MOBILE v. BOLDEN

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Argument of Charles S. Rhyne

Chief Justice Warren E. Burger: The case is submitted we'll hear arguments next in 1844, City of Mobile against Bolden and the consolidated case.

Mr. Rhyne we'll wait for the Court going to be clear a little bit.

I think we may proceed now whenever you're ready Mr. Rhyne.

Mr. Rhyne: Mr. Chief Justice, and may it please the Court.

The issue in the case that I present to you is whether Mobile's election system, under which it elects its commissioners in at-large election is constitutional.

Now Mobile is a city of a 190,000 people.

One-third of them are black.

There has never been a black commissioner elected and I think that the ultimate issue that is presented to this Court in this case is whether or not these blacks who are the plaintiffs in this case are deprived of the equal protection of the laws.

Are they deprived of equal access and equal participation in the election system on Mobile as they alleged in their complaint?

Justice Potter Stewart: Can you tell me Mr. Rhyne, I know that commissioner form of municipal government is a very common one but its one with which I have only a passing familiarity.

Commissioners have both executive and legislative powers?

Mr. Rhyne: Yes, they do.

That's really the big distinction between a commission form of government and say the merit council.

Each commissioner is elected as the finance commissioner, or the safety commissioner, or the public works commissioner.

Justice Potter Stewart: Well, that specialization's been true only fairly recently.

The -- the commission form of government as I remember from reading the briefs again in Mobile in 1911, was it?

Mr. Rhyne: Yes, it did.

Justice Potter Stewart: And the specialization, at least officially, the specialization is more recent, isn't it?

Mr. Rhyne: I believe that as a matter fact the specialization in so far as prescribed by the law was laid out in 1965.

Justice Potter Stewart: Alright.

Mr. Rhyne: But Mr. Justice Stewart, I think it has always --

Justice Potter Stewart: There's always been an effect to those special instances?

Mr. Rhyne: Yes, anyone who run for the Commission.

Say, I'm running for the finance post because I'm an expert in finance.

I am running for the police or safety post because I am an expert in police or I am running for the public works department because I am an expert in them.

I guess a big difference between the commission form which is more like the city manage of form than any other class.

Justice Potter Stewart: Unlike the two.

Mr. Rhyne: It is.

Justice Potter Stewart: But am I then correct in understanding that all of the legislative power, and all of the executive power of the municipality resigned in these three commissioners?

Mr. Rhyne: That is true.

That is true.

They --

Justice Potter Stewart: All of those powers?

Mr. Rhyne: All of the powers.

Justice Potter Stewart: From the city manager for the government of course the city managers and exclusively an executive.

Mr. Rhyne: Yes, It's right.

Justice Potter Stewart: And the council is the legislature?

Mr. Rhyne: That is right.

And I was saying that when they do the administrative executive work then will exceed the managers --

Justice Potter Stewart: But then they also enact the ordinances, do they?

Mr. Rhyne: They also enact the ordinances, but the people know which of the three are responsible for each of the functions of the city and as of necessity this form of government which began around the turn of the century was elected to wipe out the corruption Mayor Alderman form that was causing a lot of problems at that time and it gives each commissioner absolute responsibility to each voter, and --

Justice Byron R. White: Mr. Rhyne, you've just explained that the people run on a place basis here in Mobile.

Now, it seems to me that I grew up in a place where we had the commission form of government but each one was appointed by the mayor to the public works or public safety or what it was.

But here, the candidates run for a specific position?

Mr. Rhyne: Yes, Your Honor, that's true.

I think one of really great things about the field of the municipal government, and I've been in since 1937 as every city's different when you come right down to it.

You can't say that one city is precisely like another, I don't care how you go about it and how you describe it.

Chief Justice Warren E. Burger: But isn't there are common denominator in terms of having them exercise as Mr. Justice Stewart suggested both executive and legislative functions?

Mr. Rhyne: Yes.

Chief Justice Warren E. Burger: That's the common denominator of the commission --

Mr. Rhyne: Yes.

Chief Justice Warren E. Burger: -- form, isn't it?

Mr. Rhyne: Yes, it is and they have to adopt the policies and then carry them out, but I think the major thing is that the people know when they vote for them that they're voting for this man but of course he is an expert in finance and this man is an expert in police safety and this man of because he is an expert in public works, and regardless of whether or not they run as such as they did not prior to 1965, it was always understood that this man was running for this post and that man was running for that post.

Justice Potter Stewart: May I ask another question?

Did they run as a trio on a ticket?

I know it's a non-partisan election, at least that's my understanding of the brief.

Mr. Rhyne: That's right, it is non-partisan election.

Justice Potter Stewart: First of all, what is the term of the commissioner?

Mr. Rhyne: Four years.

Justice Potter Stewart: And are they are all elected at the same time?

Mr. Rhyne: Yes, they are.

Justice Potter Stewart: And there -- do they run as a slate of three?

Mr. Rhyne: No.

No, there is no primary, it's a non-partisan election and there are no impediments to anybody registering, anybody qualifying to be a candidate for anyone of the places even thought they are not an expert in finance or an expert in one of the others and there is no question of what.

There is equal participation in the electoral process and that the votes are counted equally.

Justice Potter Stewart: And have Negroes been -- they have run?

Mr. Rhyne: Yes, now Negroes have run, three Negroes run in 1973.

Justice Thurgood Marshall: They run or they stood for the election?

Mr. Rhyne: Mr. Justice Marshall, I would say in this how they stood for election and you're right.

They stood for election in 1973.

But as the District Court pointed out they were young, inexperienced and run rather limited campaigns and even care of the black awards.

Now --

Justice Byron R. White: They have some prerequisites for getting on the ballot?

Mr. Rhyne: None whatever.

Justice Byron R. White: You just -- there isn't a filing fee?

I suppose some kind?

Mr. Rhyne: There was a manner --

Justice Byron R. White: But there is a signature requirement?

Justice Potter Stewart: There must be.

Mr. Rhyne: Now Mr. Arendall is here, he is a great expert trying to make an expert on me but I'm saying there isn't --

Justice Potter Stewart: There is no signature requirement of any instances?

Mr. Rhyne: No, absolutely not.

So anybody can run.

Now, this is the first case that I know of the handed for this Court that really is quarreling in laws at-large elections in the municipal level.

Justice Byron R. White: Well, Mr. Rhyne before you go on with that, you might just tell me why you thought it was important to say that these commissioners either formally or informally stood for election for certain positions.

Mr. Rhyne: Yes.

Justice Byron R. White: Now, let's just assume that they didn't, would your case be different?

Let's suppose they just run, all they run was for three commissioners and no one ever knew what they were running for except they are running for commissioners and they have the full legislative power.

It might so happen that after they were elected, one would assume this kind of executive responsibility and one would assume another.

But suppose they just run, when they run no one understood anything other that they were running for three commissioners exercising legislative power, would your case be different or not?

Mr. Rhyne: That's pretty hard question, but I would say that my case would not be different because in every commission form of Government that I know of, the people always know who that commissioner is running for and who they are voting for and then you have some larger experience and since now they were proportional representation on voting in such.

But I say coming back to my point that this is the first case before this Court involving at-large election, we have 67% of the cities --

Justice Byron R. White: Or you -- I think --

Mr. Rhyne: -- but you --

Justice Byron R. White: I take it that the case would be the same if there was at-large election for city councilman.

Mr. Rhyne: I would agree except I think here you have a special reason, because the people can better hold these commissioners responsible for their actions because they know who takes the actions.

Justice Byron R. White: So you do want us to confine our decisions or to address the --

Mr. Rhyne: Commission form of the government, yes.

Justice Byron R. White: Commission form of government where you run for a spot?

Mr. Rhyne: Yes.

Justice Potter Stewart: The city council, generally speaking as a generality has only legislative power?

Mr. Rhyne: That is right.

Justice Potter Stewart: Not executive.

Mr. Rhyne: That is right and you have a city manager, you have a Mayor who runs the overall.

Justice William J. Brennan: I want to suggest to you that the commission form of government as you described in Mobile is certainly very different from the commission of form of government as we knew it in New Jersey when my father was for 13 years a member of the city commission of New York.

And there you had as many as 80 candidates and the first five were elected and then the five of them by majority vote decided which should be director of public safety, which should be director of public affairs and so forth.

And one did not run because he was supposed to be an expert in any particular field.

Mr. Rhyne: Now, you're speaking of a county, are you not?

Justice William J. Brennan: No, I am not.

I am speaking of the City of New York.

Mr. Rhyne: Well --

Justice William J. Brennan: We have the commission form of government in New Jersey for some 25 years and most of the major cities.

Mr. Rhyne: Have the commission form, yes.

Justice William J. Brennan: Well, that takes to be back to my Government.

The rightful welcome is the mayor who made the assignment of the places.

So there are as you pointed out all variations but I join Mr. Justice White in asking whether your case would be the same without a please contest standing for a place.

Mr. Rhyne: Well, I think that on reconsideration I would stay with this thing.

I think that the election at-large is the important thing here and it is true though that there is a tremendous battle about the qualifications of the various commissioners because I too Mr. Justice Brennan grew up and my father run in, that's too long ago I don't remember how many candidate but this was county and not city in selecting this --

Chief Justice Warren E. Burger: You indicated before that the distinguishing factor perhaps was that this people exercise both legislative and the executive functions --

Mr. Rhyne: That's right.

Chief Justice Warren E. Burger: -- that differed that distinguished it from?

Mr. Rhyne: From the usual merit council form of government that is very clear.

Justice Thurgood Marshall: What about the police jury in Texas and Louisiana?

Mr. Rhyne: Now --

Justice Thurgood Marshall: The County police jury?

Mr. Rhyne: Mr. Justice --

Justice Thurgood Marshall: -- come by anyone anything did go all over the world, will that?

Mr. Rhyne: That's right and --

Justice Thurgood Marshall: The judges are laymen in Texas.

Mr. Rhyne: And the judges are laymen --

Justice Thurgood Marshall: And the jury was --

Mr. Rhyne: In Missouri where our present chairman was.

Justice Thurgood Marshall: That's right.

Mr. Rhyne: And a judge is the layman in Illinois, but let me get back to this fact.

One of the most interesting thing to me is that these plaintiffs have brought this suit, they have 35% black but never has a qualified black, run for office in Mobile.

Now if there's any one thing that this Court can judicially notice and then Mr. Justice Marshall knows better than anybody else that it's this, when I first start representing cities in 1937, there wasn't a single black that I know of on any city council and certainly no black Mayor.

Today, we have a tremendous number.

Justice William H. Rehnquist: Mr. Rhyne, how could you know whether a particular individual black or white is “qualified”?

Mr. Rhyne: Well, he has state his qualifications and the people vote for him on the basis of his qualifications.

It puts forth these qualifications in the race.

Justice William H. Rehnquist: Well, if I might be anecdotal too, I grew up in Milwaukee, we have a city council of 23 members, and 12 of them were tavern keepers.

Mr. Rhyne: Well, the City Council of Milwaukee doesn't really run the city, the mayor, there was mayor home probably then and a city manager, generally run the city.

But the thing is that, here you've got Mayor Bradley running out in Los Angeles in a city that's 17% black.

He run once, he was defeated.

He run the next time, he's been elected and then elected over and over again.

And I see around this nation and we cite them on page of 11 and 12 of our brief with many illustrations Raleigh, North Carolina, 22% black, black mayor.

Got a black mayor of Atlanta, black mayor in New Orleans, black mayor of Newark, black mayor of Oakland, I could name a hundred of them almost because I worked with them almost daily and I am saying that we've reached the point in our nation where the color of a man's skin in the political area doesn't count as much is his ability to prove that he can do the job.

Justice Thurgood Marshall: But why is it that they had win in?

Mr. Rhyne: I did not hear the question.

Justice Thurgood Marshall: Are they all stupid in Mobile?

Mr. Rhyne: Now, Mr. Justice Marshall --

Justice Thurgood Marshall: (Inaudible) because I didn't --

Mr. Rhyne: -- you probably knew John LeFlore very well.

He is one of the ablest Americans, who have live, but I'm sorry, he was plaintiff, he is dead.

Now, I would be awfully hard to convince that if John LeFlore run with 35% black that he wouldn't get enough quite votes to win and my statement to you is --

Justice Thurgood Marshall: Who's the mail carrier?

Mr. Rhyne: Pardon?

Justice Thurgood Marshall: He was a mail carrier?

Mr. Rhyne: Well, he was brilliant man.

Justice Thurgood Marshall: Well, he wasn't a politician, he's mail carrier.

Mr. Rhyne: But he is a politician and you know it.

Justice Thurgood Marshall: Yes, a part-time politician.

Mr. Rhyne: Well, --

Justice Thurgood Marshall: What you mean some of the -- you mean that those young lawyers down in Mobile.

Mr. Rhyne: He organized the only misleading organization that existed in Mobile the Non-Partisan Voters League which is back.

Chief Justice Warren E. Burger: Well, if the qualification factor is relevant here at all ---

Mr. Rhyne: I think it's very relevant --

Chief Justice Warren E. Burger: -- the only evidence of qualification is that the three Negroes, who run, you said according to this record, did not carry the Negro or doting wards and isn't that about all, we can deal with on qualifications?

Mr. Rhyne: Well, Your Honor, I think it shows the sophistication of the voters today and I think it also shows that the voters are looking at the qualifications of the candidates rather than the color of their skin or they would have gotten 35% of the votes.

Justice John Paul Stevens: The difficulty that -- in this case though, I know you're talking about the rest of the country, but this case, the district courts finding are as I remember them, that the color of the man's skin is of critical importance in the election.

Justice Thurgood Marshall: “The Kiss of Death.”

Justice John Paul Stevens: Don't we have to look at Mobile rather than Oakland and Cleveland and other place?

Mr. Rhyne: Well, I read “The Kiss of Death” Mr. Justice Marshall and I read what the judge said about polarization.

Justice John Paul Stevens: But do we accept those findings or do we not for purposes of our decision?

Mr. Rhyne: I say that the findings are based on my minefield evidence because the expert testified that polarization was lessening all the time and there were witnesses who testified that a black man would have a reason an opportunity to win.

Justice John Paul Stevens: Mr. Rhyne, do we -- do we accept those findings for purposes of our decision or do we – do you ask us to reexamine them?

Mr. Rhyne: I ask you to reexamine them because --

Justice John Paul Stevens: Is it critical to your case if we reexamine them?

Mr. Rhyne: Not particularly I think that which you have here is a legal conclusion rather than a fact because what did the court do?

In a voting rights case you've got to find some barrier, some obstacle.

Now in Mobile, you have full access, full participation by blacks.

Justice Byron R. White: Yes, bur Mr. Justice Stevens points out that the district courts as you may have complete access until the voters get into the voting booths and then there's voting on the basis of color and no black has ever been elected.

Mr. Rhyne: Well, --

Justice Byron R. White: Well, let's just assume that's so.

Mr. Rhyne: That is true.

Justice Byron R. White: Now let's just assume that that is -- just accept those findings and you say, what do you say to that?

Mr. Rhyne: I say to that, that the evidence is at polarization is growing less and less all the time and that this Court must pay some attention to the fact that blacks throughout the nation.

Justice Byron R. White: What if we accept the findings that there is a racial voting at the polls?

Justice Thurgood Marshall: Mr. Rhyne, on your polarization changes, what about the clan getting 1500 members a week in Alabama? The Ku Klux Klan, I'm talking about, you know, KKK.

Mr. Rhyne: Yes.

Justice Thurgood Marshall: 1500 members a week in Alabama in the last two months.

Mr. Rhyne: I don't follow its activities quite as close I am afraid.

Justice Thurgood Marshall: I've seen the newspaper.

Mr. Rhyne: Well, I --

Justice Thurgood Marshall: Local news.

Mr. Rhyne: I -- I would say that the Ku Klux Klan as far as I know of it is fading as a factor in the south just as polarization of the black vote is fading.

Justice Potter Stewart: I thought your argument Mr. Rhyne was that even accepting polarization nothing in either Fourteenth or Fifteenth Amendment requires that this at-large form of election which has been the form adopted Mobile since the year 1911 to be altered, even accepting that Negroes voters vote Negroes and white voters vote white people.

Mr. Rhyne: My position is --

Justice Potter Stewart: There's nothing in the Constitution the Fourteenth Amendment or the Fifteenth Amendment or any other part of it that requires Alabama to change its system of voting.

Mr. Rhyne: That is right.

I think as long as they have equal access and equal participation and their votes are counted equally, that's all the Constitution requires and they have that in Mobile.

Justice Potter Stewart: There is a one man one vote problem here under the Fourteenth Amendment --

Mr. Rhyne: Now, they are equal.

Justice Potter Stewart: And there is no deprivation of anybody's voting under the Fifteenth Amendment based on his race or color.

Mr. Rhyne: That is right because testimony is this, that the black vote is decisive.

All the candidates for commissioner campaign very hard for the black vote and on pages 141, 142, 143 you have Reverend Hope saying that he feels, he's head of the Non-Partisan Voters League.

He feels that the three white candidates or three white commissioners who now are those officers treat the blacks very well and we have over and over again the fact that these commissioners have the open door policy, they see the blacks, they try to care of their problem, sure they can take care of them all, all cities have problems but --

Justice John Paul Stevens: But then Mr. Rhyne did not the District Court find that the blacks were not getting the same services from their government but the whites were.

Isn't' that the District Court's finding?

Mr. Rhyne: Well, the finding on services, there are other remedies for that Mr. Justice Stevens.

Justice John Paul Stevens: I understand that but I am not saying you necessarily --

Mr. Rhyne: That doesn't have to do with voting.

Justice John Paul Stevens: Don't we have to deal with the findings of the District Court rather than the changing conditions that you described they are taking place today or do we, normally --

Mr. Rhyne: I think --

Justice John Paul Stevens: -- we deal with the findings the District Court made.

We got to live with them.

Mr. Rhyne: I don't think you can decide this case in a vacuum, I think you have to look at the entirety of the picture which going on in the world today.

I think that in this instance where there's no impediment in the voting process, whatever.

Everybody can register, every can run --

Justice John Paul Stevens: Do you think that the Gomillion case would have decided differently if there have been showing that there is no impediment to the voting process?

Mr. Rhyne: Well, the Gomillion case is entirely different from this.

The Gomillion case was an out-and-out discriminatory action and you got those discriminations here.

Justice John Paul Stevens: Well, suppose this -- suppose this was out and out in a sense that the legislature and the commissioner said the reason we want to maintain our plan, our commission form a government, is because we do not want blacks to be in the -- elected as commissioner, would it be a different case?

Mr. Rhyne: It could be but you don't have that here.

You don't have any intentional discrimination.

You have absolutely quality of voters to the voting process.

Justice Byron R. White: Well, based on the findings of the District Court, at some point in the process, you haven't deliberate discrimination in the voting booth.

Mr. Rhyne: Well, --

Justice Byron R. White: I'm not suggesting but I'm just --

Mr. Rhyne: Mr. Justice White there's no such finding what they --

Justice Byron R. White: Well, I'll call it polarization then.

Racial voting whatever you want to call it.

Mr. Rhyne: Well, even on that as I say that the testimony was by the expert Boyles that polarization is lessening in the Government in each brief concedes that race was not an issue in the 1973 election but it was the last election.

Now, what the court did, the District Court did was it couldn't find an obstacle.

It couldn't find an impediment and found that everybody have an unfettered right to vote.

So what it did was and I quote the court, “The court concludes that an at-large system is an effective barrier to blacks seeking public life.

Well, that simply isn't true, it simply is not true.”

Chief Justice Warren E. Burger: It does not the record here -- is not the record here that the three Negro candidates didn't carry the Negro wards in conflict to some extent with the District Court's finding.

Mr. Rhyne: Absolutely, and then the Court of Appeals want to step further and said that, that existing so that so-called barrier to blacks seeking public life establishes the element of intent.

Now, I think that this case is enormously important because having found that the system itself was the barrier all the court could do was to polish it and what did they do, they wrote an entire new city chart with a mayor and non-city councilman because they said that the only way and I quote this Court again, “you can provide blacks with the realistic opportunity to elect blacks to the city governing body is to wipe out the existing government and put in a mayor-council plan was single member district.

I don't think these courts in the business of fixing elections or guaranteeing that a person is going to be able to vote and put in office a man of his own color.

They have an equally right to an equal shot one man one vote.”

Justice Byron R. White: Mr. Rhyne, I suppose it's only -- it's just the residential pattern that would allow that would afford the kind of a remedy the District Court gave here.

If blacks and whites were equally distributed around the City of Mobile and yet the same results had occurred down in the past there weren't any blacks elected.

The only remedy would be of system of racial proportional representation, but this single member district remedy would only work because of residential patterns I take it.

Mr. Rhyne: Yes, I think the vicious part, you are right.

The vicious part of this decision is that it more or less freezes segregation.

Justice Byron R. White: You mean residential segregation?

Mr. Rhyne: Yes.

If you're going to chop up Mobile into non-single member districts and the black start moving out of the district, they lose control of it.

So I think that's really to me, we've reach the point I say when color should not count and it has not counted throughout the nation and I think this Court should say so that you're not going to provide proportional representation by race, you never had and the city and that state would say no, it would vote yes, equal access yes, equal participation yes, but not proportional representation by race.

Justice Potter Stewart: In fact the proportional representation that is the hare system of proportional representation has existed, I think only two municipalities in United States, New York City for a while and Cincinnati, Ohio for a longer period and that was attack as being unconstitutional on stage?

Mr. Rhyne: Yes and it didn't work very either place.

Justice Potter Stewart: Now, I want an argument about that.

Mr. Rhyne: Alright, but (Inaudible) he put it in and since that they told me I wasn't working really good and so you got rid of it but I am saying that proportional representation by race is not guaranteed with the country.

Justice Thurgood Marshall: (Inaudible)

Justice Potter Stewart: Yes.

Justice Thurgood Marshall: The communist got elected every time?

Mr. Rhyne: I didn't quite understand you Mr. Justice.

Justice Thurgood Marshall: In New York, the communist got elected ever time.

Justice Potter Stewart: In Cincinnati I got elected.

You know, I thought in working on this case really, one of the most interesting things was the footnote that Mr. Justice White wrote in Whitcomb versus Chavis where he pointed out that a white man won in a black ward, and a black man won a in a white ward, and I hope that I have lived to see the day where that is America because if you start carving up cities just because you got to guarantee black sits on the governing board, you're going to have to carve out in almost of this.

