still, Birmingham, Ala., for plaintiffs.

Fournier J. Gale, III, Gregory H. Hawley, Maynard, Cooper, Frierson & Gale, James L. North, Birmingham, Ala., Susan Russ, Montgomery, Ala., John H. England, Jr., England & Bivens, Tuscaloosa, Ala., for Baker and State Democratic Comm.

Fred D. Gray, Tuskegee, Ala., Solomon Seay, Montgomery, Ala., for plaintiff-intervenor Keith.

Solomon Seay, Montgomery, Ala., for deponents Ala. Democratic Party, Jerome Gray and Joe Reed re m/protective order and m/quash only.

Vincent H. Cohen, Anthony L. Sutin, John C. Keeney, Roger L. Patton, Jr., Washington, D.C., David Schoen, Montgomery, Ala., for defendant DPUS.

Christine A. Varney, Gen. Counsel, Democratic National Committee, Washington, D.C., for defendant DNC.

Philip H. Smith, Talladega, Ala., for Talladega County Democratic Executive Committee.

Alston Keith, Jr., Selma, Ala., for Dallas County Democratic Executive Committee.

Clifford W. Cleveland, Prattville, Ala., for Autauga County Democratic Executive Committee.

Shelby County Democratic Executive Comm., Montevallo, Ala., pro se.

Winston Griggs, Henry County Democratic Executive Comm., Headline, Ala., pro se.

Raymond Bailey, Chair, Baileyton, Ala., for Cullman CDEC.

James Harris, Chair, Wedowee, Ala., for Randolph CDEC.

Dorman Walker, Montgomery, Ala., for Geneva, Madison, St. Clair, Tuscaloosa, Pickens, Chambers Bibb, Montgomery, Marion, Coffee, Lawrence, Marengo and Hale CDECs.

Gary White, Double Springs, Ala., for defendantWinston CDEC.

J. Milton Coxwell, Jr., Monroeville, Ala., for Monroe CDEC.

Robert M. Seale, Livingston, Ala., for Sumter CDEC.

Wallace H. Lindsey, III, Butler, Ala., for Choctaw CDEC.

William T. Musgrove, Jr., Florence, Ala., for Lauderdale CDEC.

Lee B. Williams, Grove Hill, Ala., for defendantClarke CDEC.

Joe Macon, Wetumpka, Ala., for defendant Elmore CDEC.

James M. Prestwood, Andalusia, Ala., for defendant Covington CDEC.

Before JOHNSON, Circuit Judge, HOBBS, Chief Judge, and THOMPSON, District Judge.

ORDER

MYRON H. THOMPSON, District Judge:

PlaintiffsThomas Hawthorne and Emory Newman, on behalf of themselves and other African-American Democrats in Alabama, claim in this lawsuit that recent changes in the way members of the State Democratic Executive Committee and members of 47 of the 67 County Democratic Executive Committees are selected must be precleared under § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973c.This three-judge court has been convened to hear these claims pursuant to 28 U.S.C.A. § 2284and42 U.S.C.A. § 1973c.We conclude that the changes are subject to preclearance as to the state committee and as to 45 of the county committees.

I.

On April 17, 1989, the plaintiffs filed this lawsuit in the United States District Court for the Middle District of Alabama, claiming that the Democratic Party at its local, state, and national levels has denied them and other African-American citizens of Alabama an opportunity equal to that of white citizens for representation on party governing bodies.The plaintiffs rested their claims on § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973, and on the fourteenth and fifteenth amendments to the United States Constitution as enforced through 42 U.S.C.A. § 1983.The plaintiffs named as defendants the Democratic Party of the United States, the State Democratic Executive Committee of Alabama and its chair, and the Henry County Democratic Executive Committee and its chair.The single-judge district court certified a plaintiff class of all black Democrats in Alabama.The court also certified a defendant class of all 67 County Democratic Executive Committees in Alabama.

