OWENS, District Judge:
Fanny Paige, Erma Moss, Mary Young and Grady Caldwell, individually and as representatives of a class
The United States on July 21, 1975, filed its separate complaint also seeking to invalidate said at-large election system on constitutional grounds. Both actions were consolidated by the court on July 25, 1975, pursuant to Rule 42, Federal Rules of Civil Procedure, and motions for preliminary injunctive relief were set down to be heard on Wednesday, August 6, 1975.
On Wednesday, August 6 and Thursday, August 7, 1975, an evidentiary hearing was held. After hearing the evidence and the argument of counsel the court issued its preliminary injunction because of its opinion that said 1947 act had the inevitable effect of abridging the right of Negro citizens of Albany to vote and is therefore violative of their rights under the Fifteenth Amendment as it was interpreted by the Supreme Court in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). A further hearing was set for Thursday, August 14 to receive suggested plans from each of the parties for (a) conducting an election this year under Albany's election scheme as it existed before the enactment of the 1947 act believed by this court to be unconstitutional and (b) redrawing the boundary lines of Albany's five wards to comply with the "one-man, one-vote" rule. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). By that preliminary injunction the parties and all persons encompassed by Rule 65, Federal Rules of Civil Procedure, were enjoined from conducting any elections based on said 1947 act. That included primary elections to be held on Tuesday, August 12, and a special election of the same date to fill a commission vacancy created by a recent resignation of a commissioner whose term would not have expired until January 1977.
Upon inquiry each party agreed that it would now be appropriate for the court to issue its permanent injunction. Plans having been presented and the evidence and contentions of the parties having been carefully considered, this constitutes the court's permanent injunction in the form required by Rule 65, Federal Rules of Civil Procedure.
The stipulated facts show that prior to 1946 black citizens were not permitted to vote in Democratic Party primary elections conducted to nominate candidates for the offices of commissioner, mayor and mayor pro tem of the City of Albany. On March 6, 1946, the United States Court of Appeals for the Fifth Circuit in the case of Chapman v. King, 154 F.2d 460, cert. denied, April 1, 1946, 327 U.S. 800, 66 S.Ct. 905, 90 L.Ed. 1025, held that the Democratic Primary as conducted in Georgia is a part of the public election machinery as a result of which the Fifteenth Amendment to the Constitution of the United States which forbids denying or abridging the right of citizens to vote on account of race or color, prohibits the exclusion of Negro voters from Georgia's Democratic Primary. The primary elections conducted thereafter by the Democratic Party in 1946 were the first primary elections in which Negro citizens were allowed to vote.
The Democratic primary election for the City of Albany was held on November 18, 1946, for the commissioners representing the second, third and fifth wards. The stipulated facts show that 3,548 persons were registered to vote in that election and that by race and ward they were as follows:
Race Second Ward Third Ward Fifth WardWhite 464 791 913 Black 309 61 1010
The stipulated facts further show that in the Fifth Ward there were two whites candidates running for the nomination. Of the 1,923 voters, 353 white citizens voted and 448 Negro citizens voted — a total of 791 — at what were then
Candidates Edward J. Davis R. F. ArmstrongWhite voters 156 197 Black voters 384 64 ___ ___ Total 540 261
The overwhelming majority of black voters cast their votes for Edward J. Davis and a substantial majority of white voters cast their votes for R. F. Armstrong. Edward J. Davis was elected. The impact of the votes of the new black voters is readily apparent from these figures.
The legislature of this state met in 1947. By March 26 the act in question had been passed by the legislature and approved by the governor. As to the election of Albany's city officials it states:
Preceding the passage of this 1947 act, Albany's city charter of 1923 (1923 Ga.Laws p. 374), as amended by 1937 Ga.Laws p. 1476 as to the election of Albany's city officials had provided:
The 1947 act as to the election of Albany's five commissioners thus eliminated the words "by the voters of the respective wards" and substituted the words "all of whom shall be elected from the City at large by all the voters of the City." This change of course meant that all registered voters of the City of Albany would for the first time vote on each of Albany's five city commissioners whereas in the past each voter had voted on the election of just one commissioner.
