CLARK v. MARENGO CTY. Civ. A. Nos. 77-445-H, 78-474-H.
469 F.Supp. 1150 (1979)
James CLARK et al., Plaintiffs, v. MARENGO COUNTY et al., Defendants. UNITED STATES of America, Plaintiff, v. MARENGO COUNTY COMMISSION et al., Defendants.
United States District Court, S. D. Alabama, N. D.
April 23, 1979.
J. L. Chestnut, Jr., Selma, Ala., for plaintiffs in No. 77-445-H.
Hugh A. Lloyd, Demopolis, Ala., for defendants Marengo County Board of Education, et al.
W. A. Kimbrough, Jr., U. S. Atty., Mobile, Ala., Gerald W. Jones, Paul F. Hancock, Sheila K. Delaney, Civ. Rights Div., Dept. of Justice, Washington, D.C., for plaintiff in No. 78-474-H.
W. W. Dinning, Demopolis, Ala., for defendant J. C. Camp, Chairman of the Marengo County Democratic Exec. Comm.
Edward S. Allen, Birmingham, Ala., for J. Marks Abernathy, Etc.
Cartledge W. Blackwell, Jr., Selma, Ala., for Marengo County, Ala. Commission, et al.
HAND, District Judge.
The first of the above-styled consolidated actions was initiated on August 15, 1977 by the filing of a complaint by Reverend James Clark, Jr., L. O. Hope, Clinton Agee, Teresa McNeal, John Davis, Robert Jones, and Eddie Ayers as purported representatives of a class composed of all black persons in Marengo County, Alabama. The defendants named in this complaint were Marengo County, a political subdivision of the State of Alabama; Sammy Daniels, individually and as Probate Judge of Marengo County; William H. Smith, individually and as Sheriff of Marengo County; Dwayne Sealey, individually and as Clerk of the Marengo County Circuit Court; Frank J. Norris, Jimmy Brame, James E. Edmonds, Grey Etheridge, and D. W. Holt, individually and as members of the Marengo County Board of Revenue; (Marengo County Commission); W. McKee and T. H. Miller, individually and as members of the Marengo County Board of Education; Joseph C. Camp, individually and as chairman of the Marengo County Democratic Executive Committee; and Robert Vance, individually and as chairman of the Alabama State Democratic Executive Committee.
For purposes of clarity, Civil Action No. 77-445-H will hereafter be referred to as the class action, while Civil Action No. 78-474-H will be referred to as the enforcement action.
The class action complaint alleged that black voters in Marengo County, Alabama are being deprived of their constitutional rights under the First, Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution by virtue of the fact that members of the Marengo County Commission and the Marengo County Board of Education are elected at large, and by virtue of the fact that the Marengo County Democratic Executive Committee is elected from allegedly mal-apportioned, multi-member districts, resulting in dilution or cancellation of black voting strength. The class action plaintiffs request that this Court declare the Acts under which the
Upon a joint request by the parties, the Court allowed a nine month discovery period to and including June 1, 1978. The plaintiffs engaged in absolutely no discovery efforts in this period, which their attorney attributed to lack of finances. The Court notes that interrogatories were filed on the plaintiffs' behalf two months after the close of the discovery period—approximately three months late. The plaintiffs' counsel averred that his efforts had been directed toward securing intervention by the Department of Justice, rather than toward conducting discovery.
On December 9, 1977 the Court dismissed the class action complaint as against defendant Camp and the Marengo County Democratic Executive Committee on the authority of Ray v. Blair, 343 U.S. 214, 72 S.Ct. 654, 96 L.Ed. 852 & 894 (1952), and Ray v. Garner, 257 Ala. 168, 57 So.2d 824 (1952), holding that the election of County Democratic Executive Committee members was within the purview by law of the State Committee. See Ala.Code, § 17-16-8.
The desires of the class action plaintiffs' counsel were finally fulfilled on August 25, 1978, when the Attorney General filed Civil Action No. 78-474-H, the enforcement action. In this suit the United States of America is the plaintiff. The named defendants are the Marengo County Commission and its members as set out above; the Marengo County Board of Education, its members as set out above, and other members Robert Tucker, Wallace Flowers, and Moses Lofton; Marengo County Probate Judge Sammy Daniels; J. C. Camp as chairman of the Marengo County Democratic Executive Committee; and J. Marks Abernathy as chairman of the Marengo County Republican Executive Committee. A recent amendment to the complaint added as defendants Sheriff William H. Smith and Marengo County Circuit Clerk Dwayne Sealey.
The allegations of the enforcement action complaint are identical to those of the class action with respect to the at-large election of the Marengo County Commission and the Marengo County Board of Education, with contentions that such elections have served to dilute or cancel black voting strength in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution. The government requests that this Court declare the at-large systems employed in the election of both the County Commission and the Board of Education to be violative of the Fourteenth and Fifteenth Amendments, to enjoin any future such at-large elections, and to require the adoption of an election system employing fairly drawn district lines for the conduct of future elections.
