Full opinion text
OPINION AND ORDER PITTMAN, Senior District Judge. This cause was retried by this court upon remand from the United States Supreme Court and the Court of Appeals for the Fifth Circuit. The plaintiffs are representatives of a class composed of all black citizens of Mobile County, Alabama. They claim that the present statutory system of at-large elections of the five commissioners of the Board of School Commissioners of Mobile County dilutes the voting strength of black citizens in violation of rights guaranteed them by the first, thirteenth, fourteenth and fifteenth amendments to the United States Constitution. The plaintiffs seek declaratory and injunctive relief pursuant to the Voting Rights Act of 1965 and the Amendments of 1970, 42 U.S.C. §§ 1973 and 1973a, and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343(3) & (4), and 42 U.S.C. § 1973j(f). The United States of America was allowed to intervene as a party plaintiff by this court’s order of December 24, 1980. The United States was not a party to the action when it was originally tried in September of 1976. Jurisdiction is predicated upon 28 U.S.C. § 1345 and 42 U.S.C. § 1973j(f). The defendants are the Board of School Commissioners of Mobile County and each of the commissioners of the school board, along with the election supervisors and election canvassing board for Mobile County: Probate Judge John L. Moore, Circuit Court Clerk Maurice W. Castle, Jr., and Sheriff Thomas J. Purvis. The plaintiffs’ first cause of action alleges that the at-large election system for school board commissioners violates Sections 2 and 3 of the Voting Rights Act of 1965, as amended. The second cause of action alleges that the electoral system violates the fifteenth amendment to the Constitution, and the third cause of action rests on the fourteenth amendment. The fourth cause of action is based on the State of Alabama’s failure to remedy “the continuing effects of its prior official policies and practices of excluding blacks from the electoral process.” The plaintiffs brought suit in this court on June 9, 1975, and this court entered judgment for them on December 9, 1976. Brown v. Moore, 428 F.Supp. 1123 (S.D.Ala.1976). The Fifth Circuit summarily affirmed. On April 22, 1980, the Supreme Court vacated the judgment of the court of appeals and remanded the case “to that court for further proceedings in light of the decision ... in City of Mobile v. Bolden, [446 U.S.] 55 [100 S.Ct. 1490], 64 L.Ed.2d 47 . . .. ” Williams v. Brown, 446 U.S. 236, 100 S.Ct. 1519, 64 L.Ed.2d 181 (1980). On remand, hearings were held in this court to resolve the question of whether impending elections should be held under a district or an at-large system. This court entered an injunctive order requiring district elections pending a final trial on remand. The defendants appealed the court’s order and unsuccessfully sought a stay in this court, in the court of appeals, and in the Supreme Court. See Moore v. Brown, 448 U.S. 1335, 101 S.Ct. 16, 65 L.Ed.2d 1158 (1980). On October 30, 1980, four days before the November general election, for the next single-member district commissioner according to this court’s order, the court of appeals ordered that Board President Alexander would continue in office as the non-voting president until a final judgment on remand. The court of appeals further ordered in its unpublished opinion, No. 80-7610, that this court enjoin the certification of the election results of the November general election for the single-member district commissioner. The court stated it wanted the school board to continue operation as it was prior to this court’s order of July 25, 1980. On remand, this court denied a motion summarily to dismiss the complaint and gave the parties the opportunity to present such additional evidence as was relevant to the issues to be resolved on remand. See Jones v. City of Lubbock, 640 F.2d 777, 777-78 (5th Cir. Unit A 1981) (Goldberg, J., specially concurring). Evidentiary hearings were conducted from April 13 to April 22, 1981. At the conclusion of the hearings, the court permitted the parties, including the United States, to submit post-hearing proposed findings of fact and conclusions of law. The decision rendered herein is based on the evidence adduced at the original trial, the subsequent hearings concerning this court’s order, and the remand hearings. 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 the companion case City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (reserving and remanding and sending this case back with Bolden) 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 agreed, 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, e.g., 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 was questioned or disapproved by the court of appeals or any opinion of the Supreme Court. The findings regarding the ultimate issue of discriminatory intent are not readopted at this point, but this issue is reserved for reconsideration upon the evidence as set out above. Adoption of At-Large Elections In its original findings, this court examined the question of discriminatory intent in the adoption of the at-large plan for school board elections as though it had originated in a 1919 law, Acts of Alabama 1919 (Local), p. 73. See Brown v. Moore, 428 F.Supp. at 1123, 1135, 1137. Evidence introduced at the hearing on remand reveals that the present at-large system was actually adopted in 1876. Consequently, a longer and more detailed view of the legislative history of the election system is necessary. The system utilized when this suit was initiated consisted of five commissioners who ran on a place-type ballot and who were elected by an at-large vote of the county. There was no requirement that each commissioner reside in a particular part of