The November 18, 1946 second, third and fifth ward voter registration figures have already been stated. The next available figures are as of November 2, 1947. They show:
First Second Third Fourth Fifth TOTAL WHITE338 457 776 1,931 955 4,457 White BLACK234 361 61 281 1,123 2,060 Black
Had the election of November 18, 1946, been conducted under the 1947 act and had the white voters of the entire city voted for R. F. Armstrong, it is obvious that the Negro voters of the entire city could not have controlled the outcome of the Davis v. Armstrong race as they actually did. As these actual voter figures by race show, the 1947 act diminished the voting power of Negro citizens of Albany from that of being part of a majority power in one ward and an approaching majority power in another ward to that of being part of a minority power in the entire city. It absolutely diminished or reduced the majority power that Fifth Ward black citizens had just used to elect a Fifth Ward commissioner of their choice.
The Fifteenth Amendment to the Constitution of the United States provides:
To prove that the right to vote has been denied or abridged on account of race or color in violation of the Fifteenth Amendment, the plaintiffs are not required to establish by evidence that the individual persons who caused this 1947 law to be enacted — the legislators, the then Mayor, Mayor Pro Tem and City Commissioners "etc" — devised it for the express purpose of denying or abridging the right of Negro citizens of Albany to vote or that they specifically intended for this law to result in a denial or an abridgement of the right of Negro citizens to vote. Instead, as
As the Supreme Court said in Gomillion v. Lightfoot, supra:
For this trial court it is likewise difficult to appreciate what stands in the way of adjudging this 1947 act having the inevitable effect of reducing Negro voters residing in one of five wards of Albany — one-fifth of Albany's entire population — from a majority to a minority status, invalid in light of the Fifteenth Amendment as it plainly reads and as applied by the Supreme Court in Gomillion, supra.
The evidence as already recited demonstrates that the 1947 act of the Georgia legislature which eliminated the election of Albany's five city commissioners by just the voters of each respective ward, reduced the Negro voters of the Fifth Ward from a majority of the total registered voters status to a minority of the total registered voters status. This deprived them of the opportunity they theretofore possessed and had used on November 18, 1946, to combine votes and cause the election of the candidate of their choice. This is the inevitable effect of this statute. As such it obviously had the effect of denying or abridging the right of Negro citizens of Albany to vote on account of their race. This contravenes the Fifteenth Amendment and makes the 1947 act unconstitutional.
Plaintiffs also contended and defendants vigorously denied that the 1947 act abolishing ward elections is unconstitutional because it also violates the equal protection clause of the Fourteenth Amendment which states:
The plaintiffs and defendants have focused on the Supreme Court's application of the equal protection clause to election schemes in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and the Fifth Circuit Court of Appeals application of White v. Regester in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), and Turner v. McKeithen, 490 F.2d 191 (5th Cir. 1973). In effect both plaintiffs and defendants suggest that these cases stand for the proposition that Albany's at-large system of electing city commissioners — its multimember district election scheme — is not per se unconstitutional under the equal protection clause but may be shown to be unconstitutional under the equal protection clause by proof that Albany's at-large or multimember system is being used invidiously or purposely to cancel out or minimize the voting strength of a racial group, Albany's Negro citizens. They thereby suggest that even if the 1947 act were constitutional when enacted, it may have become unconstitutional by being used invidiously or purposely by Albany's elected public officials to cancel out or minimize the voting strength of Albany's Negro citizens over a period of twenty-eight years. They in effect suggest that the constitutionality of the 1947 act is to be determined by hindsight which reminds the court of the old saying that "perfect vision is 20-20 hindsight."