In each of the actions the defendants have denied that any aspect of the electoral system in Marengo County has served to deprive black persons of the right to vote or has cancelled or diluted their voting strength. On August 31, 1978 the Court consolidated the two cases for trial purposes, and the matters came on for trial before the Court in Selma, Alabama, on October 23, 1978, and on January 4, 1979. The Court, having considered the testimony and exhibits adduced at trial, the record in this case, and the arguments and memoranda of law propounded by counsel for all parties, together with the applicable law, finds as follows:
FINDINGS OF FACT
1. Marengo County, Alabama, is a rural county located in West Central Alabama. It is bordered by Clarke County to the South, Wilcox and Dallas Counties to the East, Perry, Greene, and Hale Counties to the North, and Sumter and Choctaw Counties to the West. In 1950, Marengo County had a population of 29,494, consisting of 9,018 whites (31%), and 20,473 blacks (69%). The population decreased to 27,098 by 1960, with 10,270 whites (37.9%) and 16,828 blacks
The statistical evidence, as well as this Court's observations, indicates that the Marengo County populace has serious socio-economic shortcomings, especially in the areas of literacy and economy. The 1970 Census figures reveal that 744 of the 11,861 persons of 25 years of age and older had never attended school and that 1,652 of that number had completed only four years of education or less, establishing that 20.2% of the total 1970 population aged 25 years or older had either never attended school or had not completed more than four years of formal education. The same census figures reveal that in 1970 there were 5,905 black persons in Marengo County aged 25 years or older, that 690 of these had never attended school, and that 1486 of these had attended school for four years or less. Thus, the 36.9% of the black population over 25 years of age either never attending school or completing four years or less greatly exceeds the county-wide percentage of 20.2%. The figures further reveal that of the 2,244 Marengo County families who were below the poverty level in 1970, 1,841 (82%) were black, and that while the median income for all families in 1970 was $4,909.00 with a mean income of $6,478.00, the black family's median income was $2,456.00 and its mean income was $3,175.00. General Social and Economic Characteristics, Alabama, Tables 124 & 128, U. S. Department of Commerce Bureau of the Census (1970). The housing figures from the 1970 Census depict a similar pattern of black poverty. 3,045 (40%) of the 7,341 housing units in Marengo County in 1970 lacked some or all plumbing facilities, and 2,440 (71%) of the 3,357 housing units with black heads of household lacked some or all of such facilities. General Housing Characteristics, Alabama, pp. 2-74, U. S. Department of Commerce Bureau of the Census (1970). According to a 1976 survey, 2,824 (36%) of the 7,990 housing units in Marengo County were rated "sub-standard." State Housing Plan (June 1976) of the Alabama Development Office (Gov. Exhibit 47). Finally, Census figures reveal that the 1970 per capita income in Marengo County was $1,639.00, while for black persons it was only $722.00 (1970 Census, pp. 2-378 & 2-402).
From the foregoing figures, as well as from the Court's own observations, the Court finds that blacks in Marengo County still have a long way to go before they will have achieved socio-economic parity with the whites.
2. The Marengo County Commission was previously known as the Marengo County Board of Revenue and was created by Legislative enactment in 1923 to replace the pre-existing Court of County Commissioners. 1923 Local Acts of Alabama, No. 311, at 188. The Act provided that in the 1924 election and every four years thereafter the Board of Revenue was to be headed by a president elected at-large by the county electorate and was to be otherwise composed of four members, each representing a different residency district. The districts and the precincts comprising them were as follows:
Northeast: Faunsdale, Macon, Dayton, Thomaston, and McKinley;
Southeast: Magnolia, Pineville, Dixon's Mills, and Shiloh;
Southwest: Myrtlewood, Hills, Nanafalia, Horse Creek, Hoboken, and Sweetwater; and
Northwest: Demopolis, Jefferson, Springhill, Jackson Store, and Linden.
In 1955 the 1923 legislation was amended to provide that a candidate seeking a board position had to run from the district in which he resided, but his candidacy was subject to the vote of the entire county electorate. 1955 Acts of Alabama, No. 17, at 45. Thus, for example, a candidate seeking a position on the Board representing the Northeast section would have to run against other persons who resided in the Northeast section but he would have to receive a majority vote of all voters in the county before he could be elected.
In 1966 the Act establishing the Board of Revenue was again amended by the Alabama Legislature. 1966 Acts of Alabama, No. 44, at 67. Act No. 44 required the election of a Board of Revenue member for the northwestern and the southeastern districts in 1968 and every four years thereafter, and the election of the at-large president and the northwestern and southwestern representatives in 1970 and every four years thereafter, thereby creating staggered terms. The 1966 amendment continued the rule set down in the 1955 amendment that any candidate for a Board of Revenue position be a resident of the district that he or she sought to represent for two years prior to his or her election or appointment.
This is the system under which the Marengo County Commission is now elected. The president of the Commission is elected at large and the members of the Commission, although required to run against other candidates in the district in which they reside, are also subject to a county-wide at-large vote.
3. The Marengo County Board of Education was first subjected to state legislation in 1935.
The preceding Act was amended in 1955 to require that a candidate for a Board position other than president be a resident of the district from which he or she is running for at least two years prior to his or her election, to require county-wide at-large elections instead of district elections, and to alter the terms of office to four years, commencing with the 1956 election for the four members, and the 1960 election for the president. 1955 Acts of Alabama, No. 184, at 458.
The law was last amended in 1966 to provide for staggered terms similar to those employed in the Marengo County Board of Revenue elections. 1966 Acts of Alabama, No. 44, at 67. Board members for the northeastern and southeastern districts were to be elected for four year terms in 1968, while the presidency and the northwestern and southwestern positions were to be contested in 1970 with subsequent four year terms.
4. Both the class action plaintiffs and the government have alleged that the above-styled methods of electing the Marengo County Commission and the Marengo
The Fifth Circuit, drawing from the Supreme Court opinion in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), has stated the considerations by which a District Court is to be guided in its deliberations on a voter dilution case:
Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973) (en banc) (footnotes omitted). Accordingly, this Court's first duty is to enter findings, as revealed by the evidence, with respect to each the primary and enhancing factors set out in Zimmer.
5. On the question of lack of openness in the slating process or candidate selection process to blacks, Zimmer requires the Court to consider whether either through law, custom, or practice blacks have been to any extent denied access to the slating procedures in Marengo County. 485 F.2d at 1305 n. 20.
Blacks in Marengo County were faced with extensive racial discrimination, both public and private, prior to the Voting Rights Act of 1965. While such discrimination undoubtedly continues in some areas of the county, the Act itself was the progenitor of a significant decrease in racially discriminatory practices. This diminution of discriminatory practices can be in large part attributed to orders of the federal court, congressional legislation, and efforts for change among the people of Marengo County, both white and black. Of course, while the late 1960's and the 1970's have seen great advancements in educational, employment, and social opportunities for black citizens, there can be no question, as this Court noted in Bolden v. City of Mobile, 423 F.Supp. 384, 387 (S.D.Ala.1976), aff'd, 571 F.2d 238 (5th Cir. 1978) (per Pittman, Ch. J.), but that "[t]he pervasive effects of past discrimination still substantially affects political black participation."