the county. The commissioners were elected on a staggered basis every two years for a six-year term. Acts of Alabama 1919 (Local), p. 73. The defendants, Probate Judge, Circuit Clerk of Mobile County, and Sheriff, or persons appointed in their stead by the Register in equity, serve as the appointing board for election officials and as the Board of Election supervisors to certify election results. Brown v. Moore, 428 F.Supp. at 1127. Alabama was admitted to the Union in 1819. On January 10, 1826, the Alabama Legislature approved legislation establishing a public school system for Mobile County and creating a Board of School Commissioners. Acts of Alabama 1825-26, pp. 35-36. This was some twenty-eight years before the establishment of the public school system for the remainder of the State of Alabama, which occurred in 1854. At that time, the legislature provided for a school board composed of citizens of the county elected at-large. One-fourth of the commissioners were required to reside outside the City of Mobile. History of Mobile County School Board 1826-1876 From 1826 until the Civil War, the Alabama Legislature from time to time altered the size and terms of office for either the at-large election or appointment of school commissioners. In 1836, for example, the Mobile School Board was reduced from twenty-four to thirteen members, elected at-large. In 1840, the size of the board was again reduced, this time to eight members elected at-large. In 1843, the legislature enlarged the board to fifteen members, who were specifically named in the Act, and provided for the appointment of their successors by the school commissioners whose terms had not expired. In 1852, the law was amended to provide for a board of twelve school commissioners, all elected at-large for staggered terms of six years. Four school commissioners were to reside outside the City of Mobile. At the close of the war, 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 Union Army administered civil affairs; the civil government was reorganized by keeping public employees on the job until a new government elected by the people could be chosen. Governor Parsons authorized the existing Mobile County School Board to keep operating. In November, 1865, there was a popular election for Mobile County school commissioners under the antebellum, at-large, 1852 law. The incumbent school board members ran unopposed for their positions. Under President Johnson’s administration, all whites could vote in Alabama, but blacks could not. Only a few whites were denied the ballot because of their refusal to take an oath of future loyalty to the United States. From 1866 to 1867, as vacancies appeared on the school board by death or resignation, the board exercised its own authority to fill these vacancies. However, when military authorities took over at the beginning of Congressional Reconstruction, the military commander for this district appointed new members to the Mobile County School Board. In 1867, the historical period known as “Reconstruction” formally began in Alabama. In March of that year, 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 cancelled, incumbent local officials retained their offices and vacancies were filled at the pleasure of the military authorities. In the 1867 constitutional convention referendum election, blacks voted in significant numbers for the first time in Alabama history. There were constitutional conventions convened in all the former Confederate states. The purpose was to repeal the conservative post-Civil War constitutions, 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. After the adoption of the constitution, a ratification election was held in which Mobile County blacks voted in large numbers. (Gov. Exh. 19) During this period the term “blacks” also included Creoles, persons who descended from original Spanish or French settlers in the Gulf states and who were, at least in part, also descendants of “Negroes”. The first state legislative elections conducted under the 1867 constitution were held in February, 1868. The white Democratic boycott continued and many white males, because of their refusal to take the loyalty oath, permitted the election of an all-Republican delegation for Mobile County, several of whom were black. The 1868 Alabama Constitution provided for a new state board of education with full legislative power to enact laws in regard to education. Alabama Const., art. XI, section 5 (1868). The new educational system departed from the previous system in providing for a high degree of centralization, broad legislative powers in the state board and the earmarking of state revenue for public education. Noah B. Cloud was elected as the State Superintendent of Public Instruction. George L. Putnam, of Mobile, was elected to the State Board of Education. Putnam was from a northern state, and he came to Mobile after the Civil War to set up a Freedmens’ School as a representative of the American Missionary Association (A.M.A.). This school for blacks was called variously the Emerson Institute or the Blue College. In 1868, the Republican-controlled legislature passed a law providing that the school commissioners of Mobile County be appointed by the State Superintendent of Public Instruction. Acts of Alabama 1868, pp. 148-49, 151. State Superintendent Cloud appointed George L. Putnam as Superintendent of the Mobile County Public Schools in July, 1868. When Putnam tried to post bond to serve as superintendent, Gustavus Horton, who was a member of the Mobile County School Board and probate judge, refused to accept Putnam’s bond. Consequently, Putnam was not able to assume the duties of superintendent. In January, 1869, Cloud came to Mobile and attempted to resolve the controversy with the Mobile County School Board, whose members were