City of Mobile v. Bolden – Oral Argument – March 19, 1979

Media for City of Mobile v. Bolden

Audio Transcription for Opinion Announcement – April 22, 1980 in City of Mobile v. Bolden
Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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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.

Charles S. 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?

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?

Charles S. 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.

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?

Charles S. Rhyne:

Yes, it did.

Potter Stewart:

And the specialization, at least officially, the specialization is more recent, isn’t it?

Charles S. Rhyne:

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

Potter Stewart:

Alright.

Charles S. Rhyne:

But Mr. Justice Stewart, I think it has always —

Potter Stewart:

There’s always been an effect to those special instances?

Charles S. 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.

Potter Stewart:

Unlike the two.

Charles S. Rhyne:

It is.

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?

Charles S. Rhyne:

That is true.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Charles S. Rhyne:

They —

Potter Stewart:

All of those powers?

Charles S. Rhyne:

All of the powers.

Potter Stewart:

From the city manager for the government of course the city managers and exclusively an executive.

Charles S. Rhyne:

Yes, It’s right.

Potter Stewart:

And the council is the legislature?

Charles S. Rhyne:

That is right.

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

Potter Stewart:

But then they also enact the ordinances, do they?

Charles S. 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 —

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?

Charles S. 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.

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?

Charles S. Rhyne:

Yes.

Warren E. Burger:

That’s the common denominator of the commission —

Charles S. Rhyne:

Yes.

Warren E. Burger:

— form, isn’t it?

Charles S. 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.

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.

Charles S. Rhyne:

That’s right, it is non-partisan election.

Potter Stewart:

First of all, what is the term of the commissioner?

Charles S. Rhyne:

Four years.

Potter Stewart:

And are they are all elected at the same time?

Charles S. Rhyne:

Yes, they are.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Potter Stewart:

And there — do they run as a slate of three?

Charles S. 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.

Potter Stewart:

And have Negroes been — they have run?

Charles S. Rhyne:

Yes, now Negroes have run, three Negroes run in 1973.

Thurgood Marshall:

They run or they stood for the election?

Charles S. 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 —

Byron R. White:

They have some prerequisites for getting on the ballot?

Charles S. Rhyne:

None whatever.

Byron R. White:

You just — there isn’t a filing fee?

I suppose some kind?

Charles S. Rhyne:

There was a manner —

Byron R. White:

But there is a signature requirement?

Potter Stewart:

There must be.

Charles S. 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 —

Potter Stewart:

There is no signature requirement of any instances?

Charles S. 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.

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.

Charles S. Rhyne:

Yes.

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?

Charles S. 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.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Charles S. Rhyne:

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 —

Byron R. White:

Or you — I think —

Charles S. Rhyne:

— but you —

Byron R. White:

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

Charles S. 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.

Byron R. White:

So you do want us to confine our decisions or to address the —

Charles S. Rhyne:

Commission form of the government, yes.

Byron R. White:

Commission form of government where you run for a spot?

Charles S. Rhyne:

Yes.

Potter Stewart:

The city council, generally speaking as a generality has only legislative power?

Charles S. Rhyne:

That is right.

Potter Stewart:

Not executive.

Charles S. Rhyne:

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

William J. Brennan, Jr.:

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.

Charles S. Rhyne:

Now, you’re speaking of a county, are you not?

William J. Brennan, Jr.:

No, I am not.

I am speaking of the City of New York.

Charles S. Rhyne:

Well —

William J. Brennan, Jr.:

We have the commission form of government in New Jersey for some 25 years and most of the major cities.

Charles S. Rhyne:

Have the commission form, yes.

William J. Brennan, Jr.:

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.

Charles S. 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 —

Warren E. Burger:

You indicated before that the distinguishing factor perhaps was that this people exercise both legislative and the executive functions —

Charles S. Rhyne:

That’s right.

Warren E. Burger:

— that differed that distinguished it from?

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Charles S. Rhyne:

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

Thurgood Marshall:

What about the police jury in Texas and Louisiana?

Charles S. Rhyne:

Now —

Thurgood Marshall:

The County police jury?

Charles S. Rhyne:

Mr. Justice —

Thurgood Marshall:

— come by anyone anything did go all over the world, will that?

Charles S. Rhyne:

That’s right and —

Thurgood Marshall:

The judges are laymen in Texas.