Argument of J. U. Blacksher

Chief Justice Warren E. Burger: Mr. Blacksher.

Mr. Blacksher: Mr. Chief Justice, may it please the Court.

I would like to begin by responding if I may to some of the questions concerning the commission form of government in Mobile.

Briefly, the history of commission government Mobile as Mr. Justice Stewart pointed out began in 1911.

The original statute did not require but did authorized the commissioners once they were elected to divide up the executive functions among themselves and it certainly was the practice and custom in Mobile almost from the beginning for the commissioners to do this.

In fact, it is not a matter of record in this case but there was lawsuit in 1920's by some politicians who were unhappy that commission had adopted that course rather than act in this as a board of directors in common.

Justice Byron R. White: You mean that after the election they then decide which of them would take what part?

Mr. Blacksher: That's correct and in 1939, pardon my understanding, that the law was explicitly changed to provide for one place to be the mayor in advanced to the election and the two associate commissioners would be assigned to executive functions after the election.

That plan also run on some technical problems in the Alabama's state courts and it ended up in 1965 for the first time of the executive functions of the three commissioners were designated by law before they run.

We would like to point out that the plaintiffs in this case never objected to the retention of the commission form of government which permitted the use of single-member districts.

It was a position of the defendant city in this case form the time it filed it's answer through its arguments in the pretrial motions, the pretrial document, pretrial briefs and on into the Court of Appeals that the assignment of executive functions to the three commissioners foreclosed, absolutely foreclosed any remedy in this case.

That in fact was I think a key stone on their defense.

Based on that representations which can also be found by the way in their answer on page 33 of the appendix, that in order for single-member districts to be provided in Mobile, a change in a form of government will have to come about at the court acting in its equitable discussion when it was forced to enter an order of its own, when the City of Mobile and the State of Alabama refused after the Court's invitation to supply some legislative response to the infirmities of the at-large election system.

Then the court, taking the advice of the defendants themselves changed to an optional form of government which is provided in the State of Alabama by other statutes.

State of Alabama has several optional forms of municipal government including the ancient mayor-aldermanic form of government which Mobile was using back in 1900 including a new mayor council, newer mayor council form that was devised specifically for Mobile in 1963 and including a special legislation that governs Montgomery for example and Birmingham which had adopted the so-called strong mayor that everyone in this trial agreed was preferable to the weak mayor where the council could interfere in the day to day business of the executive.

But to repeat, it is true that the plaintiffs in the end when asked proposed a remedy suggested a change to a mayor council only because the defendants were urging that any other use of the form government in the context to stay along with districts would be inequitable and inappropriate in Mobile.

The court's remedy list open at the state Alabama.

The option of adopting by legislation, a commission form of government that does permit of the use of single-member districts, that is still open to Alabama if it wishes to use it, but there has been no movement on the part of anyone in the legislature or in city government to seek or to bring about such change.

Chief Justice Warren E. Burger: Could the city do a general utterly or does it take for state legislative action?

Mr. Blacksher: The city took the position from the beginning that it locked, entirely locked any authority to change it's election system or it's form of government and that in fact we had to look to the legislature of Alabama for our remedy.

And it -- it filed the motion to strike our prayer for relief that the election system be changed to single-member districts because they lack the authority to provide that relief.

Justice Byron R. White: Well, is it your position that the discrimination in this case was effected in the voting booths, is that where the --

Mr. Blacksher: Not exactly Mr. Justice White.

We do not take position that voters are somehow practicing that prohibited -- constitutional prohibited form of discrimination when they vote long racial aims.

What our position is that given that situation, a situation by the way which has been reinforced by a hundred years of official state access --

Justice Byron R. White: Our city should not provide the kind of a system that makes effective that kind of voting, is that it?

Mr. Blacksher: That's absolutely correct.

In -- in Mobile, I doubt that one could devise an electoral form that more carefully and distinctly focused the electoral power of --

Justice Byron R. White: When you say at-large -- at-large voting is just in the cities say is out is unconstitutional if over a period of time a substantial black or some other minority group is without representation and that the court finds that there is discriminatory voting?

Mr. Blacksher: Polarized voting, we do not even say that every at-large system under those circumstances would have the proscribed effect.

After all, if someone here pointed out there were in a true at-large system and a true at-large system as in this case that the top three vote getters would be elected and you can have a plurality victories and it made then that under such a system blacks in Mobile representing 33% of the population would have had the clout to do it.

Justice Byron R. White: What would you do in this case, if the blacks and the whites have been equally distributed throughout the city rather than what would have been your remedy?

Mr. Blacksher: We -- you -- Mr. Justice White you are correct that we would have had no remedy through the districting formula and in the first instance we think that it's unrealistic to consider such a possibility sense if in fact blacks and whites were residentially homogenized throughout the entire district, it is unlikely that the social phenomenon of polarized racial voting would have occurred in the first instance.

But if it did occur in that circumstance I think it is clear that the election form at-large voting would not be the specific cause of the delusion of their vote because as you say changing --

Chief Justice Warren E. Burger: Excuse me.

Go ahead.

Mr. Blacksher: Changing the districts would not provide them such a remedy that the issue of course is not presented here, the evidence was and the court found that Mobile one of the most racially segregated cities in the country.

Chief Justice Warren E. Burger: What inferences should be drawn if any, from the fact that if you had district representation here the three Negro candidates run would not have been elected in their own predominantly Negro Districts?

Mr. Blacksher: Yes, sir.

That was a factual issue that was debated a great length in the trial court and all of the facts indicated in the trial court found, and the Court of Appeals affirmed its 90 that it was only one -- it was an indication that no well-known, well-financed black candidate was even going to attempt a race in the City of Mobile where all of the politicians including the defendants conceded that it took $30 to $50,000.00 towards a successful campaign.

When all of the black politicians including the floors, non-partisan voters list represented to the court that they would not even attempt to launch a black candidate given the pattern of racially polarized voting.

This was a situation where the one champion of black's interest in the City of Mobile, a white commissioner name Joe Wagon had been defeated by that same racially polarized voting.

His situation provided the centerpiece, I think of the evidence in this case and blacks in this case did not contend that they had a right to have a districting remedy that will permit them elect blacks.

They wished to elect a candidate of their choice.

They weren't -- their evidence indicated that they were not even permitted by the way of majority to elect a white candidate who was at all connected with or interested in their concern.

Justice Thurgood Marshall: How was it prevented in doing this?

Mr. Blacksher: I beg your pardon, Mr. Justice Marshall?

Justice Thurgood Marshall: You said that Negroes weren't allowed to elect the man of their own choice and my question was how were they denied that right?

Mr. Blacksher: They would denied that right by the block voting white majority operating in an at-large election system that involved the majority vote requirement.

Justice Thurgood Marshall: What I understand from Mr. Rhyne that, maybe you can help him, he wants to know the constitutional division that prevents white people for voting for white people and Negro or black people from voting for black people.

Mr. Blacksher: There is no such constitutional prohibition, if it please the Court.

Justice Thurgood Marshall: I thought so.

You agree with doing that?

Mr. Blacksher: We certainly do.

Always have.

Justice William H. Rehnquist: But you do say that given the fact of polarization as it's been referred to generally in the case, it does not require a finding of intent in the structuring of the governmental unit to discriminate?

Mr. Blacksher: That is the position we take.

The Court of Appeals took the position that under the equal protection cause of action such a find of intent was required at least the majority opinion did and although it did sort of indicate that the intent would not be required under a Fifteenth -- well, I'm sorry, the majority did hold as well that the Fifteenth Amendment would require a showing of intent.

But it is our position, Mr. Justice Rehnquist, that neither the Fourteenth Amendment, the Fifteenth Amendment, and certainly not the Voting Rights Act requires that a districting system which operates to minimize or cancel out the voting strengths of a protected minority requires a demonstration that that electoral system was motivated in the first instance or at any point in time by an invidious motive.

Justice Potter Stewart: How about the election for the governor of Alabama?

Mr. Blacksher: Your Honor, the governor of Alabama is an executive function, it is one office.

He must run statewide.

Justice Potter Stewart: All the executive power of the government of Mobile at-large in these three commissioners, I understand.

Mr. Blacksher: That's correct.

Justice Potter Stewart: So in that extent, there's no difference.

Mr. Blacksher: That's correct except that what we don't foreclose is the possibility that a commission system could have been retained where all three would have elected, would have exercise the executive power and still have been elected from single member districts and without validating the voting rights under the Equal Protection Clause of any of the citizens in Mobile who elected them from single-member districts.

We say that that certainly is an option which is used in other the cities, has not been challenged.

It was not directly challenged in this case.

Justice Potter Stewart: Do you think the Constitution, ultimately what you're saying as I understand it is that the Constitution requires that one of these three commissioners be a Negro.

Mr. Blacksher: No, Mr. Justice Stewart, we're not.

Justice Potter Stewart: Well, that's the thrust of your argument, isn't it?

Mr. Blacksher: It is, we have seen that the Constitution requires that in a situation where there is block voting is powerful and it's rigid as there is in Mobile, the Constitution requires that an electoral system be provided which gives blacks an opportunity to have their preferences registered in the election system.

Justice Potter Stewart: Well, --

Mr. Blacksher: And their preference may or may not be a black candidate.

Justice Potter Stewart: The voter is still not always, in many time, I am sure you've shared this experience was many of the others who are fellow citizens, your preferences hasn't been nominated by either party or any party.

Mr. Blacksher: That's correct.

Justice Potter Stewart: So you're voting as between not first choices of yours?

Mr. Blacksher: Not yet, every voter doesn't have a right of course to have his preference registered on every occasion, but the concept of delusion grew out of this Court's one person, one vote, one occasion.

Justice Potter Stewart: Yet that's not involved here, is it?

Mr. Blacksher: The mathematical concept of one person at one vote is not.

Justice Potter Stewart: Which is not that concept was in Reynolds against Sims?

Mr. Blacksher: That is -- that is not with Fortson versus Dorsey --

Justice Potter Stewart: I know but the original one person, one vote was a purely a mathematical concept wasn't it?

Mr. Blacksher: The specific concept in Reynolds was a mathematical concept.

Justice Potter Stewart: Exclusively?

Mr. Blacksher: But the language of Reynolds is much broader than that, may it please the Court.

And it talks about the right of every American citizen to have a full undiluted, equally weighted vote and from the beginning of that line cases, this Court has recognized.

Justice Potter Stewart: But now -- just go ahead, excuse me.

Mr. Blacksher: Has recognized then in laying down the rule that such a delusion or debasement of a person's vote could occur by a geographical apportionment scheme by mathematics as you say.

Then in providing a remedy for that, a local government could go to an at-large election scheme.

Justice William H. Rehnquist: Well before you get to the question of remedy let's talk about the constitutional violation.

Do -- you said that it does not have to be by intent, I take it.

Mr. Blacksher: That is our position.

Justice William H. Rehnquist: Now supposing that instead -- Mobile and instead of being roughly 65-35 was 85-15 and they had head a longstanding three commissioners at-large system and could the District Court then tell them they had to go from three commissioners to five commissioners because even three commissioners split up geographically would not enable the Negro population to have a representative on the council?

Mr. Blacksher: If the system operated given all of the premises of the hypothetical question that there was rigid polarized voting which strictly precluded on every occasion consistently over a period of time the preferences of the 15% black minority from being registered in the at-large system then it would be functionally no different than a districting system in which blacks were in one district that had no representatives and the whites were in one district that had all of the representatives.

That's our position.

Justice Byron R. White: That will make the same argument about Catholics or Jews or any other identifiable group that live in some area, I suppose, Italians, Poles, and (Inaudible).

Mr. Blacksher: We don't attempt to make that argument here Mr. Justice White but the argument might be --

Justice Byron R. White: Well, it sounds to me like you're making it.

Mr. Blacksher: The argument might be made under the presence this Court has established if it could be shown by Catholics and I would point out that in our experience it has not been as a matter of fact to possible to show this that Catholics consistently voted as a black that or rather that the majority of non-Catholics voted as a black to defeat Catholic candidates over a period of time.

Justice Byron R. White: That's a factual answer to my question.

That isn't what I asked you.

Mr. Blacksher: Well, whether or not to the case applies to the Catholics or Poles or other groups is a questions was simply or course requires additional consideration of other factors but there could be no doubt the Fourteenth and the Fifteenth Amendment was passed primarily to protect the voting rights of blacks.

Justice Thurgood Marshall: The fifteenth says.

Justice Potter Stewart: Says so.

Justice Thurgood Marshall: The Fifteenth Amendment is explicit on that point.

Chief Justice Warren E. Burger: Let me come back to what I suggested to you before about the fact that three Negroes candidates couldn't even carry their own districts and you responded by saying that the -- at least as I understood it, that the Negro leaders in the community knew that it was a futility to run and so they didn't bother putting up good candidates but that's a good deal of speculation, that's really not hard evidence.

Your -- your whole arguments about block voting, block voting are undermined by this reality that is in the record that the Negroes did not vote for Negro candidates.

Mr. Blacksher: Mr. Chief Justice there was plenty of evidence in the record where blacks had run in the City of Mobile for other government such as the school board, the legislature had attempted time and again to seek election and have been defeated by a solid black vote by the majority of whites.

As well as other white candidates both in the City Commission elections and in school board elections.

Justice Byron R. White: Who has the case of controversy versus with whom here?

Mr. Blacksher: The case or controversy is between the plaintiff class of black citizens of Mobile and the State of Alabama operating through its agency, the State of Mobile.

Justice Byron R. White: What case or controversy does a name -- do the named plaintiffs have with the City of Mobile?

Mr. Blacksher: The case in controversy involves the law from this in the constitutionality --

Justice Byron R. White: Have they ever run everyone in the world?

Mr. Blacksher: The evidence was that they have frequently run in the past, have expressed the desire to run in the future.

Justice Byron R. White: These named plaintiffs?

Mr. Blacksher: John Leflore for one, run for the state legislature as soon as the Federal Court in Montgomery provided single-member districts that provided him a reasonable opportunity to be elected.

May it please the Court I would like to pint out that contrary to Mr. Rhyne's opening statement that this case is strictly an equally protection case, that there are at least four independent legal theories supporting a judgment below.

The Court is confronted with the findings effect the two courts below that Mobile are at-large election system has not only the effect but the purpose, the motive of discriminating against black voters.

Based on these findings, this Court can affirm the judgments below first on the voting rights Act of 1965 which explicitly prohibits any election laws which have the purpose or effect of abridging blacks voting rights.

Secondly, on the Fourteenth Amendment cause of action drawing out of White versus Regester, Whitcomb versus Chavis, and I would like to point out to this Court's stop in their monetarily that the evidence in this case is even stronger and all the critical aspects than was the evidence in White versus Regester.

Thirdly, the constitutional prohibition against any state law that is supported by a racial -- invidious racial motive; and fourth, the Fifteenth Amendment which provides and proscribes any state law which has either the purpose or effect of abridging the voting rights of the blacks.

I think that --

Justice John Paul Stevens: Mr. Blacksher, supposing in Chicago, the City Council decided they didn't want anymore Republicans and they passed an at-large system there which would effectively exclude the republicans from the City Council.

I suppose the Republicans or group are entitled to equal protection, under your theory would that be unconstitutional?

Mr. Blacksher: Your Honor, we simply don't take a position on whether or not Republicans are protected.

I am thinking about that question.

It certainly occurs to me first of all that the political parties are vehicles that we have in this society adopted as a convenient means of carrying on the political dialogue itself.

Justice John Paul Stevens: The significant thing about them I suppose is they vote as blocks.

Mr. Blacksher: They voted as blocks, that is correct but the question is whether they -- whether the vote against them is invidious in nature.

Justice John Paul Stevens: Well that's because we don't want these members of this black in our legislature, does that make it invidious?

Mr. Blacksher: No, sir, certainty not on its face.

Justice John Paul Stevens: But then are you saying that a political party that frankly, a political party like the Republicans are not entitled to the -- or they can be subjected to discrimination simply because they are Republicans?

Mr. Blacksher: I'm saying -- I'm trying to avoid taking a position one way of the other simply because it involves clearly different kind of issues which requires thorough exploration.

Justice John Paul Stevens: Would this case be different if all the black citizens in Mobile organize a political party to have the Black Political Action Group or something like that?

Mr. Blacksher: It would be different if it showed that the block voting was on the basis of the ideals and the positions, ideologies espoused by this particular organization which cross the racial lines.

The Constitution forbids invidious discrimination on the basis of race.

The Voting Rights Act forbids invidious discrimination on the basis of race.

Justice Thurgood Marshall: What is a block voting for that on race?

Mr. Blacksher: With respect to the constitutional rights of citizens of this country to vote in a block fashion of course.

The question is whether the state can reinforce and guarantee the defeat of the minority through a particular election form which is what they have done in this case.

Justice Thurgood Marshall: All you take and you don't read Mr. Rhyne anymore?

Mr. Blacksher: I don't -- there's been very little that we've agreed upon it in the course of this litigation Mr. Justice Marshall.

I -- I would like to close by pointing out that after the White and Whitcomb cases and the Voting Rights Act may have been analyzed to death that the issue from my client standpoint very simply is whether or not they will be permitted to enter at last the mainstream of politics in the City of Mobile?

If this Court stands by it's prior precedents and White and Whitcomb, if it observes the congressional intent behind the Voting Rights Act, if it observes precedent it established in Gomillion versus Lightfoot and Arlington Heights regarding a racially motivated state law, then given the findings of fact made by two concurrent courts below the judgments below must be affirmed.

Justice William H. Rehnquist: Well, do you have that finding by the District Court, look at page 32 (b) of the jurisdictional statement.

I thought that Judge Pittman came right after the hurdle and then kind of backed off saying that Washington against Davis had not change the delusion cases and it was and no intent does require there so it didn't find it?

See the top of page 32 (b) there.

Mr. Blacksher: What the -- the argument, I think it's important to note Mr. Justice Rehnquist that the argument that the Court is rejecting here is the argument that the defendant City depended upon throughout trial and that is that plaintiffs had to show intent in the origination, in the enactment of the statute.

You'll notice that court says that Washington versus Davis did not establish a new Supreme Court purpose test that requires initial discriminatory intent.

The preceding paragraph contains the finding that there is a current condition of the delusion of the black vote resulting from intentional state legislative in action.

Now we fought for the lower courts both the District Court and the Court of Appeals this argument that if we couldn't prove that in 1911, there was racial motive involved then we we're out of court and that issue that District Court was addressing in that passage.

Argument of James P. Turner

Chief Justice Warren E. Burger: Mr. Turner.

We'll resume at 1 o'clock at this point.

We'll you be continuing or will you be reserving any time you have left or Mr. Turner, I guess it would appear that you're on deck.

He's got two minutes.

Mr. Turner.

Mr. Turner: Mr. Chief Justice and may it please the Court.

We appear as amicus to urge the court to affirm the judgments below in both numbers 77-1844 and 78-357 which will be argued next.

Although there are slight differences in the legal analyses which are apparent, I believe, from the briefs we concur fully with the appellees that the maintenance of the at-large voting system for Mobile City Commission and School Commission in all circumstances of these cases violates the Equal Protection Clause and alternatively and independently the Fifteenth Amendment.

In the Fourteenth Amendment, the Equal Protection Clause, our analysis like that of the Court of Appeals accepts the fact that Washington versus Davis requires aggrieved parties to make a prima facie showing that the challenged system is purposefully discriminatory.

Our submission is that the exhaustive records in these cases demonstrates such purposeful discrimination that the careful factual findings made by the District Court and thoroughly reviewed by the Court of Appeals should be given great difference and that the at-large election system cannot be sustained in the circumstances because it impairs if not submerges meaningful access to the political process on the basis of race.

The starting point of our analysis is White versus Regester and its antecedents Whitcomb versus Chavis.

Our reading of White is that the ultimate inquiry is whether black citizens of Mobile City and County had been excluded from meaningful access to the political process because of their ways.

In White versus Regester with all the Justices joining us to this point, the Court reiterated several factors alluded to in Whitcomb and in judging whether the at-large scheme at issue has been purposefully operated and maintained.

It is our view reference to these factors set forth in White versus Regester supplies the purpose evidence that Washington versus Davis requires.

Justice Potter Stewart: How many municipalities in the country, if you know, approximately have at-large systems of voting for their municipal government?

Mr. Turner: I don't know Mr. Justice Stewart.

Justice Potter Stewart: Most of them do, don't they?

Mr. Turner: I -- I believe it to be a substantial number.

Justice Potter Stewart: A majority?

Mr. Turner: I don't know on that.

The factual inquiry suggested in White against Regester --

Chief Justice Warren E. Burger: Well then, before you go into that.

Mr. Turner: Sir.

Yes, sir.

Chief Justice Warren E. Burger: It -- it's more likely than not, isn't it that where the function is legislative and executive, that is to have to commissioners or councilmen assigned to be the chief executive of a particular department that that's very, very large number of municipal governments today, is it?

Mr. Turner: I think only in minority have what would be comparable to Mobile's commission system.

Most of those in the -- that have that commission system were legislative and executive functions are combined into one body, most of those are elected at-large however there is a small number of those that are elected from districts and then assigned after election as Mobile's former practice was to particular executive responsibilities.

And the first criteria then, under White versus Regester is that there be a present disparate effect.

The at-large system in these cases has produced no black elected officials certainly no one contains that this is the end of the inquiry but it is the beginning.

The exclusion of one-third of all Mobile residents from representation in public office is consistent with the discriminatory purpose.

The second, White versus Regester category of the factual inquiry is a history of racial discrimination in the jurisdiction of such a nature I would take it form Washington v. Davis that it suggest purposeful action.

This record documents the history of opposition to effective black exercise of the franchise that is both long and strong and we've set out as much as we could in our brief some details of that history.

The highlights include that right up until the time of trial; a single Mobile state senator had vetoed consideration of single-member districts for the city.

Another highlight is that the state legislature, which would have to approve any changes in local government such as this was singularly and responsive.

In 1970 for example when all other barriers in Alabama --

Justice Thurgood Marshall: There are Negroes in the state legislate.

Mr. Turner: There are now.

Yes, sir.

Justice Thurgood Marshall: They have been there.

Mr. Turner: And they haven't --

Justice Thurgood Marshall: Fred Gray has been there at least a dozen year.