adamantly opposed to the intentions of Putnam and the State Board of Education to have the A.M.A. school for blacks, the Blue College, included in the Mobile County public system and its teachers paid by public funds. This was not a question of integrating the schools; not even the Radical Republicans proposed so drastic a change during Reconstruction times. Rather, the white conservative Mobile School Commissioners simply were opposed to the progressive principles employed by the A.M.A. teachers, who taught their black students that they were entitled te equal rights. The A.M.A. schools were still operating with Putnam apparently running them. The white schools were under the control of the Mobile School Commissioners. The efforts of State Superintendent Cloud to compromise the dispute between the “old board” and County Superintendent Putnam failed, despite several proposals and counter proposals. On March 10,1869, the old Board of Commissioners informed State Superintendent Cloud that, in Mr. Cloud’s words, it did “not suit them to comply with the terms of the compromise.... ” (Gov. Exh. 24 at 39) (emphasis in original). State Superintendent Cloud, faced with “broken” promises by the old Board of School Commissioners, id, admonished Acting Mobile County School Superintendent Ryland to take charge of the black schools operating under the auspices of the A.M.A. at Emerson Institute. Id. at 41-42. The State Superintendent also informed Acting Superintendent Ryland of the effect of the old board’s failure to comply with the compromise: “It will vacate the offices of the School Commissioners — it vacates the office of the County Superintendent.” Id. at 41. Negotiations between State Superintendent Cloud and the old board continued during the spring of 1869. Id. at 45-47. Again, a compromise was apparently reached under the direction of State Superintendent Cloud. Once again, however, the proposed compromise failed, primarily because the old board refused to undertake the general management of the schools in Emerson Institute and operate free public schools in Mobile County. Finally, on June 30, 1869, State Superintendent Cloud informed Acting Mobile Superintendent Ryland and members of the old board that he was removing them from office for failure to discharge their duties under Alabama law. (Gov. Exh. 23 at 256; Gov. Exh. 24 at 47-48). These suspensions by State Superintendent Cloud were officially approved by the State Board of Education on August 19, 1869. (Gov. Exh. 68). By September, 1869, Mr. Putnam appointed a twelve-member board of school commissioners for Mobile County. (Gov. Exhs. 24, 122). Three of the twelve members of the Mobile school board (C. Perez, L. S. Berry and V. Henry) appointed by Superintendent Putnam were black. (Gov. Exh. 122) (Sept. 8, 1869); (see also Gov. Exh. 19). At the time when the Putnam-appointed school board began to function in 1869, the old all-white board continued to assert that it was the only legally valid school board in power. (Gov. Exh. 20). The old and new school boards, both claiming simultaneously to govern the Mobile County school system, stood in sharp racial contrast to one another. As reported in 1869, in the Democratic-controlled Mobile Daily Register : As to a comparison of the new Putnam ... board with the old board, it is only to be said that the old board has on it a few Radicals who on the Mobile system have been tried and found faithful, and on the new board are to be found three Negroes. Tried white men are safer than untried Negroes.... The existing or old board is not “mongrelized” at all.. . . (Gov. Exh. 122) (Sept. 8, 1869). The old board refused to turn over the books, papers and other property belonging to the Mobile school system to the new board, and in September, 1869, the new board and County Superintendent Putnam filed suit in state court seeking an order compelling the old board to relinquish control over the Mobile County school system. (Gov. Exh. 122) (Sept. 25, 1869); (see also Gov. Exh. 20). On September 23, 1869, the old board unanimously resolved that if the state court decision was adverse to them, the old board would refuse to turn over school property to the new board and would inform the state court of its position. (Gov. Exh. 23) (Sept. 23, 1869). About October 1, 1869, the state court judge rendered a decision in favor of the new Putnam-appointed board. (Gov. Exh. 122) (Oct. 1,1869); (see Gov. Exh. 20). The old board refused to vacate their offices and all twelve members were ordered to the county jail on October 2, 1869. (Gov. Exh. 20) (Oct. 2, 1869). While in jail, the members of the old board conducted one school board meeting wherein they voted not to charge tuition for pupils in the intermediate and primary grades. Id. On October 3, 1869, the Alabama Supreme Court granted a writ of certiorari “in the case of the Old Board of School Commissioners, and order[ed] the release of the prisoners.” (Gov. Exh. 122) (Oct. 3, 1869). The next day, the public schools opened once again under the auspices of the old board. Id. In 1870, the Alabama Supreme Court affirmed the lower state court ruling in favor of the new school board. Mobile School Comm’rs v. Putnam, 44 Ala. 506 (1870). While the appeal of the state court ruling was pending in the Alabama Supreme Court in 1870, negotiations between the old and new school boards continued. (Gov. Exh. 123) (Apr. 19, 1870); (see Gov. Exh. 23) (Apr. 1, 4, 14 & 27, 1870). These negotiations were initiated by Peter Hamilton, an attorney who served as the old board’s legal counsel and who represented the old board in the state 'court litigation. (Gov. Exh. 123) (Apr. 19, 1870). By April 14, 1870, the old board, which by that time had suffered several legal defeats in state court on financial issues contested with