Full opinion text
OWENS, District Judge: Article III of the Constitution of the United States vests the judicial power of the United States in the Supreme Court of the United States and “in such inferior Courts as the Congress may from time to time ordain and establish.” Congress pursuant to that authority established our present lower federal court system— (a) United States District Courts are trial courts in which all cases generally begin and are tried either before a jury or before just a judge. There are presently 94 such courts in our 50 states and various territories and possessions; this court is one of those 94. (b) United States Courts of Appeals are appellate courts to which those who are dissatisfied with the judgment of a district court have the right to appeal. There are presently eleven such courts of appeal. The judicial power of the United States according to Article III of the Constitution “shall extend to all Cases, in Law and Equity arising under this Constitution, the Laws of the United States . . . ; —to Controversies to which the United States shall be a Party . . . .” Congress has specified by laws to what extent and under what circumstances this judicial power is to be exercised by each of our federal courts. 28 U.S.C. § 1251, et seq. Following the end of the Civil War between 1865 and 1870, the Constitution of the United States which was then 78 years old and had been amended on only three occasions, was further amended to outlaw slavery — Amendment XIII; to make all persons citizens of these United States and command each State to afford citizens their constitutional rights including due process and equal protection of the law — Amendment XIV; and to prohibit denial or abridgement of the right to vote on account of race, color or previous condition of servitude — Amendment XV. This public controversy concerns the manner in which two of these three amendments — XIV and XV — as they have been interpreted and applied by the Supreme Court and lower federal courts require the revision of Albany, Georgia’s legislatively created at-large, multi-member system of electing its governing body of seven city commissioners under which (a) two of those commissioners run for the posts of mayor and mayor pro tern and are voted upon by all the voters and (b) five of those commissioners are respectively required to reside in one of five wards but are voted upon by all the voters of the city. THE FOURTEENTH AMENDMENT The Fourteenth Amendment as it is here applicable provides: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws, (emphasis added). The “primary concern [of the framers of this amendment] was the establishment of equality in the enjoyment of basic civic and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color. [As early as 1873 the Supreme] Court announced that the provisions of the Amendment are to be construed with this in mind.” Shelley v. Kraemer, 334 U.S. 1, 23, 68 S.Ct. 836, 847, 92 L.Ed. 1161 (1947). Among the basic civic and political rights that have been found to be protected and preserved from discriminatory action on the part of states is the right of suffrage — the right or privilege of casting a vote at public elections. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The election process equality established by this Amendment, includes not only the famous “one-person, one-vote” rule of Baker v. Carr, supra; Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), but also includes as to state created multi-member election district schemes, the prohibition that such districts may not “operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Whitcomb v. Chavis, 403 U.S. 124, 143, 91 S.Ct. 1858, 1869, 29 L.Ed.2d 363 (1971). To sustain a challenge that multimember election districts are unconstitutional because they operate to minimize or cancel out the voting strength of racial or political elements of the voting population, the challengers must carry the “burden of proving that multi-member districts operate to dilute or cancel the voting strength of racial or political elements.” Such proof “focus[es] not on population-based apportionment [“one-man, one-vote” rule] but on the quality of representation afforded [the challengers] by the multi-member district [arrangement] as compared with single-member districts.” Id. at 142, 91 S.Ct. at 1868. When challengers factually prove that multi-member districts operate to dilute or cancel the voting strength of racial or political elements, they thereby establish that such a scheme denies them the inalienable right — derived from the Equal Protection Clause of the Fourteenth Amendment — that each and every citizen has full and effective participation in the political processes of his State’s legislative bodies. Reynolds v. Sims, 377 U.S. at 565, 84 S.Ct. 1362. Multi-member districts even though they have certain undesirable features, are not per se illegal under the Equal Protection Clause. Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967). In the absence of factual proof of dilution or cancellation multi-member districts therefore do afford citizens the equal protection of the law that comes from the Fourteenth Amendment and are not unconstitutional under the Equal Protection Clause. Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967); Dallas County v. Reese, 421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975). The Constitution simply does not demand “that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district.” Whitcomb, supra, 403 U.S. at 156, 91 S.Ct. at 1875. Factual proof of dilution or cancellation is derived from an examination of the manner in which the multi-member system has performed or actually worked in past years — “the real-life impact of multimember districts on individual voting power . .” Whitcomb, supra, at 146, 91 S.Ct. at 1870. It is not derived from a theoretical projection of the effect that a multi-member system will have in years to come. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). The sufficiency of the required proof of dilution or cancellation of the voting strength of racial or political elements is demonstrated by White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), the first decision of the Supreme Court of the United States finding that the facts proven before the district court did establish dilution or cancellation violative of the Equal Protection Clause and setting forth those facts as the Supreme Court perceived them to be. IN WHITE v. REGESTER The Court considered the constitutional validity of multi-member legislative election districts created by the State of Texas’ reapportionment plan for Dallas and Bexar counties and found by the district court to be constitutionally invalid because of being invidiously discriminatory against Negroes in Dallas county and Mexican-Americans in Bexar county. Note the language of the Supreme Court: “We affirm the District Court’s judgment, however, insofar as it invalidated the multimember districts in Dallas and Bexar Counties and ordered those districts to be redrawn into single-member