Charles S. Rhyne:

And the judges are laymen —

Thurgood Marshall:

And the jury was —

Charles S. Rhyne:

In Missouri where our present chairman was.

Thurgood Marshall:

That’s right.

Charles S. 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.

William H. Rehnquist:

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

Charles S. 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.

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.

Charles S. 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.

Thurgood Marshall:

But why is it that they had win in?

Charles S. Rhyne:

I did not hear the question.

Thurgood Marshall:

Are they all stupid in Mobile?

Charles S. Rhyne:

Now, Mr. Justice Marshall —

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Thurgood Marshall:

(Inaudible) because I didn’t —

Charles S. 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 —

Thurgood Marshall:

Who’s the mail carrier?

Charles S. Rhyne:

Pardon?

Thurgood Marshall:

He was a mail carrier?

Charles S. Rhyne:

Well, he was brilliant man.

Thurgood Marshall:

Well, he wasn’t a politician, he’s mail carrier.

Charles S. Rhyne:

But he is a politician and you know it.

Thurgood Marshall:

Yes, a part-time politician.

Charles S. Rhyne:

Well, —

Thurgood Marshall:

What you mean some of the — you mean that those young lawyers down in Mobile.

Charles S. Rhyne:

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

Warren E. Burger:

Well, if the qualification factor is relevant here at all —

Charles S. Rhyne:

I think it’s very relevant —

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?

Charles S. 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.

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.

Thurgood Marshall:

“The Kiss of Death.”

John Paul Stevens:

Don’t we have to look at Mobile rather than Oakland and Cleveland and other place?

Charles S. Rhyne:

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

John Paul Stevens:

But do we accept those findings or do we not for purposes of our decision?

Charles S. 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.

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?

Charles S. Rhyne:

I ask you to reexamine them because —

John Paul Stevens:

Is it critical to your case if we reexamine them?

Charles S. 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.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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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.

Charles S. Rhyne:

Well, —

Byron R. White:

Well, let’s just assume that’s so.

Charles S. Rhyne:

That is true.

Byron R. White:

Now let’s just assume that that is — just accept those findings and you say, what do you say to that?

Charles S. 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.

Byron R. White:

What if we accept the findings that there is a racial voting at the polls?

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.

Charles S. Rhyne:

Yes.

Thurgood Marshall:

1500 members a week in Alabama in the last two months.

Charles S. Rhyne:

I don’t follow its activities quite as close I am afraid.

Thurgood Marshall:

I’ve seen the newspaper.

Charles S. Rhyne:

Well, I —

Thurgood Marshall:

Local news.

Charles S. 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.

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.

Charles S. Rhyne:

My position is —

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.

Charles S. 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.

Potter Stewart:

There is a one man one vote problem here under the Fourteenth Amendment —

Charles S. Rhyne:

Now, they are equal.

Potter Stewart:

And there is no deprivation of anybody’s voting under the Fifteenth Amendment based on his race or color.

Charles S. 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 —

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?

Charles S. Rhyne:

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

John Paul Stevens:

I understand that but I am not saying you necessarily —

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Charles S. Rhyne:

That doesn’t have to do with voting.

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 —

Charles S. Rhyne:

I think —

John Paul Stevens:

— we deal with the findings the District Court made.

We got to live with them.

Charles S. 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 —

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?

Charles S. 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.

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?

Charles S. 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.

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.

Charles S. Rhyne:

Well, —

Byron R. White:

I’m not suggesting but I’m just —

Charles S. Rhyne:

Mr. Justice White there’s no such finding what they —

Byron R. White:

Well, I’ll call it polarization then.

Racial voting whatever you want to call it.

Charles S. 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.”

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.

Charles S. 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.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Charles S. Rhyne:

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

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.

Charles S. Rhyne:

Yes, I think the vicious part, you are right.

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

Byron R. White:

You mean residential segregation?

Charles S. 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.

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?

Charles S. Rhyne:

Yes and it didn’t work very either place.

Potter Stewart:

Now, I want an argument about that.

Charles S. 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.

Thurgood Marshall:

(Inaudible)

Potter Stewart:

Yes.

Thurgood Marshall:

The communist got elected every time?

Charles S. Rhyne:

I didn’t quite understand you Mr. Justice.

Thurgood Marshall:

In New York, the communist got elected ever time.

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.

Warren E. Burger:

Mr. Blacksher.