Mr. Putnam, agreed to a compromise proposed by Mr. Putnam. (Gov. Exh. 23) (Apr. 14, 1870). One member of the old board, Willis G. Clark, described the thinking of the old board in these terms: Under these circumstances, and being unwilling to deprive the community of the schools which they were unable, from lack of funds, to carry on, the Mobile school commissioners gave directions to surrender the public school buildings in the city to the appointees of the board of education. (Gov. Exh. 22 at 234). Schools in Mobile County remained under the direction of County Superintendent Putnam from 1870 until the spring of 1871. Id. There is no precise date on which the period known as “Reconstruction” officially ended in Alabama or in Mobile County. One participant in the Alabama state government at that time, Frederick Bromberg, who had been elected to a four-year state senate seat in 1868, offered this explanation of when the period of Reconstruction ended: In this state that period [Reconstruction] terminated in the fall of 1870, as I shall show, when the Democratic party again resumed control of the state, having elected their governor, lieutenant-governor and all other state officers and an overwhelming majority of the lower branch of the legislature ... [T]he only large towns in the “black belt” were Mobile, Selma, Montgomery and Eufaula. In each of these were active, aspiring Negroes, and also a class of northern men, generally designated as “carpetbaggers,” who had been left in the south by the invading armies of the Union, whose chief purpose was to secure the officers required to be filled under the reconstruction measures, and who generally allied themselves with the Negroes, as an ignorant, pliable class of voter, in opposition to the better element of the Republican party. (Gov. Exh. 89 at 1). 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 Democratic and Conservative Party in Alabama mounted a major effort in the 1870 elections to defeat the Radical (Republican) Party, and to eliminate blacks, or whites identified with black interests from holding public office in Alabama and in Mobile. The November, 1870, election for State Superintendent of Public Instruction, for example, pitted Dr. Cloud, a Radical Party candidate, against Joseph Hodgson, a Democratic and Conservative Party candidate. (Plaintiffs’ expert historians’ Trial Testimonies). The voice of the Democratic and Conservative Party in Mobile, the Mobile Daily Register newspaper, pleaded with white males to register and vote to rescue Alabama “from the gang of beastly Negroes, thieving carpet-baggers and scalawag adventurers!”. (Gov. Exh. 123) (Oct. 4, 1870). Elections to posts on the State Board of Education were also held in November, 1870, with Democratic and Conservative Party candidates running against Radical Party candidates for those positions as well. (Gov. Exh. 130) (Montgomery Daily Advertiser, Oct. 4, 1870). The November, 1870, election results showed significant political gains in Alabama for the Democratic and Conservative Party. Democrat Robert Lindsay defeated incumbent Republican W. H. Smith for Governor, and Colonel Joseph Hodgson, a Democrat, defeated Republican Dr. Noah Cloud for State Superintendent of Public Instruction. Republicans controlled one house of the legislature and Democrats the other. As of December 4, 1870, the State Board of Education was comprised of eight Republicans (one of whom was black) and four (white) Democrats. (Gov. Exh. 130) (Dec. 4,1870). The state board met daily in November and December, 1870, with State Superintendent Joseph Hodgson presiding. Id. On December 14,1870, the State Board of Education passed a law which restored the election of Mobile County school commissioners. Public School Laws, art. XIV (Nov. Term 1870). The 1870 statute does not appear in the Acts of Alabama because it was enacted by the State Board of Education rather than by the legislature. This statute provided: § 2. Board of commissioners. — A board of school commissioners shall take the place of, and act as a board of directors for Mobile County, which board shall be composed of one county superintendent and twelve commissioners, three of which commissioners shall reside not less than seven miles from the courthouse of the present county, and of whom any seven shall constitute a quorum for the transaction of business. § 3. Manner of elections. — The said superintendent and commissioners shall be elected on the first Saturday of March, 1871, and upon their first meeting the said commissioners shall classify so that four of their numbers shall hold office for two years from the day of election, four of their number for four years, and four of their number for six years, one of each class to be a member from outside the city; their successors to be elected to serve for six years from the day of their election; Provided, That in the first election for commissioners only nine commissioners shall be voted for on any one ballot, and in succeeding elections only three shall be voted for upon any one ballot. (Emphasis added.) The 1870 law governing elections for the Mobile County school board provided “that there shall be twelve commissioners, but that only nine shall be voted for on any one ticket — the purpose ... being to secure to the minority a representation in affairs wherein they are interested.” Mobile Register, (Gov. Exh. 124) (Mar. 10, 1871). The term “minority” as used in this context refers to black voters or black voter interests. The political explanation for this compromise probably can be found in the fact that by 1870 a Democratic governor had been elected, but the two houses of the legislature were split between Republican and Democratic control, and the State Board of Education was still controlled by a Republican majority, although the