districts. Plainly, under our cases, multimember districts are not per se unconstitutional, nor are they necessarily unconstitutional when used in combination with single-member districts in other parts of the State, (citations omitted). But we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups. See Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. Whitcomb v. Chavis, supra, 403 U.S. at 149-150, [91 S.Ct. at 1872], 29 L.Ed.2d 363. “With due regard for these standards, the District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes. [Graves v. Barnes] 343 F.Supp. [704], at 725. It referred also to the Texas rule requiring a majority vote as a prerequisite to nomination in a primary election and to the so-called ‘place’ rule limiting candidacy for legislative office from a multimember district to a specified ‘place’ on the ticket, with the result being the election of representatives from the Dallas multimember district reduced to a head-to-head contest for each position. These characteristics of the Texas electoral system, neither in themselves improper nor invidious, enhanced the opportunity for racial discrimination, the District Court thought. More fundamentally, it found that since Reconstruction days, there have been only two Negroes in the Dallas County delegation to the Texas House of Representatives and that these two were the only two Negroes ever slated by the Dallas Committee of Responsible Government (DCRG), a white-dominated organization that is in effective control of Democratic Party candidate slating in Dallas County. That organization, the District Court found, did not need the support of the Negro community to win elections in the county, and it did not therefore exhibit good-faith concern for the political and other needs and aspirations of the Negro community. The court found that as recently as 1970 the DCRG was relying upon ‘racial campaign tactics in white precincts to defeat candidates who had the overwhelming support of the black community.’ Id., at 727. Based on the evidence before it, the District Court concluded that ‘the black community has been effectively excluded from participation in the Democratic primary selection process’ id., at 726, and was therefore generally not permitted to enter into the political process in a reliable and meaningful manner. These findings and conclusions are sufficient to sustain the District Court’s judgment with respect to the Dallas multimember district and, on this record, we have no reason to disturb them. “The same is true of the order requiring disestablishment of the multimember district in Bexar County. Consistently with Hernandez v. Texas, 347 U.S. 475, [74 S.Ct. 667], 98 L.Ed. 866 (1954), the District Court considered the Mexican-Americans in Bexar County to be an identifiable class for Fourteenth Amendment purposes and proceeded to inquire whether the impact of the multimember district on this group constituted invidious discrimination. Surveying the historic and present condition of the Bexar County Mexican-American community, which is concentrated for the most part on the west side of the city of San Antonio, the court observed, based upon prior cases and the record before it, that the Bexar community, along with other Mexican-Americans in Texas, had long ‘suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economics, health, politics and others’ 343 F.Supp. at 728. The bulk of the Mexican-American community in Bexar County occupied the Barrio, an area consisting of about 28 contiguous census tracts in the city of San Antonio. Over 78% of Barrio residents were Mexican-Americans, making up 29% of the county’s total population. The Barrio is an area of poor housing; its residents have low income and a high rate of unemployment. The typical Mexican-American suffers a cultural and language barrier that makes his participation in community processes extremely difficult, particularly, the court thought, with respect to the political life of Bexar County. ‘[A] cultural incompatibility . conjoined with the poll tax and the most restrictive voter registration procedures in the nation have operated to effectively deny Mexican-American access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary.’ 343 F.Supp., at 731. The residual impact of this history reflected itself in the fact that Mexican-American voting registration remained very poor in the county and that, only five Mexican-Americans since 1880 have served in the Texas Legislature from Bexar County. Of these, only two were from the Barrio area. The District Court also concluded from the evidence that the Bexar County legislative delegation in the House was insufficiently responsive to Mexican-American interests. “Based on the totality of the circumstances, the District Court evolved its ultimate assessment of the multimember district, overlaid, as it was, on the cultural and economic realities of the Mexican-American community in Bexar County and its relationship with the rest of the county. Its judgment was that Bexar County Mexican-Americans ‘are effectively removed from the political processes of Bexar [County] in violation of all the Whit-comb standards, whatever their absolute numbers may total in that County.’ Id., at 733. Single-member districts were thought required to remedy ‘the effects of past and present discrimination against Mexican-Americans,’ ibid., and to bring the community into the full stream of political life of the county and State by encouraging their further registration, voting, and other political activities. “The District Court apparently paid due heed to Whitcomb v. Chavis, supra, did not hold that every racial or political group has a constitutional right to be represented in the state legislature, but did, from its own special vantage point, conclude that the multimember district, as designed and operated in Bexar County, invidiously excluded Mexican-Americans from effective participation in political life, specifically in the election of representatives to the Texas House of Representatives. On the record before us, we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multimember district in the light of past and present reality, political and otherwise.” 