J. U. 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.

Byron R. White:

You mean that after the election they then decide which of them would take what part?

J. U. 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.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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J. U. Blacksher:

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.

Warren E. Burger:

Could the city do a general utterly or does it take for state legislative action?

J. U. 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.

Byron R. White:

Well, is it your position that the discrimination in this case was effected in the voting booths, is that where the —

J. U. 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 —

Byron R. White:

Our city should not provide the kind of a system that makes effective that kind of voting, is that it?

J. U. 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 —

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?

J. U. 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.

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?

J. U. 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 —

Warren E. Burger:

Excuse me.

Go ahead.

J. U. 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.

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?

J. U. Blacksher:

Yes, sir.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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J. U. Blacksher:

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.

Thurgood Marshall:

How was it prevented in doing this?

J. U. Blacksher:

I beg your pardon, Mr. Justice Marshall?

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?

J. U. 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.

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.

J. U. Blacksher:

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

Thurgood Marshall:

I thought so.

You agree with doing that?

J. U. Blacksher:

We certainly do.

Always have.

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?

J. U. 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.

Potter Stewart:

How about the election for the governor of Alabama?

J. U. Blacksher:

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

He must run statewide.

Potter Stewart:

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

J. U. Blacksher:

That’s correct.

Potter Stewart:

So in that extent, there’s no difference.

J. U. 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.

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.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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J. U. Blacksher:

No, Mr. Justice Stewart, we’re not.

Potter Stewart:

Well, that’s the thrust of your argument, isn’t it?

J. U. 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.

Potter Stewart:

Well, —

J. U. Blacksher:

And their preference may or may not be a black candidate.

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.

J. U. Blacksher:

That’s correct.

Potter Stewart:

So you’re voting as between not first choices of yours?

J. U. 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.

Potter Stewart:

Yet that’s not involved here, is it?

J. U. Blacksher:

The mathematical concept of one person at one vote is not.

Potter Stewart:

Which is not that concept was in Reynolds against Sims?

J. U. Blacksher:

That is — that is not with Fortson versus Dorsey —

Potter Stewart:

I know but the original one person, one vote was a purely a mathematical concept wasn’t it?

J. U. Blacksher:

The specific concept in Reynolds was a mathematical concept.

Potter Stewart:

Exclusively?

J. U. 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.

Potter Stewart:

But now — just go ahead, excuse me.

J. U. 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.

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.

J. U. Blacksher:

That is our position.

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?

J. U. 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.

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).

J. U. Blacksher:

We don’t attempt to make that argument here Mr. Justice White but the argument might be —

Byron R. White:

Well, it sounds to me like you’re making it.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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J. U. 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.

Byron R. White:

That’s a factual answer to my question.

That isn’t what I asked you.

J. U. 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.

Thurgood Marshall:

The fifteenth says.

Potter Stewart:

Says so.

Thurgood Marshall:

The Fifteenth Amendment is explicit on that point.

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.

J. U. 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.

Byron R. White:

Who has the case of controversy versus with whom here?

J. U. 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.

Byron R. White:

What case or controversy does a name — do the named plaintiffs have with the City of Mobile?

J. U. Blacksher:

The case in controversy involves the law from this in the constitutionality —

Byron R. White:

Have they ever run everyone in the world?

J. U. Blacksher:

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

Byron R. White:

These named plaintiffs?

J. U. 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 —

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?

J. U. 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.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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John Paul Stevens:

The significant thing about them I suppose is they vote as blocks.

J. U. Blacksher:

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

John Paul Stevens:

Well that’s because we don’t want these members of this black in our legislature, does that make it invidious?

J. U. Blacksher:

No, sir, certainty not on its face.

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?

J. U. 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.

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?

J. U. 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.

Thurgood Marshall:

What is a block voting for that on race?

J. U. 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.

Thurgood Marshall:

All you take and you don’t read Mr. Rhyne anymore?

J. U. 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.

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.

J. U. 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.

Warren E. Burger:

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.

James P. 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.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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James P. Turner:

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.

Potter Stewart:

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

James P. Turner:

I don’t know Mr. Justice Stewart.

Potter Stewart:

Most of them do, don’t they?

James P. Turner:

I — I believe it to be a substantial number.

Potter Stewart:

A majority?

James P. Turner:

I don’t know on that.

The factual inquiry suggested in White against Regester —

Warren E. Burger:

Well then, before you go into that.