Mr. Turner: Yes, sir but I believe he was among the first and we're talking about a history of much longer than Mr. Gray's incumbency.

Justice William H. Rehnquist: Mr. Turner does the Government think that the Fifth Circuit's opinion and Zimmer against McKeithen remains a good law?

Mr. Turner: Our appraisal of the Zimmer case would run something like this.

I'm not sure that everyone one of those factors has to be shown in a delusion case, however they do, and Zimmer set forth the kind of intense scrutiny that you have to undergo in delusion case.

We think that White versus Regester and the three general criteria that I'm going through is a much more workable and useful approach.

Justice William H. Rehnquist: Of course, workableness and usefulness aren't usually thought of as being necessarily constitutional factors.

If you say something as more workable and more useful, does that mean you don't think Zimmer is any longer good law?

Mr. Turner: To the extent that it is inconsistent and I think that it is in places with the White versus Regester criteria that I'm going through it would not in my judgment be good law.

The -- as late as 1970 in the Alabama legislature after all barriers to block voting in Alabama had been dealt with by federal court orders, there was one that remained and that was the use of multi-member districts and then the Alabama District Court in Saints versus Amos finally had to adopt single-member districts for the Alabama legislature.

And that's about the time that Mr. Gray and some of his associates became representatives.

The third, White versus Regester criteria is the unresponsiveness of the elected officials to minority constituents.

The question here, I take it is what officials do after election and not what they promised at campaign time.

Again, the details set forth in our brief show a pervasive lack of response to or interest in issues of concern to black Mobilians.

No matter which level of elected officials you study, there is apparent evidence of unresponsiveness.

Justice Potter Stewart: Of course, the White and Whitcomb cases involved legislative apportionment or reapportionment?

Mr. Turner: Yes, sir.

Justice Potter Stewart: i.e. that it involved in context of representative democracy and in the legislative area and at least arguably this system is more like a statewide election of governor, quite a different context, at least arguably.

I mean, it's not all that clear that the concepts of the White and Whitcomb case are freely translatable into this situation.

Mr. Turner: Well, I can certainly agree with you as to the city case that does have the additional element of the executive branch election and one would have to make that translation with respect to the School Board case and I realize you haven't heard argument on the facts yet.

But you'll see there that it is pretty much a garden variety case.

Justice Potter Stewart: More like a Hadley?

Mr. Turner: Yes, sir.

Justice Potter Stewart: Which of course --

Mr. Turner: If this -- that the school board have the standard power --

Justice Potter Stewart: Except for the White against Regester, Whitcomb against Chavis are cases have dealt with the one man, one person, one vote concept which hasn't no basis on the attack here, isn't it?

Mr. Turner: That's -- that's correct Mr. Justice.

Chief Justice Warren E. Burger: Would you think anyone would have a complaint pursuant to Mr. Justice Stewart's point more fully with this hypothetical?

The governor, the lieutenant governor, the attorney general being regarded as three of the most important positions in the state government surely, all the elected at-large as they are I suppose everywhere where they are elected, doesn't it produce the same impact in the statewide situation?

Mr. Turner: Well, I've -- I would argue not Mr. Chief Justice the --

Chief Justice Warren E. Burger: Why not?

Mr. Turner: The commission form --

Chief Justice Warren E. Burger: Suppose the southern third of the state is all people with Spanish surnames and one of the first or second generation Mexican-Americans, they aren't going to on theory, they have been advanced here as they, they aren't going to have much chance of electing a governor, lieutenant governor or an attorney general?

Mr. Turner: That's correct if they were block voting on the basis of race.

But again here there is a legislative element to these positions.

Local government is historically at least --

Chief Justice Warren E. Burger: Of course, the governor has --

Mr. Turner: Representative government.

Chief Justice Warren E. Burger: -- when he can veto a bill that gives him.

Mr. Turner: Well, that's right I guess we could divide the president up into five or six different offices if we follow that to its logical extreme.

But I think we need not do that here, we conclude in short that all of the factors mentioned in White versus Regester had been satisfied by the findings below and affirmed by the Court of appeals, we urge you to give great difference to them and turn to the Fifteenth Amendment.

If our conclusion is right, that's the at-large system is Mobile has given White voters the means to abolish or abridge the effective black electoral participation because of race, it necessarily follows that violates the Fifteenth Amendment.

But a second part of our submission here is that independently, the Fifteenth Amendment provides a basis for affirming the judgments below.

Now, we get that as White primary cases, we say that in the Terry versus Adams, the Jade Bird Club was a discriminatory private organization but because the state magnified that discrimination and made it meaningful in elections that this Court turned it down and said that that violated the Fifteenth Amendment.

In many ways, the Fifteenth Amendment is a much cleaner and more direct way of dealing with this question.

Justice Thurgood Marshall: I don't think you find a single word in any of those White primary cases that apply to the city.

I have serious doubt, it were limited to United States Senators, am I right?

Mr. Turner: I believe the Terry versus Adams was a county political organization that endorsed --

Justice Thurgood Marshall: What --

Mr. Turner: -- that endorsed --

Justice Thurgood Marshall: -- the election complained about was in national election, wasn't it?

Mr. Turner: My recollection is that they endorsed the candidates regularly in the Jade Bird Club, which was an all white club.

Justice Thurgood Marshall: That's right but in elections --

Mr. Turner: For local elections.

Justice Thurgood Marshall: And the United States Senate wasn't involved?

Mr. Turner: I'm sure if you say it was Mr. Justice you have more experience than I, but the case will speak to itself.

Justice Byron R. White: General Turner, are you drawing distinction between the two cases that are before us, the one involved in commissioners and the one involved in the school board?

Mr. Turner: No, sir.

I think the same constitutional principles apply.

There is the distinction that Mr. Justice Stewart pointed out which I acknowledged but do not accept this having constitutional significance.

This is a classical, in my judgment equity case.

The record shows and I urge you to read the record because it's very revealing that in all forms of political activity in Mobile, Mobile City, Mobile County, Mobile County Commission, race has never very far from the surface.

White voters the majority set aside under this record all other considerations when race is injected either in the form of the candidate or his or hers supporters.

Not only are blacks unable to win, the whites they support yet the kiss of death and the only way blacks have political influence is to bargain it away, and I think the Fifteenth and the Fourteenth Amendment guarantee them more than that kind of closet courtship.

Justice Potter Stewart: You haven't mentioned the Voting Rights Act as your predecessor council did.

Do you think that's involved here at all, Vote Rights Act of 1965?

Mr. Turner: In the Section 2 of the 1965 Voting Rights Act in terms very much likely Fifteenth Amendment prescribes discrimination and voting on the basis of race.

Our original perception was that while certainly Section 2 would be violated if the Fifteenth Amendment was violated that you don't save much constitutional energy by addressing the Section 2.

Appellees will argue you that that's incorrect and certainly, if they're right, you certainly will take a careful look at whether Section 2 is broader and gives more remedies than the Fifteenth Amendment.

Justice Potter Stewart: Was this 1965 legislative change, which formalized the specialization among the commissioners submitted to the Attorney General under the Voting Rights Act?

Mr. Turner: It was Mr. Justice and we entered an objection to that and it cannot legally at this time be implemented.

Justice Potter Stewart: Why, what happened?

I mean you ought to get an objection to it.

Wouldn't that made it invalid, didn't it and --

Mr. Turner: That's right.

All the proposed change was in Act 823 was to make formal the practice which Mr. Rhyne has described to you and the other counsel spoke about.

Because of our belief and our determination under the Voting Rights Act that this would lock in the commission system and the at-large voting that went with it.

We could not be persuaded that the burden of proof had been carried by the submitting authority who entered an objection.

Justice Potter Stewart: So the Attorney General had an objection which invalidated or at least suspended the operation of that legislation didn't it?

Mr. Turner: In contemplation of law, yes Mobile does not have specialized commissioners who run for special --

Justice Potter Stewart: De jure?

Mr. Turner: De jure offices.

Yes, sir.

Justice Potter Stewart: I see.

Chief Justice Warren E. Burger: Mr. Turner do you agree with one of the earlier observations that if the residential pattern of Mobile was totally integrated.

Totally integrated there would be a delusion of the voting strengths that's being argued for here today of Negroes.

Mr. Turner: That I agree with the answer that was given that that circumstances is so likely to be remote or so unlikely to exist that it's hard to frame an answer.

The --

Chief Justice Warren E. Burger: That's the objective.

That's certainly the objective is it not to produce that kind of city and --

Mr. Turner: Oh, that would be greatly welcome.

Chief Justice Warren E. Burger: Well then, doesn't the contrary, isn't that the corollary that the result you're arguing for would encourage the maintenance of ghettos in order to maintain voting strength.

Mr. Turner: It - it's really an academic question Mr. Chief Justice.

In Mobile, the District Court found according from a defendant's stud -- that one in the universities, that Mobile was so residentially segregated that they couldn't divide it into three districts without one of them being majority black.

I mean, it's that kind of intensive neighborhood discrimination that we're talking about and that's why it's so awkward for me to try to answer a question possibly on the grounds of everything is salt and pepper.

It -- it isn't in this case.

Justice Potter Stewart: And your predecessor answered as I understood him to be a fact that if there were in fact complete dispersal, racial dispersal and all the geographic areas in the city it would be highly unlikely that there would block voting.

Mr. Turner: That's correct.

Justice Potter Stewart: If the two go together, didn't they?

Mr. Turner: I would associate myself with that response.

Thank you.

Rebuttal of Charles S. Rhyne

Chief Justice Warren E. Burger: Mr. Rhyne, you have two minutes left.

Mr. Rhyne: Yes, Mr. Chief Justice I wasn't sure that I had any minutes left but let me answer one question for Mr. Justice Stewart.

According to the Municipal Year Book and I guess it's fairly accurate 67% of all the cities are -- have elections apart.

Now, the Government here and its brief, says the measure of the effect of an electoral system is not proportional representation but fair representation and I say to this Court that as they review the record in this case, they're going to find that blacks have been fairly represented in Mobile.

We quote on pages 10, and I guess 9 and 20, Reverend Hope who had some Non-Partisan Voters League and he says that the current commissioners fairly represent the blacks in Mobile.

And for 16 years, there was a commissioner, Mr. Langan who was noted for the fact that he represented the blacks.

So I don't think that the blacks were indeed their support the kiss of death.

He was there an awful long time.

Now in conclusion, I believe very strongly in the right to vote, on an equal vote and I believe that that's what Mobile provides here.

It provides equal access to the voting system, equal participation in that system and an equal count of those votes.

I think that's all the Constitution requires and polarization is the only thing that they've offered here to prove invidious discrimination, and I don't think that's enough.

Argument of William H. Allen

Chief Justice Warren E. Burger: Mr. Allen.

Mr. Allen: Thank you, Your Honor.

Mr. Chief Justice, may it please the Court.

My part of these proceedings concerns the constitutionality of the way Mobile County's School Commissioners are elected and since no later than 1836, these commissioners, the members of the Mobile County School Board, if you will, had been elected by the voters of the county at-large.

There were so elected when this action was brought by black residents of the county complaining that this at-large electoral system unconstitutionally diluted their voting power.

As you have heard, blacks make up about a third of the population of Mobile County slightly greater proportion of the population the city itself that is around the third the entire county.

The District Court sustained the plaintiffs' complaint and the Court of Appeals summarily affirmed.

The issue that is posed by that decision is whether an at-large method of election in a school district that has a significant black minority is unconstitutional merely because there is racially polarized voting and black minority candidates have not been elected to the Board however deeply rooted the at- large method of election may be in history and non-racial policy.

I hope in describing the proceedings and the decisions below to demonstrate that the case poses the issue just that boldly.

Then I will try to explain why the resolution of that issue by the district and the court of appeals is inconsistent with Fourteenth and Fifteenth Amendments and with this Court's decisions construing them.

But first, the facts and how they give rise to the issue I've stated.

The longstanding commitment of Alabama to the at-large election of the members of the governing body of the Mobile County Schools is undoubted.

The Pub -- the Mobile Public School system was established in 1826, 28 years before a statewide system of schools and public school was established in Alabama.

Either that original enabling Act in 1826 that seems to be ambiguous or if not that then a replacement stature, there was an Act in 1836, established a system of at-large election that has prevailed continuously since.

As Your Honors, had may have learned from the perusal of the briefs, the statute that provided for single-member districts was an enacted in 1975 but was voided because of a technical defect in the giving of notice.

The original provision for the at-large election of Mobile County School Commissioners in the early 1800's and the enactment in 1919 of the at-large election legislation that governs today were not motivated by any consideration of the impact that at-large voting might have on black residents.

Justice Potter Stewart: I suppose that the time of, that would be 1836 or later, only white people voted, only white people were elected to the school board, and only white students went to the schools.

Mr. Allen: And no one thought of the possibility that blacks might vote at that time in 1836.

In 1919, when the present enabling statue was enacted, blacks have been effectively disenfranchised in Alabama by the Constitution of 1901, a situation that prevailed until about the time of the Second World War and shortly thereafter.

Now, there's another key fact that appears from the record.

Notwithstanding, the history of which we're all aware and to which government counsel referred, of racial discrimination in many, many aspects of the life of Alabama, there are today no formal or informal barriers to full participation by black residents in the political process in Mobile County including in particular school board elections.

Blacks are able freely to register and to vote, they participate in both parties in the partisan process that leads to the election of school board members.

Any candidate who's interested in running for the school board may do so, and it doesn't cost much to run for the school board.

Justice Potter Stewart: Is there any controversy in this case about what you've told us?

Mr. Allen: Up to this point, I am paraphrasing findings of the District Court.

I am paraphrasing findings.

He did not advert to this other possible obstacle but campaign cost, but in fact there is testimony that cost them no more than $5,000.00 more usually about $2,000.00 to mount a perfectly effectively campaign in the office.

Justice Potter Stewart: They're non-paid jobs.

Mr. Allen: They're non-paid job tab them up to very recently.

Chief Justice Warren E. Burger: And these members performed no executive functions at all?

Mr. Allen: Well, I've -- I've --

Chief Justice Warren E. Burger: Did he?

Mr. Allen: -- the -- the school board is like any other traditional American School Board, it sets policy and it hires the executive in higher school superintendent.

He's not elected separately, so that executive responsibility ultimately is lodged in the school board members and I take it and this is highly personal knowledge just from acquaintanceship with neighbors that school board members are held very closely accountable for what goes on in schools by the, by parents and others who are interested.

Justice Potter Stewart: Does the Board have any independent taxing power?

Mr. Allen: That I do not know.

No, the answer to that is no.

Justice Potter Stewart: Some states they do some don't.

Mr. Allen: And that's correct, yes.

Yes, no this Board apparently is.

Justice Potter Stewart: So what are the functions of the members of the school board?

Mr. Allen: To set and make policy about the schools, to design on school construction.

To hire the superintended certainly and ultimately I would guess to decide on hirings, if it's a typical school board.

Justice Potter Stewart: Well that's not my question.

Does it select textbooks and those things or is that done at the state level?

Mr. Allen: It does select textbooks.

Justice Potter Stewart: So then does it, I suppose it promulgates rules and regulations but except in that sense doesn't have legislative power?

Mr. Allen: Legislative power I'm not quite sure what that quite means in this contest but it does whatever policy is to be made it makes, if that is what legislation is.

Justice Potter Stewart: But finally a policy making and administrative sort of body?

Mr. Allen: Yes and it combines the two functions I think it's fair, I'm sorry that I'm afraid this was all taken much for granted and doesn't appear on the record --

Justice Potter Stewart: Yes.

Mr. Allen: I -- I apologize but --

Justice Potter Stewart: They may not be important to me.

Mr. Allen: That is approximately the situation.

Let me go on.

In Addition, another fact that appears there's no white-oriented slating organization operating in Mobile County.

Mobile County, the school election, I should emphasize are different from the city elections and that they are partisan but the fact is that the only effective political endorsing organization is the Non-Partisan Voters League which is a predominantly black organization.

Justice Potter Stewart: The partisan in this -- they republican are democrat --

Mr. Allen: Yes.

Justice Potter Stewart: -- or are they partisan --

Mr. Allen: No.

Justice Potter Stewart: -- some local?

Mr. Allen: They are partisan in republican-democrat, which I think, has traditionally meant democrat.

The primary and the run-off primary election are the decisive elections or that appears.

Justice Potter Stewart: Yet, the municipal elections of district are non-partisan.

Mr. Allen: They are non-partisan.

They are non-partisan.

Now as I've indicated, what I've recited heretofore are findings that made by Judge Pittman and accepted by the Court of Appeals.

Judge Pittman also found that there was racially polarized voting in Mobile County and he said further that this tendency to vote according to race made it difficult for a black person, a member of this minority to be elected to the school board in at-large election.

In fact, four black candidates run for the school board between 1962 and 1974.

Each of them was running for office for the first time, each of them reached the run-off, none was elected.

Judge Pittman looked at these facts in the course of an analysis of the case that he felt himself compelled to follow because of the Court of Appeal's decisions in Zimmer against McKeithen and other cases that have followed Zimmer which have made the Zimmer factors decisive in Fifth Circuit voting delusion cases.

You can't really understand what happened below not knowing something about these Zimmer factors.

And the first Zimmer factor that Judge Pittman analyzed relates to minority access to the slating or candidate selection process.

He made a finding, nominally a finding that blacks were denied equal access to the slating or candidate selection process I quote in there.

But this finding was obviously a mere function of his view that potential black candidates were discouraged from running because of the history of losing elections.

And the candidates lost those elections because they were members of a racial minority in a community in which there was racially polarized voting.

I submit that in truth that it is to saying nothing more than that racially polarized voting has prevailed in Mobile County.

That is all that that lack of access, conclusion.

I will not dignify it by calling it a finding of the District Court amounts to.

Justice Potter Stewart: Formally, it's the slating as the sort of a nomination --

Mr. Allen: Nomina -- for that -- for the --

Justice Potter Stewart: -- an group of candidates and whom in turn that group supports then.

Mr. Allen: That's right.

But what the district judge was saying was, he had found initially that there's nothing to prevent anybody from running in the democratic primary.

One is freely able to run and there's no organization that controls who has access to the primary.

Justice Thurgood Marshall: Mr. Allen, it just so happened that there weren't any Negroes in the democratic part.

Mr. Allen: I'm sorry, Your Honor?

Justice Thurgood Marshall: Why shouldn't he rely on the fact that it just so happened that there weren't any Negroes in any Democratic Party?

Mr. Allen: They've -- they run in primaries, Your Honor.

They have not been elected.

They have not been selected in the primary that's what he was relying.

Justice Thurgood Marshall: And it was a Democratic Party that controlled.

Mr. Allen: The democratic that he was --

Justice Thurgood Marshall: When did a republican ever get elected?

Mr. Allen: No, not at all.

Not at all.

It was a democratic primary.

Justice Thurgood Marshall: That's what he was talking about.

Mr. Allen: Oh!

Yes, Your Honor but he was talking about the habit of democratic voters of voting according to race.

That's what he was talking about in there.

Justice Potter Stewart: In the primaries.

Mr. Allen: In the primaries, yes.

Justice Potter Stewart: Which and the winner of the primary would be the slated candidate knowing the candidate --

Mr. Allen: Would be the party candidate.

Justice Potter Stewart: Who would be supported by the --

Mr. Allen: What I understand that the slating -- the slating criteria and has derived from White against Regester has to do with an earlier stage in the process where a group was put up with some sort of sanction in the Democratic Party.

Justice Potter Stewart: While in that setting, it was equivalent --

Mr. Allen: Yes.

Justice Potter Stewart: -- to nomination --

Mr. Allen: Yes.

Justice Potter Stewart: -- by an organized group?

Mr. Allen: But --

Justice William H. Rehnquist: Mr. Allen, I have joined opinions which refer to the term slating and I must confess I am not entirely sure what it means.

Could you give me your understanding on that?

Mr. Allen: My understanding is that an organization within the Democratic Party.

The leadership if one will, they put up a slate of candidates in the primary and that slate, either nobody runs against them or they always win.

Justice Potter Stewart: Is that --

Mr. Allen: That is my understanding from White against Regester, Your Honor.

Justice Potter Stewart: Does that happen in this County here?

Mr. Allen: No, it does not.

Justice Potter Stewart: Which is the nominee if you run in the primary, --

Mr. Allen: You run in the primary.

Justice Potter Stewart: -- the nomination for election to the school board --

Mr. Allen: And --

Justice Potter Stewart: -- and they -- if you win the primary then you're party --

Mr. Allen: Then you --

Justice Potter Stewart: -- presumably supports you.

Mr. Allen: And you win the election has been true up till now if you're a democrat.

Justice Byron R. White: Now suppose, suppose in Mobile let's run the way it is but in the adjoining city, democrats always been the general elections but the candidates get put up, are chosen by the democratic party in it's own low conclave at a convention or in a back room somewhere and it's freely conceded that in the choosing of the democratic candidates in the general election that there is racial voting.

Mr. Allen: Racial voting nothing more than that?

Or --

Justice Byron R. White: Or just that the people the people who are getting together in the Democratic Party --

Mr. Allen: I understand what you're telling.

Justice Byron R. White: -- are getting together in the backroom.

There's plenty of Negroes there and --

Mr. Allen: Yes.

Justice Byron R. White: -- but there are more whites.

Mr. Allen: Yes.

Justice Byron R. White: And in the backroom they all --- they have show hands and they make nominations and some win and some lose and always the whites win and the blacks lose and then the party comes up with this, if you want to call this slate of white candidates.

Would that be the same answer?

Mr. Allen: I guess Your Honor I think it would depend -- I've not thought precisely about that but it would depend, I take it on whether one were at the poll of a real election or at a poll of the backroom deal that determines --

Justice Byron R. White: No, the only people who go into a democratic primary are the registered democrats.

And the only people in the backroom in the adjoining city are the democrats who choose candidates.

Mr. Allen: Well, are some are the registered democrats.

I suggest that may make a difference, Your Honor.

I suggest that may make a difference, that here where one has unquestioned access to a very formal method of choosing candidates that amounts, that amounts in this community to election.

Justice Thurgood Marshall: And the Negroes there have access to that slate in Mobile?

Mr. Allen: The Negroes are able to run in the democratic primary without hindrance.

Justice Thurgood Marshall: All for my question is right from left, come at the slate, the group that has put up, the group that is always elected.

The Negroes in Mobile have never gotten on that, have they?

Mr. Allen: They have not won a primary run-off election.