412 U.S. 765-770, 93 S.Ct. 2339. (emphasis added). The detailed facts as found by the district court of three judges are set forth in their lengthy opinion beginning at 343 F.Supp. 704 and ending at 737. In affirming the district court’s conclusion that those facts prove that these multi-member districts invidiously discriminate against blacks and Mexican-Americans, it is significant that the Supreme Court in the aforesaid took particular note as to Dallas County of (1) this history of official racial discrimination in Texas, (2) the Texas rule requiring a majority vote, (3) the so-called “place” rule, (4) the election since Reconstruction days of only two Negroes both of whom were slated or sponsored by a white-dominated group in control of the Democratic party, and (5) the lack of concern of the said white dominated group for the needs and aspirations of the Negro community whose support was not needed to win elections — in affirming the District Court’s conclusion that “the black community has been effectively excluded from participation in the Democratic primary selection process.” It is also significant to note as to Bexar County that the trial court’s findings are described as “a blend of history and an intensely local appraisal of the design and impact pf the Bexar County multimember district in the light of past and present reality, political and otherwise.” It is further important to note that before reaching that conclusion the Court mentions invidious discrimination and treatment of Mexican-Americans in the fields of education, employment, economics, health, politics and others, their past and present suffering; and the residual impact of this history. Even though lower federal courts have applied the holding of White v. Regester, it remains the only decision of the Supreme Court setting forth its approval of a factual finding by a trial court of dilution. It is therefore “the” standard by which claims of dilution are to be judged. THE FIFTEENTH AMENDMENT The Fifteenth Amendment provides: “Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. “Section 2. The Congress shall have power to enforce this article by appropriate legislation.” As to this amendment the Supreme Court in 1884 in a case from Georgia explained: “The Fifteenth Amendment of the Constitution, by its limitation on the power of the States in the exercise of their right to prescribe the qualifications of voters in their own elections, and by its limitation of the power of the United States over that subject, clearly shows that the right of suffrage was considered to be of supreme importance to the national government, and was not intended to be left within the exclusive control of the States. “While it is quite true, as was said by this court in U. S. v. Reese, 92 U.S. [214], 218 [23 L.Ed. 563, 564], that this article gives no affirmative right to the colored man to vote, and is designed primarily to prevent discrimination against him whenever the right to vote may be granted to others, it is easy to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Constitutions the words ‘white man’ as a qualification for voting, this provision did, in effect, confer on him the right to vote, because, being paramount to the state law, and a part of the state law, it annulled the discriminating word white, and thus left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a State which should give the right of voting exclusively to white people, whether they be men or women. Neal v. Delaware, 103 U.S. 370 [26 L.Ed. 567]. “In such cases this fifteenth article of amendment does, proprio vigore, substantially confer on the negro the right to vote, and Congress has the power to protect and enforce that right. “In the case of U. S. v. Reese, so much relied on by counsel, this court said in regard to the Fifteenth Amendment, that ‘it has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is an exemption from discrimination in the exercise of the elective franchise on account of race, col- or, ór previous condition of servitude.’ This new constitutional right was mainly designed for citizens of African descent. The principle, however, that the protection of the exercise of this right is within the power of Congress, is as necessary to the right of other citizens to vote [in general] as to the right to be protected against discrimination.” Ex parte Yarbrough, 110 U.S. 651, 665,4 S.Ct. 152,158, 28 L.Ed. 274. This amendment erects no shield against private conduct regardless of how discriminatory or wrongful. It protects only against denial or abridgment by a State or by the United States. James v. Bowman, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed. 979 (1903); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953). That denial or abridgment may pertain to both primary and general elections, Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), Terry v. Adams, supra, and can be a direct denial such as by state statute denying the right of Negroes to vote in primary elections, Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927); indirect through denial of the right of Negroes to vote by those party officials who are given or delegated authority by state law to prescribe primary election rules and regulations, Chapman v. King, 154 F.2d 460 (5th Cir. 1946), cert. denied 327 U.S. 800, 66 S.Ct. 905, 90 L.Ed. 1025; or even by withdrawal of the right to vote by gerrymander of municipal boundaries so as to shrink them and leave mainly Negro voters outside the boundaries. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). As the Supreme Court reminded in Gomillion at 342, 81 S.Ct. at 127: “. . . ‘The [Fifteenth] Amendment nullifies sophisticated as well as simpleminded modes of discrimination.’ Lane v. Wilson, 307 U.S. 268, 275, [59 S.Ct. 872, 876], 83 L.Ed. 1281, 1287.” While' it protects against such denials or abridgments, it has not yet been utilized by the Supreme Court to invalidate either legislative apportionment or reapportionment plans including those that involved multimember districts. THIS LAWSUIT The Fourteenth and Fifteenth Amendment having been thus interpreted and applied, the private plaintiffs — Fanny Paige, Erma Moss, Mary Young and Grady Caldwell, both individually and in behalf of all black Albany voters — filed this lawsuit on December 9, 1974, alleging that Albany’s legislatively created city government consisting of seven commissioners — a mayor, mayor pro tern and five ward commissioners — all elected at large or by all the voters of the city, is violative of their constitutional rights in two respects: (a) In 1947 the legislature amended Albany’s city charter to eliminate the election of a commissioner by the voters of each of five wards and provide instead for the election of those commissioners by the voters of the entire city. Each of the five commissioners was also required to reside in one of the five wards — one commissioner from each of the five wards. The other two commissioners designated in 1937 as mayor and mayor pro tern, had been elected at large since 1923 and were not affected by the Act. This 1947 Act, 1947 Ga. Laws at 725, the plaintiffs alleged was enacted to prevent Negro voters who were then a majority of the voters in one ward and an approaching majority in a second ward, from controlling the ward election of at least one of Albany’s commissioners. This they say denied or abridged their Fifteenth Amendment rights. (b) Regardless of the constitutional validity of the 1947 Act changing the election of five ward commissioners to an at-large, multi-member system, plaintiffs allege that Albany’s legislatively enacted system of electing all seven of its commissioners by an at-large, multi-member system violates their rights under the Equal Protection Clause of the Fourteenth Amendment as interpreted by the Supreme Court in Whitcomb v. Chavis, supra, and White v. Regester, supra. They say that the political processes leading