Full opinion text
OPINION AND ORDER PITTMAN, Senior District Judge. This cause has been retried by this court upon remand for further proceedings from the Supreme Court of the United States and the Court of Appeals for the Fifth Circuit. The complaint in this action was filed June 9, 1975. On October 22, 1976, this court entered judgment in favor of the plaintiffs, concluding that the at-large method of electing the Board of Commissioners of the City of Mobile unconstitutionally diluted the voting strength of black citizens. Bolden v. City of Mobile, 423 F.Supp. 384 (S.D.Ala.1976). On June 2, 1978, the court of appeals affirmed. Bolden v. City of Mobile, 571 F.2d 238 (5th Cir. 1978). On April 22, 1980, the Supreme Court reversed and remanded the judgment of the court of appeals. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). On September 15, 1980, 626 F.2d 1324, the court of appeals vacated and remanded this court’s October 22, 1976, judgment for reconsideration in light of the Supreme Court’s decision. On remand, this court denied a motion summarily to dismiss the complaint and gave the parties the opportunity to present such additional evidence relevant to the issues to be resolved on remand. On May 13, 1981, this court granted the motion of the United States to intervene. The court, because of the timing of the motion, limited the government’s participation at the retrial but allowed the government to make opening and closing arguments to the court. At an evidentiary hearing additional evidence relevant to the issues on remand was received. The decision rendered herein is based upon the evidence taken at both the original trial and at the additional evidentiary hearings on remand. The Supreme Court’s decision is found in six separate opinions which must be pieced together to determine the Court’s directions on remand. This court and the court of appeals found primary guidance in their initial consideration of this case in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), affirmed sub. nom., East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). These cases established the areas of inquiry for a district court presented with a voter dilution case. Both of those cases predated Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), a case involving an equal protection challenge to employment standards in which the Supreme Court held that proof of discriminatory intent was essential to success on an equal protection claim. The judgment of the Supreme Court in this case (reversing and remanding) was announced by Justice Stewart in an opinion joined by the Chief Justice and Justices Powell and Rehnquist. Those justices concluded first that in view of this court’s finding that the plaintiff class registered and voted without hindrance, there was not a fifteenth amendment violation. The defendants concede in their brief that a majority of the justices agreed that a voter dilution claim was cognizable under either the fourteenth or fifteenth amendment. The plurality next concluded that section 2 of the Voting Rights Act (as it stood prior to the 1975 amendments) simply paralleled the fifteenth amendment and that the substantive elements are the same as those in a direct fifteenth amendment case. The 1975 amendments adding fourteenth amendment protections in section 2 were not addressed. The plurality addressed at some length the elements of the fourteenth amendment dilution claim in light of Washington v. Davis, concluding that a finding that the challenged practice was adopted or maintained for a discriminatory purpose (intent) (at least in part, see discussion infra) is necessary for a finding of a constitutional violation. Finally, the plurality concluded that this court and the court of appeals erred in deciding the case on the basis of Zimmer standards, since that case “was quite evidently decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the equal protection clause.” City of Mobile v. Bolden, 446 U.S. at 71, 100 S.Ct. at 1502. The plurality then applied what it viewed as the correct post- Washington v. Davis standards to the fact findings of this court and concluded that those factors fall short of a discriminatory purpose in the adoption of the at-large voting system. Justice White dissented, arguing that White v. Regester remains viable as a method to make findings supporting an inference of discriminatory purpose and that the facts found by this court amply supported such an inference. This position was adopted by Justice Brennan and, apparently, Justice Blackmun, who would have affirmed the liability determination but reversed the court’s remedy choice. Justice Marshall dissented in a lengthy opinion which, at a minimum, agreed that discriminatory purpose could be inferred from the facts found. Justice Stevens concurred in an opinion which supports a minimal evaluation basis analysis of dilution claims. Five justices agree, therefore, that this court and the court of appeals applied the wrong legal standard, although no majority agreed on the details of the correct standard. It appears that six justices agree that discriminatory purpose (intent) is a necessary part of plaintiffs’ case. One of the six and the other three justices apparently held such purpose had been shown. The plurality would require that the proof of intent must be substantially more direct. See the analysis of Bolden in, eg., Lodge v. Buxton, 639 F.2d 1358, 1369-75 (5th Cir. 1981); McMillan v. Escambia County, 638 F.2d 1239, 1242-43 (5th Cir. 1981). This court has viewed its obligation on remand as proper to take additional evidence and evaluate that evidence and the record and make such additional findings as necessary to decide the issue of discriminatory purpose (intent) under the proper standard. See McMillan v. Escambia County, 638 F.2d at 1243-44. FINDINGS OF FACT The court readopts its findings regarding the operative facts and the issue of unresponsiveness, see Lodge, 639 F.2d at 1375, previously entered after the first trial. None of these findings were questioned or disapproved by the court of appeals or any opinion of the Supreme Court. Statistical Background and the Present Electoral System for the City of Mobile Mobile, Alabama, the second largest city in Alabama, is located at the confluence of the Mobile River and Mobile Bay in the southwestern part of the state. Bolden v. City of Mobile, 423 F.Supp. at 386. According to the 1980 census, the population of the city is presently 200,452 persons, of whom 72,568 (or 36.2%) are black. (Plaintiffs’ Exh. 110.) Mobile’s 1970 population was 190,026, with approximately 35.4% of the residents black. Bolden v. City of Mobile, 423 F.Supp. at 386. The most recent voter registration statistics were compiled in 1973. At that time, it was estimated “that 89.6% of the voting age white population is registered to vote, [whereas] 63.4% of the blacks are registered.” Id. “Mobile geographically encompasses 142 square miles. Most of the white residents live in the southern and western parts of the city, while most blacks live in the central and northern sectors... . Housing patterns have been, and remain, highly segregated.” Id. The city is precluded from growing to the east by the bay and river and to the north by other municipalities. The only areas for expansion are to the south and west. Mobile presently operates under a three-person commission-type municipal government adopted in 