That is absolutely true, Your Honor.

Justice Thurgood Marshall: No, sir.

Please, at the end on the slate.

Mr. Allen: They had never been the democratic nominee.

That none of them has been the democratic nominee.

Justice Thurgood Marshall: A judgment for the slate, didn't they?

Mr. Allen: If he meant anything by the slate that had to be, what he meant and he meant again that it was result of people's action in the polling booth that blacks were not able to be the Democratic Party nominees.

Justice Thurgood Marshall: Did the polling booth pick the slate?

Mr. Allen: Yes, Your Honor.

Yes, the democratic primary.

Yes.

Justice Thurgood Marshall: You mean to tell me that the slate had been picked by a group of people in the democrat, is it or isn't that then the Democratic Party in Mobile that did it or maybe on the democratic part?

Mr. Allen: Well, Your Honor that is what this record shows is that there was a free and formal primary election.

Justice Byron R. White: But has there any been a Negro in the -- on ballot of the general election?

Mr. Allen: In the general election?

In an at-large election?

I just don't know whether other parties or republicans had put up and it was taken for granted on this record that the democratic nomination that matters to the election.

Justice Byron R. White: At least the election, there's never been a democratic candidate who is a Negro in the general election.

Mr. Allen: And for the school board that is correct, Your Honor.

No, they run four times, I mean different black candidates run four times in the period we're concerned with each among got to the run-off, each of them was failed of nomination.

Justice William J. Brennan: Mr. Allen, let me be sure I understand this.

As I understand that your point, there is no slate making committee within it?

Mr. Allen: No.

Justice William J. Brennan: And therefore what you're saying is that anytime a democrat is a candidate for the nomination of this party, he's just decided to run himself.

Mr. Allen: That's correct Your Honor, exactly correct.

Justice William J. Brennan: Is that -- is this an unusual situation?

Mr. Allen: It's a non-paying job, anybody apparently five, six, eight people run each time for each of these positions and --

Justice Thurgood Marshall: Is it true that the judge know more about it than you and I?

Mr. Allen: The judge know more about it than you and I but I really think I am faithfully rendering what the judge said Your Honor I mean, the --

Chief Justice Warren E. Burger: The usual reasons for at least whether you are thought to be the usual reasons, people running for public office that pay us 30-40,000.00 a year or even 25,000.00 aren't present in the school board election?

Mr. Allen: No, no, no.

That's correct.

Chief Justice Warren E. Burger: It's just work and public service?

Mr. Allen: Public service, whatever motivates people to undertake --

Chief Justice Warren E. Burger: Dedication.

Mr. Allen: Public Serv -- public service, that's correct Your Honor yes, yes.

The -- I will skip over for a moment a couple of the Zimmer factors that the district Judge and just state that his overall conclusion was quite predictable.

He paraphrased passages from some of these courts voting delusion opinions and then he concluded that the plaintiffs had met their burden by showing an aggregate of the factors catalogue in Zimmer, and the Court's remedy for this constitutional violation had therefore found was also predictable.

Judge Pittman professed not to endorse quota voting or quota elections but he adopted a plan that was designed, these are his words.

To provide blacks a realistic opportunity to elect blacks to the Board of school commissioners.

In fact, two of the five single member districts that he created would have weighted -- would have weighted black populations of more than 55% and the remaining three districts would have weighted black populations of less then 14%.

The Court of Appeals affirmed this decision according to the Zimmer factors.

It said that the District Court that applied the proper standards and that he's findings were not clearly erroneous and decided just one case the decision of a different panel on the Court of Appeals in the City of Mobile's case.

Now a good deal of argument has gone on about exactly what the Court of Appeals thereby decided and whether in particular the Court of Appeals decided and whether it is necessary to make out a violation of the Equal Protection Clause and of the Fifteenth Amendment to show purposeful discrimination on the part of the state.

The correctness of that view which I think clearly is correct that purposefulness is required is contested.

So let me turn first by way of analysis of that to a couple of points that I think cannot be contested.

One is that no one has asserted or even suggested that the at-large system here was conceived in racial animus with a deliberate purpose of discriminating against blacks or submerging the votes of blacks.

The second is that the District Court made its decision on the basis of an understanding that the Court of Appeals as Zimmer factors captured the effects of an at-large system on minority voters and candidates not on the understanding that those factors go to an intent to discriminate.

At that point we get into more contentious ground.

At one point in his opinion, Mr. Justice Rehnquist referred to the parallel point in this opinion in the City of Mobile's case, at one point in his opinion removed from his Zimmer analysis.

Judge Pitts -- Judge Pittman said that it was possible to perceive a present purpose to dilute black votes based on legislative in action, based on the failure of the legislature to do anything about this at-large system that had been created so many years before.

I can think that the person reading that passage, it's at page 34 (a) of the appendix in our case, will agree that this is no finding.

No finding of a present purpose to discriminate even though that's how the plaintiffs now like to describe it.

It's in a Section titled “Conclusions of law.”

It's not proceeded by any factual analysis, it's exactly the same language that used in the different, factually different City of Mobile case yet it simply -- I think fairly cannot be considered a finding to which any deference is owed.

Justice Potter Stewart: Page 34 (a) of not of the jurisdictional statement?

Mr. Allen: No, of the appendix.

Justice Potter Stewart: Of the appendix and what is the middle paragraph?

Mr. Allen: Yes, the middle paragraph, the last two paragraphs, Your Honor.

Justice Potter Stewart: Right.

Justice William J. Brennan: Mr. Allen, I suppose your answer to a question Mr. Justice Black asked in the other case might be somewhat different in the one that was given.

I think you've taken -- you take that there is a difference between this case and the other case, or maybe you don't.

Mr. Allen: In what respect Your Honor?

Justice William J. Brennan: Let me ask you.

Do you think there are differences?

Mr. Allen: There are differences.

There are differences.

I think --

Justice William J. Brennan: That have any significance on the outcome?

If we dedide --

Mr. Allen: No.

Justice William J. Brennan: -- one way, do you think they both should go the same way?

Mr. Allen: Yes, I'm persuaded of that, yes Your Honor.

Justice William J. Brennan: Well then, if there is evidence to support the finding that there was a deliberate maintenance of the at-large system in the other case, what is the relevance of the absence of such evidence in this case?

Mr. Allen: I didn't suggest that there was -- I'm sorry I can't understand Your Honor's question now.

Justice William J. Brennan: What is the --

Mr. Allen: I did not mean to suggest the presence of such evidence.

I merely meant that there was no rule or factual analysis that preceded this statement in either case.

In either -- no it's exactly --

Justice William J. Brennan: Suppose they were not adopted in that sort of thing but there was not that --

Mr. Allen: There was not that same kind of thing here that's quite right, Your Honor, yes so to that extent it may be different but --

Justice William J. Brennan: Well in other words, if this finding were supported by evidence would that make your legal position any different?

Mr. Allen: If -- if there were some evidence that the legislature had deliberately acted lately to ratify or otherwise to confirm --

Justice William J. Brennan: Let's take a hard case, suppose somebody said let's have -- change the system so that there would be some kind of a proportional representation and everybody is, well not do that then you might get some blacks on the school board, would the case be different?

Mr. Allen: I can imagine a case of that sort of thing being different.

I think it is a --

Justice William J. Brennan: And arguably the other cases --

Mr. Allen: It's a dangerous inquiry to get into, Your Honor.

The difficulty --

Justice William J. Brennan: But arguably, the other cases are more like that than this.

Mr. Allen: Well it may -- I don't just, I'm not that well-versed in the legislative goings on in the other case to know that but I did not mean to imply that and what I said in comparing the two.

The -- I was at the point where we were talking about whether a present purpose to discriminate was found here and in its opinion, in the City of Mobile's case which was cited, in this case is decisional authority.

The Court of Appeals was more specific.

It said in that case that when you've aggregated the Zimmer factors and they add up to voting delusion, then at least when the delusion is longstanding, there's the requisite intent if the legislative body has not acted to change the situation.

That is substantially the reasoning of the Court of Appeals if I understand but that sort of intent I submit is a construct.

It's artificial.

It's the same as saying really that the Zimmer factors themselves are enough if the system of at-large elections is old enough to permit of the --

Justice Byron R. White: I take it that, one of the operative facts in the exclusion or the failure of Negroes to be nominated or to be elected in one of the operating facts is the block voting.

Mr. Allen: There's -- that is all that's a bit, Your Honor.

Justice Byron R. White: Yes.

Mr. Allen: That is it.

Justice Byron R. White: But you accept that?

Mr. Allen: Oh, yes.

Yes, there seems to be a --

Justice Byron R. White: Suppose there is -- so that there is a -- certainly there is purposeful exclusion of Negroes from office but I suppose your answer to that is well the state is just not responsible.

Mr. Allen: The state is not responsible I think none of this Court's decisions comprehends a state action.

The action of --

Justice Byron R. White: Because there's no question whatsoever and I take it from -- it argues of anybody that at some point in this process there is purposeful exclusion it's just a question of by whom.

Mr. Allen: By whom and it's by individual voters of voting their will.

That that --

Justice Byron R. White: Then Whitcomb against Smokey (ph) might become relevant.

Mr. Allen: Well, I suggest not Your Honor.

Justice Byron R. White: You hope.

Justice Thurgood Marshall: Of course the Fifteenth Amendment doesn't require state action.

Mr. Allen: It says -- well it requires action by state or the United States, Your Honor.

Justice Byron R. White: The Fifteenth?

Mr. Allen: Fifteenth shall not be abridge, denied or abridged by the United States or any state on account of race, color --

Justice Byron R. White: I suppose it isn't state action.

I take it is that here's as a state or a city that provides a primary mechanism for the selection of candidates and it permits a -- and within that system deliberate discrimination goes on by the people who entered the ballot box.

Mr. Allen: But they seem to vote according to race and at least some races that -- that is correct, Your Honor.

Yes, that is what it amounts to.

Argument of Eric Schnapper

Chief Justice Warren E. Burger: Very well, Mr. Allen.

Mr. Schnapper.

Mr. Schnapper: Mr. Chief Justice and may it please the Court.

These few cases raised a variety of different issues and I thought it might be useful to briefly sketch out what they are.

First, there is a statutory claim in this case is which has the Chief Justice noted in the last argument ordinarily as a claim to this result prior to decision in any constitutional claims.

We alleged that under Section 2 or the Voting Rights Act, the at-large election is using these cases violates Section 2 and we rely in particular on statement by Attorney General Katzenbach which is quoted by this Court in footnote 31 in Allen which says that Section 2 covers purpose or effect that it has, I would paraphrase that, the same meaning of Section 5 does but with a different burden of proof.

Second, there is a constitutional claim under White against Regester.

Now, with regard to that, we are in agreement with the government that we seek only to apply decisions of this Court in White and before and after it which I think it fairly well-established.

We are in disagreement with the Government which reads some intent requirement in to White.

We see no intent requirement in White and we've set out at length in our brief why.

Third, we claim that in this case is the systems election are maintained because of a deliberate decision to keep blacks from public office.

We maintained that the hypothetical posed by Justice Stevens is in fact the case.

Justice Thurgood Marshall: Presumed by whom?

Mr. Schnapper: Excuse me?

Justice Thurgood Marshall: Who has continued and keep them from voting, the city, the state?

Mr. Schnapper: Well, our answer would be slightly different in the two cases, I mean we would say the state in the constitutional sense but I think that it is more complex than that.

Justice Thurgood Marshall: Well, who is maintaining this discrimination?

Mr. Schnapper: Right.

In -- in the case in the city case the as Mr. Justice Stevens noted, those direct testimony by members of legislature who were there at the time the decisions are made not to authorize single-member districts, although that decision was made for racial reasons and they were made essentially by the members of legislature from Mobile.

That's the way the legislature operates.

Justice Thurgood Marshall: And Mobile controls the legislature?

Mr. Schnapper: Well, that seems to be an important part of analysis of the school board case.

It is not critical to the analysis of the city case.

In the school board case, we have a rather complicated serious facts which are set out in our brief involving the introduction and passage of deliberately defective legislation in the legislature in order to prevent the federal litigation from going forward and that becomes I think the operative decision and as a practical matter of those decisions were made by the defendant school board members and it is their contention below and I think correctly that they were calling the shots in the legislature about what was being introduced in the past.

Justice Potter Stewart: So ultimately it is the voters, isn't it?

Except for this so-called block voting, nothing the legislature could do and the state capital or the city or the school board could do or could prevent Negroes being elected?

Mr. Schnapper: Well, I do not want to recount there.

The history of discriminatory devices that have exists in Alabama over the years.

Justice Potter Stewart: But ultimately, it's the voters?

Mr. Schnapper: But I think this intentional scheme to discriminate on the part of the state wouldn't work if you did not also have black vote.

Justice Potter Stewart: You have to and that's within the voluntary control of each individual voter.

Mr. Schnapper: Mr. Justice Stewart I think that if we are right and Mr. Justice Stevens' hypothetical was the case mainly that this election system is being maintained for the expressed purpose of keeping blacks and being elected.

A purpose on the part of the officials of the State of Alabama, that that violates the Fourteenth Amendment and Fifteenth Amendment of the Constitution.

I had nothing in this decision of this Court suggest that a motive to -- a racial motive which is not denying in nature but here clearly vicious can somehow rather be sanctioned because it only works because of private discrimination as well.

I think that it would be analogous to a situation where for example the state as happened in 1903 expressly authorized the state parties to exclude the voters on the basis of race and then the parties did that.

I mean there was such action which was less state action than the actions of the legislature although it may be for constitutional purposes that was also state action with the part even.

But I do not think that that part of the cause on mechanism is of any relevance.

I think the state acts from hostile racial motive that violates the Fourteenth Amendment and Fifteenth Amendment and that would be the end of the case.

In addition, --

Chief Justice Warren E. Burger: But you --

Mr. Schnapper: Yes.

Chief Justice Warren E. Burger: -- then, I take it, relate the historic hostile motive of what existed back in 1826 and 1836 due to a hostile motive today because the legislature did not change the structure -- we have a different kind of discrimination.

Mr. Schnapper: We have a situation here exactly like Arlington Heights.

In Arlington Heights there had been a zoning classification, the Court's opinion show if not win in origin.

But a dispute arose as to the decision of Arlington Heights not to change the zoning classification and the Court held and I think properly that if that refusal to change had been racially motivated, the zoning would have been unconstitutional and it was of no importance when or how that zoning classification had come into existence and that's our contention here.

We just ask you in that regard to follow Arlington Heights.

Justice Thurgood Marshall: How many legislatures do you need to maintain your point of majority?

Mr. Schnapper: I think -- I think the question would be who are the people that actually making a decision.

If the legislature effectively delegates control over this to a single legislature as indeed exists in Alabama.

Justice Thurgood Marshall: One legislature?

Mr. Schnapper: The way the system works is ability of the sort affecting -- ability affecting the situation.

Affecting only Mobile would have to be approved by the legislative delegation from Mobile and of course, the role in the Senate is that that any single member of the state senate can veto a Mobile Bill and that's precisely what happened.

So it was one center.

The question is not one of numbers; the question is who is making the decision on behalf of the state?

Justice Thurgood Marshall: So you can say that the whole legislature of Alabama including Fred Gray is guilty of racial prejudice?

Mr. Schnapper: Your Honor, I wouldn't characterize it in that way but --

Justice Thurgood Marshall: Wouldn't think you could.

Mr. Schnapper: But the -- Your Honor, if the State of Alabama and the legislature delegates the authority for making decision to one member of legislature and the District Court found that that was a case and it's not with finding it's contested then the motives of the person that makes that decision is the operative motive for the State of Alabama.

Justice Thurgood Marshall: And we're bound by that?

Mr. Schnapper: What?

And I think you're bound by that.

Chief Justice Warren E. Burger: In other words, from the legislature as a whole in your hypothetical your explanation delegated that power to one man they in advanced adopted the action he was taking in the motives that motivated it?

Mr. Schnapper: Well, they could have changed their mind but they didn't.

I mean, it seems to me no other conceivable rule is possible.

I mean otherwise you could simply nullify the Fourteenth Amendment by systematically referring any legislation as you wanted to undertake with it's nullify motive to single legislative who would then act from racial motives and then that you come in to defend the suit and say well you know, it was only Senator so and so, and the rest of us never even thought of that.

I mean that just would be I think a rule that would be an invitation to evasion of constitutional commands in this area.

Finally, I was just trying to sketch out here what the arguments were presented by the case.

There is a claim under the Fifteenth Amendment and as I think Mr. Turner noted that is somewhat narrower in its impact than our claim under White against Regester because of course it would be in limit as to racial issues.

Both Government and we contend that the Fifteenth Amendment is not limited to nstances of discriminatory purpose.

I think we have a somewhat different approach to it.

We were like particularly on the legislative history of the Fifteenth Amendment and the concern of the product Congress by adopting the Fifteenth Amendment to ensure that blacks were armed with an effective franchise by which they could protect themselves against government discrimination.

We think the record clearly shows that they do not have that in this case.

The Government advances an argument I think closer to that suggested by Mr. Justice White to wit that, we have something here at akin to the Terry against Adams and that is and I think you were articulating it of the Democratic Party has picked its candidates on the basis of race and that decision is effectively state action because it controls the outcomes of the elections.

Justice Potter Stewart: But is there any issue here as to -- is there any claim that the party primary the democratic primary is not a free and open primary, open --

Mr. Schnapper: No, it is as free and open as the primary in Bexar County, Texas which this Court unanimously held violated White against Regester and --

Justice Potter Stewart: They have legislating there if I know.

Mr. Schnapper: No, not in Bexar County, only in Dallas County.

Justice Potter Stewart: B-E-X-A-R?

Mr. Schnapper: B-E-X-A-R, right.

Justice Potter Stewart: Why is it -- I know it but --

Mr. Schnapper: What?

San Antonio.

The -- there was this in expressed finding effective to recent slating in that case and I thing that's quite clear.

Justice Potter Stewart: And there wasn't --

Mr. Schnapper: There was slating in Dallas.

There was not slating in Bexar County.

There's not slating here.

Justice Potter Stewart: There is just a nomination by a party primary in which any qualified democrat can vote?

Mr. Schnapper: That's an active --

Justice Potter Stewart: Regardless of his race?

Mr. Schnapper: Yes.

Justice Potter Stewart: And that's all conceded, isn't it?

Mr. Schnapper: Yes, I think we are in agreement.

Justice Potter Stewart: There is no secret that the inside groups that slates or --

Mr. Schnapper: No, there is none.

Justice Potter Stewart: Or no claim that there is?

Mr. Schnapper: No claim of that.

Well, there's a little claim of that on the part of the other side but they certainly present that on their own.

Justice Byron R. White: Are there anybody who get on the general election ballot except by the primary?

Mr. Schnapper: In the case of this -- in the case of the (Inaudible), I don't believe so.

My understanding is that its just an ordinary primary you've got to be dominated by one of the parties and nomination by the democratic parties equivalent of election.

Justice Thurgood Marshall: Well, what happens after the democratic primary by the school board?

Mr. Schnapper: Well, there's a general election but it's often uncontested.

It was uncontested this year for example.

Justice Thurgood Marshall: Well, if it is contested, why do you contest it?

Mr. Schnapper: You get the nomination to Republican Party.

Justice Thurgood Marshall: What about the non-partisan party?

Mr. Schnapper: The non-partisan voters, they gets in a party, it was private organization that endorse people.

Justice Thurgood Marshall: Can they get somebody --

Mr. Schnapper: What?

Justice Thurgood Marshall: -- get somebody on there?

Mr. Schnapper: Only if they can get a party to nominate and they are like the FFL or any public interest group.

Justice Thurgood Marshall: It has to be a party?

Mr. Schnapper: It has to be a party.

Well, those are the four claims before the court.

Justice Thurgood Marshall: Is there any mechanism for the nominated by petition after the primary or?

Mr. Schnapper: The record does not reflect to that.

Justice Byron R. White: Excuse me.

Mr. Schnapper: There may be procedure that sort of, it was not part of the case as it was litigated below it's not --

Justice Byron R. White: Because you haven't quite explained on your theory why you think the Fifteenth Amendment claim is any different in the Fourteenth amendment claim?

Or with -- with respect to how the state is involved.

Mr. Schnapper: Oh!

I'm sorry.

Justice Byron R. White: The state -- the denial of the right to vote still has to be made by the state?

Mr. Schnapper: That's right.

Justice Byron R. White: So tell me how the state is involved in the Fifteenth Amendment violation.

Mr. Schnapper: Well, our claim is that that the Fifteenth Amendment prohibits the state from adopting election systems which have a discriminatory effect and this we claim is such the system.

That -- that doctrine is somewhat different than the doctrine we find in White against Regester for variety of reasons not the list of which this that it is, why is it limited to the problem of at-large election systems?

The Fifteenth Amendment will cover any election law but on the other hand the Fifteenth Amendment is limited to questions of race.

Justice Thurgood Marshall: You mean adopt.

SDo you mean you maintain, don't you?

Mr. Schnapper: For purposes of my motive argument, I would say adopted or maintained, yes.

With regards to the Fifteenth Amendment, we place particular emphasis on the phrase on two things first.

These are the phrase abridge in the language of the Fifteenth Amendment.

If you recall the history of the times when the Fifteenth Amendment was adopted there was nothing then towards that could correspond.

The south was under the control of the union army and blacks were free to vote everywhere.

The concern, I think we think of Congress in adding the word abridge was not merely that when the whites came back and the power after reconstruction they would strip blacks of the right to vote of all but that new forms of discrimination, new devices might be adopted that had these kinds of impact.

I know Justice White that there was, I think an understandable concern in Washington against Davis about the ramifications of having an effect to one of the Fourteenth Amendment because it would call on the question wide variety of governmental programs, housing, taxes, and all sorts of things.

And we think that those problems aren't raise by the effect to what we urge under the Fifteenth Amendment.

It's our contention -- it obviously its scope would be limited to claims of discrimination in voting and we think it appropriate that a voting, the blacks be protected in voting to a greater degree than other areas.

Justice Byron R. White: You have to say the state is efficiently involved if it maintains the system which permits individual discrimination at the polls?

Mr. Schnapper: Yes, I mean that's right.

Justice Byron R. White: That's it, isn't it?

Mr. Schnapper: That is it.

That is it.

The role of state is in creating and maintaining the at-large system.

Now, I'd like to turn at this point.

