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September 4, 1980

HALE COUNTY, ALABAMA et al., Plaintiffs,
UNITED STATES of America et al., Defendants

The opinion of the court was delivered by: PARKER

 In this three-judge District Court proceeding we are called upon to determine whether three enactments of the Alabama Legislature establishing at-large elections for members of the County Commission of Hale County, Alabama comply with section 5 of the Voting Rights Act of 1965. *fn1" Section 5 prohibits the enforcement of any change in voting procedures used by certain states or their political subdivisions until the change has been approved by the Attorney General of the United States. Absent that approval the proponents of the change must demonstrate to a three-judge panel of the United States District Court for the District of Columbia that it has neither the purpose nor effect of denying or abridging the right to vote on account of race or color. Following the Attorney General's disapproval of the three enactments, Hale County, acting through the County Commission, *fn2" its governing body, brought this suit seeking a declaration that the changes in the manner of electing commissioners are not discriminatory, either in purpose or in effect.

 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.


 Factual Findings

 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." *fn3" 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. *fn4"

 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. *fn5" 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. *fn6"

 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. *fn7" 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. *fn8" In addition, they and the probate judge play a significant role in the electoral process. *fn9" 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. *fn10"

 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. *fn11" 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. *fn12" 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. *fn13"

 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." *fn14" In 1971, the legislature removed the district residency requirement so that candidates need only be residents of the County. *fn15" 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. *fn16" 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. *fn17" 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 *fn18" 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. *fn19" 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. *fn20" 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. *fn21" 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. *fn22"


 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." *fn23" 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. *fn24" 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." *fn25" 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. *fn26"

 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. *fn27" 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. *fn28" 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." *fn29" 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." *fn30" 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. *fn31" 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." *fn32"

 The United States Congress enacted the Voting Rights Act on August 6, 1965 *fn33" 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. *fn34" The next day, August 10, the Alabama Legislature passed the 1965 Act, mandating at-large elections of the Hale County commissioners. *fn35" 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. *fn36"


 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. *fn37" 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. *fn38"

 Those who passed the initial hurdles still faced the literacy test, and even college educated black applicants were forced to take the test numerous times before passing. *fn39" Within the same time frame as Burroughs, Lewis Black, a black schoolteacher, testified at his deposition that a white election official advised him to secure the recommendation of a registered white voter. Once the letter was secured, it served as his passport: Black managed to pass the literacy test, even though he answered the questions in the same manner as in his earlier unsuccessful attempts. *fn40" Before passage of the 1965 Voting Rights Act these exclusionary practices proved highly successful. Although more than 10,000 black persons resided in Hale County, the County Board of Registrars registered only eighteen blacks in the seven years between January 1955 and January 1962. *fn41" The effects of these practices apparently continued well into the 1960's. As of May 1964, the United States Commission on Civil Rights found that there were only 236 registered "non-white" voters in Hale County, or approximately 3.9 percent of the black voting age population recorded in the 1960 Census. *fn42"

  By the end of 1966, within sixteen months after the passage of the Voting Rights Act, over 3000 black persons were registered through the efforts of the assigned federal examiners. *fn43" That year also saw the first black candidate for county office since Reconstruction, the Reverend Henry McCaskill. He ran for the Democratic nomination for sheriff in the May 1966 primary election. McCaskill lost the primary after a campaign marred with demonstrations of racial hostility toward his candidacy. He received threatening telephone calls and letters, rocks were thrown through windows of his campaign headquarters, his campaign posters were torn down and replaced by those of white candidates, and threats were made to his campaign workers while they were engaged in voter canvassing. *fn44"

 A second black candidate, Mildred Black, encountered similar resistance in her 1968 campaign for a seat on the Board of Education, as did her husband, Lewis Black, in his 1970 campaign for Probate Judge. *fn45" Both were defeated by white opponents. And while overt hostility to black candidates and black voters has subsided in recent years, *fn46" since 1965, black candidates have been unsuccessful in all thirty attempts to win county-wide office, including eleven to win a seat on the County Commission. *fn47"


 Plaintiffs attribute this lack of success to two factors. First, they argue that a difference in campaign practices accounts for black candidates' poor performance. Where white candidates actively solicit support from members of both races, black candidates have directed their efforts primarily toward black voters. *fn48" Second, plaintiffs point out that white elected officials have been "responsive" to the needs of their constituents, both white and black, and that this explains much of their success at the polls. *fn49" Judge Avery gave a number of additional reasons for poor black performance, all generalized and negative in nature. They included the blacks' lack of motivation and desire to work hard, inability to face issues, poor campaigning and lack of effort to get out the vote. Of the several factors he mentioned, the main one was an unwillingness to work hard to get out the vote. *fn50" Thus, according to plaintiffs, there are factors other than race which have accounted for voting patterns in Hale County over the past fifteen years.