to nomination and election of Albany’s seven city commissioners were not equally open to participation by Albany’s Negro citizens and that Albany’s Negro citizens have had less opportunity than did Albany’s white citizens to participate in the political processes and to elect commissioners of their choice. On July 21, 1975, the United States filed its similar complaint, and it was combined and consolidated with that of the individual plaintiffs into one lawsuit. The individual plaintiffs and the United States as remedies first asked that the court upon finding the said 1947 Act to be unconstitutional, order elections to be conducted as they were before the 1947 Act— one commissioner elected by the voters of each of five wards and two commissioners, the mayor and mayor pro tern, elected at large. They further asked that the court upon finding that Albany’s at-large, multimember scheme of electing all seven of its commissioners is unconstitutional, order future elections conducted on a single-member ward basis, one commissioner elected by the voters of each of seven wards. This of necessity would mean that Albany’s mayor and mayor pro tern would be selected by and from the seven commissioners and would no longer be elected by the people. See Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971). AUGUST 6, 1975 — HEARING On August 6, 1975, the prayer of the plaintiffs for injunctive relief was heard. After all the evidence was presented and the parties were heard this court for reasons stated, 399 F.Supp. 459, enjoined the election of Albany’s five ward "commissioners on an at-large basis and ordered that future elections be held as they had been before 1947, on a single-member ward basis — one commissioner to run from each of five wards and to be voted upon only by the voters of each ward. The basis for that order was the court’s finding that the 1947 Act changing to at-large elections had the inevitable effect of abridging the rights of Albany’s Negro citizens to vote as that right is guaranteed by the Fifteenth Amendment. The court did not then believe the White v. Regester dilution theory of the Equal Protection Clause to be applicable to the facts of this case. REDRAWN WARDS At this time this lawsuit commenced Albany’s five wards had not been changed since 1958 except by the enlargement of Albany’s city limits through annexation. Figures furnished by the plaintiffs indicated that the population of each ward as shown by the 1970 census was: Ward Total 1 21,478 2 15,312 3 21,625 4 9,149 5 7,093 The plaintiffs contended that the “one-man, one-vote rule” of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), required that these wards be redrawn so as to be as equal as practicably possible from a population standpoint. Defendant city officials agreed that if the “one-man, one-vote rule” is applicable, the wards are malapportioned and must be redrawn. Accordingly, following the receipt of suggested plans from the plaintiffs and the defendants the court redrew Albany’s wards with the following result: Total WARD Population Deviation 1 14,153 + 0.007% 2 14,189 + 0.261% 3 13,815 - 2.381% 4 14,361 + 1.477%. 5 14.244 + 0.650% TOTALS 70,762 Population by Race (Percentage') White Black 11,242 (79.4%) 2,911 (20.6%) 5,122 (36.1%) 9,067 (63.9%) 200 ( 1.4%) 13,615 (98.6%) 12,374 (86.2%) 1,987 (13.8%) 13.951 197.9%) 293 ( 2.1%) 42,889 (60.6%) 27,873 (39.4%) Ideal Ward Population — 14,152 Total Population Deviation = 3.858% Paige v. Gray, 399 F.Supp. 459, 468 (D.C. 1975). Future elections were ordered held on the basis of such redrawn wards. APPEAL BY DEFENDANTS The defendant City officials filed their notice of appeal immediately following the entry of the court’s final order on August 16, 1975, and moved this court to stay the effect of its order pending appeal. In denying defendant’s motion for a stay this court pointed out to them in footnote 1: “Defendants should note that if White v. Regester, supra, were controlling, its application could result in the Mayor and Mayor Pro Tem, each of whom is in reality a commissioner, being elected from a ward instead of at-large — seven instead of five wards.” The plaintiffs on September 11 filed their notice of appeal. Almost one year later— September 15, 1976 — the Fifth Circuit Court of Appeals without disagreeing with the result already reached, returned this case for this court to also consider plaintiffs’ claim that Albany’s system of electing its seven commissioners — Mayor, Mayor Pro Tem and five ward commissioners — at large violates their rights under the Equal Protection Clause of the Fourteenth Amendment and in the event that claim is determined to be valid, to further consider whether or not constitutional principles as formulated by the Supreme Court require the election of all of Albany’s commissioners from single-member districts. 538 F.2d 1108. FURTHER EVIDENCE AND BRIEFS The parties requested and the court allowed each of them to submit additional evidence by depositions and affidavits and to furnish additional briefs of law. The last of these were received June 6, 1977. All having been considered, this in its entirety constitutes the court’s findings of fact and conclusions of law. Rules 52 and 65, Federal Rules of Civil Procedure. THE FACTS (A) The Structure of Albany’s City Government Through the Enactment of the 1947 Charter Amendment. The City of Albany is today a thriving southwest Georgia trade-center of some 76,-000 persons; approximately 61% of whom are white and approximately 39% of whom are black. First created in 1838, its population by 1900 was 4,606. Its growth thereafter continued steadily as is shown by United States census figures: YEAR' TOTAL POPULATION 1910 8,190 1920 11,555 1930 14,507 1940 19,055 YEAR TOTAL POPULATION 1950 31,155 1960 55,890 1970 72,623 Albany’s municipal government at the time of its creation by the legislature of this State was five named individuals who were designated as commissioners and given terms of office to expire with the election of their successors in 1840; there was no provision for a mayor. 1838 Ga.Laws at 128. In 1841 the charter was amended by the legislature to provide for a mayor and six councilmen all elected at large; the mayor was given no special powers and apparently had a vote as a member of the council. 1841 Ga.Laws at 52. While over the years there were many amendments enumerating the responsibilities and powers of the mayor, Albany’s municipal government until 1921 continued to consist of a mayor and six councilmen all elected at large. That year there was a legislative amendment providing for the city to be divided into six wards with five councilmen to be elected just by the voters of each of five wards and one councilman to reside in the sixth ward but be elected by the voters of the entire city. The at-large councilman rotated from ward to ward with each election. 