state superintendent was a Democrat. The old Mobile County School Commissioners agreed to accept this compromise. Elections for the Mobile County School Board were held in March, 1871. The Democrats ran a slate of nine candidates; the Republicans ran a slate of nine. The Democrats, again using the editorial pages of the Mobile Daily Register, called on white voters to unite behind the Democratic slate of candidates to defeat “the Professor of Carpet-baggery,” Mr. G. L. Putnam. (Gov. Exh. 124) (Mar. 4, 1871). The Democrats openly appealed to the racial prejudices of the white Mobile County electorate in the March, 1871 school board election, claiming that Putnam’s “strength is chiefly confined to the less intelligent voters of the city and county”. Id. (Mar. 4, 1871). The Democratic Party also contended that only “Radical colored people” supported Putnam, and implied that black voters would likely cast their ballots for Putnam since “these men [black voters] make it a point to go for anybody for an office that the people at large do not want.” Id. The Mobile Daily Register also warned the white electorate that a vote in favor of Putnam was a vote in favor of desegregated schools: If you want mixed schools — that is, your children and the Negro children in the same rooms, on the same benches, at the same desks, elect the cadaverous carpet-bagger Putnam. (Gov. Exh. 124) (Mar. 4, 1871). The slate of nine Democratic party candidates was elected to the Mobile County school board in 1871, and Democratic party candidate Dickson edged Putnam for the Mobile County school superintendency. (Gov. Exh. 124) (Mar. 10,1871). As a result of the election provision that limited the number of votes that could be cast on any one ticket to nine, “the three highest candidates on the Radical ticket [were] elected, Messrs. Couch, Lomery and Thompson.” Id. Drury Thompson appears to have been black or Creole. The newly elected school board accepted the Freedmens’ schools as part of the public school system in Mobile, pursuant to the political compromise. However, it appears that the elected school board had less authority, met less often and conducted less business during the period between 1871 and 1876, if their minutes are an accurate reflection. Probably the board turned over most of the operation of the schools to the superintendent. After the March, 1871 election, the Mobile Daily Register chided the white electorate for exhibiting voter apathy in the school board election: “Will the white people of this county ever learn not to forget that there is a dangerous and inflammable element of black suffrage here that is ever on the alert for mischief, that they cannot safely ignore, and that needs always to be vigilantly watched.” Id. (Mar. 7, 1871). The twelve-member school board elected in March, 1871 served for six years as the governing body in Mobile County. No elections for any county public school offices were held in Alabama between March, 1871 and 1876, inasmuch as the State Board of Education in 1873 repealed the law which had provided for county school board elections every two years beginning in 1871. (Gov. Exh. 71 at 23). 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.” Ala.Const. (1875), art. XIII, section 11. The new constitution repealed the provision of the 1868 constitution that had given the State Board of Education legislative authority in educational matters. The Redeemer Alabama Legislature met 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 county-wide basis, but required that two of the nine 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. The 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 agrees. Given the sequence of events leading up to Act No. 242, no other conclusion is reasonable or possible. The 1876 election scheme for Mobile County School Commissioners remains in effect to the present day. The law was amended in 1919 by reducing the number of school commissioners from nine to five. Acts of Alabama (1919), No. 229, p. 73. The at-large method of electing board members was left undisturbed. The defendants raise two factual contentions with regard to the 1870 and 1876 enactments. First, they contend that the 1876 act could not have been passed with a racially discriminatory intent because the 1870 act did not provide for single-member districts. The crucial relation between the 1870 and 1876 acts, however, is that the former explicitly and deliberately provided for a method of minority representation. The limited vote provisions of the 1870 act were intended, and were so described at the time, as a means of ensuring that the minority would be able to elect its own representatives; single-member districts are not the only means of accomplishing this. The 1876 act was enacted by a legislature whose primary goal was the eradication of any and all results of the attempts by Reconstruction governments to provide equal rights to blacks, was passed in reaction to the 1870 statute, and was clearly intended to eliminate minority representation on the school board. Given the relatively limited indicia of legislative intent available in this era, it is difficult to imagine a case of discriminatory intent more precisely or convincingly made out. The defendants’ second contention is that “[t]he 1876 statute is not being challenged in this case.” They contend that the statute under attack in this court, setting up the at-large system, was passed by the Alabama Legislature in 1919. The plaintiffs’ case is simply not so nearly confined. The plaintiffs are not limited as a matter of law to attacking the 1919 statute. That statute did not “create” the at-large system of school board elections; rather, this occurred in 1876. There is no evidence that the 1919 statute changed the at-large feature in any way, thus requiring the examination of that statute. The soundest ground for arguing that the 1876 statute was not passed with racially discriminatory intent is that it “merely” returned Mobile to the antebellum system of elections originally passed in 1826. The fact that Mobile initially had such a system merits comment. It is, however, less directly related to the intent of the Redeemer legislature than the specific sequence of events from 1870 to 1876, in which minority representation was first given by the Re-constructors, and then taken away by the Redeemers. In fact, the evidence is overwhelming that it was racially motivated. There is no evidence that the 1876 act was passed even with awareness of the antebellum system. Village of Arlington Heights v. Metro. Housing Devel. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 563, 50 L.Ed.2d 450, 466 (1977). Present Effects of Past Discrimination The at-large system was adopted in 1876 because it was clear to the Alabama Legislature that the at-large form would ensure that the minority, blacks, would never be able to elect a representative sympathetic to its interests. As this court has previously found, Brown v. Moore, 428 F.Supp. 1123, 1126-32 (S.D.Ala.1976), the effects of this intent remain to this day. After 1876 no black was elected to the school board until after this court’s order of December 9,1976, as amended December 13, 1976, establishing a single-member district system. The above finding should not be misunderstood as reflecting any opinion or containing any suggestion that at-large systems are per se unconstitutional. Where a specific legislative intent in the enactment is demonstrated, however, the fact that no minority representative, or a representative running on a platform sympathetic to the minority’s interests, has ever been elected becomes something other than the “natural tendency” of features such as at-large plans and majority vote requirements. See City of Mobile v. Bolden, 446 U.S. at 74, 100 S.Ct. at 1503. The court has attempted to show the precise “present” effect of the at-large system itself because the tendency of the Supreme Court appears to be toward a more particularized inquiry. In White v. Regester, the court examined a much broader range of evidence in con-eluding that discriminatory intent had been established. Although the fate of White v. Regester as a test for discriminatory intent in the enactment is at best uncertain after Bolden, the court’s opinion reviews the present effect of the Dallas and Bexar County at-large plans in the context of several other forms of discrimination. Accord, Lodge v. Buxton, 639 F.2d 1358 (5th Cir. 1981). As this court has previously found, Brown v. Moore, 428 F.Supp. at 1127-29, bloc voting continues to occur in Mobile County. Analysis of the political campaigns and elections of representative bodies in Mobile County since 1962, when blacks first became a significant political force after Reconstruction times, shows that the candidates and issues favored by black voters or otherwise associated with black community interests have been uniformly defeated by a bloc-voting white electorate. Analysis of the election returns for several national and local offices in 1980, including the unsuccessful candidacy of a black lawyer who sought the office of Circuit Judge of Mobile County in 1980, demonstrates that the pattern of racial vote dilution continues in Mobile County to the present time. This voting along racial lines “enhances the likelihood that those seeking to manipulate the electoral system for discriminatory purposes will succeed.” Lodge, 639 F.2d at 1378 n. 41. The present effect of the at-large system, as a function of its original intent in 1876, is to enhance the discriminatory results of other forms of de jure and de facto discrimination in voting practices and procedures. These other forms of discrimination in turn enhance the present effect of the at-large system, to deny equal access to the political system. The court will first consider other forms of discrimination in voting, and will then turn to discrimination in other areas such as housing, education, employment, economics, and health, as each contributes to the present effect of the at-large system. The first official disfranchisement device in Alabama, the “Sayre Law”, was passed by the Alabama Legislature in 1893. The Sayre Law required that: (1) biennial voter registration be conducted in May, over a month before state office elections and five months before the national election; (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. Black voter turnout statistics after 1892 proved that the Sayre Law accomplished the legislature’s goal of disfranchising blacks; black voter turnout dropped by twenty-two percent (22%) from 1892 to 1894 and thereafter remained below fifty percent (50%). In 1901, the Alabama Legislature passed an act calling for a constitutional convention in order to restrict permanently state suffrage rights. The primary purpose of the 1901 all-white constitutional convention was to disfranchise the black electorate. Convention delegates emphasized the need to keep blacks out of governmental affairs, because blacks, in their view, were inherently inferior. For example, former Governor Oates, a delegate from Montgomery County, stated: Those people are an inferior race. We do not believe the [sic] most of them are entitled to a place in the administration of the state affairs along with an equal to the white men.... There is not a Negro in office in the State of Alabama.... (Gov. Exh. 114) (Proceedings of the 1901 Constitutional Convention at 1662-63). Another delegate, admitting his white supremacist goals, advocated black disfranchisement and racial bloc voting by whites: We cannot afford to leave the ballot in the hands of enough Negroes