There is no allegation, and indeed there could be none, that the discrimination against black Marengo County voters arises out of law or official policy. Since the 1965 Act blacks have been entitled to vote without hindrance and there is no prohibition against blacks seeking any county office. The discrimination charged here is more subtle than that, and the issue for the Court is whether, notwithstanding the facially non-racial procedures, the processes "leading to nomination and election [are] . . equally open to participation by the group in question . . .." White v. Regester, supra 412 U.S. at 766, 93 S.Ct. at 2339, 37 L.Ed.2d at 324.
The first consideration of the Court is the number of black candidates who have sought county office and the number who
6. The evidence before the Court indicates that there had been no black candidates for any Marengo County office prior to the passage of the Voting Rights Act of 1965. Since 1966, however, the record is clear that blacks have sought such positions on many occasions, for the most part unsuccessfully.
7. In the May 3, 1966 Democratic primary, Annye Braxton became the first black to seek office in Marengo County when she ran for County Tax Assessor. She was opposed by three white men and she received a plurality (41%) of the 3,869 votes cast in the primary, to 2,626 votes received by her closest challenger (Government Exhibit 31). She was defeated by her white challenger, Sam Drinkard, in the Democratic primary run-off on May 31, 1966 by a vote of 5,461 to 4,041 (Government Exhibit 31).
8. There were several black candidates in the November 1968 general election who assumedly ran as independents. All of these candidates were defeated, each receiving 34% to 37% of the vote. The two black candidates for delegates to the 1968 National Democratic Convention lost, although both won their way into the Democratic Primary run-off before being defeated.
9. In the May 5, 1970 Democratic primary the only black candidate was Joe Reed, who opposed two whites for Marengo County's seat in the state House of Representatives. Reed ran second in the primary, receiving approximately 37% of the vote. In the run-off Reed was defeated by 1,350 votes. Reed's strength was more or less in the same boxes as Braxton's had been in 1966, as were his weaknesses.
10. 1970 was a peak year for the National Democratic Party of Alabama, a state black political party whose purpose was to run black candidates for political office.
The same pattern is evident in other races in the November 3, 1970 general election (Government Exhibit 31). Due to the staggered term requirement enacted in 1966, the only Marengo County Commission offices to be contested were the presidency and the Northwest and Southwest district commissioner positions. The Board of Education positions open were the presidency and the Northeast and Southeast district positions. In the race for the presidency of the County Commission Frank Norris, the white incumbent, defeated R. J. Hayes, the NDPA candidate, by a vote of 5,736 to 3,354, garnering 64% of the votes. Grey Etheridge, the white incumbent, was unopposed in the Southwest District, but in the Northwest District W. T. Glass, the white incumbent, defeated NDPA candidate Henry Haskins by a vote of 5,707 to 3,324, another 64/36 vote. In the race for presidency of the Marengo County Board of Education M. W. McKee, a white, was opposed by NDPA candidate Velma Lankston, whom he defeated by a vote of 5,665 to 3,380, capturing 63% of the vote. In the Board of Education race for member from the Northeast District, T. A. Moseley, the white candidate, defeated NDPA candidate Arthur Wood by a vote of 5,679 to 3,272, another 63/37 count. Finally, in the race for Southeast member of the Board of Education, J. B. Norris, the white candidate, defeated NDPA candidate T. R. Hayes by a vote of 5,673 to 3,397, again a 63/37 vote. In each of these elections the blacks were successful in the same boxes as Cashin and Hayes, and were also unsuccessful in the same boxes. In fact, the returns from most boxes were virtually identical in the different races.
This pattern also held true in the 1970 election in the other contested races in Marengo County for Representative to the U. S. Congress, State Board of Education, State Senator, Probate Judge and Sheriff, and in the two state House of Representative races. In the congressional confrontation Walter Flowers, the white incumbent, carried Marengo County, receiving 5,672 votes to 3,272 for NDPA candidate T. Y. Rogers. In the State Board of Education race Victor Poole beat Hood of the NDPA by a count of 5,614 to 3,239. In the State Senate race the white Democratic candidate, W. H. Lindsay, received 5,216 votes to 3,245 for NDPA candidate D. B. Wilson and
11. There were several black candidates in the 1972 general election, none garnering more than 22.2% of the vote and most receiving only 10% to 20%. The two blacks in the 1974 Democratic Primary received almost 35% of the vote, but the blacks in the November 1974 general election all received only 22% to 25% of the vote. The one black candidate in the 1976 Democratic Primary received 41.4% of the vote.
12. In the most recent Democratic primary conducted on September 5, 1978, there were three black candidates for county-wide office. Ludie Pearson, a black, challenged two white candidates, John C. Ramsey and Patsy Compton Rogers, for the Democratic nomination to the office of Marengo County Tax Assessor. Ramsey received 3,372 votes to 1,600 for Rogers and 1,556 for Pearson, and Ramsey thus received the nomination without the necessity of a run-off. In the race for President of the County Commission Robert W. Jones, Jr., a black, faced white incumbent Frank Norris and Tommy Ray, another white. A run-off was required when Norris got 3138 votes in the primary to 2186 for Jones and 1341 for Ray. In the run-off, held September 26, 1978, Norris outpolled Jones 4,371 to 2,852 to receive the party's nomination. The final black candidate was Clarence Abernathy, who was opposed by two whites, Charles McCray and Mike Slocum, in the race for Marengo County Coroner. Again, a run-off was required as Abernathy captured 1,183 votes to 2,771 for McCray and 618 for Slocum. Abernathy was successful in the run-off, however, and he became the first black ever elected to county-wide office in Marengo County when he defeated McCray in the run-off 3,719 to 3,617. In the only other run-off in 1978 in which a black faced a white Richard Shelby, the white candidate for U. S. Congress, outpolled Chris McNair, the black candidate, 3,802 to 2,784 in Marengo County. The Court notes from the box by box returns supplied by the Government (Government's Exhibits 33 & 34) that the polarity in voting observed in the 1970 general election returns is not nearly so pronounced in the 1978 run-off.
14. While the Court concludes that lack of success at the polls is not indicative of any lack of minority access, it is incumbent upon the Court to look further to ensure that the access facially apparent is not actually illusory. In this respect the plaintiffs point to inequalities in the appointment of election officials, bloc voting along racial lines, and present oppression stemming from a history of racial discrimination as causes of an actual lack of minority access to the facially neutral political system in Marengo County. The plaintiffs contend that the amalgamation of these problems has resulted in a lack of realistic access.