1921 Ga.Laws at 641. The mayor’s office remained unchanged. The year 1922 brought further change. The mayor and six councilmen were replaced by a Board of City Commissioners consisting of five commissioners elected from single-member wards. The commissioners elected a chairman of the board who acted as ex officio mayor for ceremonial purposes, and the commissioners hired a city manager who had the responsibility of operating the city. 1922 Ga.Laws at 457. 1923 brought a completely revised city charter providing for a board of seven commissioners with five elected from single-member wards and two elected at large. Each commissioner served two years, and they elected one of their members as mayor to serve a one year term. 1923 Ga.Laws at 370. A 1937 charter amendment designated one at-large commissioner post as mayor and the other post as mayor pro tem. 1937 Ga.Laws at 1476. This system remained in effect until 1947 when the legislature passed an amendment to provide for a total of seven commissioners, five to reside in each of five wards but to be elected at large or by all the voters of the city and the other two, one the mayor and the other the mayor pro tern, to continue to be elected at large. 1947 Ga.Laws at 734. (B) The Circumstances Surrounding the Enactment of the 1947 Charter Amendment. Prior to the March 6,1946, decision of the United States Court of Appeals for the Fifth Circuit in the case of Chapman v. King, 154 F.2d 460, cert. denied 327 U.S. 800, 66 S.Ct. 905, 90 L.Ed. 1025, only white Georgians could vote in the Democratic primary election. The Democratic primary election was the only election in which there was a real contest, and whoever won usually prevailed in the general election. Negro citizens therefore could not vote in the only meaningful election. While Albany’s population was between 19,055 (1940 table) and 31,155 (1950 total), and while its percentage of black citizens was at least as great as today, only 301 of Albany’s Negro citizens had registered to vote before 1946. Chapman v. King held the primary election to be part of the state election machinery encompassed by the Fifteenth Amendment’s prohibition of denial of the right to vote on account of race or color. Negroes could thus vote in the Democratic primary for the first time. In 1946 an additional 1,563 Albany Negroes registered to vote making a total of 1,864 black voters registered to participate in Albany’s 1946 primary and general elections for city officials. The Albany Herald, then and now Albany’s only local daily paper, on October 29, 1946, reported: 3,548 REGISTERED TO VOTE IN CITY PRIMARY NOV. 18 Three thousand five hundred and forty-eight Albanians are registered to vote in three municipal wards in the Nov. 18 city primary, and, contrary to public opinion, Negroes outnumber white votes in only one of the wards, R. F. Worley, chairman of the City Board of Registrars, revealed today. Only in the Fifth Ward — where four candidates are seeking the post being vacated by incumbent — do Negroes outnumber whites, Mr. Worley’s report showed. He listed the registrants as 913 white men and women and 1,010 Negroes in this ward. Whites still outnumber Negroes in the Second Ward, where incumbent C. M. (Chet) Clark is unopposed for renomination. Mr. Worley advised. Registrants include 464 whites and 309 Negroes. Political observers had figured that Negroes would predominate in the Second. The Third Ward, in which incumbent Charles M. Shackelford is opposed by R. A. (Bob) Culpepper, is overwhelmingly white, 791 to 61, the chairman advised. All Time High The total registration in these three wards already exceeds the total registration of all five city wards of prewar years. Thus registration for the entire city is at an all-time high. Mr. Worley said that the total announced today were “subject to a few purges” because of citizens moving about from one ward to another, but that the corrected totals would not vary by 10 voters more or less in each ward. Candidates lined up for the strenuous Fifth Ward race, now officially on with the closing of entries at noon Monday, include M. M. Hester, Edward J. Davis, H. E. Mangum and R. F. (Dick) Armstrong. Negroes will vote for the first time in history in the city primary, hitherto restricted to whites only. The primary also will mark the third time Negroes have been eligible to cast ballots here in 1946, since they were permitted to vote in the county and state primaries earlier in the year, (emphasis added). On November 7, 1946, the Albany Herald editorialized on Negro block voting (R. 270), and on November 18, 1946, the paper reported as follows: WEATHER CUTS INTO MUNICIPAL PRIMARY VOTE Lowering clouds and a biting north wind took their toll of voters turning-out for today’s municipal primary, in which three city commissioners will be nominated. Of 3,548 registered to cast ballots, only 209 had done so by mid-morning at five precincts in the Dougherty County courthouse and Municipal Auditorium. Sad faced candidates, greeting ballot casters at the courthouse, were shaking their heads over the weather. Even the Negro vote, first on record in such a primary here, was light, a fact which puzzled observers who had expected a 100 per cent turnout with an early rush of the 1,380 Negro registrants; 1,010 of whom are in the Fifth Ward. Only 286 Negroes had voted by early afternoon. One New Face With the primary in progress, one new face on the City Commission was assured. The Fifth Ward incumbent, P. A. Keenan, did not choose to seek renomination, and four candidates are engaged in a battle royal for his seat, including M. M. Hester, agriculturalist; Edward J. Davis, insurance man; H. F. Mangum, retail grocer, and R. F. (Dick) Armstrong, former mayor and Fifth Ward Commissioner. Predictions as to the outcome of this race were few and far between, although observers agreed that the candidate who corralled the Negro vote would win handily- Facing opposition for the first time in several years was Third Ward incumbent, C. M. Shackelford, seeking his seventh successful two-year term of office. His opponent is railroad engineer R. A. (Bob) Culpepper. Only incumbent seeking renomination without opposition is the Second Ward’s C. M. (Chet) Clark, who thus is assured his second full term of office. All nominations will be ratified in the Dec. 2 general election. By wards, the early afternoon vote was as follows: Courthouse — Fifth Ward, 175; Second Ward, 17; Third Ward, 116; Auditorium — Fifth Ward, 263; Second-Third Ward (combined), 23. (R. 271). (emphasis added). That “the candidate who corralled the Negro votes would win handily” proved to be an accurate prediction. The Democratic primary election for the City of Albany was held . . . for the commissioners representing the second, third and fifth wards. The stipulated facts show that 3,548 persons were registered to vote in that election and that by race and ward they were as follows: Race Second Ward Third Ward Fifth Ward White 464 791 913 Black [ XXX XX XXXX ] Blacks thus constituted more than a majority of the registered voters in the Fifth Ward. The stipulated facts further show that in the Fifth Ward’ there were two whites (sic) candidates running for the nomination. Of the 1,923 voters, 353 white citizens voted