to form a respectable faction, for if we do, whenever the whites divide, they hold the balance of power and we have failed to accomplish our mission. (Gov. Exh. 115 at 2785). To “accomplish their mission”, the convention delegates also considered, but did not ratify, a provision prohibiting black citizens from holding elective office in Alabama. In 1901, the Alabama electorate ratified a constitution containing a full host of voter qualifications: a $1.50 annual, cumulative poll tax; a one year employment requirement; lengthy residency requirements; property ownership requirements; a literacy test; a petty crime provision; and, as a final barrier, powerful boards of registrars with broad discretion in registering eligible voters. The constitution also contained a fighting grandfather clause that guaranteed white suffrage, notwithstanding the above qualifications. Black disfranchisement resulted immediately after ratification of the constitution. In 1900, the black voting age population in Alabama was 181,471 and the white voting age population was 232,-294. (Gov. Exh. 5). By 1903, the number of registered black voters in Alabama was only 2,980, whereas the number of white registered voters was 191,492. (Gov. Exh. 82). In Mobile County, 183 blacks and 7,104 whites were registered to vote around 1903. Id. A comparison of black and white voter turnout in national presidential elections both prior to and following the 1901 ratification election reveals a similar decline in black political participation. The estimated black voter turnout decreased by 96% between the 1900 and 1904 presidential elections, while the estimated white voter turnout decreased by only 19%. Boswell Amendment During the first half of the twentieth century and until at least 1946, the Alabama Democratic party, an official arm of the state, instituted a “white supremacy” system which excluded blacks from the process of nominating a candidate for all state elective offices, including those for the Mobile County Board of School Commissioners. Nomination by the Democratic Party was tantamount to election. In defiance of the United States Supreme Court’s 1944 decision invalidating Texas’ “white-primary” statute, Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), Mobile County officials refused blacks the right to participate in the April, 1944 primary election. Gessner McCorvey, the Chairman of the Alabama Democratic Executive Committee and resident of Mobile, declared: We are going to hold a white Democratic primary in Mobile on Tuesday, as the Supreme Court of Alabama has several times held that fixing of qualification of voters in Democratic primaries is solely and exclusively up to the executive committee of our party. (Gov. Exh. 116) (Mobile Press Register Apr. 30, 1944). To circumvent Smith v. Allwright, Alabama amended its constitution in 1946 to provide that only those persons who could read and write, and demonstrate an ability to “understand and explain” any article of the United States Constitution were eligible to register to vote. Democratic Party Chairman McCorvey noted that this amendment, known as the Boswell Amendment, “give[s] certain discretion to boards of registrars and enable[s] them to prevent from registering ‘those elements in our community which have not yet fitted themselves for self-government.’ ” (Gov. Exh. 115) (Mobile Press Register Dec. 29, 1945). The federal courts invalidated the Boswell Amendment, upon challenge by blacks from Mobile County in Davis v. Schnell, 81 F.Supp. 872 (S.D.Ala.) (three-judge court), aff’d per curiam 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093 (1949). A three-judge panel of this court held that the amendment’s “main object was to restrict voting on the basis of race or color”, in violation of the fifteenth amendment. Id. at 880. The court noted that the State Democratic Executive Committee, an official arm of the state, led the fight to enact the Boswell Amendment in order to “make the Democratic party in Alabama the ‘White Man’s Party.’ ” Id. at 879. The court also found that the electorate understood the legislative purpose of the amendment was to make it “impossible for a Negro to qualify”, and that they were urged to “Vote White— Vote Right”, by voting for the amendment in the constitutional referendum. Id. at 880. The above facts and the constitutional provisions are only the more prominent of the attempts in Alabama to deny equal access to the political process for blacks. There has been a long and tortuous history of official racial discrimination against black citizens in the State of Alabama. As late as the 1960’s, for example, many lawsuits were filed by the United States to end racially discriminatory voting practices— particularly suits charging that local boards of voting registrars were implementing literacy test requirements in a racially discriminatory manner. See e.g., United States v. Alabama, 192 F.Supp. 677 (M.D.Ala.1961) (Alabama voting provisions discussed; Macon County), aff’d, 304 F.2d 583 (5th Cir. 1962), aff’d per curiam, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112 (1962), see also United States v. Mayton, 335 F.2d 153 (5th Cir. 1964) (Perry County); United States v. Atkins, 323 F.2d 733 (5th Cir. 1963) (Dallas County); United States v. Elsberry, No. 3791-65 (S.D.Ala.) (Marengo County); United States v. Tutwiler, No. 3200-63 (S.D.Ala.) (Hale County); United States v. Logue, No. 3081-63 (S.D.Ala.) (Wilcox County); United States v. Ford, No. 2829 (S.D.Ala.) (Choctaw County). Many of these issues raised in these cases were rendered moot by the passage of the Voting Rights Act, which suspended the use of literacy tests in Alabama. The decades of pervasive voting discrimination in Alabama had the intended effect; there was a marked disparity in voter registration