15. On the poll official appointment question, the plaintiffs allege that the appointments made by the County Appointing Authority
The appointment of poll officials is regulated by state law. Section 17-16-17 of the Alabama Code provides that, for primary elections, the county committee of the political party conducting the election may certify to the County Appointing Authority six persons to act as poll officials in each precinct.
16. The second issue raised by the plaintiffs in this action touching upon access is the polarization in white and black voting. This polarization was described in Bolden, 423 F.Supp. at 388, as "white voting for white and black for black if a white is opposed to a black, or if the race is between two white candidates and one candidate is identified with a favorable vote in the black wards, or identified with sponsoring particularized black needs." The Court in Bolden noted that "[w]hen this occurs, a white blacklash occurs which usually results in the defeat of the black candidate or the white candidate identified with the blacks." Id.
There can be no question but that such polarization exists among white and black voters in Marengo County, although perhaps not quite so seriously today as has been the case in the past.
17. The plaintiffs' final contention touching upon minority access argues that blacks have been denied access by virtue of oppressive racism on the part of Marengo County public officials, both past and present, and on the part of private individuals. Such oppression, the plaintiffs argue, has taken many forms that, when considered in the aggregate, serve to limit or preclude minority access.
The most vexatious form of oppression cited by the plaintiffs is the alleged intimidation of black voters by whites. Various witnesses testified that they knew of occasions where black sharecroppers had been carried to the polls by white landowners who dictated to them how they were to vote. Despite this testimony, the plaintiffs were unable to produce a single black who had been so intimidated,
Another form of alleged oppression leading to lack of access has been the
The final area of alleged oppression that the plaintiffs contend amounts to a lack of minority access or evidence thereof is denial of access to the ballot. The evidence reveals that on only one occasion has a black been denied a position on a ballot, and the Court is of the opinion from the evidence presented that there was no racial motivation underlying the denial of that ballot position. On July 5, 1978 J. H. Davis, a black, appeared in the office of Joe Camp, the Chairman of the Marengo County Democratic Executive Committee, to file qualifying papers in order to seek the Democratic nomination for Marengo County Commissioner representing the Northeast District. Camp provided Davis with the qualifying papers, which Davis filled out (Government Exhibit 7). Davis then informed Camp that he was a pauper and that he would like to get an exemption from paying the qualifying fee. Camp prepared a pauper's oath which Davis swore to and signed (Government Exhibit 7A), and both parties thought that Davis was thereby fully qualified to run. However, Camp was unfamiliar with the Democratic Party rules regarding fee waivers, and it was not until later on the same day that he learned from the State Committee that an application for a fee waiver must be accompanied by a petition signed by ¼ of 1% of the registered voters in the county.
18. None of the foregoing collateral issues touching upon minority access persuade the Court that Marengo County blacks have been denied access to the political system. The evidence is clear that any qualified elector may seek political office in Marengo County, and that neither de jure nor de facto impediments serve to restrict this right.
B. Responsiveness of Elected Officials to the Black Populace of Marengo County.
19. In Hendrix, supra, the Fifth Circuit characterized the District Court's inquiry in this area as follows:
Hendrix v. Joseph, supra at 1268-69, quoting in part Davis v. Garrison, supra at 929. Accordingly, it is this Court's duty in this area to enter its findings in these two specific areas, together with any other findings bearing upon responsiveness of elected officials.
20. With respect to the provision of governmental services to minority communities, the plaintiffs rely heavily on evidence reflecting poor roads in some predominately black areas to support their contention that the Marengo County Commission has been unresponsive to black needs.
In Marengo County, each county commissioner has the responsibility for maintaining the county roads in the district from which he is elected. The roads are under a district system under which each commissioner has his own road crew and equipment, and each commissioner is responsible for the hiring of his crew. Thus there are four separate county road crews in Marengo County, as opposed to the one centrally located road crew found in other counties that operate under the unit system.
There are 675.6 miles of road in Marengo County, of which 317.7 miles are paved and 357.9 miles are unpaved.
21. The evidence of the plaintiffs respecting Marengo County roads indicated that the roads in most predominately black areas are unpaved, and that such roads are often in terrible condition during and after adverse weather conditions. There was testimony with specific respect to three unpaved roads in the county that allegedly demonstrate the conditions throughout the county.
First, in the predominately black Old Spring Hill area there is an unpaved road that, according to the testimony of one witness,
A second specific road problem revealed by the evidence concerned an unpaved road in the Southeast district that goes from Flatwood on Highway 5 to Highway 28, another predominately black area. A store proprietor on this road testified that prior to recent repairs by the county the road was in very bad shape, although it appears to the Court that the road was impassable only under the worst of conditions. The witness, Flora Moore, testified that two years passed between the time she initially complained about the road to county employees and the time that the repairs were actually effectuated.
The final road receiving testimony in this case is in the Vineland area of the Southeast District. This road serves four black families in the area and one witness testified that in rainy weather the road becomes impassable, preventing him from leaving the area, and on some occasions preventing the postman from entering the area or negotiating the road.
22. The evidence reveals that while some of the unpaved roads in the predominately black areas do suffer in inclement weather, the commissioners have maintained the county roads on a nondiscriminatory basis. Road paving and graveling are conducted in both predominately white and predominately black areas. The most serious deficiencies in the unpaved roads appear to result from a combination of bad weather, the highly plastic clay indigenous to Marengo County, and from the use of the roads by the plethora of logging trucks operating within the county. This combination makes it very difficult to keep all roads in optimum condition at all times. The evidence does not reveal any occasion on which the County Commissioners have refused to do road work on the basis of the race of the people who would benefit from such road work, nor does it reveal that complaints regarding roads in predominately white areas were accorded any greater concern than those in predominately black areas.
23. Another issue raised by the plaintiffs concerns work done by the County Commission on private property at the behest of private property owners and on city streets, two areas in which the county is not specifically authorized to conduct such operations. See Ala. Code §§ 11-3-10, 23-1-80, and 23-1-130.