Well, there's one other point I think which does separate us from the appellants in both of these cases.

I think we have a very different view of what were the appellate courts are in resolving these cases.

I think it -- listening to their argument I had sense that we were back on the trial court and that you are sitting easy prayers or perhaps, writing circuit as occurred in the old days.

I think as Justice Stevens pointed out that role of the court is more limited.

That absent some sort of palpable error which I don't think is present here that the findings of the trial court really do have to be accepted.

In our view, they are sufficient to manage judgment for us.

Justice William H. Rehnquist: What if we concluded that the trial court did not find that there was an intent to discriminate, and that the Court of Appeals concluded that there was an intent to discriminate?

Now is that a two-court finding that we ought to affirm?

Mr. Schnapper: If you hold that -- let me make sure that is right that the District Court didn't find intent but --

Justice William H. Rehnquist: Right.

Mr. Schnapper: -- the Court of Appeals did find intent.

Justice William H. Rehnquist: Right.

Mr. Schnapper: I do not, well that's not under the two-court rule.

I think in all candor that the practice of the Court in that situation is to come very close to putting itself in the shoes of the Court of Appeals.

So I don't think the same difference would exist if it were merely a Court of Appeals finding of intent.

Justice William H. Rehnquist: There is a problem here in what standards are applied, isn't it because Washington against Davis came down after this litigation had started and as I understand that the Nevett brought force or whatever was, was decided that intermediate stage of this litigation so that you have a little bit of a shifting of legal standards?

Mr. Schnapper: Washington against Davis was decided before the cases went to trial and so at time the cases went to trial there was already a dispute between the parties as to whether you needed intent under the Fourteenth Amendment.

We maintain there as do now that the Equal Protection Clause has two distinct branches.

Justice William H. Rehnquist: I thought the litigation was eight or nine years old.

Mr. Schnapper: No, surprising of this case is only four years old.

Justice Thurgood Marshall: Bearing in mind that this is a direct appeal.

Mr. Schnapper: Yes.

Justice Thurgood Marshall: What is it that we are limited from changing under your concept of the two-court rule?

Mr. Schnapper: Well, I think the ordinary practice of the Court is the same --

Justice Thurgood Marshall: Isn't the first thing you got to pass on is the constitutionality?

The first thing, we have passed are direct appeal, don't we?

And secondly, we don't have the power the two-court rule on constitutionality, do we?

Mr. Schnapper: Well, that's several questions.

Let me -- let me try to answer them all.

First, I think that the first question you probably ought to reach consistent with the general practice of the court would be the statutory issue and I say it not because we prefer to win on one theory or not --

Justice Thurgood Marshall: Is there a direct appeal?

Mr. Schnapper: It is a direct appeal but I think the Court's normal --

Justice Thurgood Marshall: What is before us on a direct appeal?

That constitutionality of a statute?

Mr. Schnapper: Well, I think we are entitled as we are in any case to urge in support of the decision below any ground that was raised below.

Justice Thurgood Marshall: Oh, sure but I don't think you are --

Mr. Schnapper: And -- and that's where the ground was raised below.

Justice Thurgood Marshall: Well, I don't think you have the right to prevent us from considering the constitutionality of the statute that's involved.

Mr. Schnapper: We have no right to that and no intention of trying to do that.

Justice Thurgood Marshall: Well, I misunderstood you.

Mr. Schnapper: But I -- I meant only to recall to you the normal practice of the Court which is to decide statutory issues first.

We have no preference on that, if you want to decide the most sweeping constitutional issues then the narrow constitutional issues then the statutory issues --

Justice Byron R. White: As long as we decide for you?

Mr. Schnapper: That's our position.

That's our position.

So, now -- but I think you had another question I don't think I fully answered.

Justice Potter Stewart: Are the two-court rule under factual finding?

Mr. Schnapper: I think the truth, right.

Our position would be that the two-court rule is as applicable here as always.

The two-court rule does not preclude you from deciding constitutional issues.

It -- it only suggests that with regards to specific factual matters that you generally uphold the findings of the two courts below unless there is an unusual circumstance.

Justice John Paul Stevens: Mr. Schnapper, could I ask you a question?

Mr. Schnapper: Yes.

Justice John Paul Stevens: Your -- your point in Mr. Allen is said that when you really analyze the facts, the case boils down to as block voting plus at-large and at-large system plus the minority of blacks in the voting population and in your brief, you emphasize those very facts --

Mr. Schnapper: Yes.

Justice John Paul Stevens: -- as distinguish other cases, do you think those facts were enough?

Mr. Schnapper: It is our contention that they are indeed enough and they are enough under White against Regester, under Section 2 of the Voting Rights Act and of the Fifteenth Amendment although for somewhat different reasons because the rational of each of those rules is different.

With regard to that I think perhaps I should answer a question that Mr. Justice Rehnquist asked earlier about Zimmer versus McKeithen.

The -- both parties in Court of Appeals relied on Zimmer against McKeithen and you will find in the brief for the school board, the statement which says they think Zimmer against McKeithen is correct.

I think we were all obligated to operate in the context of Zimmer in the Courts of Appeals.

I think here, it is indeed argue that Zimmer was too constricted in its application of White against Regester and that that left proof is required and is elaborated in Zimmer and we also have disagreement with the part of Nevett against Sides which is of course subsequent, which holds that intent is in fact necessary under White or Zimmer.

We say there's a reason for that contention in our brief at length.

Your Honor, I'd like to touch very briefly on our claim under the Voting Rights Act which we think is the issue which the Court ought to begin.

We -- we've -- we've noted that the legislative history on this matter as such as this quite clear that Attorney General Katzenbach testified on the very issue of whether or not the statute covered purpose and effect and it said that it did.

We think if we're at the substantive standard under the Voting Rights Act under Section 2 is exactly the same as the substantive standard under Section 5 which is to say that if the election law permits white voters to nullify the electoral preferences of blacks that it falls under the Voting Rights Act.

The difference -- the only difference that we see between Section 5 and Section 2 is a procedural one.

That the burden of proof is on the state under Section 5, the burden of proof is on the plaintiff under Section 2.

Justice William H. Rehnquist: Well, your opponent cites that Senator Dirksen statement that sentence in Section 2 is just a restatement of the Fifteenth Amendment.

Mr. Schnapper: Well, I think it's almost.

I think the word almost appears and I think that's -- the value of that is little hard to know because nobody I think at that point necessarily knew what the Fifteenth Amendment mean.

Justice William H. Rehnquist: But Attorney General Katzenbach did.

Mr. Schnapper: And he said purpose or effect.

He was quite clear about that.

Justice William H. Rehnquist: Who passes laws?

The attorney general or the congress?

Mr. Schnapper: Currently, the Congress does it.

Justice Potter Stewart: But not a single senator?

Mr. Schnapper: But not in -- not in the Senate.

Not in the Senate.

If we write in our contention the standard of Section 2 and Section 5 are the same then I think there was also the case would be clear.

I think if Alabama had exempted to switch to the system, from the single-member system there'll be no question that they couldn't do it and we think Section 2 invalidates it for that reason.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Print this transcript Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

CITY OF MOBILE, ALABAMA, ET AL., Appellants, v. WILEY L. BOLDEN, ET AL., Appellees; ROBERT R. WILLIAMS, ET AL., Appellants, v. LEILA G. BROWN, ET AL., Appellees

No. 77-1844, No. 78-357

October 29, 1979

The above-entitled matters came on for oral argument at 10:04 o'clock a.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States

POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

THURGOOD MARSHALL, Associate Justice

HARRY A. BLACKMUN, Associate Justice

LEWIS F. POWELL, JR., Associate Justice

WILLIAM H. REHNQUIST, Associate Justice

JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

CHARLES S. RHYNE, ESQ., 1000 Connecticut Avenue, N. W., Washington, D. C. 20036; on behalf of Appellants City of Mobile Et Al.

JAMES U. BLACKSHER, ESQ., 405 Van Antwerp Building, Mobile, Alabama 36601; on behalf of Appellees Bolden Et Al.

JAMES P. TURNER, ESQ., Deputy Assistant Attorney General, Civil Rights Division, Department of Justice, Washington, D. C.; as amicus curiae supporting Appellees.

WILLIAM H. ALLEN, ESQ., Covington & Burling, 888 Sixteenth Street, N. W., Washington, D. C. 20006; on behalf of Appellants Williams Et Al.

ERIC SCHNAPPER, ESQ., 10 Columbus Circle, New York, New York 10019; on behalf of Appellees Brown Et Al.

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will hear arguments first this morning in No. 77-1844, City of Mobile v. Bolden, and the consolidated case of Williams v. Brown.

Mr. Rhyne, you may proceed whenever you are ready.

ORAL ARGUMENT OF CHARLES S. RHYNE, ESQ., ON BEHALF OF THE APPELLANTS, CITY OF MOBILE

MR. RHYNE: Mr. Chief Justice, and may it please the Court:

This case presents a question of whether the Equal Protection Clause of the Fourteenth Amendment requires the abolition of the Mobile commission form of government elected at large.

This is the first case involving a state or a local government where the entire form of government, not just the manner of its election, has bean held unconstitutional.

Mobile is one-third black. The District Court held that only the abolition Of the commission form of government in its entirety could "provide blacks a realistic opportunity to elect blacks to the city governing board."

The District Court also held that equal opportunity included the election of representatives of their choice. Now, the ultimate issue in this case is whether the only way to satisfy the constitutional requirement of equal protection, equal participation in the voting processes of a government is by electing a black to the Mobile governing body.

Now, the District Court held that while it was making all of the findings about various subjects that I just mentioned, that blacks did not participate effectively, and we say this is a clearly erroneous error because the record establishes beyond question that in every contested election in the City of Mobile, and the last one was in 1973, the black vote is decisive. In 1973, for example, Commissioner Greenow ran against Mr. Bailey, who had defeated Commissioner Langan, who had been elected and re-elected 16 years with black support. And in the first election he received only 15 percent of the black vote. In the runoff he received 43, and that elected, him.

And as we state and quote on pages 9 and 10 of our brief, the judge is questioning Reverend Hope, who is the black president of the Non-Partisan Voters League, and he asked him, "Isn't it a fact that the black vote in the Greenow race was the difference, and in the Mimms race," the other commissioner, and he said, "Yes."

And then in addition to that, I would point out to the Court that Commissioner Doyle had no opposition, but he testified that when he first ran, that he went to the Non-Partisan Voters League, which is the only slating organization in Mobile and it's black, and he was screened by them, and they endorsed him. And each one of these appellants have gone to that league and received its endorsement after being screened by them. And so the blacks do participate very vigorously in the electoral processes of Mobile.

And so I say that where the elections are non-partisan and where each of the appellants go and seek the black vote, and where it's decisive, it cannot be said to be submerged or diluted.

Now, the Reverend Hope, when he was testifying in his final statement that we quote on page 10, makes just one sentence which I would like to quote to the Court because I think it's important, because he was talking about the fact that he was speaking for the entire League, which is all black and the most important slating organization. He said: "They feel the candidates they have elected" -- now these are the three appellants who are here, and by "they" he means the Non-Partisan Voting League -- "have done a very good job along that line of serving blacks."

And over and over again this record is full of instances in which blacks testified that when they supported these appellants, they went down to City Hall and they asked for what they wanted, and if it was possible in law and money, they got it.

I'm not going to read the long list, but I can say this: Eight, the only eight of the witnesses of the plaintiffs who were asked if they'd been down to City Hall, and under this open door policy that's maintained by these commissioners who exercise dual functions under the commission form of government, they have both legislative and executive powers, so they can in effect do it all. If they tell one of these blacks, "You're going to get a pavement," "You're going to get this," they get it, because they have the power to do it.

And so the fact that they not only take part in the entire voting process from registration all the way through, but they then in effect collect on their political obligations shows that they play an extremely important part in the political processes of Mobile.

Now, we had one time, in 1973, where three blacks ran, and those three blacks didn't carry the black wards. Now, as Witness Alexander, Dan Alexander who is a witness for the plaintiff, testified in his testimony for the plaintiff and election for commissioner and an election for the school board are two entirely different things. When you run for the school board, and Dan Alexander is a member of the school board, you talk about what you can do for the school kids, and it's county-wide. When you run for commissioner, you talk about what a good businessman or woman you are, because the commission form of government is supposed to elect businessmen to run cities. That's why it came into existence, and that's why over and over again, when they've had referendums in Mobile -- well, they've had them in 1963 and 1973, according to the record -- the people have overwhelmingly supported this businessman form of local government.

Now, the Court below held that the intent that was important here was not the intent of the three defendants but the intent of the legislature. Now, the legislature is not a defendant here. No State official is a defendant. And they go on and on and on talking about bills that have gone up to Montgomery to change the form of government, and when you're talking about legislative intent, you're talking about a very nebulous thing. But in their supplemental brief they cited the fact that Senator Buskey, a black Senator, had introduced a bill to give the people of Mobile a chance to vote on another referendum about changing its government, and they go on and on about how the fact that that bill went through the House and then lost in the Senate.

What they don't tell you is this, that that bill reached the Senate on its 28th legislative day. It got its first reading that vary day, which is very unprecedented. It got its second reading -- and this is on page 10 and 11 that they discuss this -- its second reading on the 29th legislative day, and then it got lost in the usual pile-up of bills in State legislatures on that last day.

The thing that interests me is that the black Senator from Mobile, according to the journal, had absolutely nothing to say. The bill died.

But again, it was going to give the people of Mobile a chance to have a referendum.

So I urge upon the Court that the relevant intent that you're going to consider intent is that of the three defendants, the three commissioners that are before you, and you can't find in this record, if you read it from beginning to end, any instance in which they who must have the votes of the black to win have discriminated against the blacks. The black votes are equally counted; they have an open door policy; they see them; and as I say, the only eight witnesses of the plaintiff who were asked testified unequivocally that when they went to City Hall, they saw the appellants and they got what they went for, if it was legally or financially possible.

And so it's not the State intent that's so important here. It is the intent of these three appellants. If it was the State intent, why don't they have the State here? Yet the very basis of the District Court decision and the very basis of the Appellate Court decision is the inference that they draw from the fact that no black, and the District Court repeats this three times, has ever won a seat as commissioner of Mobile. He doesn't add the next part of it, which is that no qualified blacks ever run.

And the other inference they draw is that State in-action is circumstantial evidence of invidious intent against what? These three appellants? What do they have to do with the State Legislature's intent? And it's the most nebulous, hardest thing to get at in the whole world. It's like asking Barry Goldwater what Senator McGovern's intent was on a bill. I don't believe that the relevant intent is that of the State Legislature, but the relevant intent is that of the appellant commissioners. They're the only defendants, they're the only ones that are before this Court. And so I urge, indeed, that they have never been shown to have a racial purpose, that they have been shown over and over again to be very sensitive to the needs of blacks, and there is no racial purpose that can be attributed to them in any way, or how can they get over and over the endorsement of the blacks, and how can they, when these only three blacks ran, carry even the black wards?

So another point that I would make is that the Court of Appeals held that there was a very, very strong city governmental intent in at-large elections in Mobile because they were brought in to wipe out ward healing, corrupt government, and that this government has served Mobile well for 68 years, without any charges of corruption or anything else. And that is the good government that they are asking this Court to uphold the abolition of.

Now, the failure of the Court below to find that in this record, over and over again, that the blacks are such an important element of the political processes -- they get on the stand and they brag about how important they are. Wiley Bolden said sure, they follow the pink sheet. That pink sheet is the one that has the names of the people that the blacks have endorsed. And when the blacks ran, they endorsed some of the blacks, but they also endorsed the whites, and the appellants. So I urge upon you that the intent that is important is the intent of these appellants that they have done absolutely nothing that can be called, on this record, invidious discrimination. No black has ever lost an election in Mobile because of polarized voting, and if you're going to draw inferences, why do you have to stop -- they point to Montgomery, they point to Birmingham where tomorrow we may learn something, because the men who got more votes than I think all three candidates, white candidates, for mayor is up for the final vote. I think he got 30-something-thousand and the other three got 30-something-thousand.

But look at Atlanta. Look at New Orleans. Look at Detroit. Look at Newark. And my prime example of all, because I'm leaving to go out there tomorrow, is Los Angeles.

Look at Bradley. Bradley ran when only 17 percent of the people of Los Angeles were black. He was defeated the first time around, but he pulled himself up and ran again, and he's been elected over and over and over again.

But yet in here they talk about discouragement as being the reason that no qualified black has run in Mobile, even though they have equal opportunity, equal access, equal everything, and all they need is a qualified candidate.

Now, it's true that on the record there was some dispute about whether qualified blacks could win. The interesting thing to me was, the judge was working over Mr. Langan, who had won for 16 years straight and then the blacks turned against him so he lost. He was trying to get him to say that no black could be elected. He said, "Well, it depends on the person." And that I think is true. I think the color of a man, the color of a woman, doesn't count in politics any more It's their qualifications. And this commission form of government, above all, emphasizes, as Dan Alexander said, the business capacity of those who want to be commissioners.

Another aspect of this is, there are enormous differences between a city and a State. I don't think that your decisions that relate to State governments really apply here; if you wipe out a multi-member State district, it doesn't change overall the State government. If you wipe out the commission form of government in Mobile, you disestablish the whole government and bring in a whole new government, a mayor and nine councilmen and the councilmen meet once a week and get $50 for a meeting, they can only talk to the mayor, they're not allowed to talk to the employees, and so the blacks really are diluted by that order because now they can go down and see any one of the commissioners and get anything they want, talk to the head man, because they see them all. And under the Court's order, they have to go down and see the mayor and wait in line, and they don't have the clout under the order that they have now.

So --

QUESTION: Under the remedy decreed by the District Court and affirmed by the Court of Appeals, predictably there would be a minority of Negroes in the City Council, wouldn't there?

MR. RHYNE: It looks like there would be three, yas. And so, now, Reverend Hope, for example, would have one of those who he could go see, and he would go down to City Hall.

QUESTION: They would be a minority?

MR. RHYNE: And so now, as the situation is, according to his testimony, he goes down and sees one of the commissioners directly, and the commissioner can order anything. And so they can do it all. So actually they're being diluted.

Now, the -- we cited in our brief the comments that political scientists have made about this. They say that the form of government, local government, is peculiarly something for the people of the locality. I think I've probably read more charters, and I don't mean to brag about it, than any other man alive, because I've lived my life here. I once went out to Denver and met Quigg Newton and people when they were redoing the Denver thing, and I took a stack of characters. I can tell you that there is not a single city charter that is identical with any other. They are always adapted to the needs of that locality. And I'm not sure that courts are political scientists enough to tell local governments what kind of government is good for them.

But I come back to the point I mentioned below already, and I want to emphasize it because I think it's important. Here we have a good government being wiped out based on inferences and circumstantial evidence, as against the record of the election of qualified blacks nationwide. To me it just doesn't stand up, and to me, the constitutional requirement is full participation in the political process, not a guarantee of end result.

Now, we talk about proportional representation of a race, and you've said you're never going to grant that. I once went out to Cincinnati and talked to Mayor Seasongood for half a day trying to understand proportional representation. I never did.

QUESTION: You have to run under it to understand it.

MR. RHYNE: I suppose that you did. But all this thousand over ten and all that kind of stuff kind of left me.

So I conclude by simply saying that this case is enormously important not just to Mobile, but to the 67 percent of cities throughout the Nation that elect at large. Look at the New England town meeting.

QUESTION: Mr. Rhyne, before you conclude, earlier in your argument you suggested that the people whose intent would be most relevant would be the intent of the three commissioners.

MR. RHYNE: That's right.

QUESTION: How do you read the District Court findings and the Court of Appeals opinion? Whose intent do you think those courts were talking about? The opinions are a little bit unclear to me.

MR. RHYNE: They were talking about the intent of the legislature.

QUESTION: You think it's definitely the intent of the legislature?

MR. RHYNE: Oh, yes. They pinned everything on the intent of the legislature.

QUESTION: Because some of the material under the Zimmer factors wouldn't really bear on the intent of the legislature very much, and they seem to rely on those factors.

MR. RHYNE: Well, I haven't said anything about some of the Zimmer factors, the service factors. There are other remedies for that, and I just don't think they belong in a voting rights case, and so I haven't gone into that.

But there is no question but what both courts looked to the intent of the legislature, not the intent of these appellants, because if you look to the intent of the three defendants here, it's overwhelmingly in favor of the blacks. There's nothing on the other side.

QUESTION: Mr. Rhyne, before you sit down, you have indicated in your oral argument and also I think in your brief that it's your position that only the Fourteenth Amendment is involved in this case, and only the Equal Protection Clause of the Fourteenth Amendment.

MR. RHYNE: Yes.

QUESTION: Your brothers talk about the Voting Rights Act of 1965 as well as the Fifteenth Amendment, in addition to the Fourteenth Amendment. I gather you think they are --

MR. RHYNE: Well, with respect to the Voting Rights Act, I think that there has been no change here, and the footnote in Circuit Court of Appeals, Footnote 14, where they say it's problematic, they've never heard of it being applied this way in a dilution case, I don't believe the Voting Rights Act has any application whatever.

QUESTION: Was that included as a ground of the cause of action in the complaint?

MR. RHYNE: It was, and if they didn't like the way it was ruled on there, they could have appealed and didn't, so I don't think it's before this Court.

QUESTION: How about the Fifteenth Amendment?

MR. RHYNE: The Fifteenth Amendment, the District Court really didn't say anything about the Court of Appeals, said it required intent, so they really brought it down to about the same thing as the Fourteenth Amendment. And again, they didn't appeal from that ruling, so I don't think it's before the Court.

QUESTION: If the judgment can be supported on the basis of either the statute or the Fifteenth Amendment, I suppose they are entitled to support it.

MR. RHYNE: Well, I think that --

QUESTION: On either of those grounds.

MR. RHYNE: My answer would be that it cannot be on the facts in this case.

QUESTION: The decision of the District Court of Appeals, as you understand them, were grounded on the Equal Protection Clause of the Fourteenth Amendment?

MR. RHYNE: That's right, entirely.

MR. CHIEF JUSTICE BURGER: Mr. Blacksher.

ORAL ARGUMENT OF JAMES U. BLACKSHER, ESQ., ON BEHALF OF THE APPELLEES, WILEY L. BOLDEN ET AL.