James P. Turner:

Sir.

Yes, sir.

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?

James P. 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 —

Thurgood Marshall:

There are Negroes in the state legislate.

James P. Turner:

There are now.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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James P. Turner:

Yes, sir.

Thurgood Marshall:

They have been there.

James P. Turner:

And they haven’t —

Thurgood Marshall:

Fred Gray has been there at least a dozen year.

James P. 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.

William H. Rehnquist:

Mr. Turner does the Government think that the Fifth Circuit’s opinion and Zimmer against McKeithen remains a good law?

James P. 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.

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?

James P. 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.

Potter Stewart:

Of course, the White and Whitcomb cases involved legislative apportionment or reapportionment?

James P. Turner:

Yes, sir.

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.

James P. 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.

Potter Stewart:

More like a Hadley?

James P. Turner:

Yes, sir.

Potter Stewart:

Which of course —

James P. Turner:

If this — that the school board have the standard power —

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?

James P. Turner:

That’s — that’s correct Mr. Justice.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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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?

James P. Turner:

Well, I’ve — I would argue not Mr. Chief Justice the —

Warren E. Burger:

Why not?

James P. Turner:

The commission form —

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?

James P. 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 —

Warren E. Burger:

Of course, the governor has —

James P. Turner:

Representative government.

Warren E. Burger:

— when he can veto a bill that gives him.

James P. 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.

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?

James P. Turner:

I believe the Terry versus Adams was a county political organization that endorsed —

Thurgood Marshall:

What —

James P. Turner:

— that endorsed —

Thurgood Marshall:

— the election complained about was in national election, wasn’t it?

James P. Turner:

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

Thurgood Marshall:

That’s right but in elections —

James P. Turner:

For local elections.

Thurgood Marshall:

And the United States Senate wasn’t involved?

James P. Turner:

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

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?

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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James P. 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.

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?

James P. 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.

Potter Stewart:

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

James P. Turner:

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

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 —

James P. 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.

Potter Stewart:

So the Attorney General had an objection which invalidated or at least suspended the operation of that legislation didn’t it?

James P. Turner:

In contemplation of law, yes Mobile does not have specialized commissioners who run for special —

Potter Stewart:

De jure?

James P. Turner:

De jure offices.

Yes, sir.

Potter Stewart:

I see.

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.

James P. 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.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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James P. Turner:

The —

Warren E. Burger:

That’s the objective.

That’s certainly the objective is it not to produce that kind of city and —

James P. Turner:

Oh, that would be greatly welcome.

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.

James P. 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.

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.

James P. Turner:

That’s correct.

Potter Stewart:

If the two go together, didn’t they?

James P. Turner:

I would associate myself with that response.

Thank you.

Warren E. Burger:

Mr. Rhyne, you have two minutes left.

Charles S. 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.

Warren E. Burger:

Mr. Allen.

William H. 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.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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William H. Allen:

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.

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.

William H. 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.

Potter Stewart:

Is there any controversy in this case about what you’ve told us?

William H. 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.

Potter Stewart:

They’re non-paid jobs.

William H. Allen:

They’re non-paid job tab them up to very recently.

Warren E. Burger:

And these members performed no executive functions at all?

William H. Allen:

Well, I’ve — I’ve —

Warren E. Burger:

Did he?

William H. 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.

Potter Stewart:

Does the Board have any independent taxing power?

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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William H. Allen:

That I do not know.

No, the answer to that is no.

Potter Stewart:

Some states they do some don’t.

William H. Allen:

And that’s correct, yes.

Yes, no this Board apparently is.

Potter Stewart:

So what are the functions of the members of the school board?

William H. 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.

Potter Stewart:

Well that’s not my question.

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

William H. Allen:

It does select textbooks.

Potter Stewart:

So then does it, I suppose it promulgates rules and regulations but except in that sense doesn’t have legislative power?

William H. 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.

Potter Stewart:

But finally a policy making and administrative sort of body?

William H. 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 —

Potter Stewart:

Yes.

William H. Allen:

I — I apologize but —

Potter Stewart:

They may not be important to me.

William H. 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.

Potter Stewart:

The partisan in this — they republican are democrat —

William H. Allen:

Yes.

Potter Stewart:

— or are they partisan —

William H. Allen:

No.

Potter Stewart:

— some local?

William H. 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.