1911. (Plaintiffs’ Exh. 2b.) “The commissioners are elected to direct one of the following three municipal departments: Public Works and Services, Public Safety, and Department of Finance.” Bolden v. City of Mobile, 423 F.Supp. at 386 (footnote omitted). Each candidate for the Mobile City Commission runs for election in the city at-large, is required to run for a particular numbered post, and may be elected only by a majority of the total vote. Id., at 386-387. (Plaintiffs’ Exhs. 33, 34.) From 1945 to 1965, the city commissioners, upon election, have been required to designate one of their number as mayor, but no provision was made for the assignment of specific duties among the three commissioners. Id., at 386 n. 2. From the time of the Redeemer legislature of 1874 until the present, no black person has ever been elected to the City of Mobile’s governing body. History of Mobile Municipal Government 1814-1866 The Mississippi territorial legislature enacted a law providing for the at-large election of seven councilmen for Mobile in 1814. Suffrage at this time was restricted to “landholders, freeholders, and householders” living in the City of Mobile. (Defendants’ Exh. 58.) This “pure” system of at-large elections was repealed when Alabama achieved statehood in 1819. The City of Mobile was incorporated by an act of the new state’s legislature on December 17, 1819. This act provided for the at-large election of seven aldermen who would themselves choose a mayor from their number. Only “free white male inhabitants” were allowed to vote. (Plaintiffs’ Exh. 5.) In 1826, the legislature amended this act reducing the ranks of the aldermen to six while retaining the at-large feature. Section 2 of this act authorized the mayor and aldermen to divide the city into three or more wards. In this event, ward elections would be held to elect two or more aldermen from each ward, not to exceed nine aldermen in all. (Plaintiffs’ Exh. 6.) The first city elections held under the 1826 law were conducted on March 7, 1826. The ballot included a referendum question on whether or not the newly elected alder-manic government should divide the city into wards. The voters answered affirmatively in favor of ward elections and the city was separated into three wards. (Plaintiffs’ Exh. 48.) The 1828-1833 elections were conducted pursuant to this district-type set-up. Two aldermen were elected from each ward solely by the voters of the particular ward. In 1833, the legislature enacted Ala.Act No. 68 (January 9,1833), requiring the election of a five-member commission whose sole duty was to divide the city into four wards of equal population. This Act had no effect upon the method of election which continued to elect aldermen on a ward basis. (Plaintiffs’ Exh. 7.) The Mobile election law was amended again by Ala. Act No. 70 (February 4,1840), creating an eight-member board of common councilmen, who, together with the existing board of aldermen, formed the city’s first bicameral government. (Plaintiffs’ Exh. 8.) The board of common councilmen was to be elected at-large (i.e. by “general ticket” ), with the ward selection procedure retained for the aldermanic branch of the municipal government. Id. Thus, Mobile now functioned under its first “two-house” system elected by a hybrid or mixed form of at-large/ward procedures. The legislature next moved to consolidate the several earlier acts of incorporation of the City of Mobile. Ala. Act No. 221 (January 15, 1844). This statute also altered the municipal government as follows: (a) Mayor — elected at large; (b) Common Council — to be comprised of seven members residing one in each ward, elected at large; and, (c) Board of Aldermen — two aldermen from each ward elected by the citizens of their respective wards. This law reduced the common council by one member and imposed residency requirements. (Plaintiffs’ Exh. 9.) This modification in the 1840 form of government continued until 1852. In 1852, the number of aldermen to be elected from each ward was increased from two to three, the terms of office for the mayor and common council were increased from one to three years, and the terms of office for the aldermen were staggered such that one-third of the aldermanic board (eight members) would stand for election each year. (Plaintiffs’ Exh. 10.) Mobile remained under this electoral system from the 1853 elections until the Civil War. At no time prior to the Civil War did blacks participate in the political process in Mobile. The franchise was restricted to free white men who had, inter alia, paid municipal taxes in the year preceding the election. At the end of the Civil War, the Union Army administered civil affairs; the city government was reorganized by perpetuating existing officials in municipal office. President Andrew Johnson established a provisional government in Alabama, with Lewis E. Parsons of Talladega as governor. Under instructions from Washington, Parsons declared all the laws of Alabama enacted before January, 11, 1861, in effect, except those concerning slavery, and tried unsuccessfully to build a new civil government on the remains of the preCivil War local and state government. Malcolm C. McMillan, Constitutional Development in Alabama, 1798-1901: A Study in Politics, the Negro, and Sectionalism, 90 (1955). Delegates were elected to a state constitutional convention. The 1865 Alabama Constitution repealed the ordinance of secession, repudiated the Confederate war debt, and ratified the thirteenth amendment. The suffrage requirements, both before and after the convention, excluded blacks. The state legislature proceeded to pass a series of laws, commonly denominated the “Black Codes”, which created various civil disabilities for blacks and attempted effectively to return them to a state of servitude. The overwhelmingly conservative and Democratic legislature in 1866 re-enacted the same mixed election scheme as had existed in Mobile before the war. Ala. Act No. 165 (Feb. 2, 1866). The only difference from the 1852 form of government initiated by the 1866 law was that the city was divided into eight wards. (Plaintiffs’ Exh. 12.) Negroes were still denied the vote. Only one election, in December of that year, was held to elect one alderman per ward. 1867-1909 The year 1867 constitutes a significant turning point in the history of Mobile’s municipal government. It is a particularly relevant time in analyzing the issues in this case for it is the time frame of 1867-1911 which is determinative in ascertaining the prerequisite “intent” required by the plurality in the Supreme Court’s opinion in Bolden. The historical recitation which has gone before serves only as the historical canvas upon which the subsequent years are painted, revealing the true nature of Mobile’s at-large scheme of municipal elections. In March of 1867, Congress passed the first of several Reconstruction Acts, bringing the swift demise of President Johnson’s policies in the South and particularly in Alabama. The state became part of the Third Military District under the tutelage of General John Pope. Pursuant to the congressional act, all elections were can-celled, incumbent local officials retained their offices, and vacancies were filled at the pleasure of the military authorities. Constitutional conventions were convened in the former Confederate states. Their purposes were to repeal the conservative post-Civil War constitutions, to provide for