MR. BLACKSHER: Mr. Chief Justice, may it please the Court, there are really only two issues that this Court must address in this case. The first is whether the case should be decided on the basis of the statute, the Voting Rights Act, or whether it should be decided on the basis of the Constitution. And the second issue is whether this Court will affirm and leave undisturbed the findings of two Courts below that the at-large election system in Mobile, Alabama, is maintained for invidiously discriminatory reasons.

We believe that, particularly in light of decisions of this Court in the last term, Cannon v. University of Chicago in particular, that the conclusion that there is a private cause of action under Section 2 of the Voting Rights Act is inescapable.

Under the factors of Court v. Asha, there is virtually no difference between the application of that case to Section 2 of the Voting Rights Act and Title 9 of the Education Amendments. That has been briefed and I will not go into it in further detail.

With respect to the findings of fact that there is an invidious purpose in the maintenance of this election system, we believe, as we have said in the supplemental brief, that Columbus and Dayton and indeed, Personnel Administrator of Massachusetts v. Feeney, virtually require this Court, following the same principles, to affirm the findings of the District Court and the Court of Appeals that the at-large election system first put into effect in 1911 has not been changed, notwithstanding attempts to do so, because of, not in spite of but because of, the knowledge that the at-large system prevents blacks from having their electoral choices registered in the election process.

Now, with respect to the remedy --

QUESTION: Mr. Blacksher, before you get to remedy, whose intent are we talking about?

MR. BLACKSHER: We are talking about the legislators' intent. We believe, if we correctly read Washington v. Davis and Arlington v. Metropolitan Housing Authority, if we correctly read those cases, we are talking about the lawmakers' intent. If we are investigating the question of invidious purpose behind particular legislation.

If we are talking about the intent of the people who operate the statute, then we've got what I suppose would be a Yiquo v. Hopkins type of case, in which case we would shift our gaze and scrutiny to the actions of the people who were actually operating the election system.

QUESTION: Mr. Blacksher, forgive me if I have interrupted your answer to Justice Stevens' question. I wasn't sure whether you were finished or not.

If you are right that the judgment should be affirmed here because blacks are not being permitted to have their impact felt in the electoral process, how far out can that line of reasoning be extended under your theory? How many other groups can claim that they were discriminated against by the State Legislature because the State Legislature just didn't happen to like that particular group? I mean Catholics, Jews?

MR. BLACKSHER: I think, Mr. Justice Rehnquist, that the question has to be answered in the context of the Equal Protection Clause of the Fourteenth Amendment. And this Court first must look to the question whether or not the judgments below must be sustained on the basis of the Voting Rights Act, which specifically addresses race, or the Fifteenth Amendment in the cases decided under it.

I believe that for the purposes of this case it is important to recall that the dilution principle did not arrive constitutionally from the principal of one person, one vote. Racial, the abridgement of voting rights on the basis of race did not derive from the Fourteenth Amendment principles of a full and effective vote in one person, one vote.

QUESTION: Where did it derive from?

MR. BLACKSHER: It derived from the Constitution of the United States, the Fifteenth Amendment and the statutes enacted under it.

What I wanted to point out was that in Reynolds v. Sims, this Court had to look to the Fifteenth Amendment and to the cases decided under it, specifically Lane v. Williams, Wilson, Gomillion v. Lightfoot, Brown v. the Board, to find in the Equal Protection Clause a principle that says that there is a full and effective vote for other classes of people. And it was on the basis of that analogy or that juxtaposition of the Fifteenth Amendment to the Fourteenth that there was ever developed a one person, one vote principle.

In fact, I think it's interesting to note that the fundamental disagreement that Justice Stewart had with the Reynolds case all through the years has been that it was too simplistic. Sixth Grade arithmetic. And did not take into account the realities of the political process to which the Constitution must address itself.

For example, and I quote here, if the Court will indulge me momentarily, from Justice Stewart's dissent in Lucas v. the Colorado Assembly:

"I could not join in the fabrication of a constitutional mandate which imports and forever freezes one theory of political thought into our Constitution and denies to every State any opportunity for enlightened and progressive innovation in the design of its democratic institutions so as to accommodate within a system of representative government the interests and aspirations of diverse groups of people without subjecting any group or class to absolute domination by geographically concentrated or highly organized majority."

QUESTION: Do you think that helps you?

MR. BLACKSHER: I believe it does, Mr. Justice Stewart, because --

QUESTION: Rather, an expression of unwillingness to join in forcing a State to do anything, isn't it?

MR. BLACKSHER: I confess that in that particular decision, your attention was directed to the prerogatives of the State legislature, not to what the Constitution requires.

QUESTION: Well, I said the Constitution didn't require that.

MR. BLACKSHER: You said the Constitution did not require the imposition of strict population, one person --

QUESTION: You think it follows that the Constitution does require something else?

MR. BLACKSHER: I believe the Constitution does require that the right of persons to vote not be abridged, on the basis of race. That much we know.

QUESTION: What part of the Constitution are you relying on when you say that?

MR. BLACKSHER: The Fifteenth Amendment.

QUESTION: This case was decided on the basis of the Fourteenth Amendment, wasn't it?

MR. BLACKSHER: This case was decided on the basis of the Fourteenth and the Fifteenth Amendments in the judgment of the Court of Appeals below, and we relied from the beginning on the Voting Rights Act which was discussed earlier as another statute of as the first cause of action that the Court ought to approach, which of course is decided under the enforcement provision of the Fifteenth Amendment.

QUESTION: Well, the Voting Rights Act, that is the section with which this Court has dealt primarily has to do with a change in the method in some scheme or device, or some change in the method of election.

MR. BLACKSHER: [ILLEGIBLE WORDS]

MR. BLACKSHER: That is Section 5 of the Act.

QUESTION: And you rely on Section 2, is it?

MR. BLACKSHER: We rely on Section 2, which is the general provision of the Voting Rights Act which extends substantive rights to voters.

QUESTION: But doesn't purport to confer any private cause of action, does it?

MR. BLACKSHER: We believe that it does.

QUESTION: But it doesn't explicitly do so, does it?

MR. BLACKSHER: It does not explicitly do so any more than Title 9 of the education amendments did. But all of the elements including an expression of understanding on the part of the Congress that it does confer a private cause of action on private individuals, as expressed in debates on the Floor, as expressed in the enactment of an attorney's fee provision.

QUESTION: The District Court and the Court of Appeals didn't rely on the Voting Rights Act, did it?

MR. BLACKSHER: In its motion to dismiss early in the case, it held that we did have a cause of action. When it wrote, at the end of the case, it did not even address the Voting Rights Act issue.

QUESTION: And the Court of Appeals mentioned it in a footnote, I think.

MR. BLACKSHER: In a footnote it said, we're going to have to reach the constitutional issue anyway because we've got Nevett v. Sides with us today, and so we're not going to go into what we see as the knotty question of whether there's a private cause of action --

QUESTION: So if we agree that was a knotty question, I suppose it would be our duty to remand it to the Court of Appeals if we thought that was a dispositive?

MR. BLACKSHER: That is a possibility. In the Beaser case last term, the possibility of remanding it was rejected and the Court went ahead and reached the statutory issue first at this juncture, and we believe that since what we are talking about is not a review of the factual circumstances in light of the statutory standards, it makes little sense for this Court to remand, which is essentially a legal question.

QUESTION: But in any event, Mr. Blacksher, when I interrupted you with my question, you were relying on the Constitution, and it's the Fifteenth Amendment, not the Fourteenth, upon which you rely? Reynolds v. Sims and it's all those related oases that involve the Fourteenth Amendment.

MR. BLACKSHER: I was responding to Justice Rehnquist in this vein: We have understood --

QUESTION: -- and that was a Fourteenth Amendment case?

MR. BLACKSHER: It was, and we rely on the Fourteenth Amendment as well as the Fifteenth Amendment and the Voting Rights Act.

QUESTION: But what result do you get in reliance on the amendments you've recited to Justice Stewart and the statutes in respect to -- my question is to who, other than blacks, can make this same claim, that although they're allowed to vote, their representation is diluted because of the way the districting goes, even though one man, one vote is complied with?

I take it from your referral to Yiquo that Asian Americans could rely on it.

MR. BLACKSHER: We certainly believe they could, if they can show that they've been treated the way the black folks have been treated in Mobile.

QUESTION: And that's a statutory showing?

MR. BLACKSHER: That would be our understanding of the Reynolds principle under the Fourteenth Amendment. But the point I was trying to make, and I confess I got into it a little bit obliquely, is this:

We understand the argument of the appellants in this case to be that if this Court determines that the election system in Mobile satisfies the one person, one vote principle, you ought to let it alone, that there ought not be any further Federal inquiry or intervention into the actual workings of the political process to determine whether or not blacks' rights are nevertheless being abridged. And I am simply pointing out that that's letting the tail wag the constitutional dog; that if there is a one person, one vote principle, it is because the Constitution spoke first to the equal rights and to the voting rights of black people. And whatever rights other groups may have under the Fourteenth Amendment principles developed under Reynolds, surely the important rights of blacks which the Civil War Amendment was designed to protect cannot be forgotten in the shuffle.

QUESTION: Do you think those rights are denied when you have an at-large election for the governor of the State of Alabama, for example?

MR. BLACKSHER: No, sir, because the governor is one office and it is not a representative office in the nature of a legislature, for one --

QUESTION: Well, these people have legislative duties, but they also have executive and administrative duties, as I understand it. This is not a pure legislature; this is not representative democracy.

MR. BLACKSHER: Mr. Justice Stewart, we are not attacking majority rule. We are simply seeking on behalf of the black people of Mobile the opportunity to participate --

QUESTION: How about in the State of Alabama generally, when they elect the governor?

MR. BLACKSHER: I beg your pardon, sir?

QUESTION: What proportion of the State of Alabama are Negro voters?

MR. BLACKSHER: Approximately 30 percent or 35 percent.

QUESTION: Has there ever been a Negro governor of Alabama?

MR. BLACKSHER: There has never been a black governor.

QUESTION: Wouldn't the same constitutional claim be assertable in that situation?

MR. BLACKSHER: We say it does not. As I say, it has to do with the nature of the body that we're talking about. Where more than one person is elected for the purpose of representing diverse interests in the community, so use your language, there would be no need to have three commissioners for the city commission.

QUESTION: Well, each has a different set of duties, doesn't he? Isn't one finance and the other safety, or something or the other?

MR. BLACKSHER: He does by virtue of statute. At one time, before 1965, there was not a statutory requirement that they divide up those duties. That was something that was put into the law in 1965. It's something, by the way, that the 1979 bill that Mr. Rhyne was talking about would have taken out. It would have allowed the --

QUESTION: It is true now, isn't it?

MR. BLACKSHER: It is true now.

QUESTION: And he's the executive of the City of Mobile?

MR. BLACKSHER: That's correct.

QUESTION: Who is? That's a question.

MR. BLACKSHER: The three commissioners and the mayor. The --

QUESTION: That's what I thought.

MR. BLACKSHER: -- mayor is the nominal chief executive of the city, and that's a rotating position among the three commissioners.

QUESTION: But the three commissioners have the executive power, do they not?

MR. BLACKSHER: They have the executive power, they have the legislative power, they have the administrative power, and to some extent the judicial power, although we have a municipal court that exercises most of the judicial power of the city.

QUESTION: How do you distinguish the executive functions of the commissioners, and particularly of the one who is the mayor, and the executive functions of the governor of the State?

MR. BLACKSHER: I don't think there is any need to distinguish those executive functions, Mr. Chief Justice Burger. I believe that, with respect to the executive functions, there's no reason to say that blacks must have an equal opportunity to elect a person in every executive office or every executive department. What they are entitled to is a right to share fairly and effectively in the administrative and legislative group determinations that government carries out in Mobile.

I would like to point out --

QUESTION: What percentage -- does this record show what percentage of the Negro voters actually vote?

MR. BLACKSHER: The latest turnout figures that we were able to come up with would indicate that black voter registration was around 65 percent and that black turnout was something like -- well, is about the same as whites in elections where there were black candidates and less than whites, and when it was a good as the white turnout it was around 36 to 40 percent.

QUESTION: But if all of the Negroes registered and all of them voted, isn't it likely that they could on this record elect at least one commissioner?

MR. BLACKSHER: Not in this case. That was a fact that the court found for the plaintiffs.

QUESTION: I know they found it, but did they find it with respect to that proposition that if every Negro eligible to register did register and every registered Negro voter Negro voter voted, did they make a finding on that?

MR. BLACKSHER: Although it was not cast in those terms, the court's language can be read to include that implication which was discussed during the trial. I think the court says there is no reasonable opportunity for blacks to have their choices elected in the at-large system. It is not necessary, however, and the court did not rule --

QUESTION: Well, does that finding by inference that you suggest stand up under a mathematical analysis?

MR. BLACKSHER: It has to. Blacks are 35 percent of the population of Mobile. They are less than that of the voting age population of Mobile. I think it is closer to 30 percent or 32 percent. And if they were registered at the same rate as whites, they would still be a political minority in the community by a substantial margin. They are not close to being a majority.

QUESTION: How about the Catholics in Mobile, is there anything in this record to show how many there are?

MR. BLACKSHER: There was plenty of evidence in the record to show that there was not polarization of electoral processes along religious lines or along ethnic lines in Mobile, Alabama, that the only discernible polarization from a social standpoint was along the lines of race.

QUESTION: Mr. Blacksher, if we just for the moment confine ourselves to the Fourteenth Amendment again, I understand your separate argument on the Voting Rights Act and the Fifteenth Amendment. I would like to pursue the thought Mr. Justice Rehnquist and I suggested earlier about -- you would say the same theory would apply to Catholics, a religious or an ethnic group as well as to blacks. What about a political group such as Republicans?

MR. BLACKSHER: I was asked that question I believe at the first argument, Mr. Justice Stevens, and I replied that it would be the same. I believe that political groups probably would be protected, although I think there is a difference in that -- as I have said before, I think politics is the vehicle or the forum through which we operate the political process, that it is a volitional choice which party you are in, and that may cause some differences, differences which I simply have not explored and which I don't think the Court needs to at this point, certainly --

QUESTION: Well, do you think if a city has got -- if the Republicans and the Democrats are segregated by area in a city, do you think a city may draw their electoral districts based on those lines so as clearly predetermine who is going to win?

MR. BLACKSHER: I believe that a city can draw their district lines any way that they fairly choose so long as it cannot be demonstrated that the particular ethnic or political group you are talking about has been systematically excluded from the particular process.

QUESTION: Let's assume that there has never been a Republican elected in Mobile in history. I suppose that is true, isn't it?

MR. BLACKSHER: Oh, no, Mobile is growing more Republican.

QUESTION: Let's suppose that it had been, a history like that, and there was proof that the at-large system was maintained to maintain the Democratic majority and Democratic control. Now, under the Fourteenth Amendment, you would say you would come out the same way here?

MR. BLACKSHER: I believe that it is possible to if you can show --

QUESTION: I know it is possible, but how about you?

MR. BLACKSHER: Well, I believe that we have to refer back to White v. Regester for the realm of possibilities.

QUESTION: Well, would you be making this same argument here or wouldn't you?

MR. BLACKSHER: As I just said, I may or I may not. I don't know whether the difference in political concerns makes the kind of difference that distinguishes from ethnic or of religious or in this case racial classifications, and I am just not prepared to take a final position on that.

QUESTION: Well, it depends a lot I suppose on -- whether you are not depends on how strong your Fourteenth Amendment argument is as distinguished from your Fifteenth and your Voting Rights Act.

MR. BLACKSHER: Well, the thrust of my argument today has been that I think that the Voting Rights Act and Fifteenth Amendment arguments are clearly the strongest because of their constitutional mandate, because we are not dealing with a political theory that we are made out of whole cloth, we are dealing with constitutional commands.

QUESTION: And also I suppose in the Voting Rights Act because you claim it covers effect as well as purpose.

MR. BLACKSHER: We don't think you have to reach that question if you affirm the findings of purpose.

QUESTION: I know, but you wouldn't need to affirm that, you could assume it if you take the Voting Rights Act.

MR. BLACKSHER: We assume what, may it please the Court?

QUESTION: That there is purpose rather than effect.

MR. BLACKSHER: We do not assume that there is purpose rather than effect. We think we have proved it.

QUESTION: I know you do, but if we weren't convinced on purpose, you would say, well, nevertheless there is effect.

MR. BLACKSHER: We would.

QUESTION: Yes.

MR. BLACKSHER: I would like to leave by referring again to White v. Regester because the facts in this case were so much stronger than those in White with respect to showing that there was a systematic denial and abridgement and submergence of the black voting rights interests in Mobile, Alabama than there were in Dallas and --

QUESTION: Didn't White v. Regester involve legislative districts, representative democracy?

MR. BLACKSHER: The state

QUESTION: Not the executive and legislative and administrative government of a municipality, did they?

MR. BLACKSHER: But the principle of White --

QUESTION: Isn't that one of the issues here suggested by Mr. Justice Rehnquist's concurring opinion in Wise v. Lipscomb?

MR. BLACKSHER: That's correct. We --

QUESTION: You haven't talked about that at all.

MR. BLACKSHER: I would mention it. I would say that I think that the issue is foreclosed by some earlier opinions. I think Allen v. State Board of Elections, Perkins v. Matthews, City of Petersberg, City of Richmond, Beer v. United States, United States v. Sheffield --

QUESTION: You are mixing up a lot of -- Beer was a Voting Rights Act case, not a constitutional case.

MR. BLACKSHER: All of the cases I cited were Voting Rights Cases --

QUESTION: All of those and they came out of the statute.

MR. BLACKSHER. Which recognize that dilution was a wrong for which there was a federal remedy of --

QUESTION: Because the statute covers political subdivisions.

MR. BLACKSHER: Avery v. Midland County extended the one person-one vote principle to the local level --

QUESTION: But that was a constitutional case.

MR. BLACKSHER: That's correct, and that was what Justice Stewart was I think getting to --

QUESTION: That's right.

MR. BLACKSHER: -- where is the constitutional precedent for extending dilution or White v. Regester to the local level. And that gets back I guess to what I was saying earlier. How can you extend one person-one vote to the local level and say that it is a more fundamental principle than the right of blacks not to have their voting rights abridged, which is what the constitutional mandate is in the first place.

Thank you.

MR. CHIEF JUSTICE BURGER: Very well.

Mr. Turner.

ORAL ARGUMENT OF JAMES P. TURNER. ESQ., AS AMICUS CURIAE, SUPPORTING APPELLEES

MR. TURNER: Mr. Chief Justice, and may it please the Court --

QUESTION: Mr. Turner, before you commence, I would be interested in knowing what groups you think are encompassed by the term "race" in the Fifteenth Amendment.

MR. TURNER: Well, that is a question on which the Court has thus far given us very little guidance; certainly the purpose, the original purpose of the Fifteenth Amendment was to secure the franchise for newly freed black citizens.

QUESTION: Clearly.

MR. TURNER: So that is clearly covered. It is also on occasion be applied in other circumstances to other ethnic minorities.

QUESTION: Does it include Mexican-Americans?

MR. TURNER: I would, yes, sir.

QUESTION: And I think your colleague would include Orientals. What about Indians?

MR. TURNER: I think they would be covered as well, sir.

QUESTION: And Puerto Ricans?

MR. TURNER: Yes, sir.

QUESTION: What about Socialists?

MR. TURNER: I have no opinion about Socialists, Mr. Justice Powell.

QUESTION: Well, would it, Mr. Turner, include any national group that was the subject of or object of determination of discrimination?

MR. TURNER: I really think, Mr. Justice Rehnquist, that we ought to approach questions under the Fifteenth Amendment as we do in other areas on a case-by-case basis. And what we have here is a case involving blacks. What we have in the United Jewish organization is a case involving Jews and in each one you are going to be able to make an assessment of the factual situation, you are going to be able to compare the legislative history and the constitutional history and make a coherent judgment.

QUESTION: But you had no trouble saying that Hispanic Americans would be included.

MR. TURNER: None at all.

QUESTION: What leads you to be able to answer that question so easily and yet shy away from any expansion into other national origin areas?

MR. TURNER: Because I think that one of the touchstones that I get out of this Court's opinions on the Fifteenth Amendment is that it is directed towards the protection of the suffrage rights of traditionally discriminated against groups, and I think that includes Hispanics, and includes Puerto Ricans, it may in cases include Asian-Americans.

QUESTION: Could it ever include whites?

MR. TURNER: Surely, as the Court at least in majority seemed to say in United Jewish Organization.

QUESTION: How about Mormans?

MR. TURNER: That would be a religious group and I know of no basis under the Fifteenth Amendment directly to cover Mormans, although if there were compelling circumstances and they were a discriminated against group, it strikes me that the Court might well entertain the argument although I don't know how it would come out.

The one underlying concern that I think many people have about this case is its scope. There are lots of large elections in this country, there are lots of different minorities, as we have just gone through, and the question I think suggests itself of whether by affirming the decisions below, the Court would be taking a giant step towards requiring constitutional reform of hundreds of cities.

Now, if I make no other point today, I want to argue that on this record the electoral practices in Mobile are in a special category. These cases do not present the normal, operation of your regular garden variety at-large election system that all of us are familiar with and which have produced competent governments across the land.

QUESTION: Mr. Turner, you speak for the United States here, for the Department of Justice. Now, over recent years the federal government has engaged in a great many activities, legislative, executive and otherwise to insure the rights of minorities to have housing and in an integrated way with all other people. Is that not right?

MR. TURNER: We have made in my department every effort to enforce the Fair Housing Act which so far we have regarded as a freedom of choice statute.

QUESTION: Now if you succeed in that enterprise widely, then district elections won't help very much, will they?

MR. BLACKSHER: Not if we succeed at the measure of success that is not so great at this point or foreseeable --

QUESTION: Well, not that it is right now, but if you succeed, if your objective is a sound objective, and Congress has decided that it is, how do you reconcile that with the insistence on a program that will furnish an incentive for people of a particular category to live in enclaves, whether they be Indians, Puerto Ricans, Orientals, Spanish surnamed people, whatever? How do you reconcile those two things?

MR. TURNER: I think that as long as you have a situation as in Mobile, where at-large systems are used racially to dilute minority votes, there will be no progress away from block voting. And when minorities are able to elect members of the government, our experience is that the stigma that once attached to race quickly dissolves. Birmingham is an example, as Mr. Rhyne mentioned. Tomorrow a black councilman, not a private citizen but a councilman is in the runoff for mayor. While there is no record of the facts there, the participation -- his particulation in local government certainly was of assistance in getting him into the runoff.