In examining the suggested meaning of White v. Regester, Zimmer v. McKeithen, Turner v. McKeithen and the cases cited and relied on by the Supreme Court and the Fifth Circuit Court of Appeals, this court observed that in each instance a recently enacted or court ordered election scheme — White v. Regester considered the 1970 reapportionment plan for the Texas House of Representatives; Zimmer v. McKeithen considered an election apportionment scheme recently fashioned by a United States District Court for local Louisiana parish elections; Turner v. McKeithen considered a 1971 reapportionment plan as fashioned by the same United States District Court for local elections in another Louisiana parish — was examined in the light of the equal protection clause and the historical access of members of the Negro race to the political processes leading to nomination and election during the years preceding the legislative enactment or court order. This court has not found nor has counsel suggested an appellate or Supreme Court decision
Admittedly it would be possible to examine Albany's 1947 act in the light pre-1947 racial and social conditions and then to apply the tests of White v. Regester as if it had already been decided. But White v. Regester and the cases therein relied on — Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Lucas v. Forty-Fourth Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), to mention a few—all came more than fifteen years after the election scheme here under attack was legislatively created. Rarely are such sweeping advancements in the meaning of our Constitution applied retroactively. This is not in the court's best judgment a case that calls for or permits retroactive application of the decisions of the Supreme Court. See Chevron v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 30 L.Ed.2d 296, 306 (1971). Even if it were, its clear violation of the Fifteenth Amendment at the time of its legislative enactment in 1947 would make that task unnecessary.
The 1947 act of the Georgia legislature when enacted and now is therefore unconstitutional. The Georgia legislature will meet in January 1976 at which time it can, subject to the provisions of the Voting Rights Act as recently extended by Congress to again cover just the southern states, enact an election scheme for Albany that will pass constitutional muster and the hurdles of the Voting Rights Act. Until the legislature does that, it is this court's responsibility to equitably fashion a decree solving the following problems created by this court's determination that Albany's 1947 act is unconstitutional:
At the time of the preliminary injunctive hearing on August 6, 1975, a primary election to nominate candidates for the office of Mayor, Mayor Pro Tem, Commissioner representing the First Ward and Commissioner representing the Fourth Ward — all of whose terms under said 1947 act or its predecessor acts expire in January 1976 — was scheduled for Tuesday, August 12. Candidates had qualified and the registration books had been closed. A special election to fill a vacancy created by the recent resignation of the commissioner representing the Third Ward which term would not have otherwise expired until January 1977, was also scheduled for August 12. At the time of this court's hearing elections were thus about to be conducted for five of Albany's seven elected officials. Absent this case the remaining two commissioners representing the second and fifth wards and the new specially elected third ward commissioner would be elected again in the fall of 1976 for new terms beginning January 1977.
The status of publicly elected officials determined to have been elected under an unconstitutional law or apportionment scheme is well settled under Georgia law. See Tarpley v. Carr, 204 Ga. 721, 51 S.E.2d 638 (1949). Until they by virtue of the equitable order of the court are succeeded in office by duly and newly elected officials, they are each de facto in office, and possess and have the duty and responsibility of exercising all of the powers given them
This case was advanced on the court's calendar that would have normally caused it to be heard in September so as to avoid the possibility of having to void in September a primary and special election just held in August. This decision therefore comes before the regularly scheduled election of November 4, 1975, and in ample time for newly scheduled primary elections to be held within the time frame of the Georgia Municipal Election Code.
If elections were not already scheduled to be held this fall for five of Albany's seven elected officials, this court would not have acted as quickly as it has. Instead, it would have adopted the defendants' suggestion that present city officials be permitted to remain de facto in office until the 1976 legislature has been given the opportunity to pass a legislative remedy both as to an election plan and the drawing of ward boundaries. Elections, however, being about to be held, the court if it were to adopt that suggestion would be countenancing and approving not an existing to be cured next year problem — but instead a new, regular election to be conducted under a law that is now and since 1947 has been unconstitutional because it violates one of the most precious possessions that all citizens have — the right to vote. To do so would be to irreparably harm the right not of just the plaintiffs but of every citizen to vote for the elected officials of their city government. The court therefore declines that suggestion. Since an election for five officials is about to be held, the remaining two commission posts can be included in the election without much greater expense and difficulty than the already scheduled but rearranged elections will cause. Accordingly, the court in the exercise of its equitable discretion does hereby specify that the present Mayor, Mayor Pro Tem, and five Commissioners of the City of Albany shall remain de facto in office until the second Monday in January 1976 at which time they shall vacate and surrender their respective offices to their successors duly elected pursuant to this order and the laws of Georgia and qualified.