24. Perhaps most telling on the issue of responsiveness is the evidence put on by the defendants. The testimony revealed several areas in which the Marengo County Commission has acted voluntarily that have resulted in benefits of disproportionately more value to the black citizenry than to the white people.
The Marengo County Commission has provided facilities and transportation for an elderly nutrition program established under the auspices of the City of Linden and the Alabama-Tombigbee Regional Planning Council (Government Exhibit 8). The evidence reflects that more whites than blacks were served by this program; indeed, the program was on one occasion made the subject of charges of racial discrimination (Government Exhibits 3-6). However, it appears from the record that the discriminatory activities, if ever present, are no longer present, and that the program is now open to all elderly citizens of the county. At no time did the Marengo County Commission have any authority over who participated in the program.
A second service receiving County Commission support is the West Alabama Mental Health Center. The Mental Health Center offers a variety of services, including emergency and in- and out-patient facilities, and the Center has a branch office in Demopolis. Testimony revealed that the racial composition of the Marengo Countians who received services from the Center ran from 65% to 70% black to 30% to 35% white. A former director of the Center, Dr. Michael Mundy, testified that the Marengo County Commission provided $6,000.00 per year to the Center
Another area in which the Marengo County Commission has provided funding is the Marengo County Health Department, whose clientele was estimated by its director to be 75% to 80% black. While the Health Department does oversee some federally funded programs, it is nominally controlled by the State Health Department and receives funding and some of its facilities from the County Commission.
The County Commission also provides funding for the operation and maintenance of the Marengo County Public Library. The library, which is located in Linden, is open to all county residents, and in addition to books it has a film program, large print books, materials for the handicapped, a bookmobile, and it serves both private and public school students. The county funding for the library is used for the purchase of books, for funding of the library bookmobile, for payment of utilities, and for payment of the librarian's salary. The county librarian, Alyce Hartzelle, testified that the library's facilities are utilized by substantial numbers of both black and white county residents, but she could not estimate the percentage of the racial composition.
Another service made available to county residents through funding by the County Commission is paramedic and emergency rescue facilities. There are two rescue squads—the Marengo County Rescue Squad, Inc., and the South Marengo Rescue Squad. The first group has 35 white members,
The evidence revealed that the Marengo County Commission has provided many other services to county citizens too numerous for listing here, most of which were equally beneficial to blacks and whites and some of which were more beneficial to blacks.
25. Very little evidence was put on regarding responsiveness of the defendant Board of Education, but very little was required since this Court takes judicial notice of the long and tortured history of the on-going federal litigation involving the Board, most recently summarized in Lee v. Marengo County Board of Education, 454 F.Supp. 918, 919-21 (S.D.Ala.1978). Solomon Seay, counsel for the plaintiff class in Lee, testified that he had more problems in seeking to achieve a unitary system in Marengo County than in any other system involved in the statewide litigation. He attributes this problem to the County Board's insensitivity to the needs of blacks, stating that his experience with the Marengo County Board of Education has led him to believe that they strive not to protect the interests of all people, but rather to make the system palatable to whites. Seay also alleges that facilities at predominately black schools are inferior to those at predominately white schools, but this was not substantiated by any other evidence, nor was it apparent to the Court on the Court's last inspection of these facilities. Seay admits that the Department of Justice intervened in the suit several years ago, and that the Department has played the leading role in the litigation since 1971.
Superintendent Fred Ramsey testified that the County Board has been more responsive to the needs of blacks than those of whites, which would seem proper in a system that is 80% black. 90% of allocated construction money has been spent on predominately black schools and Ramsey opined that all school children are being afforded equal educational opportunity. The record reflects that the Marengo County Board of Education sponsors some federally funded programs aimed at minorities and indigents such as Title I, but it is clear that the Board has not been nearly as dedicated towards seeking such funding as have some neighboring boards, such as that in Greene County.
The Court has had extensive experience with the Marengo County Board of Education and, if as the government contends the present system stands as evidence of official unresponsiveness to the needs of the blacks, then it is possible that such unresponsiveness lies in this Court, not with the Board. The Court cannot subscribe to this theory, however, for there is absolutely no evidence either in this case or in Lee that the educational needs of blacks have not been protected. Seay testified that he has received letters from blacks complaining about the system, but the Court has not received such letters and a survey of the Lee file does not disclose that they were ever brought to either this Court's attention or that of the School Board. At the minimum it would seem that allegations of unresponsiveness would require articulation of something requiring a response.
The Court's observation is that the major difficulties relating to the Marengo County
26. The Court elects not to enter any specific findings with respect to the system in general, these matters having previously been set forth in Lee v. Marengo County Board of Education, supra. The Court notes only that the Board has provided school children in the county equal educational opportunities through the adoption of a unitary system, that the achievement of such a system was achieved only after extensive litigation, and that had blacks possessed adequate input in the system, it probably would not have taken so long to achieve.
27. The second area for the Court's attention on the responsiveness issue is the distribution of jobs and appointments to various boards and commissions. This is of course an important consideration for such distribution and appointments are among the major functions of local government.
28. The Equal Employment Opportunity Commission State and Local Government Information Reports [hereinafter EEO-4], filed by Marengo County for the year 1974 (Government Exhibit 24) reveals the following breakdown of county employees:
Employees Black WhiteOfficials/Administration 1 0 1 Professionals 4 0 4 Technicians 1 0 1 Protective Services 3 1 2 Para-Professionals 7 0 7 Office/Clerical 4 0 4 Skilled Craft 25 8 17 Service/Maintenance 26 13 13 __ __ __ 71 22 49
One of the two highest paid employees was a black professional, and there was little disparity between the amounts paid to blacks and whites in the same job category, but the Court notes that blacks comprised only 25.3% of the labor pool in a county that is 50% black and that the service/maintenance category, in which most blacks were employed, was one of the lowest paying categories.