So I think at this stage in the history, where there are ghettos and where there are separate residences, and the record here shows that you couldn't divide Mobile into three districts without one of them being majority black, it is that kind of housing segregation we are talking about, and no effort by my department to enforce the Fair Housing Act is going to change that in the next few years.

So Mobile it seems to me is not a situation like Marion County, Indiana in the Chavis case where blacks just got on the wrong side in elections and therefore lost. Here the blacks have formed a political group, the Nonpartisan Voters League, and repeatedly have attempted to form coalitions with like-minded white voters, but it has been repeatedly unsuccessful.

My time is very short, but I would like to point out a couple of things to you. Mr. Rhyne has spoken about the powers of the league's endorsement. This endorsement is made on a pink sample ballot and it is true that many candidates seek this support, but it is not described how the league has to withhold release of that endorsement, keep it secret until sometimes within hours of the poll operations. State Senator Eddington, a white Senator, testified that he has twenty years experience in Mobile politics. He says it has to be held up before the election because those who don't get the endorsement want to get copies and spread them out to other areas in Mobile County to use against the candidates that were endorsed. The result is that black supported candidates frequently get into the runoff --

QUESTION: Is there anything in the state law or federal law that would prohibit that process of circulating it in other districts?

MR. TURNER: No. What we are trying to find out, it seems to me, is whether Mobile is a situation like Marion County, Indiana, where blacks were Democrats end they lost elections and they came to this Court complaining that they lost more elections than they should and they didn't have enough representation and the Court said that's tough because you've made political choices and you had a fair chance.

Now, if Mobile was like that, we wouldn't be here, but the two courts below have said it isn't like that and I am trying to point out the basis for their reasoning. So when you get to the runoff election and there is a black supported candidate whose pick endorsement has been made known now, there is no way to hide it any longer and that is where you get what one expert called the "kiss of death." The record has several examples, but let me just give you one.

If you will turn to page 593 in Volume II of the appendix in the Mobile case, that is No. 77-1844 -- the numbers are at the bottom --

QUESTION: Page 590 --

MR. TURNER: Page 593, Your Honor, Volume II. The numbers are at the bottom.

QUESTION: Volume II seems to begin with page 821.

MR. TURNER: The numbers are at the bottom, Your Honor.

QUESTION: Oh.

MR. TURNER: There was a Mobile person, Mrs. Gerre Koffler, a white resident, who decided to run for the school board in 1972 because she wanted to see if there was some way we could make the April Supreme Court decision work in Mobile, that is your decision in Davis. She obtained the league's endorsement, she got into the runoff, and if you look at page 593 you will see the kind of ad that came out after the endorsement was made public. It shows a picture of a black leader, John LaFlore, it shows the white candidate, it alleges such scurrilous things as "she has entertained blacks in her home, she has been seen and photographed in company of blacks," but it also shows the exact vote she got in each black ward --

QUESTION: I gather Gerre Koffler is a female, you call her she.

MR. TURNER: Yes, Your Honor.

QUESTION: Has there ever been a woman commissioner?

MR. TURNER: I am unaware of that, Your Honor. I am sure local counsel would be able to enlighten you on that.

QUESTION: Are woman a minority or a majority of voters in Mobile?

MR. TURNER: I'm not sure whether they are a majority or a minority. I believe by most accounts they are a slight preponderance.

QUESTION: Of the population generally?

MR. TURNER: Yes, sir.

QUESTION: But you don't know about the voters in Mobile?

MR. TURNER: Right, Your Honor.

QUESTION: District elections wouldn't help that situation, would it? Women don't tend to live in particular enclaves or ghettos.

MR. TURNER: Not in my experience.

If you turn to page 595, you will see a similar ad run in the same runoff election against another white candidate whose black support had been revealed by the primary election, and it is the same story, the "kiss of death" is right there. So it is not just this kind of racial voting. There is more in this record. There are other aspect in Mobile that are unique, is the at-large elected -- in one at-large legislative election, white Democrats and Republicans agreed --

QUESTION: May I ask you a question that always puzzles me in these cases. I don't know who sponsored these ads, but no doubt a group of people who were against having blacks be elected to public office. Whose intent is really most important here? I suppose you can always find in a community some very strong anti-black sentiment, maybe in the legislature, maybe in the city council. What group of people if any should we focus on in the intent issue?

MR. TURNER: Well, it is a very troublesome thing, and I think it may depend on which amendment you want to talk about. Intent is very nebulous, especially in a case like this.

QUESTION: What do you understand it to mean or what do you understand the court below to have held on the intent issue?

MR. TURNER: I understand that as in Norwood v. Harrison, where Mississippi since 1940 had maintained a textbook program and then when desegregation of schools came, that program mushroomed to provide books to the private schools. It was the evolution, the changing circumstances that eroded what had been a perfectly proper state purpose into an illegitimate unconstitutional one by the decision of this Court.

So if you are talking about that kind of change, that kind of evolutionary change, it is very hard to --

QUESTION: Here we are talking about a refusal to make a chance.

MR. TURNER: Right.

QUESTION: And in this kind of case, whose intent should we look at?

MR. TURNER: Well, it is the same thing in Norwood, I submit. But here if you go in the Fourteenth Amendment, I say you look at the legislative intent.

QUESTION: The state legislature?

MR. TURNER: The state legislature.

QUESTION: Then each of these pamphlets here are not relevant on that intent issue.

MR. TURNER: No. Now, if --

QUESTION: Does it have any relevance at all to the case?

MR. TURNER: If you go on the Fifteenth Amendment in the case, Your Honor, we have outlined in the brief how this Court's precedents, especially Terry v. Adams, have held that by a state adopting private purposeful discrimination --

QUESTION: Let me put the question this way: If it is the legislative intent that is controlling, suppose everybody in Mobile wanted to have blacks fairly represented into three districts without one off them being majority black, it is that kind of housing segregation we are talking about, and no effort by my department to enforce the Fair Housing Act is going to change that in the next few years.

So Mobile it seems to me is not a situation like Marion County, Indiana in the Chavis case where blacks just got on the wrong side in elections and therefore lost. Here the blacks have formed a political group, the Nonpartisan Voters League, and repeatedly have attempted to form coalitions with like-minded white voters, but it has been repeatedly unsuccessful.

My time is very short, but I would like to point out a couple of things to you. Mr. Rhyne has spoken about the powers of the league's endorsement. This endorsement is made on a pink sample ballot and it is true that many candidates seek this support, but it is not described how the league has to withhold release of that endorsement, keep it secret until sometimes within hours of the poll operations. State Senator Eddington, a white Senator, testified that he has twenty years experience in Mobile politics. He says it has to be held up before the election because those who don't get the endorsement want to get copies and spread them out to other areas in Mobile County to use against the candidates that were endorsed. The and was giving them excellent services and were promptly prosecuting people who burned crosses and everything was going along fine, if you had a majority of the state legislature who said we don't want any blacks in the government in Mobile, would it be the same case?

MR. TURNER: I'm not sure, certainly not under the Fifteenth Amendment because it is our submission that under the Fifteenth Amendment that there is certainly state involvement in running elections and in running at-large elections in Mobile, and there certainly is private discrimination, just like there was in the Jay Bird Club, and by the state magnifying and making use and making effective that private discrimination, it is the same principle as Terry v. Adams that would apply. So you use the private discrimination that is implemented by State procedures.

Thank you.

MR. CHIEF JUSTICE BURGER: Very well, Mr. Turner.

Mr. Rhyne.

ORAL ARGUMENT OF CHARLES S. RHYNE, ESQ., ON BEHALF OF APPELLANTS (MOBILE) -- REBUTTAL

MR. RHYNE: If the Court please, I only have two comments and then, unless the Court has some questions, I have no further argument.

I am really amazed of the government of the United States trying to use a school board race exhibit on 593, a county commission race on 595 against the city.

I pointed out in my argument that the two are entirely different, and I think that this shows how weak their case is if they would stoop that low.

Now, I would be glad to answer any questions the Court has, but my time is just about up.

QUESTION: Well, those exhibits, Mr. Rhyne, do show that apparently there was some evidence that there was black voting on racial lines there, doesn't it?

MR. RHYNE: Well --

QUESTION: I suppose if there was black voting on the school board or on the county election, it is reasonable to infer that there would be black voting on the other kinds of --

MR. RHYNE: But the school board is county-wide and the county is county-wide. It is an entirely different constituency, as Mr. Alexander pointed out in the record, from the constituency in the city. So to try to --

QUESTION: Well, there is some overlap, isn't there?

MR. RHYNE: Oh, there is some overlap, sure. I wouldn't deny that for one minute.

QUESTION: Do you challenge the District Court finding that there was racial block voting within the jurisdiction we are talking about?

MR. RHYNE: I would say I do. It is lessening, according to expert Boyles and that more and more throughout the South as well as in Mobile race is not a factor in all elections.

QUESTION: Whoever put out these pamphlets apparently thought it was.

MR. RHYNE: Well, I think that those pamphlets were used in a different race for difference purposes and had nothing to do with the city.

Thank you.

MR. CHIEF JUSTICE BURGER: Very well, Mr. Rhyne.

Mr. Allen, you may proceed whenever you're ready.

ORAL ARGUMENT OF WILLIAM H. ALLEN, ESQ., ON BEHALF OF APPELLANTS WILLIAMS ET AL.

MR. ALLEN: Mr. Chief Justice, and may it please the Court:

This case concerns the legality of the way the commissioners, the school commissioners of Mobile County are elected.

Mobile County encompasses the City of Mobile and a rather large surrounding area which includes some other smaller cities. Overall, the population of the county is divided racially in about the same proportions as the city. Blacks make up 32 percent of the county's population and I think 24 percent of its voters.

Mobile County's school system was the first to be established in Alabama in 1826, seven years after statehood. Since that time probably, and at least since 1836, when a new statute governing the school system was enacted, the members of the governing body of the school system have been elected from the county at large. The current statute under which they have been elected, it was enacted in 1919, provides for the at-large election of five commissioners. They are elected in partisan elections held in even numbered years for six-year staggered terms.

As a board, the commissioners are responsible for the overall direction and management of the Mobile County schools. They hire a superintendent who is responsible under their direction for the day-to-day management. Now, certain salient points appear from the findings below or the undisputed evidence of record concerning the school board's elections and their relation to the black population of the county.

First, the system of at-large elections for Mobile County school board members was not created for any racially discriminatory reasons. As I have already indicated system has deep roots in the history of Alabama and of Mobile in particular. It was first established in 1836, no later, at a time when blacks did not vote and the last reestablished in 1919 at a time when blacks were still effectively disfranchised.

Second, the second salient point is notwithstanding the history of racial discrimination in Alabama and Mobile, there are today no barriers, no barriers formal or informal to black participation in Mobile County's political process. Blacks are free to register and vote and they do vote nearly in proportion to their proportion of the voting age population. Their votes are sought for. The only significant candidate endorsing body that appears to operate county-wide in Mobile County is what you have heard about, that is the Nonpartisan Voters League.

QUESTION: Is that the same league that we heard about in the opening case?

MR. ALLEN: Yes, it operates in the county --

QUESTION: And city --

MR. ALLEN: -- and the city as well, yes.

QUESTION: It is not two different organizations.

MR. ALLEN: No, the same organization. They are predominantly black, true, and there is no comparable white group, no backstage or even front-stage slating organization of the kind that the Court may have been concerned with in some other cases, no slating really in that sense.

QUESTION: Is there anything in the record that shows who pays for all of this advertising of political stuff?

MR. ALLEN: I'm sorry, Your Honor?

QUESTION: Is there anything in the record that shows who pays for these advertisements and other things that normally help in political campaigns?

MR. ALLEN: There is not, Your Honor. One can infer that the advertisements were paid for by the candidate running against the candidate who is disfavored in those ads, if that is what Your Honor means.

QUESTION: No, I think I know enough about politics that money doesn't come out of the clear blue sky.

MR. ALLEN: There is no record evidence about the --

QUESTION: So I am still in the same place.

MR. ALLEN: Yes. In any event, in that regard, anyone is free to run for office and the fact is that a school board campaign does not cost very much. Up until very recently, the school board members have not been paid at all and they are still paid rather nominally. So a typical campaign budget runs no more than $2,000, $3,000 to $5,000, according to the record.

QUESTION: How many members of the school board?

MR. ALLEN: There are five members.

QUESTION: And are they elected to staggered terms?

MR. ALLEN: They are elected for six-year staggered terms, two, two, and one system.

QUESTION: Is it a per diem compensation they get or --

MR. ALLEN: It is a per meeting compensation.

QUESTION: Per meeting.

MR. ALLEN: Yes. Yes. Now, the third salient point -- and I have to acknowledge this for the record of this case, whatever may be the case in the city's case -- there does appear to be racial polarization in voting.

Four black candidates ran in the Democratic Primary for the school board between 1962 and 1974. Each of them reached the runoff election, although each was a first-time candidate for public office. Each was defeated in a runoff against a white opponent.

Now, on the basis substantially of what I have recited plus a few more rather tangential items, the District Court concluded that the at-large manner of electing Mobile County school commissioners violates the Fourteenth and perhaps the Fifteenth Amendments. The District Court made its analysis of this issue within the framework of the so-called Zimmer factors, factors that the Court of Appeals had professed to distill from this Court's opinions.

The Court of Appeals performed that distillation in a case called Zimmer v. McKeithen before Washington v. Davis was decided, and they were obviously -- the Zimmer factors were intended to measure the discriminatory effects of an at-large system.

The District Court's ultimate conclusion in this case was that the plaintiffs had met their burden by showing an aggregate of the factors catalogued in Zimmer. The Court of Appeals affirmed in a very short per curiam opinion without hearing argument and referring merely to a prior decision in the City of Mobile's case.

The District Court's remedy for the constitutional violation it found was to create five districts, two of which are preponderantly black in population. The Court of Appeals also affirmed this remedy, the judgment was not stayed, elections were held and the two predominantly black districts in 1978, the two black candidates were elected to the board and now sit.

I am not going to dwell this morning on the District Court's Zimmer analysis in what we conceive to be its flaws which are thoroughly explored in our briefs. If the plaintiffs continue to defend that analysis either as it was actually engaged in by the District Court or as it was transmuted by the Court of Appeals by other cases into the equivalent of a finding of purpose rather than effect, they do so I think very faintly at this stage.

What the plaintiffs essentially rely on in this Court is something different, a passage, one passage of the District Court's opinion that is wholly removed from the analysis on which it purported to base its opinion. That is a passage in which the court does indeed talk about a present purpose to discriminate. Now let me take up the District Court's opinion.

It first made findings of fact arranged under each of the Zimmer headings. These are at pages 9 to 22 of the appendix. And then it turned to the conclusions of law. The passage on which the plaintiffs rely appears in a section of the conclusions of law where the court was addressing itself for nine pages to the impact of Washington v. Davis in vote dilution cases. It asked whether Washington v. Davis was dispositive of this case so as to preclude application of the Zimmer factors.

Now, at page 34 it made a comment about a --

QUESTION: Page 34 of what?

MR. ALLEN: Page 34 of our appendix, 34a of the appendix.

QUESTION: Thank you.

MR. ALLEN: It talked about a present purpose to dilute the black vote. Now, I submit that that is not a findings of a present purpose to discriminate. The plaintiffs have tried to make of it a finding, have talked even about the two court rules and urged deference to that finding, but it isn't a finding, isn't even really a legal conclusion. It is sort of conjecture on the part of the District Court at the best and really more likely a statement of a discarded alternative legal theory for deciding the case. Because what the court finally says down near the bottom of page 34 is that more basic and fundamental than any of the above approaches is that, and then it goes on and I suggest says that Washington v. Davis established no new purpose test so far as voting dilution cases are concerned, and that was the answer to the question that had posed itself at the beginning of this part of its opinion and --

QUESTION: Mr. Allen, taking that page of the appendix to which you are addressing, the last sentence in the paragraph in the middle of the page, the court says there is a "current" condition of dilution of the black vote resulting from intentional state legislative inaction which is as effectual as the intentional state action referred to in Keyes.

QUESTION: May I interrupt to say I am lost. I have 34b but I --

MR. ALLEN: Of the appendix, I'm sorry, Your Honor, of the appendix.

QUESTION: 34a of the appendix?

MR. ALLEN: 34a of the appendix. I'm very sorry.

QUESTION: And it begins at the top of the page, "This is not to say," quoting?

MR. ALLEN: Yes.

QUESTION: All right.

MR. ALLEN: Yes, Your Honor.

QUESTION: All right. Thank you.

MR. ALLEN: Okay.

QUESTION: Wouldn't you at least concede that that is a finding of intentional state legislative inaction? You may feel that is not the same thing as intentional action.

MR. ALLEN: I suggest, Your Honor, the point I sought to make was that I do not consider that a -- I do consider it indeed a statement of whatever is said there. It is not I suggest a finding in any customary sense of that. He had made his findings of fact elsewhere and he really had not addressed himself at any length to what might underlie a finding of current intentional state inaction.

But I will go on and say that we can suppose that this passage really did mean to conclude far more than it seems to have on its face, that the at-large elections involves a present purpose to discriminate through state inaction.

Now, the further question is what record facts are there that might support such a conclusion. The court mentioned one specific fact on the preceding page, and there it said -- and these are its words approximately -- whenever a redistricting bill of any type is proposed by a member of the Mobile County legislative delegation, a major concern is centered around how many if any blacks would be elected. He does say that.

Now, the fact is that in spite of that concern, or perhaps even because of it, the legislature in 1975 did enact redistricting legislation for the Mobile County school system. That legislation was voided on the suit of the school board because of a defect in notice that rendered it invalid under the state constitution.

Now, the plaintiffs seek to make a great deal of this invalidation, and I think what they would have this Court rule is that the districting legislation and its invalidation somehow constitute evidence of a present purpose to discriminate. The least that can be said in response to that, Your Honors, is that the District Court did not so treat it and made no such finding. And I would suggest further that the federal judicial inquiry that might even yield such a finding would be an undertaking of extreme delicacy.

I submit that this Court should not be asked to make the sort of Judgment on the Alabama legislature that appellees state or imply on the basis of nothing more than what appears in this record. So when the specifics are out of the way that the District Court cited, and if we forget the 1975 enactment that on its face looks the other way, what we have at the very most, at the very most is state legislative inaction that maintains a non-racially motivated at-large voting system and an awareness on the part of at least some legislators of the disparate racial effects of that system.

Now, I submit that to make a finding or to draw a conclusion of a present purpose to discriminate on the basis of this perpetuation arguably of discriminatory effects through inaction is exactly what this Court rejected last term in Personnel Administrator v. Feeney, and indeed in the Feeney case there was more than mere inaction.

The Massachusetts Veterans Preference law had been amended from time to time and effectively reenacted, and the Court did not blink at saying that there must have been full awareness on the part of the general court that the legislation was keeping a disproportionate number of women out of the higher levels of the civil service, but that wasn't enough. That wasn't enough. To have made it enough would have undermined the rule of constitutional law with which the Court began its analysis in Feeney, and that rule stated, even in the paradigm case of race, that is what the Court said, even if a neutral law has a disproportionately adverse effect, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.

Now, let me stop there for a moment and just say a word about the Fifteenth Amendment. The Court of Appeals held in the companion cases -- one doesn't know what the court may have meant to hold in our case because its opinion is not at all revealing, but in the companion cases, the Court of Appeals held that the Fifteenth Amendment imposes the same purpose requirement, and we have urged in our briefs -- I will not expand upon the points now but I think they are adequately made there -- that the Court of Appeals was quite right that one does not escape the problem that is posed under the Fourteenth Amendment in this case by turning to the Fifteenth Amendment.

QUESTION: Assuming there were a private cause of action in the Voting Rights Act, what do you say about the Voting Rights Act?

MR. ALLEN: I was just about to turn to that, Your Honor, and I would say further two things under the Voting Rights Act. One, the argument that is made here is made most belatedly. To be sure, the Voting Rights Act has been in the case. Section 2 of the Voting Rights Act has been in the case from the beginning. It has never been suggested until we reached this Court that it might have a different content from the Fifteenth Amendment. And what the government says in its amicus brief about section 2 of the Voting Rights Act, it seems to me to capsule what it is and why it also does not offer a way out of what may be the problem posed by this case.

In a footnote on page 84 of its brief, the government says section 2 represents Congress' rearticulation of the Fifteenth Amendment, and that is what it amounts to. It is not section 5. It does not read the same way as section 5.

QUESTION: Yes, but the government doesn't think necessarily that purpose is essential in the Fifteenth Amendment.

MR. ALLEN: The government does --

QUESTION: So you are not really making much of a point.

MR. ALLEN: Oh, I understand that but independent of what the government says, we believe that the legislative history does indeed show that --

QUESTION: Let me go at this in two steps.

MR. ALLEN: Yes.

QUESTION: One, do you think the argument is available in this Court by an appellee that the Voting Rights Act is an issue here and should be disposed of first

MR. ALLEN: Yes.

QUESTION: -- and that the Voting Rights Act covers effect as well as purpose?

MR. ALLEN: I will answer the first part of the question. I say I think the issue is here. Whether the Court would wish to remand for development of the point is a separate subject.

QUESTION: So the issue of the Voting Rights Act is fairly here?

MR. ALLEN: Yes.

QUESTION: How about the issue of the Voting Rights Act covering effect as well as purpose?

MR. ALLEN: Do I think that is a legitimate issue here?

QUESTION: Yes.

MR. ALLEN: Yes, I think that is all the more reason for a remand were the Court not to think that on its face section 2 is a mere restatement of the Fifteenth Amendment, yes.

QUESTION: And do you think that, as you understand our cases, we should dealing with the Voting Rights Act first --

MR. ALLEN: I think that --

QUESTION: -- in any opinion that we write in this case at least either on the merits or at least put the issue aside?

MR. ALLEN: I think it would be fair to put the issue aside. I think it would also be fair -- I happen to believe on the merits that the Voting Act meaning issue is not a difficult one and that it does come down to meaning the same thing as whatever Your Honors think the Fifteenth Amendment means.

QUESTION: Is your response to Justice White's question predicated in any way on an assumption that there is or is not a private cause of action under --

MR. ALLEN: Well, if he asked me to make that assumption --

QUESTION: I'm sorry, I misunderstood.