and 448 Negro citizens voted — a total of 791 — at what were then segregated polling places. Broken down by race those 791 votes were cast as follows: Candidates Edward J. Davis R, F. Armstrong White voters 156 197 Black voters 384 _64 Total 540 261 The overwhelming majority of black voters cast their votes for Edward J. Davis and a substantial majority of white voters cast their votes for R. F. Armstrong. Edward J. Davis was elected. The impact of the votes of the new black voters is readily apparent from these figures. Paige v. Gray, 399 F.Supp. 459, 460-62. On January 30,1947, the Albany Herald’s editor took note of the Talmadge sponsored white primary bill then being debated in the Georgia legislature. It is patterned after a South Carolina law which prevents Negroes from participating in Democratic white primaries and that, of course, is the chief aim of the measure. Georgians had their first taste of so-called Negro “block voting” last year, and they didn’t like it. (R. 272). By , March 26 the already described 1947 Act amending Albany’s city charter so as to provide for all seven commissioners to be elected at large had been passed and approved by the Governor. The legislature did not prepare or publish a legislative history of the 1947 Act. It was not then nor is it now the custom in this state to prepare or publish legislative histories for either general or special laws enacted by the legislature. The only direct evidence as to the purpose of changing to at-large elections was the testimony of an Albany attorney who then represented Dougherty County in the legislature and who stated that it was then the custom in the state legislature to introduce only those items of local city legislation which were unanimously supported by Albany’s elected officials. He, in effect, denied that this change was enacted to deprive the new Negro voting majority in the Fifth Ward of its majority status. Instead he attributed the legislation to a desire to be rid of ward politics and of those who once elected thought only of their ward instead of the city as a whole. No one explained why it suddenly became necessary in 1947, Albany’s twenty-sixth consecutive year of electing commissioners by wards, to get rid of ward politics. Nothing explains why the March 26,1947, Act did not become effective for the already scheduled 1947 elections for Mayor, Mayor Pro Tem and Commissioners from the First and Fourth Ward. It specifically became effective with the December 1948 elections thus leaving the First and Fourth Ward Commissioners to be elected by just their ward voters in 1947. Nothing further explains why the Act provides that “the Commissioner from the Fifth Ward shall continue in office until the second Monday in January, 1949, and until his successor is elected and qualified.” 1947 Ga.Laws at 734. It could be that with new boundaries for each ward the incumbent just elected commissioner would not reside in the new Fifth Ward and a vacancy would be created. As of the enactment of the said 1947 law no elected officials of the City of Albany was or as far as the court and the parties know, ever had been of the Negro race. (C) The General Facts. Albany was a typical small, racially segregated southern city with a majority white population in control of the public and private forces of the community. The city of Albany governed then as now by its seven elected commissioners, was operated by a city manager chosen by the Board of Commissioners and given authority by the city’s 1923 revised charter to be “the administrative head of the municipal government” and as such to hire and fire all municipal employees excepting those who by law are appointed or elected by the commissioners. 1923 Ga.Laws at 379. Albany afforded a full range of municipal services to its residents and in addition unlike most Georgia cities, also operated its own water, gas and light department. This department obtained water from its own artesian wells, manufactured its own gas, received electricity from Georgia Power Company and distributed these to Albanians. In the course of doing so that department paid for and maintained traffic control lights and street lights throughout the city, paid for plant and equipment and in addition contributed to the city treasury as much as 30 to 40% of the city’s gross annual revenue. The water, gas and light department at least since 1923 has been operated by a board of water, gas and light commissioners of which the mayor has always been a member and ex-officio chairman, 1923 Ga.Laws at 400, and of which there were initially two additional citizen members elected by the city commissioners. Today it consists of four additional citizen members elected by the city commissioners. All previous and present commissioners were white. The department was operated by a superintendent selected by the water, gas and light commission, and it functioned apart from the municipal services over which the city manager was the administrative head. Albany’s municipal services included among other things, police and fire departments, street construction and maintenance, garbage collection, parks, swimming pools, tennis courts, and a municipal auditorium. Other public facilities directly or indirectly controlled by the city and available to its citizéns were an airport, a municipal library and a baseball-football stadium. There facilities were operated on a segregated basis. Albany’s children attended segregated public schools operated by the Board of Education of the City of Albany whose seven members were the Mayor, the Chairman of the County Commissioners, the President of the County Board of Education and four citizen members elected by Albany’s city commissioners. 1925 Ga.Laws at 829. In 1950 the city and county schools were merged and put under the control of the Dougherty County Board of Education. Two of its seven members are selected by the city commissioners, two by the county commissioners, two by the grand jury of Dougherty Superior Court, and one by the six so selected. See 1959 Ga.Laws at 2314. The members of the Board of Education through the filing of this lawsuit were all white. While black citizens voted in primary and general elections, the officials who conducted those elections required all black voters to cast their ballots in one precinct at the city auditorium and all white voters to cast their ballots in other precincts at other places. Albany created a public housing authority whose members appointed by the Mayor are white, and it constructed and operated large public housing projects, some for whites only and some for blacks only. Like all southern cities and if the truth be told, like most areas of these United States having a substantial Negro population, Albany in every respect until the 1960’s and later functioned gov ernmen tally and otherwise as a racially segregated community. As in the south in general segregation came to an end slowly and only when ordered by a federal court. That was particularly true in Albany as is demonstrated in detail by the cases involving Albany that have