The parties agreed that the evidence in this case, composed of the in-court testimony of several witnesses, depositions, and exhibits, would first be presented at trial before a single judge. Following that, the full panel heard and considered the final argument of trial counsel on all factual and legal aspects of the controversy. In connection with the final argument, the panel had the benefit of the complete record made before the single judge.
After a consideration of the entire record and the oral presentation of counsel, we conclude that the change to at-large voting embodied in the three enactments had the purpose and has had the effect of abridging the right to vote on the basis of race. For this reason, the plaintiff's request for declaratory judgment must be denied. In the opinion which follows we present first, our findings as to the material facts and second, our legal analysis and conclusions.
Hale County is located in west central Alabama close to the Alabama-Mississippi state line. It is within 40 miles of Selma to the southeast and less than 80 miles from Montgomery, the capital of the State. The area is predominantly rural and its residents are predominantly black. It covers approximately 662 square miles. The political, economic and social life of the area is centered in and around the County seat, Greensboro, a city of approximately 3400.
The County is part of a region often referred to as the "Black Belt." This area embraces "a group of counties in eastern Virginia and North Carolina; a belt of counties extending from the South Carolina coast through South Carolina, central Georgia, and Alabama; and a detached area embracing a portion of the lower Mississippi River Valley."
As employed by the Bureau of Census and authoritative sources on American history, the term "Black Belt" refers to an area of relatively high density of Negro population, specifically those counties in which the proportion of Negroes in the total population was 50 percent or more.
The 1970 Census reported a total population of 15,888 for Hale County, of whom 10,542, or 66.4 percent, were black, and 5,336 were white. The same source reported that of the total voting age population of 9,227, slightly more than 59 percent or 5,460 were black.
As of October, 1978, there were 8,443 registered voters in the County, and of this total 4,296 or 50.8 percent were black and 4,150 were white.
Hale County's affairs are managed by a Board of Commissioners, formerly known as the Board of Revenue. At present it is comprised of four elected commissioners and the county probate judge. The probate judge, an elected county official, serves as an ex officio member who presides at commission meetings and votes only in the event of a tie between the four regular commissioners.
The commissioners conduct and oversee in a general sense the business of Hale County. Their chief functions are to raise and allocate revenue and to supervise and operate public works, particularly road maintenance.
In addition, they and the probate judge play a significant role in the electoral process.
The commission meets on a regular bi-weekly basis on the second and fourth Tuesdays of the month. The meetings are announced in the local press and are open to the public.
Each commissioner is elected for a four year term and their terms are staggered so that a term of two incumbents expires every other year. The probate judge is elected for a term of six years on an at-large basis.
All of the present commissioners and the probate judge are white.
In 1953, by an act of the Alabama Legislature, Hale County was divided into four districts, each represented by a single commissioner. Under the system then established, commissioners were elected county-wide by the voters of the entire county, although candidates were required to reside in the district they sought to represent.
This system prevailed until 1959, when the Alabama Legislature enacted a statute which modified the district boundaries and required candidates for commissioner to reside in the district they desired to represent and to be elected only by the voters of that particular district.
In 1965, however, the legislature reversed itself as to the last provision by passing new legislation. While the 1965 Act retained the 1959 geographic districts and residency requirement, it provided that commissioners be chosen by "qualified electors of the entire County or at-large."
In 1971, the legislature removed the district residency requirement so that candidates need only be residents of the County.
The at-large voting requirement remained unchanged. Finally, in 1973, the legislature restored the district residency requirement for commissioners and redrew the boundaries of the prior existing districts to provide for equal populations in each district.
The at-large voting requirement was not altered. The 1965, 1971, and 1973 statutes providing for county-wide voting are the subject of this lawsuit.
Under section 5 of the Voting Rights Act, the changes effected by the three acts could not be implemented until they had been "precleared" by the Attorney General.
The County's governing body did not comply with this requirement and held both primary and general elections for the commission posts on an at-large basis through the May, 1976 primary elections. Immediately following the primary, the Attorney General filed suit against Hale County in the United States District Court for the Southern District of Alabama
to enjoin the 1976 general election scheduled under the at-large plan. That court determined that the changes in the manner of electing commissioners were subject to the section 5 preclearance requirement. Accordingly, Hale County was ordered to revert to the method of electing commissioners under the 1959 Act: election by districts as opposed to county-wide.
Because of its proximity, the November 2, 1976 general election was allowed to proceed on an at-large basis and the elected commissioners were permitted to serve provisionally pending further order. In addition, the Hale County commissioners were required to submit forthwith the 1965, 1971, and 1973 Acts to the Attorney General for preclearance.
On October 29, 1976, Hale County complied with the court's directive and subsequently, on December 29, 1976 the Attorney General interposed an objection to the three statutes.
Shortly thereafter, on February 16, 1977, plaintiffs brought the present action for declaratory relief under section 5. Elections for commissioner since that time have been held under the provisions of the 1959 Act.