Under the State Democratic Executive Committee's existing plan for selecting its members, each of the state's 105 House districts elects two persons, one male and one female, to serve four-year terms.The state committee then authorizes a number of other organizations to appoint additional persons to serve on the committee.One of these organizations is the Alabama Democratic Conference ("ADC"), a state-wide, predominantly black political organization.The ADC appoints 23 members to serve on the committee.The state committee's existing plan, as last modified in 1983, was precleared by the United States Attorney General.

In April 1989, shortly before this lawsuit was filed, the state committee adopted a new plan for selecting its members.The committee proposed to change from a fixed requirement of 23 additional appointments to a formula designed to guarantee that the proportion of black persons on the committee would at least equal the proportion of blacks in the general population.Instead of allowing the ADC to fill the appointed seats from among all black Democrats, the state committee's new plan called for additional members to be appointed only from among the unsuccessful black candidates, in descending order according to the number of votes each received in the committee election.The United States Attorney General refused to preclear this plan, noting his particular concern about the provision which allowed the appointed slots to be filled only from among blacks who ran unsuccessful campaigns.¹The Attorney General wrote that this "change ... could result in selection of persons in majority black districts who had failed to attract local black support."²

In January 1990, in response to the Attorney General's objection, the state committee modified its new plan for selecting members.This proposal, like the previous one, abolishes the right of the ADC and other groups to appoint additional members.The new plan, however, modifies the provision governing the number of blacks on the state committee; it requires that the proportion of black persons on the state committee must be at least equal to the proportion of blacks in the general population or the proportion of blacks voting in the Democratic gubernatorial primary, whichever is greatest.The plan also modifies the manner in which this requirement is to be met; it provides that the black members elected in the primary are to select the additional blacks, but only from the blacks who qualified but were not elected.³In March 1990, the state committee submitted the new plan to the Attorney General, but he has yet to issue a decision.⁴In that same month, the state committee began accepting qualification papers of candidates under the new plan for the June Democratic gubernatorial primary.Counsel for the state committee informed the court at oral argument, however, that, although the June primary election has now passed and committee members have now been elected, the state committee has not implemented the part of the new plan changing the method of appointing blacks to the committee.

Like the state committee, 45 of the County Democratic Executive Committees across the State of Alabama have altered their systems for selecting members, and many have implemented them without preclearance from the Attorney General.Seventeen of these committees adopted plans which merely provide for the appointment of members in addition to those who are elected.The plans for 16 of these counties, however, differ from the state committee's plan in that they provide for the appointment of both black and white additional members.⁵The seventeenth committee's plan — the plan for the Autauga County Democratic Executive Committee — is similar to the state committee's in that it provides for the appointment of blacks only.The other 28 county committees have altered the process by which members are elected; they have redrawn district lines, changed the nature of the units from which members are elected,⁶ or changed the number of members elected from a particular district.⁷

On March 22, 1990, the plaintiffs filed additional claims in this lawsuit alleging that the state committee and many, if not all, of the 67 county committees were proceeding to implement new plans for selecting their members, without having first secured preclearance under § 5 of the Voting Rights Act of 1965, as amended.After this three-judge court was convened to hear the plaintiffs' § 5 claims, the plaintiffs dropped their claims against 20 of the county committees.

II.

Section 5 of the Voting Rights Act of 1965, as amended, requires that certain jurisdictions, including the State of Alabama and its subdivisions, preclear any change in a "standard, practice or procedure with respect to voting different from that in force or effect on November 1, 1964."42 U.S. C.A. § 1973c.A jurisdiction may obtain preclearance in either of two ways: by securing a determination from the United States District Court for the District of Columbia that the change "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,"id.; or by submitting the change to the Attorney General of the United States and receiving no objection.Id.

Under § 5, the permissible scope of the three-judge court's inquiry is limited to whether a change "is covered by § 5, but has not been subjected to the required federal scrutiny."Allen v. State Board of Elections,393 U.S. 544, 561, 89 S.Ct....