been commenced in this court, to wit: Anderson v. Courson, et al., 203 F.Supp. 806 (Judge Bootle 1962) — This court on the basis of stipulated facts found that by the custom and practice of maintaining separate voting facilities for whites and blacks, maintaining voting lists separated by race and otherwise conducting elections on a segregated basis, the defendants, including the Mayor and Commissioners, were denying Negro voters the equal protection of the law. The continuation of such customs and practices was enjoined. Anderson v. City of Albany, 321 F.2d 649 (5th Cir. 1963) — On the basis of the complaint of the leader of the so-called “Albany Movement” — a group of black citizens bent upon ending segregation in all of Albany — alleging that defendant city officials were enforcing segregation of the races in public recreational, library and auditorium facilities and in privately owned transportation facilities, theatres and taxicabs and evidence presented before this court, the court of appeals directed this court to enjoin further operation of public facilities — such as ■ public parks including recreational facilities such as tennis courts and swimming pools, the city library and the city auditorium, on a segregated by race basis and further enforcement of criminal segregation ordinances requiring segregated by the races operation of taxicabs, theatres, city buses and transportation facilities. Gaines v. Dougherty County Board of Education, 222 F.Supp. 166 (Judge Elliott 1963). The operation of the public schools of Albany and Dougherty County on a segregated basis was enjoined on the basis of the Supreme Court’s decision in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). That litigation is still pending in this court and has resulted in numerous decisions of the court of appeals as recent as 1972. See 329 F.2d 823 (1964); 334 F.2d 983 (1964); 392 F.2d 669 (1968); 442 F.2d 1344 (1971); 446 F.2d 907 (1971); 465 F.2d 363 (1972). United States v. Housing Authority of the City of Albany, Civil No. 10007 — January 16, 1973, Judge Elliott — In an unpublished opinion the continued racially discriminatory operation of Albany’s eight public housing projects, was enjoined. Among the court’s findings was that of the eight projects, four were constructed for whites only and four for blacks only; as of 1973 no black had ever been a tenant in a white only project and no white had ever been a tenant in a black only project. Thompson v. Sheppard, 490 F.2d 830, rehearing denied 502 F.2d 1389 (5th Cir. 1974), cert. denied 420 U.S. 984, 95 S.Ct. 1415, 43 L.Ed.2d 666 — The court of appeals affirmed this judge’s order finding the jury box from which petit and grand jurors (two board of education members are selected by the grand jury) were being selected for Dougherty Superior Court, to be constitutionally deficient because of a shortage of the names of women and blacks in the box and this court’s further order that as revised the box was constitutionally sufficient. Johnson v. City of Albany, 413 F.Supp. 782 (Judge Owens 1976). As shown by detailed facts recited in that opinion this judge found: “(a) In 1968 the City of Albany and its defendant officials employed' both white and black persons. Compared to the practices as to white persons, black persons were hired into and then held only the lowest paying, laboring — janitorial, non-supervisory type jobs. Higher paying, more skilled jobs were for whites only. The rate of pay of black employees was less than white persons having comparable tasks to perform. Black persons were not permitted to apply for promotions and were not promoted out of such jobs. All elected and appointed city officials and supervisors were of the white race. Employee facilities — restroom, drinking fountains, coffee pots, etc. — were segregated by race. Employee functions such as Christmas parties were segregated. From an overall standpoint in every respect white employees and applicants for employment were favored over black employees and applicants for employment. “(b) Between 1968 and early 1973, in spite of Congress amending Title VII to subject the City of Albany to its provisions, the April 19, 1972, strike of black employees and the August 31, 1972, commencement of the lawsuit, the employment patterns and practices of the City of Albany and its defendant officials showed little if any change. Pay differentials between blacks and whites having the same jobs were being or had been corrected. Blacks, however, still were hired into and had only the lowest paying, laborer-janitorial, non-supervisory type jobs. Only whites were considered for and had higher paying, more skilled jobs. All elected and appointed city officials and all supervisory officials were white. Blacks could not apply for, were not considered for and were not promoted into more skilled, better paying jobs. Employment application forms and tests were used not to measure job aptitude but instead to give the false appearance of fairly considering all persons for employment and promotion and to perpetuate the past but continuing discriminatory practices. Promotions were made from within departments thus perpetuating the conditions of the past. Employment facilities were still segregated. Since these were the employment patterns and practices in 1973, the same patterns and practices had existed (i) on and after March 24, 1972, when the City of Albany became subject to 42 U.S.C. § 2000e, (ii) on April 24, 1972, when charges of employment discrimination were filed with EEOC in behalf of five of the named plaintiffs and (iii) on August 81, 1972, when the plaintiffs filed their complaint in this court. “(c) As of the end of 1975 the City of Albany and its defendant officials have altered their employment patterns and practices in some respects. Compared to 1973 the Water, Gas and Light department employed 18 fewer blacks. Of the 35 blacks then employed, two had been promoted to foreman and six had been added to the administrative department which before 1972 was a white only department. Blacks however had not progressed to higher paying jobs except for two foremen who were earning $5.25 and $5.57 per hour. Employee facilities had been desegregated and segregated employee gatherings were eliminated. The management-supervisory team, however, remained all white and the basic pattern of favoring whites over blacks continued. In other departments blacks were hired or promoted into 25 classifications in which they had not been employed. Some blacks — 45—were being paid higher wages — over $4.00 — but whites still dominated jobs paying higher wages. Three hundred four (304) whites were paid over $4.00 per hour. Application forms and tests were being used. Hiring and promotional decisions were still being made by an all-white management-supervisory team. As the initial hire chart shows most blacks — 108 of 158 — were still hired as laborers, and as the line of progression chart shows, blacks are still with few exceptions kept in lower-paying, blue-collar, non-supervisory jobs. While the pattern and practice of