MR. ALLEN: -- has to be hurdled in getting to section 2 of the Voting Rights Act, to be sure, and we have urged in our reply brief at some length why it should not be read as creating private cause of action. It has never been so read to this time that I am aware of.

Let me return to Feeney and make one final point in respect to that opinion as it bears on our case. The Court there spoke of the impact of veterans preference on women as essentially an unavoidable consequence of a legislative policy that has always been deemed to be legitimate.

So far as the legitimacy of state policy is concerned, if veterans preference is a legitimate legislative policy, then surely the policy of at-large municipal elections, the policy that antedates the Constitution still prevails in hundreds, even scores of communities throughout the country, is a legitimate policy.

And as for the inevitability of the adverse consequences of pursuing the policy, one can hope that the unfortunate consequences of at-large elections are not unavoidable or inevitable --

QUESTION: I take it it is pretty fairly your position that a municipal at-large election or a -- for the purposes of state legislatures, a county-wide at-large election or a multi-number district, electoral district for the election of, say, ten share representatives, neither of those arrangements at-large is shown to be unconstitutional if you have also a very clear proof of voting on racial lines.

MR. ALLEN: Even though one has that proof --

QUESTION: Even though -- let's say anybody in his right mind would say yes, there is pretty clearly racial lines --

MR. ALLEN. No --

QUESTION: Putting those two together, it doesn't equal --

MR. ALLEN: -- it does not add up to the constitutional or statutory violation on which this case is based. Yes, that is exactly our point, Your Honor. We believe that that is the beginning point of analysis. The problem arises when somebody gets exorcised and brings a lawsuit when he sees an at-large system of elections and what can be termed racially polarized or block voting. The inquiry proceeds from that point, the inquiry proceeds from that point, it doesn't end there, and our concern here is that we think the District Court essentially ended its inquiry there.

QUESTION: Let's proceed one step further beyond the assumptions Mr. Justice White made. Assume the record does demonstrate and there is an appropriate finding of a present intent to maintain the system in order to prevent black participation in the school board. Would that constitute a constitutional violation when the original law was lawful when adopted? What is your view on that?

MR. ALLEN: All I can say in answer to that, Your Honor, is that if there were indeed the basis for and the kind of finding that I would hope this Court would insist upon, the kind of record that I hope this Court would insist upon to find a present intent of a legislature, then I would have a hard time distinguishing that case from the case in which the statute in its inception was racially discriminatory.

MR. CHIEF JUSTICE: Thank you.

Mr. Schnapper, you may proceed.

ORAL ARGUMENT OF ERIC SCHNAPPER, ESQ., ON BEHALF OF APPELLEES BROWN ET AL.

MR. SCHNAPPER: Mr. Chief Justice and may it please the Court:

Before turning to the substantive issues presented by the case, I think it might be useful to lay out some of the procedural problems about the way the Court will choose to address the variety of issues presented here. Some of them have come up before and some of them have not.

One issue which Mr. Allen raised and which has been raised by earlier questions is whether or not to deal with the statutory question that is I think unquestionably presented by the case.

The Court has for many years maintained a policy which it has attempted to persuade the lower courts to follow of deciding statutory issues first and only reaching, constitutional issues if necessary.

As this case and Beazer and Bakke all illustrate the lower courts have not been assiduous in attending to that rule, and the question before the Court is how the Court is to act when the lower court has not followed your preferred procedure.

I think that there are three options, one of which should not be taken. The one that should not be taken is the option taken in Arlington Heights, which is to decide the constitutional question and remand for decision on the statutory question. As you may remember, after ruling for the defendants on the constitutional question in that case, or opinion which provoked some dissents and made a lot of law that may or may not have been necessary, on remand the Court of Appeals reached the statutory issue, ruled for the plaintiff, and this Court denied cert, So that entire opinion, with all it ramifications, and we deal with many of them today, was unnecessary.

I think that following that course would be unwise not only because it leads you into deciding unnecessary issues but because it doesn't -- I would lead the Courts of Appeals by example, and that was not the kind of example I think you wanted to give them. I think the two options you have are, first, and I think this is the proper option, to do what you did in Bakke, to decide the statutory issue first, reach the constitutional issue if necessary, or you could wipe the whole case out and send it back and tell the Court of Appeals to do it right the first time.

QUESTION: Of course, your first option which you say you prefer is going to lead to some undesirable practices, too, on the part of people who have lost on a constitutional question in a lower court because they can just look through the statute books and if they can find a statute that they say, gee, the others I might have won on this statute, therefore it was unnecessary to reach the constitutional question, they will have a built-in argument for at least a remand.

MR. SCHNAPPER: I think they've got to look through a different volume. They're got to look through the appendix and take a look at the complaint.

QUESTION: Yes.

MR. SCHNAPPER: If it is in the complaint, that is one thing. I would --

QUESTION: But under notice of pleading under the Federal Rules of Civil Procedure, you don't have to state the statute you rely on, all you have to do is plead alleged facts sufficient to support a claim for relief.

MR. SCHNAPPER: But the practice of this Court has generally not been to permit litigants to raise issues which in no way have been raised below. So I think it would be perfectly proper, and I think consistent with the past practices of the Court that if a litigant wanted to raise a statutory issue which had in no way been raised by the complaint or briefs below, to preclude them from doing that.

QUESTION: You don't go so far as to say that the parties must raise a possible statutory issue along with a constitutional issue?

MR. SCHNAPPER: I would say --

QUESTION: Suppose the parties constructed their case as a constitutional case, if they want to, can't they?

MR. SCHNAPPER: Well, I would think that would be terribly unwise and I --

QUESTION: Well, it may be unwise but they may. I suppose your answer might be that even if they do, perhaps here the court would have, if they come from federal courts, I suppose this Court would have the power to insert another issue into it, but you wouldn't say it was error for lower courts to decide the Constitutional issue if the parties had never raised anything but the constitutional issue.

MR. SCHNAPPER: I would say it was an error on the part of the Court of Appeals to have done that. I think it would have been entirely within the discretion of the court to refuse to entertain a new statutory claim in the first instance here. On the other hand, quite frankly, there have been cases where you have chosen to entertain new statutory issues for reasons having to do with subsequent developments and also some -- I wouldn't want to suggest that you lock yourself into a ritual that you will never do that. I think you ought to retain the power to go either way.

QUESTION: What if in Arlington Heights the defendants there had said we simply want a decision on the constitutional question, we are willing to assume the complaint states a claim for relief under the federal statute and all we want to litigate is the constitutional question, what should the District Court --

MR. SCHNAPPER: Then I would have denied cert, because it was a defendant's cert petition. They won below, and you can't file --

QUESTION: Well, what should the District Court have done in deciding the thing in the first instance?

MR. SCHNAPPER: Well, if the defendants had wanted to come in and concede the existence of a statutory claim and asked for a decision on the constitutional claim, I assume the District Court would have accepted their concession, ruled for the plaintiffs, and that would have been the end of it.

QUESTION: So it could not then go to the constitutional case?

MR. SCHNAPPER: Well, I can't imagine why a district judge facing a concession of liability under statute would decide a constitutional issue as well.

QUESTION: Well, what if the defendant said, let's assume for the sake of argument, we don't concede but we think the most important thing here is the constitutional question?

MR. SCHNAPPER: No district judge it seems to me would act properly to let the defendant control the order of decisions and to ignore the policies of this Court to decide statutory issues first.

QUESTION: I agree but I think there are a let of district judges that don't.

MR. SCHNAPPER: Well, I think there are, too, and there are some Courts of Appeals judges who don't and it is upon that point that I began my suggestion that you deal with this the way you wanted the Court of Appeals and the District Court to deal with it, and that is to decide the statutory issue first.

The second problem pertains to something quite related to this, and that is the question of whether new issues can be raised for the first time here on appeal, and we're got two things that seem to be in that posture. The first one is the question of whether or not White v. Regester and the doctrine therein applies to municipal governments.

This case is in precisely the same posture as Wise v. Lipscomb, it was never raised below in the District Court or the Court of Appeals. The policy of this Court is not to permit things to be raised at the last moment and we think you should adhere to that.

On my reading of the record, the same thing is true about whether or not there is a private cause of action under section 2. As you recall, with the exception of Mr. Justice Stewart, most members of the Court were of the view in Bakke that that issue not having been raised below could not be raised in that particular case at first instance here. And we think that the question of whether there is a private cause of action under the Voting Rights Act is in that posture, in the same posture that the private cause of action under Title 6 was in Bakke. I say that without meaning to signal any lack of confidence in our argument that there is a private cause of action, but again as a procedural matter the Court has practices which would be applicable to dealing with it.

QUESTION: Wait a minute. I don't understand what you are saying. First of all, I didn't understand the reference to me. I think it was intended to be with reference to Mr. Justice White, but that is neither here nor there in the Bakke case.

What I don't understand here is what you have just told us about whether or not the private right of action under Title 2, section 2 exists. As I understand it, the District Court in this case didn't rest at all on the statute. Is that correct?

MR. SCHNAPPER: Right, just like the trial court in Bakke didn't rest on the statute.

QUESTION: And the Court of Appeals relegated the issue to a footnote, is that also correct?

MR. SCHNAPPER: That's right.

QUESTION: And what does the footnote say?

MR. SCHNAPPER: As I recall, they didn't think a whole lot of the argument, but if I remember there is a companion case --

QUESTION: Well, one of the reasons they didn't want --

MR. SCHNAPPER: -- which explains why they did not seek to --

QUESTION: One of the reasons they did not hold onto the argument was they might have thought offhand, my golly, there is no private right of action under section 2.

MR. SCHNAPPER: Well, I don't think you could read that into it.

QUESTION: No.

MR. SCHNAPPER: I am trying to give you an agenda of the problems in the case and that is one of the issues you are going to have to sort out. I think --

QUESTION: Well, certainly section 2 is not dispositive and couldn't be here if there is no private right of action under section 2.

MR. SCHNAPPER: And if --

QUESTION: Isn't that true?

MR. SCHNAPPER: Yes, that's girth. That's right no question about it.

Third, there is a problem raised in both of the cases here about what was referred to loosely as the two-court rule. With regard to what particular cases, I think particularly Justice Stevens' questions have pointed out, we maintain that there is a finding of intentional discrimination, and Mr. Allen takes the position that if there is such a finding it isn't justified on this record.

If the Court were sitting or you were riding circuit, of course we would be in a very different posture than we are in now, but the normal practice of this Court and a salutary practice at that is not to get into factual issues of that sort when they have been resolved by the lower courts.

The factual record on which the District Court finding is based is much more substantial than Mr. Allen suggests. There was first direct testimony by members of the legislature as to the motives of the legislature in dealing with redistricting legislation, there was a long history of racial discrimination in Alabama; including a number of cases in which multi-member districting plans adopted by the state legislature had been held by federal courts in other cases to have been racially motivated. And the discriminatory impact of this system among blacks was not only -- is not only pronounced, it was known to everybody in the state and the school board at the time.

So this case presented all the kinds of evidence which Arlington Heights suggested were relevant to this kind of inquiry, and we think the District judge had no choice but to reach the conclusion that he did.

Finally, there is a problem here that really fairly characterizes the problem of stare decisis and it goes particularly to whether White v. Regester is good law. The briefs deal with this in somewhat greater length and the arguments have until now.

I think the --

QUESTION: Which do you mean, still in existence or good?

MR. SCHNAPPER: Pardon me?

QUESTION: Which do you mean, still in existence?

MR. SCHNAPPER: I think it is both of those things.

As we have noted in our brief, White v. Regester was based on a series of decisions before then, it has been cited with approval in half a dozen decisions since White, some of them after Washington v. Davis. White itself was a unanimous decision and a decision only six years ago, and we think the Court should not entertain a general practice of reopening recent constitutional decisions and this one we suggest was in any event quite properly decided.

We also note that the argument against for overturning White is really to legs. One of them is that Washington v. Davis has somehow or other changed the underlying law in this area. We have suggested in our briefs that Washington v. Davis and White v. Regester deal with two different branches of equal protection law, that Washington v. Davis is concerned with the branch of equal protection law forbidding racial, classifications, whereas White v. Regester is part of the Reynolds v. Sims branch of equal protection law concerning special protections for particularly important and fundamental rights.

The other basis of the attack on White, and one which I think has been recurrent in questions before the Court today, is whether White makes any sense, and I think our arguments about wouldn't this all go away if blacks lived everywhere and can't blacks be elected in Los Angeles and the like, all of which on the merits are unpersuasive. In the final analysis, they are arguments that White v. Regester was wrongly decided, and we think that the Court ought not be entertaining that. I think you should start with White v. Regester and we think it would be dispositive to this litigation.

I would like to turn to another issue that arose earlier. When we were here in the spring, Mr. Justice Rehnquist asked whether -- he raised the following question -- we were discussing apparently inconsistent statements about the Voting Bights Act. Attorney General Katzenbach was quoted by our side as stating that section 2 of the Voting Rights Act encompassed the purpose or effect standard. Mr. Justice Rehnquist noted that Senator Dirksen had made a remark about section 2 almost meaning the same thing as the Fifteenth Amendment, and I would like to return to that because I think it is important, particularly in view of my position that the statutory issue ought to be decided first.

If you will revert to the Dirksen quote, you will notice that it doesn't happen on the floor of the Senate, it happens during a hearing, indeed the very hearing, almost at the very hour when Katzenbach testified. Dirksen was one of the members of the Senate Judiciary Committee and was, according to the transcript, in the room at the beginning of the hearing.

Dirksen sat there while Katzenbach said section 2 means purpose or effect. A few pages later, Senator Dirksen says section 2 means almost the same thing as the Fifteenth Amendment.

Now, either of those people -- one has to try to reconcile those statements and, of course, one could reconcile them by accepting our view of the Fifteenth Amendment. But I think that the government's footnote and Justice Stevens' opinion in Bakke suggest a more sensible resolution, which is to say that those two statements were regarded by their spokesmen as consistent with one another because Congress at that point in time regarded section 2 as incorporating the purpose or effect standard which they thought was in the Fifteenth Amendment. And there is a passage, Justice Stevens, in your opinion in Bakke which describes Title VI in the same kind of way, but suggests that Title VI has independent force and it doesn't merely incorporate whatever the Fourteenth Amendment should be held to mean by this Court.

Without wanting to reopen the particular issues that were in Bakke, I think that method of analysis, however persuasive, in Bakke is the correct method of analysis here.

The second thing that comes out when you re-read that passage is the context in which it was made. As you will doubtless recall, one of the primary arguments that was made against the Voting Rights Act was that it was regional in nature, that it singled out a group of southern states for treatment different than the treatment that was being afforded to the rest of the country.

Senator Dirksen, in making that remark about section 2, makes it -- in the context of a paragraph in which he says look at section 2, section 2 covers Texas -- as you recall, Texas was a big bone of contention because the President was from Texas and it wasn't covered -- section 2 covers Texas, so Texas is covered by the Voting Rights Act, too.

Now, if section 2 is merely the Fifteenth Amendment and a purposes standard, then that statement makes no sense at all But, if it --

QUESTION: The Fifteenth Amendment covers Texas. What do you mean by that?

MR. SCHNAPPER: The dispute was about why the Voting Rights Act didn't --

QUESTION: Section 2 covers each of the fifty states, and so does the Fifteenth Amendment.

MR. SCHNAPPER: But the criticism that was being made about the Voting Rights Act was that section 5 didn't apply to all states.

QUESTION: Yes.

MR. SCHNAPPER: And in response to that, Dirksen said, ah, yes, but section 2 does so the act applies all over. Now, if section 2 had no substantice force at all, if it set a different standard in section 5, a lower standard, the only purpose would give you a cause of action, then it was -- and that was the same standard as the Fifteenth Amendment -- then to say that section 2 covers Texas, so the act applies there was rather unpersuasive, because section 2 wasn't --

QUESTION: It was true, that section 2 covers every state, whatever it means.

MR. SCHNAPPER: But it didn't make sense as an argument unless it meant the same --

QUESTION: And the Fifteenth Amendment covers every state, whatever, it means.

MR. SCHNAPPER: But as an argument to convince other members of the committee --

QUESTION: It was a little rhetoric perhaps.

MR. SCHNAPPER: -- well, as rhetoric to convince members of the committee that the act was equally applicable to all states, that only makes sense if the substantive meaning of section 2 was the same as the substantive meaning of the provisions which applied to the southern states.

And as we have noted in our brief, the history of the Voting Rights Act reflects great sensitivity on the part of the Court to the possibility of a regional rule. We don't think that it was the intent of Congress except in the very narrow area which we have noted, having to do with literacy tests, to create a situation in which the same sort of districting system would be illegal in Prince Edward County, virginia and legal in Prince George's County, Maryland, and we don't think Congress should have presumed to have made that kind of distinction unless it is crystal clear that it did.

So that we find that the Dirksen statement is consistent with the Katzenbach statement and with our view of the law.

In addition, Justice Stevens, you asked earlier what the relevance of intent was and it is a rather complicated problem which I would like to deal with very, very briefly, it is complicated because it is relevant to a whole host of issues. This is a case which presents --

QUESTION: I will ask you another question at the same time, while you --

MR. SCHNAPPER: Surely.

QUESTION: Do you think intent was an essential part of the holding in White v. Regester? Do you think the Court relied there on impact --

MR. SCHNAPPER: Absolutely not. It was entirely irrelevant. As we have laid out in our brief, this Court has three times described the rule in White as a rule that means that in these terms is designedly or otherwise diluting the black vote. Whitcomb began with a statement that it was conceded that there was no discriminatory intent and then went on to write for four or five pages. So I think it is crystal clear that intent was no part of White v. Regester.

With regard to the relevance of intent here, this is a case, as we noted in the spring, that raises five or six different legal theories and intent is of different relevance to various of them. With regard to our claim that this election system is intentionally maintained to prevent the election of blacks, the relevant discriminatory intent is the intent of a people who make laws. I phrase it that way because the practical political control of the legislative process is rather complicated and involves primarily the legislative delegation to a significant extent, in this case the school board itself, so I don't phrase it in terms of the legislature, but I think that is consistent with the way you were phrasing the question earlier.

With regard to our claim under White v. Regester, it is our position that racial discrimination by the elected officials is of some relevance to proving the cause of action which we think we have proved here. We don't think it is of much importance as Zimmer v. McKeithen does. We think that racial discrimination by the all-white elected government tends to confirm our claim that they are essentially elected solely by the whites and are solely responsive to the whites in town.

With regard to our Fifteenth Amendment claim, in arguing that the Fifteenth Amendment covers discriminatory effect, we resorted in particular to the legislative history of the Fifteenth Amendment, pointing out that the framers of that amendment were concerned to protect not the right of blacks to put X's on pieces of paper but to give blacks a right that would allow them to protect themselves from racial discrimination by state and local governments, particularly at the end of reconstruction which everybody by 1869 or 1870 knew was inevitable.

If we are correct in that construction of the Fifteenth Amendment, then it would demonstrate the particular relevance of the effect meaning of the Fifteenth Amendment that the right to vote such as it exists in Mobile for blacks is clearly not carrying out the effect of Congress, the intent of Congress.

QUESTION: Is that view of the Fifteenth Amendment consistent with the court opinion in Vermillion v. Lightfoot?

MR. SCHNAPPER: I think Vermillion is fairly described as opaque. One must recall that at the time of Vermillion there were decisions of this Court, a line of decisions which continued up until Palmer v. Thompson and O'Brien v. United States, which suggested that an inquiry into the intent of legislatures were impermissible. So that as of the date of Vermillion, opinions were being phrased rather carefully so they didn't exactly find intent and they didn't exactly find purpose, they were just sort of outraged and said you couldn't do it, and I think Vermillion is in that posture.

QUESTION: Wasn't there a great deal of emphasis in the Vermillion opinion, which I have not read recently, upon the fact that this particular -- the city boundaries in that case could only here been attributable to an intent to disenfranchise non-whites?

MR. SCHNAPPER: I couldn't read Vermillion in that way.

QUESTION: You do not?

MR. SCHNAPPER: I don't read Vermillion in that way. I mean I think that was the intent involved, but I think that the opinion is phrased to avoid making that kind of statement. It would at the time have been quite arguably improper to make, to put that kind of conclusion of law in an opinion.

MR. CHIEF JUSTICE BURGER: Your time has expired now, Mr. Schnapper.

MR. SCHNAPPER: Thank you.

MR. CHIEF JUSTICE BURGER: Mr. Allen, I think we can hear you out before we rise for lunch.

ORAL ARGUMENT OF WILLIAM H. ALLEN, ESQ., ON BEHALF OF APPELLANTS WILLIAMS ET AL -- REBUTTAL

MR. ALLEN: I think I only have one point and that is that I hope it is not we who are being accused of thinking that White v. Regester represents something less than good law.

The fact is that the opening of the analysis in White v. Regester begins this way: We have entertained claims that multi-member districts are being used invidiously to cancel out or minimize the voting strengths of racial groups. To sustain such proof, it is not enough that the racial group has not had legislative seats in proportion to its voting potential.

The plaintiffs' burden -- paraphrasing now -- is to produce evidence that would support findings that the political processes leading to nomination and election are not equally, open to participation by the groups in question, and that we submit is what was lacking on the proofs offered in the school district's case here.

QUESTION: Do you think that is equivalent to purpose or not?

MR. ALLEN: Excuse me? I think that what was -- that the circumstances which that general rule was applied in White v. Regester was the equivalent of a purpose to exclude from participation, yes, Your Honor.

QUESTION: I take it from what you answered me before, when you were up before, that if it were satisfactorily shown that a multi-member district was adopted or that if it was refused to dissolve it for the purpose of maintaining the effects of racial block/voting, that you would have a tough time defending --

MR. ALLEN: I would have a tough time -- we have -- I should say this much about White v. Regester. We have indeed urged, although the --

QUESTION: Because you can have all the legislative purpose you want, but if the racial block voting suddenly falls apart and they start voting on the merits --

MR. ALLEN: Then you have not affected the discrimination.

QUESTION: Yes.

MR. ALLEN: That is quite true. One would have to find that. One would have to find that the group claiming to be disadvantaged was indeed disadvantaged, to be sure. But where all one has is the block voting and a statute neutral in its inception, then it is our position that that is what is not enough.

Thank you.

MR. CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 12:00 o'clock noon., the cases in the above-entitled matters were submitted.)