The parties have each suggested a time schedule for a qualifying period and for the holding of primary elections keeping in mind the court's expressed desire to conform to the existing November 4, 1975, date of the general election. The plaintiffs have suggested that the court should also provide for an additional period of voter registration preceding the primary election.
After giving careful consideration to all suggestions made the court does hereby order that elections to fill the offices of Mayor, Mayor Pro Tem, First Ward Commissioner, Second Ward Commissioner, Third Ward Commissioner, Fourth Ward Commissioner, and Fifth Ward Commissioner be held on the following dates:
The evidence does not indicate that Negro citizens of Albany have had anything less than a full, fair opportunity to register to vote. Indeed, as the court has publicly observed, the evidence shows that the Voting Registrar of Albany and Dougherty County, along with all who assist him, has "bent over backwards" to get all citizens, including particularly black citizens, to register to vote. If any citizen has not registered, it is solely because he did not wish to do so. The court looks upon this court-ordered primary election as an August 12, 1975, primary delayed to a later date by court order. The list of registered voters eligible to vote in the delayed primary shall be prepared
The court has carefully considered all of the suggested plans of the parties for redrawing the ward boundaries of Albany's five wards to conform to the "one-man, one-vote rule". The practical difficulties and the almost impossible task of rearranging and changing existing voter registration cards and lists was not given sufficient consideration by the parties. Accordingly, the court considering the plans of all parties with a view toward changing as few existing election districts as possible has reapportioned the five wards of the City of Albany so that they shall be as shown on the attached map of Albany, Exhibit "A".
So as to conform to the charter of the City of Albany as it existed before the enactment of said unconstitutional act, the terms of the officials of the City of Albany elected in the elections herein ordered shall expire on the following dates:
The court during these proceedings questioned the sufficiency of the compliance by the City Democratic Executive Committee of Albany with Sections 34A-801 and 802 of the Municipal Election Code of Georgia. On August 14, 1975, documents sufficient to comply with those sections were furnished to the court. When furnished to the proper parties, they will be sufficient to qualify said committee to hold a primary election under this order.
In all other respects the elections to be held hereunder shall be conducted in accordance with the laws of Georgia.
Jurisdiction is retained to pass such further orders as may be necessary to effect this order.
This constitutes the order of the court enjoining and prohibiting elections to be held for the heretofore named officials of the City of Albany in any manner inconsistent with this order. It shall remain in full force and effect until further order of the court.
Based on the population of election districts in use in 1974 as shown on plaintiffs' demographic information, and taking into account the departure of 4,175 persons due to the closing of the Naval Air Station and the annexation of territory in election districts 14 and 15 in which, according to information submitted by the government, some 381 persons live, the court finds the total present population of the City of Albany to be 70,762, and the ideal population of each ward to be 14,152. Using the above information along with the July 1973 Georgia Population Report and Characteristics of Housing Units and Population, by Blocks: 1970, the court finds that the demographic characteristics of each ward as outlined on the attached map are as follows:
Population by Race (Percentage) WARD Population Deviation White Black1 14,153 + 0.007% 11,242 (79.4%) 2,911 (20.6%) 2 14,189 + 0.261% 5,122 (36.1%) 9,067 (63.9%) 3 13,815 - 2.381% 200 (1.4%) 13,615 (98.6%) 4 14,361 + 1.477% 12,374 (86.2%) 1,987 (13.8%) 5 14,244 + 0.650% 13,951 (97.9%) 293 (2.1%) ______ ______________ ______________ TOTALS 70,762 42,889 (60.6%) 27,873 (39.4%) Ideal Ward Population = 14,152 Total Population Deviation = 3.858%