universal male suffrage, to ratify the fourteenth amendment and to establish civil rights for black citizens. The 1867 constitutional convention in Alabama was attended by one hundred delegates, ninety-seven of whom were Republicans. Nineteen of these delegates were blacks, including several from Mobile. The 1867 convention drafted a constitution which was passed through a combination of black support, a white Democratic boycott of the ratification election and congressional legislation passed subsequent to the election, but applied retroactively. This was the first time blacks were allowed to vote in Alabama. The first state legislative elections conducted under the 1867 constitution were held in February, 1868. The white Democratic boycott continued. Many white males were not allowed to vote because of their refusal to take the loyalty oath. This resulted in the election of an all-Republican delegation for Mobile County, several of whom were black. On July 20, 1868, the Republican-dominated Alabama Legislature passed an act reorganizing the city government of Mobile. (Plaintiffs’ Exh. 12.) The form of government established by the antebellum statutes, as recodified in the 1866 law, was retained. The election provisions of that same law, however, were repealed and replaced by an appointive provision to be exercised by the new Republican governor, William H. Smith. Id. Governor Smith appointed Caleb Price as mayor. Price was a man described both as a conservative Republican and a “Democrat in Republican’s clothing.” (Plaintiffs’ Exh. 14, p. 57 and Exh. 55 at Feb. 12, 1870; Defendants’ Exh. 45.) He also appointed eight whites (four of whom were Democrats recommended by Price) to the common council and seven blacks to the 24-member board of aldermen. (Plaintiffs’ Exh. 53.) Because these blacks were, for the first time in the history of Mobile, serving on the board of aldermen, many of the conservative whites, Democrats and Republicans alike, refused to take their seats. These events, coupled with Republican in-fighting over appointments, virtually deadlocked the city government. Id. On December 21, 1868, the legislature passed Ala. Act No. 71 repealing the July legislation and vacating all the Governor’s appointments in Mobile. The law also removed the residency requirement which had caused a Republican to be unseated in September. (Plaintiffs’ Exh. 13.) Governor Smith made new appointments under the December Act and while there was no election, the process allowed him to pick his appointees, for the first time, at-large. This change seems to have been for the purpose of facilitating the naming of Republicans to the vacated posts. No racial intent can be found in the enactment of this legislation. To the contrary, the Act was highly favorable to blacks and the Republican Party they supported. The common council appointees had a decided Republican majority, including, for the first time, a black councilman named John Carraway. At least ten blacks were appointed to the board of aldermen. This was a period of great political confusion, with constantly shifting political alliances and factional disputes within the Republican Party. Caleb Price was again made mayor via an election within the council and board. A special election was held in August of 1869 to fill a vacant seat in the Alabama Legislature as a result of the resignation of black representative James Shaw. The contest pitted white Conservative Democrat Adolph Proskauer against black Republican Allen Alexander. A legislative committee upon Privileges and Elections reported that in Mobile on election day there had been threatened violence against blacks, to wit, Without the least, or certainly without any justifiable provocation, one organization known as a ‘Fire Company’ who had their engine house only about two and a half squares off from the place of voting, suddenly threw open the doors of their engine house and ran into the street a piece of artillery which had been concealed in said engine house, and actually loaded and trained it upon the crowd at said polls. It is estimated that there was as many as 1,000 voters present at the time, and as may be expected, especially from the timid, hundreds left the place as fast as possible and many of those who were thus intimidated and driven from the polls at the mouth of the cannon, as well as others who had not been to the polls, but who heard of the condition of things there were prevented from voting. The precise number thus intimidated and driven from the polls, and who did not return to vote, your committee have no means of judging,... shows that the vote of this ward was short 1,000 votes from the vote of the former elections, and it can only be accounted for from the violence and intimidation shown to have been practiced at that place. During the election at a political gathering of whites and blacks there was a riot which resulted in three blacks killed. (Plaintiffs’ Exh. 54, Aug. 6, 1869.) Mayor Price was criticized by Republicans and blacks for his response to the incident — the naming of a Committee of Public Safety. Republicans claimed the committee was comprised entirely of Democrats appointed by Mayor Price. (Plaintiffs’ Exh. 14, p. 57.) Proskauer won the election due to alleged vote fraud and violence. (Plaintiffs’ Exh. 68.) The investigating committee of the Alabama House of Representatives, looking into these charges, found fraud and terrorism as above set out, but permitted Proskauer to retain his seat because it could not determine precisely the number of votes altered as a result of such actions. A second legislative election in 1869 placed another Democrat, Jacob Magee, in Montgomery. The Magee victory was shortlived, however, as Republican Alex McKinstry successfully challenged the close election on the grounds that Magee was an unpardoned Confederate officer. (Plaintiffs’ Exh. 77.) With the Republicans still in control of the state legislature, a Dallas County (carpetbagger) senator, Datus Coon, introduced a bill to vacate all of the existing Mobile city offices. This bill was premised on the belief that the Mobile city government appointed in December, 1868, was selling out the Republican cause, was bent on a course of collaboration with white Conservative Democrats and was not going to take the necessary steps to protect black voters and shield them from intimidation and violence. It is also highly probable this bill was introduced in answer to a memorial placed in the Senate Journal by Mobile blacks. (Plaintiffs’ Exh. 14, p. 57.) The “Coon Bill” was enacted into law on February 8, 1870. Ala.Act No. 97. It had survived several attempts to thwart its passage and had seen numerous substitutes forwarded by conservative Republicans and Democrats fall by the wayside. (Plaintiffs’ Exhs. 54, at Nov. 20, 1869, Nov. 21, 1869, Nov. 29, 1869, and 55, at Jan. 11, 1870.) The Act, however, was a compromised piece of legislation resulting from intra-party Republican factionalism and ad hoc alliance between conservative Republicans and Democrats. Originally calling for an appointive procedure exercised by a three-man commission, the final version put the appointive authority in the hands of Governor Smith and scheduled an election to be held in December, 1870. The election procedure (i.e. at-large or by wards) was not specified in the legislation. A black and Republican-controlled legislature enacted the Coon Bill with full