29. The EEO-4 reports for 1976 in Marengo County reflect the following breakdown by race:
Employees Black WhiteOfficials/Administration 6 0 6 Professionals 2 1 1 Technicians 3 0 3 Protective Services 5 1 4 Para-Professionals 2 0 2 Office/Clerical 2 1 1 Skilled Craft 24 0 24 Service/Maintenance 35 17 18 __ __ __ 79 20 59
The highest paid employees in 1976 were all white and, although the percentage of blacks increased, it was still short of the
30. There was very little evidence put on respecting appointments made by the Marengo County Commission to various boards and commissions within the county. The evidence did disclose that the Marengo County Library Board has no black members and that the five member Marengo County Water Board has only one black member. Additionally, the evidence revealed that there are two blacks among the nine members of the Marengo County subcommittee of the Alabama-Tombigbee Regional Planning Commission.
31. The parties put on no evidence with respect to the employment or appointment policies of the Marengo County Board of Education, but the Court can resort to figures submitted in the Lee litigation to some extent. The reports submitted by the Board in Lee indicate that the system wide faculty ratio was 70% black to 30% white in March of 1977, and that this ratio has existed for some time. See Lee v. Marengo County Board of Education, supra at 929-30. Of course the Court has no way of knowing whether there is any disparity in pay between black and white teachers, but from the evidence available to the Court it appears that the employment practices of the School Board are free from any racial animus.
32. The assignment of faculty is somewhat more clear than the hiring issue. This Court has strived long and hard to achieve compliance by the School Board with the dictates of Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970), and such compliance was not actually obtained until the present school year. This indicates an unresponsiveness on the part of the Board to the dictates of the law, but the Court doubts that such unresponsiveness was injurious to black needs in particular.
C. State Policy
33. The Hendrix decision is also instructive with respect to this Court's duty to consider whether there is a state policy indicating a preference for at-large districts:
Hendrix v. Joseph, supra at 1269. The task for the Court clearly is to look behind the face of the election scheme to ascertain the motivation of the legislature in enacting the scheme. This Court has already stated that "[t]here is no clear cut State policy either for or against multi-member districting or at-large elections in the State of Alabama, considered as a whole. The lack of State policy therefore must be considered as a neutral factor." Bolden v. City of Mobile, supra, 423 F.Supp. at 393.
With respect to the state policy specifically regarding Marengo County, the Court
34. It cannot be said that the at-large scheme is unusual in the context of election procedures in other Alabama counties, since previous cases have recognized that half of the Alabama counties have at-large elections, see Hendrix v. Joseph, supra at 1269-70; Reese v. Dallas County, 505 F.2d 879, 882 n. 2 (5th Cir. 1974), and it appears that presently 50 of the 67 counties have at-large procedures. Defendants' post-trial brief at 44, 60-79. Indeed, the defendants' calculations indicate that 47 Alabama counties (70.1%) have had at-large procedures for a majority of the time since 1850. Such at-large procedures are specifically permitted by statute. Ala. Code 11-3-1. So it is quite clear that the Marengo County election procedures are in no way rare or unique in comparison to other Alabama counties, but rather are exemplary of the typical policy followed in most counties. The Court, however, is not convinced that such evidence indicates a state policy in favor of the Marengo County procedure, the Court rather being of the opinion that, as in Bolden, supra, the state policy is neutral. See, e. g., Kirksey v. City of Jackson, 461 F.Supp. 1282, 1291 (S.D.Miss.1978) ("[T]here is lacking herein sufficient interest in at-large districting to allow a finding that there is an extant state policy in favor of at-large districting of city government.").
Tangentically, the Court notes that since the election procedures in question were enacted in 1923 and 1935 when blacks had been effectively disenfranchised, there can be no allegation that the at-large schemes were racially motivated in their enactment. Hendrix v. Joseph, supra at 1270, citing McGill v. Gadsden County Commission, 535 F.2d 277 (5th Cir. 1976).
D. Past Discrimination
35. The final primary consideration of the Court in a dilution case is the nature and the extent of past discrimination in the subject area, together with an inquiry into whether such past discrimination precludes effective present participation in political affairs. The concern is whether the lingering effects of such discrimination interfere with present rights:
Bradas v. Rapides Parish Police Jury, 508 F.2d 1109, 1112 (5th Cir. 1975), quoted in Hendrix, supra at 1270. Although this precise measurement is unavailable in the matter sub judice due to the lack of evidence regarding either the number of blacks eligible to vote or the number of blacks actually registered, there is extensive evidence of past discrimination and some evidence of lingering effects.
36. There can be no question but that blacks in Alabama in general and in Marengo County in particular suffered greatly in the past from racial discrimination, both subtle and pervasive. Prior to the passage of the Voting Rights Act in 1965 there was little or no black participation in political affairs in the State of Alabama, blacks having been for the most part disenfranchised. This was equally true in Marengo County. As noted in Brown v. Moore, 428 F.Supp. 1123, 1131 (S.D.Ala.1976), the disenfranchisement
37. With specific reference to Marengo County, the state-wide litigations mentioned above were, for the most part, equally applicable on the local level. The federal courts have been called upon to rid Marengo County of systematic exclusion of blacks from grand and petit jury venires, Black v. Curb, 422 F.2d 656 (5th Cir. 1970), to enforce the rights of blacks under the Voting Rights Act of 1965, United States v. Marengo County Democratic Executive Committee, Civil Action No. 4086-66 (S.D.Ala.); United States v. Marengo County, Civil Action No. 1567 (S.D.Ala.), and to eliminate the segregated school system that formerly existed in Marengo County. See, e. g., Lee v. Marengo County Board of Education, 588 F.2d 1134 (5th Cir. 1979); Lee v. Macon County Board of Education, 465 F.2d 369 (5th Cir. 1972) (Marengo County System); Lee v. Marengo County Board of Education, 454 F.Supp. 918 (S.D.Ala.1978); Lee v. Linden City School System, Civil Action No. 5945-70-H (S.D.Ala., July 13, 1978). The changes came slowly and were accepted with great reluctance by the white population, but the Court is of the opinion that most if not all, vestiges of past official discrimination in Marengo County have been eradicated.