The 1965 Act, which changed the manner of electing commissioners from a district to an at-large system with a residency requirement, is the critical legislation in this proceeding. The 1971 and 1973 Acts are subject to review in that they retained the suspect at-large feature, first enacted in 1965. Any inquiry into the purpose behind the change to the at-large commission elections must of necessity center on the 1965 Act.
The 1965 Act had its genesis in a resolution favoring a change to at-large elections passed by the Hale County Board of Commissioners on January 25, 1965. The minutes of that meeting reflect that the only reason advanced in support of the proposal was that the change "would be for the best interest of the County."
The plaintiffs offered no clarification or testimony to show the basis for the determination of the "best interest." The County's counsel drafted legislation embodying the modification, which was then published in the local newspaper.
The proposal was introduced in the Alabama House of Representatives by Richard Avery, who at the time represented the Hale County electorate in the state capital at Montgomery. Mr. Avery served as the County's sole representative from 1959 to 1966. Later, in 1971 he was elected to the county probate judge post, a position he has held since his first election.
Judge Avery's trial testimony concerning the 1965 legislative enactment and his efforts in shepherding it through the Alabama Legislature are of particular interest. He recalled that it was a type of "local" legislation usually passed after only pro forma consideration, as a courtesy to the legislator representing the affected locality. Thus, there was no record of any hearing or legislative debate preceding its passage, and from all indications the measure faced no opposition.
The Judge recalled and testified in part that he sponsored the proposal as a response to his awareness "of the needs of the people in the community, both black and white" and that "the majority of the people wanted to have a county-wide election."
As he explained, their reasons were that commissioners so elected are more aware of and respond to the needs of the entire citizenry. While he was not approached by any official or particular group about the proposed measure, he testified that there was "unrest" and dissatisfaction among the general population with the performance of the commissioners under the district system. The at-large system was viewed as a way of assuring a more equitable and efficient means of distributing road maintenance and services, a matter of some consequence to the community.
On both his direct and cross-examination the Judge declared that the proposal was in no manner calculated to prevent the black community from participating in the political process. Former Commissioner Goldsby Tucker, a member of the Commission when the initial resolution was passed, also denied that there was a discriminatory purpose for the change.
We note, however, that on March 23, 1965, the United States Senate began public hearings on legislation which eventually was enacted as the 1965 Voting Rights Act.
We also note that on the day before, March 22, 1965, the Alabama Legislature adopted a resolution condemning "outside agitators, communist sympathizers, and well meaning, but socially ignorant crusaders, (who have) skillfully laid the ground work for such a vicious piece of legislation by stirring up strife and dissension in this area in particular and throughout this country generally."
The resolution implored Alabama's congressional delegation in Washington "to use every effort and all means available to prevent this vicious proposal from being presented to Congress, and to redouble their efforts to defeat it if it is so introduced."
Although Judge Avery was a member of the Alabama Legislature at the time, he had no recollection whether or not he voted for the particular resolution or even that such a measure had been introduced.
Moreover, despite this resolution and the nationwide media attention then directed to on-going activity of the civil rights movement in the nearby city of Selma, he testified that at the time he was not familiar with any of the provisions of the Voting Rights Act. His final observation was "I don't think many people in our county were even concerned with the Civil (Voting) Rights Act."
The United States Congress enacted the Voting Rights Act on August 6, 1965
and on August 9, the Attorney General certified Hale County as among the first jurisdictions to which federal registrars would be sent to facilitate black voter registration.
The next day, August 10, the Alabama Legislature passed the 1965 Act, mandating at-large elections of the Hale County commissioners.
The measure was then submitted by referendum to the voters of Hale County, and on November 30, 1965, it was approved in a special election by a vote of 684 in favor and 426 opposed.
Prior to enactment of the Voting Rights Act of 1965, would-be black voters in Hale County faced virtually insurmountable obstacles to registration. Before 1965, both the poll tax and the literacy test were used throughout Alabama to exclude black citizens from the political process.
Blacks attempting to register were frustrated and harassed by white officials. In her deposition Theresa Burroughs, a black resident of the County with three years of college education, recalled an attempt to register in the late 1950's:
And, on that first Monday, well, I remember in particularly a gentleman, a minister-he has since deceased-was named Rev. Simmons, he and I would go together. He would come by and we would come up on these first Mondays. And, we would attempt to register. We would go and ask for the form, and they would be sitting playing dominos around the table
All of them would be sitting around, and we would stand and wait while they played dominos around the table. And, then they would say, "Well, what you want, girl," or "What is it, gal," "What are you up here for." And, we say, "We came to register," and they would continue to play, and we would continue to stand. Maybe, it would take two hours; maybe, one; maybe, three, that we would stand there. And, they would play dominos. And, so finally they would take a paper and throw it to us and say, "Fill that out." And, we would attempt to fill it out. And, down on the bottom it says, "Write the second line of second paragraph or the first line of the Constitution", something of that sort, along with "your name, your address, your age and why do you want to vote." All this-these are the types of forms that they had for us to fill out.