black support. While it is certain not even the Republicans who voted for the final version were totally satisfied with its provisions, such is the nature of the legislative process. There is every indication that the Republicans and blacks, in passing the compromise version, were betting on their ability to carry the November, 1870 legislative elections state-wide. The Radical Republican cause depended heavily on success in the Black Belt counties in particular. If the Radical Republicans gained full control of the legislature in November, 1870, they would have the opportunity to repeal that provision of the Mobile Municipal Act which called for December, 1870 elections. The Democrats recognized this strategy and warned their constituency about it. For example, the January 20,1870 edition of the Mobile Register reacted as follows to Representative McKinstry’s substitute bill, which embodied the same combination of February appointments and December elections: Mr. Misrepresentative McKinstry has pushed through a bill to weed out the existing city government, and to appoint the last day of this year for a popular election for municipal officers. The move is somewhat singularly timed. Would McK. trust to a Democratic city such an election? We trow not, for he knows the Radicals would be fanned out. What, then, does he trust to? Nothing that we can see but a split in the Democracy. Wait and see how it will turn out. (Emphasis same as in original.) Almost ten months later the same explanation of Republican aims was repeated. In the November 6, 1870 edition of the Register, just prior to the legislative elections, the voters were warned: If Democrats do not carry the state, we shall have no municipal elections in this city, and we shall continue to groan under the carpetbag, scalawag and Negro hammer. The fact is, there was no evidence whatsoever that the election procedure (i.e. at-large v. wards) was ever discussed in the legislature. It is also quite significant to note the legislative history of the Act which reveals the white Democrat Proskauer voting against the final version and the black Republican Carraway voting for it. White Republican Quinn voted in favor of the bill. All these men were members of the Mobile delegation. (Plaintiffs’ Exh. 14, p. 334.) It appears from the evidence presented that the legislators gave little thought to the elective procedures to be utilized. As far as the blacks and Republicans were concerned, the lack of discussion on the elective procedure to be employed lends support to the probability that if successful state-wide in November, the election provision would be repealed. Democrats, cognizant of this probability, displayed race rhetoric frequently in the Mobile Register. (Plaintiffs’ Exh. 55, at Nov. 6, 1870.) The Republican gamble did not pay off and the Democrats took control in November. The Mobile legislative delegation, along with the governor and lieutenant governor posts, went to the Democrats. (Plaintiffs’ Exh. 72, at p. 15.) The municipal elections were held in December, 1870, the first elections since the Republicans took control. At this time, the evidence reveals a political shift to the Democrats by moderate and conservative Republicans. Frederick Bromberg, a member of the state legislature from Mobile, along with Caleb Price and other conservative Republicans, had by November, 1869 made accommodations with the Democrats. Later, in 1872, Bromberg would win a seat in Congress against Republican opposition, and in the 1874 “Redemption” election, Bromberg would defeat a black Republican for a seat in Congress. Senator Bromberg had opposed the Coon Bill and offered several unsuccessful amendments and a substitute for it. As the court has previously noted, in all of these debates about the Coon Bill, it appears nothing was said about a change to an at-large election of the board of aider-men. There are at least three reasonable explanations for this: (1) it was not clear from the language of the statute that the aldermen would be elected at-large. Section 11 of the 1870 Act said only that elections would be held in Mobile “by the qualified electors of said city.” It may be said that all the principals presumed that, if and when elections were held, they would be carried out in accordance with the 1866 municipal charter, mixed at-large/ward elections. Support for this theory can be found in the announcement in the Register on December 6,1870, the day of the municipal elections, that the lawyers of the Democratic and Conservative Party had studied the election laws and had decided that they meant “the whole ticket from mayor down is to be voted by each elector, both in the ward of the voter’s residence.” (See also, Defendants’ Exh. 1, at Oct. 13, 1870); (2) a second plausible explanation is that the conservatives, both Democrats and Republicans, understood all along that, as amended, the 1870 Act would call for at-large elections of aldermen — for the first time in over forty years. Although the Democrats were strictly opposed to Negro suffrage in any form, while the Republicans favored giving blacks the vote, the Conservative Democrats and conservative Republicans had one thing in common, namely, a distrust of black office-holding. Once the conservative Republicans decided to court white Democratic support to enhance their personal political careers, they were more than willing to push through the legislature the at-large election of aldermen that the Democrats favored; (3) there may have been little thought given to the form of election while the bill was being considered, but the question arose as the municipal election neared. The Republican sheriff, an alleged ally of the Caleb Price conservative faction, was the official in charge of the elections. Beginning in the fall of 1870, Alabama began a period of “Redemption” — a period of several years in which state and local officials sought to regain and restore “white supremacy” in the governmental affairs of the state and in Mobile. The testimonies of plaintiffs’ expert historians show that conservative and moderate Republicans and conservative Democrats appear to have reached some agreement to hold the 1870 municipal elections at-large because they intended to eliminate blacks from holding public office in Mobile. The historians explained that conservative and moderate Republicans, although believing blacks should vote, shared the Democrats’ attitude that blacks should not hold office. They knew that municipal elections by ward in Mobile would have resulted in either the election of black officeholders or officials elected by black voters, an intolerable circumstance for both conservative and moderate Republicans and Democrats in 1870. The Democratic newspaper waved the flag of race to stir up white voters. The most reasonable explanation for the Coon Bill’s omission to describe the voting procedure was that the legislators assumed that the bicameral municipal government would revert to the hybrid procedures used before the appointive system was enacted, i.e. councilmen elected along with the may- or at-large, aldermen elected from individual wards. It appears, however, that the local Democrats persuaded Sheriff Granger to hold the elections at-large. This procedure had not been utilized since 1828. Sheriff Granger could have instructed the polling officials that only votes for candidates within their wards would be counted. He apparently