Potter Stewart:

Yet, the municipal elections of district are non-partisan.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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William H. Allen:

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.

Potter Stewart:

Formally, it’s the slating as the sort of a nomination —

William H. Allen:

Nomina — for that — for the —

Potter Stewart:

— an group of candidates and whom in turn that group supports then.

William H. 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.

Thurgood Marshall:

Mr. Allen, it just so happened that there weren’t any Negroes in the democratic part.

William H. Allen:

I’m sorry, Your Honor?

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?

William H. 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.

Thurgood Marshall:

And it was a Democratic Party that controlled.

William H. Allen:

The democratic that he was —

Thurgood Marshall:

When did a republican ever get elected?

William H. Allen:

No, not at all.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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William H. Allen:

Not at all.

It was a democratic primary.

Thurgood Marshall:

That’s what he was talking about.

William H. 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.

Potter Stewart:

In the primaries.

William H. Allen:

In the primaries, yes.

Potter Stewart:

Which and the winner of the primary would be the slated candidate knowing the candidate —

William H. Allen:

Would be the party candidate.

Potter Stewart:

Who would be supported by the —

William H. 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.

Potter Stewart:

While in that setting, it was equivalent —

William H. Allen:

Yes.

Potter Stewart:

— to nomination —

William H. Allen:

Yes.

Potter Stewart:

— by an organized group?

William H. Allen:

But —

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?

William H. 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.

Potter Stewart:

Is that —

William H. Allen:

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

Potter Stewart:

Does that happen in this County here?

William H. Allen:

No, it does not.

Potter Stewart:

Which is the nominee if you run in the primary, —

William H. Allen:

You run in the primary.

Potter Stewart:

— the nomination for election to the school board —

William H. Allen:

And —

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Potter Stewart:

— and they — if you win the primary then you’re party —

William H. Allen:

Then you —

Potter Stewart:

— presumably supports you.

William H. Allen:

And you win the election has been true up till now if you’re a democrat.

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.

William H. Allen:

Racial voting nothing more than that?

Or —

Byron R. White:

Or just that the people the people who are getting together in the Democratic Party —

William H. Allen:

I understand what you’re telling.

Byron R. White:

— are getting together in the backroom.

There’s plenty of Negroes there and —

William H. Allen:

Yes.

Byron R. White:

— but there are more whites.

William H. Allen:

Yes.

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?

William H. 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 —

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.

William H. 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.

Thurgood Marshall:

And the Negroes there have access to that slate in Mobile?

William H. Allen:

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

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?

William H. Allen:

They have not won a primary run-off election.

That is absolutely true, Your Honor.

Thurgood Marshall:

No, sir.

Please, at the end on the slate.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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William H. Allen:

They had never been the democratic nominee.

That none of them has been the democratic nominee.

Thurgood Marshall:

A judgment for the slate, didn’t they?

William H. 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.

Thurgood Marshall:

Did the polling booth pick the slate?

William H. Allen:

Yes, Your Honor.

Yes, the democratic primary.

Yes.

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?

William H. Allen:

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

Byron R. White:

But has there any been a Negro in the — on ballot of the general election?

William H. 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.

Byron R. White:

At least the election, there’s never been a democratic candidate who is a Negro in the general election.

William H. 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.

William J. Brennan, Jr.:

Mr. Allen, let me be sure I understand this.

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

William H. Allen:

No.

William J. Brennan, Jr.:

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.

William H. Allen:

That’s correct Your Honor, exactly correct.

William J. Brennan, Jr.:

Is that — is this an unusual situation?

William H. Allen:

It’s a non-paying job, anybody apparently five, six, eight people run each time for each of these positions and —

Thurgood Marshall:

Is it true that the judge know more about it than you and I?

William H. 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 —

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?

William H. Allen:

No, no, no.

That’s correct.

Warren E. Burger:

It’s just work and public service?

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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William H. Allen:

Public service, whatever motivates people to undertake —

Warren E. Burger:

Dedication.

William H. 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.

Potter Stewart:

Page 34 (a) of not of the jurisdictional statement?

William H. Allen:

No, of the appendix.

Potter Stewart:

Of the appendix and what is the middle paragraph?

William H. Allen:

Yes, the middle paragraph, the last two paragraphs, Your Honor.

Potter Stewart:

Right.

William J. Brennan, Jr.:

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.