 While there is considerable evidence to show that many government benefits and services have been fairly dispensed to both black and white residents of Hale County, race, rather than "responsiveness," still remains the dominant factor in explaining voting patterns in Hale County. Both the white and black electorate tend to engage in racial bloc voting. Such voting is defined as the propensity of voters, when presented with candidates of different races, to vote for the candidate of their own race. *fn51" The best evidence of racial bloc voting is produced by analyzing the results of elections involving black and white candidates for the same office. *fn52" Defendants' expert witness, Dr. James Loewen, examined eight such contests held in Hale County between 1970 and 1978. *fn53" His findings indicate strong racial bloc voting by members of both races. Invariably over 90 percent of the white voters voted for white candidates, and usually between 80 and 90 percent of black voters voted for black candidates. *fn54" Dr. Loewen, a political sociologist with considerable experience in voting rights cases, observed that these figures were as high as any he had previously encountered. *fn55"

 Despite the combination of a majority of the voting age population, a slight majority in registered voters and racial bloc voting, black candidates have been unsuccessful in countywide elections in Hale County. This may be attributed to a number of factors, which, in turn, may be traced to past discrimination against Hale County's black population. Black educational levels are far below those of the white population: Only 9.4 percent of the black adults in Hale County graduated from high school, as compared to 53.4 percent of the white adults. Moreover, 37.7 percent of the black adults had four or less years of education, compared with only 5.8 percent of the whites. This disparity in education corresponds to similar disparities in occupational and economic status. Fifty-three percent of the working whites hold white collar jobs compared to only 14.4 percent of blacks; white median income in 1970 was $ 7000 compared to $ 2756 for blacks. *fn56"

 These factors affect potential black voters in several ways. Poorly educated persons have comparatively more difficulty in filling out forms and complying with other formalities accompanying the registration process. *fn57" Wage earning blue collar workers have less flexibility in their working hours than salaried white collar workers, and therefore find it more difficult to take leave from work so as to register or to vote at convenient times during the day. *fn58" Finally, low income hinders political participation by restricting access to information and by increasing the inconvenience of registering and voting. *fn59"

 In addition to proof of purely educational and economic impediments, the United States produced testimony that would-be black voters in Hale County still face subtle forms of discrimination and economic intimidation. The legacy of many years of discrimination and harassment has not completely disappeared in the fifteen years since the Voting Rights Act. Black poll watchers have been hindered in attempts to monitor voting *fn60" and black workers have refrained from voting for fear of angering employers. *fn61"

 Taken together, these factors do much to explain why, although a majority of the voting age population, blacks have never comprised a majority of those actually casting ballots in a Hale County election. For example, for the 1972 general election, federal observer statistics show that only 44.6 percent of those voting were black. *fn62" This comparatively lower black turnout highlights the importance of racial bloc voting, particularly that of the white electorate. Both plaintiffs' and defendants' expert witnesses agreed that to win an election in Hale County, a black candidate would need to draw a significant number of white votes. *fn63" Yet, as both experts again agreed, none has ever done so. *fn64" Given existing racial bloc voting patterns and a majority vote requirement in the primary, *fn65" black candidates are effectively foreclosed from winning an elective office such as county commissioner under an at-large system.

 The effect of bloc voting in at-large races is demonstrated by comparison of election results in county commissioner races involving black and white candidates. Of the four commissioner districts established by the 1959 Act, two districts, District 2 and District 3, display black majorities both in population and in registered voters. When the 1973 district boundaries are used, the percentages change but blacks retain majorities in both population and registered voters. *fn66" To illustrate the effect of at-large as opposed to district commissioner elections, the United States presented a statistical breakdown of commissioner races where a black candidate opposed a white candidate. Six contests were analyzed under the 1959 districts, and four of these were reanalyzed under the reapportioned 1973 districts. *fn67" Under the 1959 boundaries, black candidates invariably carried District 2, the more heavily black district. Neither however, managed to win a commissioner's seat in the at-large general election. *fn68" Under the 1973 reapportioned districts, the black candidate in 1972 again carried District 2. In the 1974 Democratic primary races, the black candidate carried both District 2 and District 3 in both the primary and the primary run-off, but nonetheless lost the run-off at-large. *fn69"

 These two examples confirm the inference drawn from the population figures: at-large, as opposed to district, commissioner elections, when combined with strong racial bloc voting patterns, have prevented black candidates from gaining a seat on the Hale County Board of Commissioners.



 It has long been determined that the Voting Rights Act of 1965 was passed to protect the rights guaranteed by the Fifteenth Amendment and to "rid the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S. Ct. 803, 812, 15 L. Ed. 2d 769 (1966). To help achieve this goal, section 5 of that Act requires that jurisdictions which in the past employed the poll tax, the literacy test, and other devices to deprive citizens of voting rights, must first submit any change in voting procedure to the United States Attorney General for preclearance. The 1965, 1971 and 1973 Acts of the Alabama Legislature which modify Hale County's voting procedures to require at-large elections for County commissioner has been held subject to section 5 preclearance. United States v. Hale County, 425 F. Supp. 433 (S.D.Ala.1976), aff'd, 430 U.S. 924, 97 S. Ct. 1540, 51 L. Ed. 2d 768 (1977). Because the Attorney General has denied preclearance, Hale County seeks in this proceeding a declaration that the change to at-large voting was not motivated by a discriminatory purpose and has not had a discriminatory effect. The burden of proof for securing such a declaration is placed squarely on the plaintiffs. Georgia v. United States, 411 U.S. 526, 538, 93 S. Ct. 1702, 1709-1710, 36 L. Ed. 2d 472 (1973); South Carolina v. Katzenbach, supra.

 After reviewing the entire record before us, we conclude that Hale County has failed to shoulder its burden. The plaintiffs have not shown, as they must, either the absence of a discriminatory purpose behind the change to at-large elections or the lack of a discriminatory effect following its ...

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