did not do so and it is logical to assume that his reason was his desire for at-large elections. As a result, Mobile municipal elections were held on December 6, 1870, and the Democrats swept all of the city offices by an approximately uniform margin of 4,700 to 3,100 votes. All black candidates lost. No blacks have to this day been elected in the City of Mobile at-large elections. The effectiveness of the at-large election system in assuring complete victory for white Democrats was so evident in the outcome of the 1870 elections that a year later, in December, 1871, the Republicans declined to field a ticket of candidates. The Democratic ticket was elected without opposition (except for a small scattering of votes) in the 1871 city elections. Two years later, the Republicans regained the governorship and both houses of the state legislature but Mobile’s legislative delegation remained totally Democratic. No amendments were forthcoming to alter the procedure utilized in the Mobile city election of 1870. The municipal election held at-large on December 3,1872, was also captured by the Republicans. Allegations of voting fraud were legion. (Defendants’ Exh. 1, # 53, Dec. 5, 1872.) Immediately prior to this election, the Democratic and Conservative Party held what is believed to be the first ever white-only primary election to select its candidates for the upcoming municipal election. This primary was conducted on a ward basis rather than at-large. Thus, within two years after the City of Mobile had abandoned the ward election system it had used in general elections since 1828, ward elections were restored in the Democratic white-only primary. The local paper minced no words in explaining the purpose for this scheme: The citizens of Mobile are again reminded that the election of Mayor and city officers will be virtually decided, so far as the white people are considered at the primary polls on the 25th inst. It is in the primaries that the candidates are to be nominated, and, of course, the names submitted to the primary are in honor bound to be withdrawn if they fail. We further remind the Democratic and Conservative citizens of Mobile that the contest at the primaries will be a vigorous one, and that their favorite candidate can not be nominated without more than a common effort. Bear in mind that delicate and important municipal interests are at stake, and that our wisest and most prudent and sagacious administrative heads are needed. The financial problem is not a difficult one in the hands of competent men. In the hands of incompetents our municipal affairs will go from bad to worse. In this connection the article headed “Municipal Reform”, in our columns this morning, is timely and practical. It shows by actual example what may be accomplished when the right sort of men are set to the work in hand. Mobile Register, November 21, 1872 (emphasis added). It is significant to note that good government reform was considered synonymous with the elimination of black political influence. The Democrats steamrolled back to power for good in the 1874 “Redeemer” legislature. One of the most significant laws enacted by this legislature provided for a registration system for each ward. (Plaintiffs’ Exh. 15.) This statute, Ala.Act No. 365 (Nov. 28, 1874), also made at-large general elections an express feature of city government in Mobile. Plaintiffs contend the purpose of the plan was, in part, to discriminate against blacks. (See Mobile Register, December 4, 1872.) Defendants counter that its true purpose was to prevent the widespread voter fraud accompanying the 1872 municipal election. There appears to be some truth in both positions. Four months prior to the 1874 legislative election, the Mobile Register was filled with advertisements and editorials urging white voters to turn out in large numbers; e.g., “let white men unite!” Register, July 1, 1874, July 2, 1874. The banner headline of the November 4,1874, Register proclaimed: “The strike for freedom. White supremacy sustained. The white men as a unit.” There was considerable violence associated with the “Redemption” election in Mobile. White horsemen shot down black voters on their way to the polls in the streets of Mobile. One black person was killed, four were wounded, and countless others were frightened away from the polls. Under the new registration provisions, the number of registered voters dropped substantially. Only some 60% of the eligible voters registered under the law. The Redeemer Constitutionhl Convention was held in 1875. Inter alia, the new constitution repealed the provision of the 1868 Constitution that had given the State Board of Education legislative authority in educational matters. Then, in the 1876 session, an act was passed repealing the 1870 election scheme for Mobile County School Commissioners that had assured minority representation. Ala.Act No. 242. The 1875 Constitution, adopted in the spirit of state-wide “Redemption”, re-established the local autonomy of the Mobile County school system and required “that separate schools for each race shall always be maintained by said school authorities.” Alabama Const. (1875), art. XII, section 11. The Redeemer Alabama Legislature met again in 1876. Virtually everything done in this legislative session had a racial connotation. The fundamental program of the conservative Redeemers was to do away with the restraints Reconstruction had placed on white supremacy. As part of this program, a law was passed doing away with the Mobile County School Board election system that afforded minority access, replacing it with the at-large election scheme, which remains in effect to this date. Acts of Alabama (1875-76), No. 242, p. 363. The Act provided for at-large elections on a eountywide basis, but required that two of the nine commissioners must reside within at least six miles of the county courthouse. It further provided for staggered six-year terms with three commissioners to be elected every two years. The restriction against full-ticket balloting was eliminated. Both expert historians who testified about these events, an Associate Professor of History at the University of South Alabama, and a Professor of History at the California Institute of Technology, were of the opinion that the change to the present at-large scheme in 1876 was intended to exclude blacks and their white Republican allies from representation on the school board. The court finds from these facts (including the codification of the at-large feature in 1874) that these events were done because of their derogatory effect on black political participation. 