US v. Dallas County Com'n

• Decision Date: 21 May 1987
• Docket Number: Civ. A. No. 78-578-H.
• Citation: 661 F. Supp. 955
• Parties: UNITED STATES of America, Plaintiff, v. DALLAS COUNTY COMMISSION, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

661 F. Supp. 955

UNITED STATES of America, Plaintiff, v. DALLAS COUNTY COMMISSION, et al., Defendants.

Civ. A. No. 78-578-H.

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

May 21, 1987.

Jefferson B. Sessions, III, U.S. Atty., Mobile, Ala., J. Gerald Hebert, Ellen M. Weber, Paul Hancock, Voting Section Civil Rights Division, Dept. of Justice, Washington, D.C., for plaintiff.

John E. Pilcher, Cartledge W. Blackwell, Jr., Philip Henry Pitts, William T. Faile, Selma, Ala., Edward S. Allen, Birmingham, Ala., for defendants.

ORDER

HAND, Chief Judge.

This cause came on for oral arguments on April 22, 1987 relative to the objections raised by the Government in its critique of the Court's proposed districting plan of March 10, 1987. The Government objects to the Court's proposed plan on the singular ground that the inclusion of the probate judge, who is elected at-large, as a voting member of the Dallas County Commission, does not fully cure the violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, in this case.¹

The Government first argues that the Dallas County Commission plan should entirely correspond to the yet to be approved or adopted plan submitted by the Dallas County School Board, which the Government anticipates will consist of five single-member districts, to avoid voter confusion and to ease the administration and conduct of elections. The Court, however, concludes that it would be inappropriate to predicate a decision regarding the legality of the County Commission plan primarily upon the anticipated design of a separate and distinct governing body's districting plan.

The Court must also take issue with the Government's adamant contention that the finding of a Section 2 violation as to the Dallas County Commission, in and of itself, mandates the removal of all existing at-large seats on the commission. The Court must again reject such a contention as it did by order of August 8, 1986 in United States v. Marengo County Commission, 643 F.Supp. 232 (S.D.Ala.1986), to-wit:

The Court rejects plaintiff's invitation to hold that a liability ruling such as was entered in this case automatically dictates the eradication of all at-large seats for governing bodies. Such an interpretation of the exception set forth in Edge v. Sumter County School District, 775 F.2d 1509 (11th Cir.1985) would inihilate (sic) a court's ability to examine on an ad hoc basis the totality of the circumstances presented and thereby to fashion an equitable remedy which does not intrude upon state policy any more than is necessary to meet the specific constitutional violations involved. Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982), citing Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971).

643 F.Supp. at 235. While it is true that in Marengo County, supra, the Court found no rationale for maintaining the at-large chair with respect to either the Marengo County Commission or the Marengo County Board of Education, the Court was not confronted in that case, as it is here, with a situation in which the Alabama legislature has statutorily designed the probate judge of the county to chair and be a member of the county commission. Despite the Government's protestations to the contrary, this does not constitute a distinction without significance.

In this regard, the Government argues that, while the at-large election of the probate judge is justified because the duties of this single-person office are uniquely executive/judicial, there exists no justification for persons elected to the probate judgeship position to operate in a representative capacity. The Government also argues that such a grant of authority to operate in a representative capacity does not represent state policy inasmuch as only 33 of 67 counties in Alabama come within the auspices of statutes such as 1901 Ala. Acts 328. The Court, however, is in no position to declare, based on the evidence of record in this case, that no rational basis exists for the Alabama Legislature's decision to authorize the probate judge of certain Alabama counties, many of which are rural counties, to wear essentially two hats. Obviously, the Government seeks to have this Court question the legislature's wisdom regarding its decision to utilize one elected official in such counties in two governmental capacities, without contending that the legislature lacked authority to so legislate. This the Court cannot do. Therefore, the Court shall not attempt to second guess the legislature on this matter. The Court further notes that the Government does not contend that the laws pursuant to which the probate judge of the 33 versus 34 Alabama counties were granted representative as well as executive/judicial duties have been significantly altered since their inception, particularly as such a law has been applicable to Dallas County.

The Government's remaining arguments are obviously directed at the principal issue now before the Court: whether the Court's proposed plan remedies the Section 2 violation in this case in the least intrusive manner possible under the circumstances. The Government argues that the position of probate judge is beyond the reach of black voters and thus future elections to this position will not attract black candidates or encourage large black voter turnout. The Government further argues that elections to this position will not produce someone at all inclined to be responsive to black voter interests. The Government further surmises that given two black majority districts and two white majority districts, the probate judge, a person not responsive to black voter interests, will likely be casting a deciding vote more frequently than in the past, thus elevating his position to the most important and powerful member of the commission. Consequently, the Government proposes that the probate judge be removed from the commission and that, in his stead, a fifth member be selected from a fifth single-member district designed in such a manner as to constitute a "swing" district.²

The Court must at the outset take serious exception to the Government's contention that elections to the position of probate judge will not produce someone at all inclined to be responsive to black voter interests. Such a characterization is clearly not supported by the evidence of record. See, e.g., United States v. Dallas County Commission, 739 F.2d 1529, 1540 (11th Cir. 1984) (After reviewing the entire record, the court concluded that the district court's finding that the commission is responsive to the needs of blacks is not clearly erroneous.). The record does support, however, this Court's finding, left undisturbed by the Eleventh Circuit, that:

Probate Judge John W. Jones, Jr. was originally elected in the May 4, 1976 Democratic Primary winning without a runoff against two white and one

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