William H. Allen:

In what respect Your Honor?

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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William J. Brennan, Jr.:

Let me ask you.

Do you think there are differences?

William H. Allen:

There are differences.

I think —

William J. Brennan, Jr.:

That have any significance on the outcome?

If we dedide —

William H. Allen:

No.

William J. Brennan, Jr.:

— one way, do you think they both should go the same way?

William H. Allen:

Yes, I’m persuaded of that, yes Your Honor.

William J. Brennan, Jr.:

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?

William H. Allen:

I didn’t suggest that there was — I’m sorry I can’t understand Your Honor’s question now.

William J. Brennan, Jr.:

What is the —

William H. 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 —

William J. Brennan, Jr.:

Suppose they were not adopted in that sort of thing but there was not that —

William H. 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 —

William J. Brennan, Jr.:

Well in other words, if this finding were supported by evidence would that make your legal position any different?

William H. Allen:

If — if there were some evidence that the legislature had deliberately acted lately to ratify or otherwise to confirm —

William J. Brennan, Jr.:

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?

William H. Allen:

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

I think it is a —

William J. Brennan, Jr.:

And arguably the other cases —

William H. Allen:

It’s a dangerous inquiry to get into, Your Honor.

The difficulty —

William J. Brennan, Jr.:

But arguably, the other cases are more like that than this.

William H. 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.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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William H. Allen:

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 —

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.

William H. Allen:

There’s — that is all that’s a bit, Your Honor.

Byron R. White:

Yes.

William H. Allen:

That is it.

Byron R. White:

But you accept that?

William H. Allen:

Oh, yes.

Yes, there seems to be a —

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.

William H. Allen:

The state is not responsible I think none of this Court’s decisions comprehends a state action.

The action of —

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.

William H. Allen:

By whom and it’s by individual voters of voting their will.

That that —

Byron R. White:

Then Whitcomb against Smokey (ph) might become relevant.

William H. Allen:

Well, I suggest not Your Honor.

Byron R. White:

You hope.

Thurgood Marshall:

Of course the Fifteenth Amendment doesn’t require state action.

William H. Allen:

It says — well it requires action by state or the United States, Your Honor.

Byron R. White:

The Fifteenth?

William H. Allen:

Fifteenth shall not be abridge, denied or abridged by the United States or any state on account of race, color —

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.

William H. 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.

Warren E. Burger:

Very well, Mr. Allen.

Mr. Schnapper.

Eric Schnapper:

Mr. Chief Justice and may it please the Court.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Eric Schnapper:

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.

Thurgood Marshall:

Presumed by whom?

Eric Schnapper:

Excuse me?

Thurgood Marshall:

Who has continued and keep them from voting, the city, the state?

Eric 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.

Thurgood Marshall:

Well, who is maintaining this discrimination?

Eric 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.

Thurgood Marshall:

And Mobile controls the legislature?

Eric 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.

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?

Eric Schnapper:

Well, I do not want to recount there.

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

Potter Stewart:

But ultimately, it’s the voters?

Eric 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.

Potter Stewart:

You have to and that’s within the voluntary control of each individual voter.

Eric 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.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Eric Schnapper:

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, —

Warren E. Burger:

But you —

Eric Schnapper:

Yes.

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.

Eric 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.

Thurgood Marshall:

How many legislatures do you need to maintain your point of majority?

Eric 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.

Thurgood Marshall:

One legislature?

Eric 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?

Thurgood Marshall:

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

Eric Schnapper:

Your Honor, I wouldn’t characterize it in that way but —

Thurgood Marshall:

Wouldn’t think you could.

Eric 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.

Thurgood Marshall:

And we’re bound by that?

Eric Schnapper:

What?

And I think you’re bound by that.

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?

Eric Schnapper:

Well, they could have changed their mind but they didn’t.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Eric Schnapper:

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.

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 —

Eric 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 —

Potter Stewart:

They have legislating there if I know.

Eric Schnapper:

No, not in Bexar County, only in Dallas County.

Potter Stewart:

B-E-X-A-R?

Eric Schnapper:

B-E-X-A-R, right.

Potter Stewart:

Why is it — I know it but —

Eric 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.

Potter Stewart:

And there wasn’t —

Eric Schnapper:

There was slating in Dallas.

There was not slating in Bexar County.

There’s not slating here.