1879-1909 In 1879, the legislature changed the form of Mobile’s government. Ala.Act No. 308 (Feb. 11, 1879). A “Port of Mobile” was created, to be governed by eight commissioners who together comprised the “Mobile Police Board.” The form of at-large elections was not changed. In the 1884 municipal election, the Democratic Party split into two factions. The recalcitrant Democrats coalesced with the Republicans and tendered a slate under the Citizens Party banner. This alliance was successful and the candidates proffered by the Citizens Party won the 1884 municipal elections. To heal this breach in the Democratic Party and lessen the chance of such problems in the future, the Democrats enacted legislation providing for primary elections. The continued practice of ward primaries enabled Mobile’s Democrats to resolve their political differences in the white primary and then run a united campaign in the general election. The legislature enacted the first formal primary election law in Alabama in 1893 (for Mobile) as opposed to a Democratic party practice started in, to wit, 1872. The state-wide counterpart would not materialize until 1903. The legislature resurrected the bicameral form of government for Mobile in 1886. The Act provided for one councilman elected from each of the eight wards by the voters at-large and seven aldermen elected at-large without residency requirements. The white Democratic primary elections after 1886 were conducted on a “mixed” basis; that is, the councilman for each ward was selected solely by the voters of that ward, while the aldermen were elected by the voters of all the wards. The white Democrats were in the political saddle. In 1893, as a reaction to growing support for the Populist movement, the legislature passed a complex election statute (the Sayre Law) which was designed to disfranchise both blacks and illiterate, lower class whites, those groups being perceived as likely supporters of the Populist platform. The law required that: (1) biennial voter registration be conducted in May, over a month before state office elections and five months before the national elections; (2) voters were to display their registration certificates at the polls; (3) illiterate voters were to be aided only by assistants appointed by election officials, and (4) the governor directly appoint all voting registrars, and need not guarantee representation of Republicans or Populists on registration or election boards. The law was quite successful. See J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restrictions and the Establishment of the One-Party South, 1880-1910, at 138 (1975); Sheldon Hackney, Populism to Progressivism in Alabama, at 148-49 (1969). The express purpose of the law, according to its author, was to legally eliminate the Negro from politics in Alabama. Id. at 134. Black voter turnout statistics after 1892 showed that the Sayre Law substantially accomplished its goal of disfranchisement: black participation in terms of voter turnout dropped by twenty-two percent (22%) from 1892 to 1894 and thereafter remained below fifty percent (50%). In 1897 a new municipal charter was enacted for the city, Ala.Act No. 214, merging the two existing units of government into a unicameral general council. The at-large provision was not altered. In 1901 a convention was held to rewrite the outmoded Constitution of 1875. The convention was controlled by the conservative and Black Belt factions of the Alabama Democratic Party, who pledged openly to adopt those measures which would disfranchise the greatest number of blacks and poor illiterate whites. The intent to purposefully discriminate in this manner demonstrates the continuing concern of Alabama politicians over blacks voting and holding office. The Constitution of 1901 was highly effective in achieving its purposes. By 1909 all but some 4,000 blacks had been removed from the rolls of eligible voters in Alabama. However, in spite of the Sayre Law and the 1901 Constitution, in 1910 there were still 193 blacks registered to vote in Mobile. Ala.Act No. 797 (Aug. 15, 1907) set out a comprehensive municipal reorganization plan applying to all cities in the state, including Mobile. The Act provided for single-member district election of aldermen in the general election. The mayor and president of the board of aldermen were to be elected at-large. It is apparent that the 1907 legislature was confident that the 1901 Constitution had effectively removed black political efficacy when this state-wide municipal reorganization act was passed. It also appears that Mobile’s representatives and civic leaders had little to do with this reorganization act, the impetus coming primarily from Birmingham and Montgomery. The first election under the 1907 Act was conducted in 1908. In Mobile, the 1908 municipal election was characterized by the return of the race issue. Mayor Pat Lyons was accused by his opponents of trying to manipulate the black vote. The Mobile Daily Item, a newspaper that supported Mayor Lyons, reported on April 24, 1908, about a meeting on the preceding night of the Mobile County Democratic Executive Committee, chaired by George J. Sullivan: The primary will be purely Democratic and only WHITE Democrats will be allowed to participate. This decision was made by Chairman Sullivan in answer to a direct question from Mr. Flournoy as to the meaning of the report of the rules committee. The chair held the state committee had decided that only white Democrats could participate. Mr. Flournoy, to be more explicit, asked if Creoles would be barred and the chair answered in the affirmative. Elsewhere in that same edition of the newspaper was the following: The Mobile County Democratic Executive Committee last night followed the rules of the state committee and the strict letter of the law when it declared that the primary of May 18 should be a strictly family affair. In other words, this primary, contrary to a long established custom in the party, will only be participated in by white Democrats. This drawing tightly of the color-line, however, was not the act of the Mobile County committee, nor that of its efficient chairman, Hon. George J. Sullivan. It was in accordance with the rulings of the State Committee which acted strictly in accordance with the Primary Law, as laid down in the Code. This type of rhetoric continued until the election. On May 15,1908, the Mobile Register printed a letter to the editor from T. C. DeLeon, which complained about “the attempt to deliberately mongrelize the primaries of the White Man’s Party.” The concern was that, if blacks were allowed to participate in the primary, they might next want to seek office: The Negro, if not ambitious, is as mimetic as his Darwinian prototype. Admitted to full Democratic communion table in Mobile, what assures against his claim to sit at his head: what forbids — in the law of logic — his demand to be put upon its tickets, or even to head them? In the May, 1908 primary, Mayor Lyons defeated his opponent Shepard 2,434 to I, 299. Lyons’ political ally, Thomas S. Kaver, defeated his opponent in a black ward by 229 to 115. The racially charged municipal elections of 1908 were followed in the very next legislative session of 1909 by the first attempt to enact a city commission bill. The 1870 Act was probably not created for an invidiously discriminatory purpose, the interpretation of how it was to be conducted was clearly derived from intentionally racist purposes. Summarizing the changes from 1870 through 1907 and the underlying motivations of the lawmakers, the court finds first that the 1870 Act was implemented at the local level, and its ambiguities resolved, with the design to eliminate black influence on municipal elections. During the period 1874 to 1907, white supremacist Democrats controlled legislative and municipal positions. All Mobile elections were conducted at-large, though the Democrats selected their candidates by ward with only whites voting. The at-large elections were utilized to negate black influence. The 1901 Alabama Constitution had as a principal purpose the disfranchisement of blacks, the natural and intended consequence of which was to preclude black office holding. That purpose was in general