discriminating against blacks has lessened, it nevertheless continues to the present day.” 413 F.Supp. at 799, 800. Even though blacks were permitted in 1946 after Chapman v. King, supra, to participate in Democratic primary city elections as voters and candidates, the Democratic Party for the City of Albany remained in the hands of an all-white committee which re-elected itself after counting the votes at each election. The first black committee member was elected by the committee in May 1975. In this court’s judgment it was not even organized according to the laws of Georgia, Ga.Code Ann. § 34A-801 and 802, in that it had not filed with the city clerk its charter, by-laws, rules and regulations. When filed, such items are available to the public, and when not filed, the public has no way to know how and when party officials are elected. The effect of this is shown by the fact that at the time of the death of Mayor Motie Wiggins in 1973 he was then the nominee of the Democratic primary election to succeed himself as mayor. Even though the compliance of the Democratic Party with Code § 34A-801 and 802 was questioned and even though they had not qualified under those sections, Albany’s city commission all of whose remaining members were white nevertheless met, determined the Democratic Party to be qualified under state law and permitted the Democratic Party composed of its self-perpetuating all white committee, to nominate a candidate to run in the place of the late Mayor Wiggins. Defendant Mayor Gray was thus nominated. Blacks between 1947 and August 1975 ran as candidates in city primary and general elections. They usually received a majority of the votes in the ward in which they resided but were never elected by the majority of the voters of the city. Since 1959 Ga.Laws at 2950, a majority vote requirement had been imposed in Albany’s primary and general elections. Only after elections were ordered held in the fall of 1975 on a ward basis were black candidates successful in seeking an elected city official — two were elected as commissioners by the voters of their respective wards in each of which there is a black majority. Either all the city commissioners or the mayor alone appoints members of various boards and authorities some of which have been referred to — Board of Education; Water, Gas and Light Commission — and to whom authority to perform certain governmental function is delegated. At the court’s request the defendants prepared the following list by race of persons appointed to boards and authorities as of the beginning of this lawsuit: BOARDS AND AUTHORITIES AS OF DECEMBER 4,1974 APPOINTED BY MAYOR OR CITY COMMISSION NAME OF BOARD OF MEMBERSHIP AUTHORITY WHITE BLACK TOTAL Albany Metropolitan Planning Commission 8 19 Albany Planning Commission 8 2 10 Animal Control 7 0 7 Aviation Commission 7 0 7 Albany Che,haw Wild Animal Park Advisory Bóard 9 0 9 NAME OF BOARD OF AUTHORITY MEMBERSHIP WHITE BLACK TOTAL Board of Education Board of Registrars Central Albany Development Authority Citizens Advisory Committee 84 16 100 Electrical Board 8 0 8 Oas Board 5 0 5 Housing Authority 4 1 5 Heating & Air Conditioning Board 0 6 Library Board 7 0 7 Minimum Housing Board 5 Payroll Development Authority 5 Pension Board 5 Plumbing Board S Southwest Gá Area Planning & Development Commission 26 36 Steering Committee for Naval Air Station 11 14 Street Name Change Committee 10 0 10 Stadium Authority 7 0 7 Recreation Advisory Committee 5 3 8 Transportation Committee 6 1 . 7 Water, Gas & Light Commission 5 0 5 Zoning Board of Appeals S 0 5 Totals 260 39 299 This list includes 26 boards or authorities, 16 of which had no black appointees. The total number of black appointees is 39 and 25 of those are on the Citizens Advisory Committee and the Southwest Georgia Area Planning and Development Commission. Overall blacks constitute 13% of those appointed. While the function of each board or authority has not been explored, two committees on which 19 blacks serve appear to be purely advisory and therefore without means of causing anything to be done to affect black citizens — Citizens Advisory Committee and Recreation Advisory Committee. Albany’s city commission since around 1972 has endeavored to spend recreation and public works money for the benefit of all citizens so that today citizens generally enjoy an available recreation program, paved streets, sewers, street lights and public utilities. As the 1970 census shows in great detail, in all other areas — education, housing, employment, income — black Albany citizens continue to have substantially less than white citizens. THE CONSTITUTION AND LAWS APPLIED TO THE FACTS Equal Protection — Fourteenth Amendment Claim. As previously indicated, the Supreme Court said in White v. Regester, 412 U.S. at 765, 93 S.Ct. at 2339. “Plainly, under our cases, multimember districts are not per se unconstitutional . But we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups . To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question— that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. Whitcomb v. Chavis, supra, at 149-150, [91 S.Ct. at 1872], 29 L.Ed.2d 363.” Having considered all the facts as found and recited and as heretofore found in the cited decisions of this court, it is the considered judgment of this court that the plaintiffs have carried their burden of proof and have factually proven that Albany’s multi-member scheme of electing its city commissioners, as it has functioned has been invidiously discriminatory against the black citizens of Albany. Albany’s change in 1947 from ward to at-large election of its five ward commissioners created a system in which Albany’s white voting majority had the opportunity and the potential voting strength to elect not only Albany’s mayor and mayor pro tem but also the remaining five ward commissioners. Each voter thus was given the right to vote for more than one commissioner — to vote for multimembers. The majority of voters were given the opportunity to win all the elections — the “winner take all” characteristic being one of the basic criticisms of a multi-member scheme. After 1947 in every primary and general election preceding this lawsuit, the white candidate was elected. Those included elections in which black candidates ran and received a majority of the votes in their ward but a minority of the votes city-wide. In addition to this lack of success at the polls which is not enough by itself to demonstrate that the system invidiously discriminated against blacks, White v. Regester, supra, Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363, the elected city commissioners in conducting the affairs of the city directly and indirectly discriminated against this racial minority — directly through their own policies of employment discrimination and enforcement of segregation policies and practices in both public and private facilities and indirectly by appointing only white citizens to boards and authorities which in turn discriminated against blacks — particularly the water, gas and light commission;