38. It is clear that racial discrimination in the past was pervasive in Marengo County, but the more narrow issue for the Court's consideration is whether such past discrimination has in any way precluded effective present participation by blacks in Marengo County political affairs. The plaintiffs adduced very little evidence on this point. They first point out that blacks comprise a majority of the population in Marengo County but a minority of the registered voters, apparently seeking to come within the language of Bradas, supra. As noted above, however, it is not a comparison between the percentage of the population and the percentage of the registered voters
39. The Court is more persuaded on this point by the number of black candidates (73) and the efforts of black interest groups since implementation of the Voting Rights Act. The evidence surely does not indicate that any blacks have been dissuaded by past discrimination from testing the political waters, nor does it appear that history has served to quiet their collective and individual political voices.
E. Enhancing Factors
The last issues for the Court's concern are the enhancing factors of whether there is a majority vote requirement, whether districts are extremely large, whether there is an anti-single shot provision, and whether there is a provision allowing at-large candidates to run from a particular geographical sub-district. Zimmer, supra at 1305.
Marengo County candidates do face majority vote requirements in primary elections, and run-offs are often required when there are three or more candidates for a party's nomination to a particular office and none receives a majority. However, there is no majority vote requirement in the general elections — the candidate who receives the plurality of the votes being declared the winner. On the basis that the Democratic Party primary is for all intents and purposes the election in Alabama, the Court finds that the majority vote requirement tends to enhance a finding of dilution.
With respect to the size of the district, the Court finds that Marengo County is a small voting district in terms of population, and that this factor militates in favor of the defendants. There are 23,000 Marengo County residents, while the average county governing district has a population of 47,848. Hendrix v. McKinney, 460 F.Supp. 626, 636 (M.D.Ala.1978). Although this appears to be the test set out by the Fifth Circuit in Hendrix v. Joseph, 559 F.2d 1265, 1270 (5th Cir. 1978), there is a geographical consideration that militates against the defendants. Marengo County is the tenth largest in area of the 67 counties in Alabama, and it is for the most part extremely rural. Two incumbent commissioners testified that their most recent campaigns cost between $2,000.00 and $4,000.00. In a county in which the per capita income of whites greatly exceeds that of blacks, the geographical size of the district must be considered as an enhancement of dilution, at least on the question of access.
There is provision for at-large candidates running from specific geographical subdistricts by virtue of the residency requirements for County Commission and Board of Education elections. The Court finds that this factor militates in favor of the defendants.
CONCLUSIONS OF LAW
I. Authority of the Attorney General to Participate
There is a threshold jurisdictional question that, due to the short period of time between the filing of the complaint and the trial of the enforcement action, has not yet been considered by the Court. In plain terms, the jurisdictional question arises out of a dispute with respect to whether the Attorney General of the United States has authority to prosecute a voting rights action alleging dilution or cancellation of black voting strength. The defendants characterize the issue as one of standing, while the government argues that only the jurisdiction of the Court is involved. No matter what characterization is given to the issue, the Court's analysis is the same, for the ultimate inquiry is whether the government is authorized to prosecute an action of this nature.
In its complaint, the government alleges that the action is brought under authority of Title 42, U.S.C.A., §§ 1971(a), 1971(c), 1973, and 1973j(d), and the Fourteenth and Fifteenth Amendments to the United States Constitution, invoking the jurisdiction of this Court under Title 28, U.S.C.A., § 1345 and Title 42, U.S.C.A., §§ 1971(d) & 1973j(f).
The Court's analysis must start with the observation that this precise issue has never been resolved in any federal court. There is no question but that the United States is authorized to initiate lawsuits to ensure those voting rights protected under Title 42, U.S.C.A., § 1971. United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965); United States v. Democratic Executive Committee of Barbour County, 288 F.Supp. 943 (M.D.Ala. 1968); United States v. Bibb County Democratic Executive Committee, 222 F.Supp. 493 (M.D.Ga.1962); United States v. Raines, 189 F.Supp. 121 (M.D.Ga.1960). None of these decisions is particularly helpful to the Court in the matter sub judice, however, since three of the cases dealt with clear segregative practices prohibited under the statute, and Barbour County dealt with quantitative dilution, in the nature of one-man one-vote, instead of qualitative, as now confronts this Court. There have been other enforcement actions brought by the Attorney General to challenge at-large voting systems as dilutive of black voting strength, but apparently none of these cases have considered the authority of the government to participate in and prosecute such actions. See United States v. Board of Supervisors of Forrest County, 571 F.2d 951 (5th Cir. 1978); United States v. City of Albany, 399 F.Supp. 459 (M.D.Ga.1975); United States v. City Commission of Texas City, Civil Action No. G-77-78 (S.D.Texas 1978); United States v. Temple Independent School District, Civil Action No. W-78-CA-10 (W.D.Texas 1978). It is clear, therefore, that this is a question of first impression for this Court.
Section 1971(a)(1) provides that:
Section 1971(a)(2) prohibits the application of differing standards to different applicants in determining voter qualifications, prohibits the denial of the right to vote for non-material errors or omissions on the voting records, and prohibits the use of literacy tests as a precondition to voting rights unless such tests are administered in writing
The Attorney General of the United States is authorized to prosecute a voting rights action for injunctive relief whenever any person has engaged in or there is reasonable cause to believe that any person is about to engage in any act in violation of section 1971(a). Title 42, U.S.C.A., § 1971(c). Jurisdiction is conferred on the United States District Court to hear such actions by section 1971(d).
The Court has exhaustively considered the language of section 1971 and the legislative history behind the adoption of the statute, 1957 U.S. Code Congressional and Administrative News p. 1966, and the Court is of the opinion that the complaint filed by the United States in this action fails to state an actionable claim under section 1971. The Court reaches this decision upon the conclusion that section 1971 was not intended by Congress to extend as far as the government would extend it in this case. The Court views this section as a statutory embodiment of the Fifteenth Amendment intended only to preclude denials by persons acting under color of state law of the right to vote to other persons where such denial is based upon race, color, or previous condition of servitude. There is no expression or allegation in the government's complaint from which it might be inferred that the defendants have in any way denied to any person the right to vote on such a basis. The complaint, rather, is directed only toward the weight of the vote actually possessed by Marengo County residents. Had Congress intended by this section that each person's vote be accorded a racially blind, qualitatively equal effectiveness, then no doubt such intent would have been spelled out more clearly by the statute. Since this intent is not so spelled out, the Court finds no cause of action stated under section 1971.