successful, so that most black voting had been eliminated by 1907. The 1908 ward elections in Mobile, however, demonstrated that the remaining black voters had some influence in black wards. All of this provides relevant background as to the motivation for the adoption of at-large voting in 1911. The existence of ward voting in 1908 through 1910 creates a gap in the chain which requires more detailed analysis of the motivation for the adoption of at-large voting in 1911. Additionally, the “pure” at-large scheme was retained from 1872 to 1907 to purposefully exclude effective black political participation, i.e., an invidious discriminatory intent. The de facto elections, the all-white Democratic primaries elected by wards after 1871, excluded blacks. In 1907 when state-wide factions passed a municipal reorganization bill, they no doubt were satisfied that the black vote was eradicated or at least “safe”. However, the small black vote in Mobile effective only in one ward was of unusual great concern as evidenced by the elections of 1908-1910. This demonstrates the extent and pervasiveness of racial prejudice and discriminatory intent. As soon as it became apparent in 1908 that the black vote was still of consequence, Mobile leaders jumped aboard the fledgling commission government bandwagon. Thus, due to the “gap” of 1908-1910 when elections were conducted by single-member districts, the court must answer the question whether the 1911 at-large commission form of government was adopted for racially discriminatory purposes. The commission proponents in Mobile heralded the proposed change as a “progressive reform.” The court has noted earlier, however, that the disfranchising constitution of 1901 and the white primary were also promoted as good government reforms. The majority of news reports and oration parrotted the catchwords “efficiency”, “business like”, “anti-corruption” and the like. However, the elections of the past two years were not forgotten. These were characterized by charges of manipulation of the black vote. The arguments against ward-heeling and corruption voiced by commission proponents in 1909 and 1911 clearly had racial overtones. For example, on May 6, 1911, the month before the referendum election, the Mobile Register carried an article that told of the shift to commission government in the nation’s capitol: “Washington, D. C., when the local government became too corrupt by reason of the large percentage of ignorant Negro voters, it was given a commission form of government, with the appointing power vested in the president.” Advocates of the change had some concern about the legitimate advantages of the commission form of government. However, the anti-democratic dilutive effect on the lower classes was also argued. In those blatantly racist times, the resulting effects on the black vote were readily apparent. White leaders in Mobile, while relieved that disfranchisement had removed the immediate threat of black officeholding, were seriously concerned about a possibility of blacks regaining the franchise, perhaps even in the near future. For example, on May 4, 1908, the Mobile Register published a viciously racist editorial entitled “White Supremacy”: Senator [Ben “Pitchfork”] Tillman was right in uttering his solemn warning to the country that the preaching of social equality in the North is full of danger to the Negroes of the South. The white people of the South do not intend to recognize that any equality is possible; neither do they intend to recognize any superiority due to numbers of the colored race.... The Republic was a white man’s conception, a white man’s product, was instituted for the white man, and can be maintained only by the white man. Under Negro auspices it would go to ruin in a generation’s life time. The Negro can prosper in this country as long as they recognize the white supremacy. If they are induced by their injudicious friends of the North to revolt from this dependent position, they are sure to provoke the action mentioned by Senator Tillman. The white man has never brooked an equal of another race and he never will. If this issue is made, the very existence of the inferior race will be in question. The southern white man has found a plan for dominating without resort to either cruelty or barbarity; and it is the best solution yet conceived whereby two radically different races may live in peace in the same land; but some theorists of the North fancy that it is a wrong solution and that the equality of the races can be established. It is a great mistake on their part, and if persisted in may cause trouble, especially to their proteges, the Negro. We advise them, as does Senator Tillman, to let well enough alone. Perhaps the most explicit expression of white Mobilians’ concern over the possible undoing of black disfranchisement is an open letter to the legislators by Frederick Bromberg published in the July 25, 1909 edition of the Register. This is the same Frederick Bromberg who was the Senator from Mobile in 1870, when the exclusive use of at-large elections in Mobile municipal government was adopted, who had been elected twice to Congress in the 1870’s from Mobile, and who, most recently at the time of this writing, had been President of the Alabama Bar Association. In this letter to the Mobile legislative delegation, Mr. Bromberg was expressing support for a pending bill to amend the Alabama Constitution explicitly to outlaw black office-holding: Respectfully now recall to your mind that portion of my address as present [sic] of the state bar association, a copy of which I sent to you, which refers to the expediency of amending the state constitution so as to exclude negroes from holding elective offices in this state. You know that it was the effort to obliterate the negro vote in the past which led to all of the methods of fraud perpetrated at the ballot boxes by sworn election officers in order to defeat the negro vote, which demoralized the growing generation of young men, and to cure which was the avowed purpose of the sections in the present state constitution regulating the franchise. We have always, as you know, falsely pretended that our main purpose was to exclude the ignorant vote, when, in fact, we were trying to exclude, not the ignorant vote, but the negro vote. The present measures are so framed that if honestly carried out they will not and cannot disfranchise the negro. If not honestly carried out sooner or later, probably sooner, a case will be made up having back of it competent counsel, which will go to the supreme court of the United States, and which will overturn the present methods of applying the registration laws. The only safety of our people lies in availing themselves of their rights under the constitution of the United States to disqualify the negro from holding any elective office. Further on in his letter, Mr. Bromberg warned: The counties of Dallas, Wilcox, Monroe, Marengo, Perry, Greene, Hale and others, composing the Black Belt of the state, will become increasingly black with increasing years, and the negro with intelligence, and property will demand and insist on his legal rights through the courts. Not only that, but ambitious men amongst them will avail themselves of their superior numbers in said counties to offer themselves as candidates for offices of power and profit. As surely as the war between the free and slave-holding states followed