Potter Stewart:

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

Eric Schnapper:

That’s an active —

Potter Stewart:

Regardless of his race?

Eric Schnapper:

Yes.

Potter Stewart:

And that’s all conceded, isn’t it?

Eric Schnapper:

Yes, I think we are in agreement.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Potter Stewart:

There is no secret that the inside groups that slates or —

Eric Schnapper:

No, there is none.

Potter Stewart:

Or no claim that there is?

Eric 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.

Byron R. White:

Are there anybody who get on the general election ballot except by the primary?

Eric 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.

Thurgood Marshall:

Well, what happens after the democratic primary by the school board?

Eric Schnapper:

Well, there’s a general election but it’s often uncontested.

It was uncontested this year for example.

Thurgood Marshall:

Well, if it is contested, why do you contest it?

Eric Schnapper:

You get the nomination to Republican Party.

Thurgood Marshall:

What about the non-partisan party?

Eric Schnapper:

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

Thurgood Marshall:

Can they get somebody —

Eric Schnapper:

What?

Thurgood Marshall:

— get somebody on there?

Eric Schnapper:

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

Thurgood Marshall:

It has to be a party?

Eric Schnapper:

It has to be a party.

Well, those are the four claims before the court.

Thurgood Marshall:

Is there any mechanism for the nominated by petition after the primary or?

Eric Schnapper:

The record does not reflect to that.

Byron R. White:

Excuse me.

Eric Schnapper:

There may be procedure that sort of, it was not part of the case as it was litigated below it’s not —

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.

Eric Schnapper:

Oh!

I’m sorry.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Byron R. White:

The state — the denial of the right to vote still has to be made by the state?

Eric Schnapper:

That’s right.

Byron R. White:

So tell me how the state is involved in the Fifteenth Amendment violation.

Eric 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.

Thurgood Marshall:

You mean adopt.

SDo you mean you maintain, don’t you?

Eric 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.

Byron R. White:

You have to say the state is efficiently involved if it maintains the system which permits individual discrimination at the polls?

Eric Schnapper:

Yes, I mean that’s right.

Byron R. White:

That’s it, isn’t it?

Eric Schnapper:

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.

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?

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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William H. Rehnquist:

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

Eric Schnapper:

If you hold that — let me make sure that is right that the District Court didn’t find intent but —

William H. Rehnquist:

Right.

Eric Schnapper:

— the Court of Appeals did find intent.

William H. Rehnquist:

Right.

Eric 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.

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?

Eric 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.

William H. Rehnquist:

I thought the litigation was eight or nine years old.

Eric Schnapper:

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

Thurgood Marshall:

Bearing in mind that this is a direct appeal.

Eric Schnapper:

Yes.

Thurgood Marshall:

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

Eric Schnapper:

Well, I think the ordinary practice of the Court is the same —

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?

Eric 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 —

Thurgood Marshall:

Is there a direct appeal?

Eric Schnapper:

It is a direct appeal but I think the Court’s normal —

Thurgood Marshall:

What is before us on a direct appeal?

That constitutionality of a statute?

Eric 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.

Thurgood Marshall:

Oh, sure but I don’t think you are —

Eric Schnapper:

And — and that’s where the ground was raised below.

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Thurgood Marshall:

Well, I don’t think you have the right to prevent us from considering the constitutionality of the statute that’s involved.

Eric Schnapper:

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

Thurgood Marshall:

Well, I misunderstood you.

Eric 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 —

Byron R. White:

As long as we decide for you?

Eric Schnapper:

That’s our position.

So, now — but I think you had another question I don’t think I fully answered.

Potter Stewart:

Are the two-court rule under factual finding?

Eric 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.

John Paul Stevens:

Mr. Schnapper, could I ask you a question?

Eric Schnapper:

Yes.

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 —

Eric Schnapper:

Yes.

John Paul Stevens:

— as distinguish other cases, do you think those facts were enough?

Eric 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.

William H. Rehnquist:

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

Audio Transcription for Oral Reargument – October 29, 1979 in City of Mobile v. Bolden

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Eric 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.

William H. Rehnquist:

But Attorney General Katzenbach did.

Eric Schnapper:

And he said purpose or effect.

He was quite clear about that.

William H. Rehnquist:

Who passes laws?

The attorney general or the congress?

Eric Schnapper:

Currently, the Congress does it.

Potter Stewart:

But not a single senator?

Eric 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.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.