The government also asserts that its participation is justified by the Voting Rights Act of 1965, Title 42, U.S.C.A., §§ 1973 & 1973j(d). Section 1973 provides that:
This statute is enforceable by the Attorney General under the terms of Title 42, U.S. C.A., § 1973j(d), which provides that:
An analysis of these statutes and the legislative history surrounding their adoption leads the Court to the conclusion that the complaint of the government in this case does state a cause of action under section 1973. The statute on its face speaks to "qualification or prerequisite to voting, or standard, practice, or procedure" that might be imposed by a state or a political subdivision to deny or abridge the right to vote on the basis of race or color. The Court reads the complaint most favorably in behalf of the government, as it must do on a motion to dismiss, and the Court is convinced that allegations that an at-large voting system serves to dilute or cancel black voting strength, if proved, would amount to an actionable claim under section 1973 by virtue of the fact that the procedure employed would be guilty of abridging the right to vote on the basis of race or color.
383 U.S. at 311-12, 86 S.Ct. at 810, 15 L.Ed.2d at 777. Had the Supreme Court stopped at this point the Court would conclude from the thrust of the Katzenbach language that the type of action brought here is not within the scope of the Voting Rights Act of 1965, for it is clear that the Supreme Court envisioned, in the foregoing language eradication of all official impediments to black voting rights in the sense that blacks would not be denied the right to vote, without consideration of such subtle matters as dilution or diminution of the weight of the vote actually allowed. However, the Katzenbach Court stated further that "[t]he Voting Rights Act of 1965 reflects Congress' firm intention to rid the country of racial discrimination in voting." 383 U.S. at 315, 86 S.Ct. at 812, 15 L.Ed.2d at 779. Since the essence of a dilution suit is the allegation that racially discriminatory voting procedures have resulted in dilution or cancellation of a minority's voting strength, this Court is of the opinion that the government's complaint in this action states an actionable claim under section 1973, and that the Attorney General's participation is authorized by section 1973j(d).
II. Aggregation of the Dilution Factors
The Court having made specific findings concerning both the primary and secondary indicia of dilution as set forth in Zimmer must now determine the ultimate issue of fact—in whose favor does the aggregate of the factors preponderate? The Court includes this finding of ultimate fact in its conclusions of law simply because it is a factual conclusion based upon legal guidelines. In reaching a determination with respect to the aggregate of the factors, the Court's duty is to "examine and weigh the competing facts to determine whether the incidence of those facts probative of intentional discrimination are sufficient to establish such a finding . . ." Kirksey v. City of Jackson, 461 F.Supp. 1282, 1311 (S.D.Miss.1978). Since this is a constitutional challenge there is a preliminary requirement that intentional invidious discrimination be established. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). However, it is clear that such intentional discrimination may be inferred from the existence of particular facts revealed by the aggregation of the Zimmer factors.
Having considered all of the factors relevant in a dilution inquiry, the Court finds the following conclusions to be proper under the evidence presented:
(a) There is absolutely no lack of access for blacks to the political processes in Marengo County. The Court finds no impediments, official or otherwise, to black persons registering to vote, casting their ballots,
(b) Nor does the Court find any substantial lack of responsiveness on the part of the governing authorities. While there was some evidence that blacks have been ignored to some extent in the areas of road construction, employment, services, and education, the other evidence establishes that many programs have been initiated that are more favorable to blacks than to whites. The Court is confident that any action taken by any governing authority will have a different effect on one group of people than it does on another, so the fact that there is some evidence of some unresponsiveness does not persuade the Court that the conduct of that governing authority is to be characterized as unresponsive. As with the access issue, the totality of the evidence in this case simply does not support the allegations of the plaintiffs. The Court is not unaware of the importance of its findings on the responsiveness issue,
(c) The state policy behind the at-large system employed in Marengo County elections is tenuous at best, and deserves only to be treated as a neutral issue. See Brown v. Moore, 428 F.Supp. 1123, 1131 (S.D.Ala. 1976); Bolden v. City of Mobile, 423 F.Supp. 384, 393 (S.D.Ala.1976).
(d) The Court finds that lingering effects of past discrimination have played a role in Marengo County elections. There can be no question but that the racism of the past has led to the present racial polarization in voting. And certainly the indignities thrust upon blacks in the past are still well within their minds when they cast their ballots or consider the pursuit of political office. But the Court's inquiry is whether the past discrimination has present effects, and the Court finds such effects to be limited. First, blacks have suffered from inadequate representation among poll officials, which the Court clearly deems to be a present effect of past discrimination. Second, blacks apparently have some reticence with
(e) Among the enhancing factors the Court finds that the majority vote requirement and the large geographical boundaries of the Marengo County district militate toward a finding of dilution, while the other relevant considerations do not apply.
The plaintiffs are not required to prove discriminatory intent in the enactment of the challenged procedure, the question is whether the procedure has been maintained by either action or inaction "for the purpose of excluding minority input or devaluing the votes of minorities . . ." Kirksey v. City of Jackson, 461 F.Supp. 1282, 1313 (S.D.Miss.1978), citing Nevett II, supra at 222; Bolden v. City of Mobile, 571 F.2d 238, 245-246 (5th Cir. 1978); Thomasville Branch of NAACP v. Thomas County, 571 F.2d 257 (5th Cir. 1978). The at-large procedure in the instant case was initiated in race-proof circumstances so the question is whether it is maintained as an "instrumentality for carrying forward patterns of purposeful and intentional [segregation]." Kirksey v. Board of Supervisors of Hinds County, 554 F.2d 139, 147 (5th Cir. 1977).
On the basis of the Court's findings on the aggregate of the Zimmer factors, the Court is of the opinion that the plaintiffs have failed to establish by a preponderance of the evidence that intentional discrimination is the motivating factor in the maintenance of the present at-large election system employed in Marengo County. The present effects of past discrimination enhanced by the majority vote requirement and the large geographical district do not, in this Court's opinion, preponderate over the fact that blacks have equality of access to the slating process and the fact that elected officials have been fairly responsive to the needs of blacks, in most instances conducting their business in a racially blind, even-handed manner. Accordingly, the Court is of the opinion that judgment in these matters is due to be entered in favor of the defendants in both the class action and the enforcement action.
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