from the existence of slavery, just so surely will race war in this state follow the present condition of our laws; unless the remedial measure suggested above be adopted: the oldest of us will yet live to see my prophecy fulfilled. At present the masses of the colored race are indifferent to the right to vote and still more indifferent to the right to hold office; by adopting remedial measures now we shall cause no discontent, because of the present apathy of our colored citizens. This is fully recognized by all statesmen. Statements like these by persons who were zealous supporters of the commission form of government, when considered in light of the history of events leading up to the change in government, lead unerringly to the conclusion that commission advocates were not simply aware of its exclusionary effects on blacks, but affirmatively desired and intended that result. Defendants’ historian admitted that the change would not have been enacted had it been favorable to black electoral strength. Plaintiffs introduced other evidence of racial motives in the newspapers. They show articles where anti-commission rallies were described as consisting of “women, children and colored.” (Plaintiffs’ Exh. 117.) This tactic was apparently designed to show that blacks opposed the commission form and was an attempt to draw white support for the change by “race-baiting.” Muted or code words were the order of the day. At that time the white business and community leadership was concerned over the bad national press Mobile had received arising out of the 1906,1907 and 1909 lynchings in Mobile which might discourage the city’s growth. Defendants countered that this was simply a “red herring”, that the presence of racial remarks was very common in this day and time and its appearance was not always meaningful. Hence, race was not a true motive involved in the change to commission government. The court finds that these remarks are classic examples of injecting race into an inflammable, racially-charged atmosphere where only a spark is needed to set off a conflagration. The injection of race into the situation was for the purpose of inflaming voters and gaining their support. In view of Bromberg’s admissions in his 1909 letter, good government, reform efficiency and the like became “codewords” and eu phemisms for anti-black sentiments. These apparent innocent words when viewed in the context of prevalent racial bias of the times were racist. This is a realistic view. These words were red herrings to camouflage racial intent. The defendants do not recognize these articles as evidence of racial intent and would have the court conclude there is no evidence to support plaintiffs’ claims. The court does not believe intent can be dismissed as non-existent based on the quantity of evidence. This is not a game of numbers. The inflammatory and subtle remarks made in a culture saturated with racial prejudice and fear revealed by the evidence demonstrates conclusively to the court the quality of attitudes and beliefs necessary to infer the requisite intent. The first decade of the twentieth century in Mobile saw racial problems erupt into violence. Two black prisoners were lynched by a “respectable mob” in 1906, and a second lynching occurred in 1907. Racism continued to be evident. The May 4, 1908 Mobile Register editorial, supra, pp. 31-32, appeared during the time the commission movement in Mobile was growing in popular support. The Register and its editors were vanguards of the movement. In 1909, a “disorderly element” lynched another black prisoner when the sheriff gave the lynchers access to the jail. The Register reported that Mobile was plagued by the “everlasting Negro question.” It was at the height of the racially-charged period that Mobile organized its first effort to enact a city commission bill. On July 6, 1909, a large group of Mobilians met to discuss a bill proposed by State Representative W. E. Urquhart of Birmingham providing for a commission form of government for Birmingham and Montgomery. Prominent citizens, including Erwin Craighead, editor of the Mobile Register, and A. C. Danner, chairman of the general meeting, agreed that “Mobile should combine with those two cities and advocate a general law permitting the citizens of the municipalities to vote on the question of adopting that system.” (Defendants’ Exh. 1, at July 7, 1909.) Mr. Danner’s support for the change in government in Mobile was racially motivated. He explained the need for “good government” reform in a January 31, 1909 Mobile Register article as follows: A year ago Mobile met with a check in her progress.... We are desirous of bringing about a reaction and an upward movement toward further growth and more prosperity in our city as soon as possible. To do this we want to get white people to move and settle here with us, bringing their ability and money.. . . We cannot hope for an increase in population here unless we can offer to the newcomers good government. On the contrary, I have heard of more than one person speaking of leaving Mobile. I heard a man who has been quite useful to Mobile say. .. that he felt like taking his family and going to a place where there are no negroes. He was tired of the everlasting negro question. (Plaintiffs’ Exh. 64, at Jan. 31, 1909.) A second participant, Laz Schwarz, acting member of Mobile’s Board of Works, also supported the commission government, “provided the question may be submitted to the white people of Mobile, and that they be permitted to elect their own commissioners.” (emphasis added) Id. 1911-Present The commission form of government received modifications in 1915, Ala. Act No. 749 (increased commissioners’ terms to six years and staggered elections every two years), in 1939, Ala. Act Nos. 246, 283 (decreased terms to four years and eliminated staggered terms, assigned specific functions to each commissioner), again in 1945, Ala.Act No. 285 (established numbered posts for commissioners), and finally in 1965, Ala. Act No. 823 (assigned specific administrative duties to each commissioner). The court finds no evidence of racial motives in these changes. The only evidence admitted reveals bona fide and legitimate reasons for these alterations. See Bolden v. City of Mobile, 423 F.Supp. at 394 n. 9. In 1964, Mayor Joe Langan set up a blue-ribbon committee (which included several black members) to investigate the possibility of making changes in the existing commission form of government or changing to another form of government. The committee, denominated the “Mobile Charter Commission”, reported in February of 1965 in favor of a commission-council form of government with a hybrid plan of five single-member districts and four at-large seats for the council members. (Plaintiffs’ Exh. 119.) The recommendations were submitted to the Mobile legislative delegation. The delegation, however, chose to adopt its own plan providing for an at-large election system. Ala. Act No. 823 (1965). The senator and legislators from Mobile all testified at the hearing that there was no discussion of race or the use of a single-member district provision during Act 823’s progression through the legislature. It is clear that the legislators were aware of the racial implications of single-member districts, this had been discussed previously in reference to the legislative reapportionment issue. In such a situation a discussion of race was unnecessary. In