statistics between white and black voting age populations around the time of the 1965 Voting Rights Act. As of November 1, 1964, there were 92,737 blacks registered to vote in Alabama, or 19.3% of the 1960 black voting age population. In contrast, 935,695 whites were registered to vote, or 69.2% of the white voting age population. (Gov. Exh. 117). Enforcement of racially discriminatory policies and practices by state and local officials has had the effect of perpetuating past constitutional violations in Alabama and in Mobile County. (Plaintiffs’ expert historians’ Trial Testimonies; see Brown v. Moore, 428 F.Supp. at 1127). Past racially discriminatory policies have the continuing effects of: (a) denying or abridging the right to vote of black citizens by discouraging them from participating in the electoral processes as voters or candidates, and (b) maintaining “white supremacy” in the electoral process. The present conditions which flow from past violations in Alabama and in Mobile County include at least the following: Low black voter registration and participation. The past history of racial discrimination adversely affects the ability of blacks to participate in the political process of Mobile County because of: the residual effects of previous intimidation; inferior employment opportunities available to blacks; impaired communication between the races; the unfamiliarity of blacks with Mobile County’s political machinery due to past exclusion from the political process, and the large size of the county, which disadvantages blacks as a consequence of their low socio-economic status. These broader aspects of discrimination enhance the intended discriminatory effect of the at-large system. Barriers to black candidacies. While black candidates must obtain white votes to win elections, they are, because of past discrimination, denied the opportunities for personal contacts with white voters that are an essential part of the politics in Mobile County. Housing patterns born of Jim Crow laws and whites’ opinions of blacks’ inferiority combine to deny to black candidates the personal contact through “neighborhood networks” which would exist in multi-racial neighborhoods. Black candidates have also been the victims of racial tactics employed by the white power structure in Mobile. For example, “[i]n 1969, a black got in a run-off against a white in an at-large legislature race. There was an agreement between various white prospective candidates not to run or place an opponent against the white in the runoff so as not to splinter the white vote. The white won and the black lost.” Id. at 1128. Black candidates, as well as persons experienced in local politics, have already testified in this case that it would be futile for a black to attempt to run at-large. The absence of black elected officials, in turn, discourages black voters from participating in the electoral process, as they perceive it to be a futile exercise. Racial bloc voting. The inequities between blacks as a group and whites as a group are significant in the electoral process, where whites vote as a bloc against any black candidate or any white candidate identified with black voters or their interests. See id. Ninety percent (90%) of the residents in the greater Mobile area, including the City of Mobile, were born in Alabama. (Gov. Exh. 117) (1970 Census). To the extent that past official racially discriminatory policies of the state have had an effect on the attitudes of whites as well as blacks, virtually all of the voting age population in the county would be affected. Racial bloc voting by whites is attributable in part to past discrimination, and the past history of segregation and discrimination affects the choices of voters at the polls. Maintenance of At-Large Elections One long-term indicator of an intent to maintain at-large school board elections for discriminatory purposes is the difference in expenditures for white and black pupils from 1876 until 1955, the year after the Supreme Court’s decision in Brown v. Board of Education, overruling the “separate but equal” doctrine of Plessy v. Ferguson. Plaintiffs’ expert analyzed the biennial reports of the Alabama State Superintendent of Public Instruction for the years 1870 to 1963. The expenditures show a steadily decreasing per capital expenditure for black students as compared to white students. Between 1870 and 1876, per-pupil expenditures for black students based upon school age population ranged from 0.825 to 0.870 that for whites, or fairly substantial equality. Based upon actual enrollment, black students received 1.139 times that spent on whites. The first year after 1876 for which figures are available is 1882; based upon population, the ratio is 0.55. From 1882 to 1890, the figure drops slightly to 0.50. In 1891, the law controlling distribution of funds was changed. Before then, Alabama law required the state school board to distribute funds on a school age population basis. Local funds and poll tax distributions were discretionary. In 1891, these provisions were abrogated, and funds were distributed at the discretion of local school boards. Thereafter, there is a general declining trend in the ratio of expenditures for black and white pupils, which decreases to 0.277 in 1940. With the Supreme Court’s decision in Brown v. Board of Education in 1954, the per-pupil ratio leaps to 0.958, where it remained until figures were no longer published in 1963. School boards in the South were acutely aware of the Brown v. Board of Education decision, as well as other litigation filed by, for example, the N.A.A.C.P. The above figures, especially the decrease in the ratio after 1876, suggest strongly that the intent to deny blacks representation on the school board, and by extension of education itself, was in fact the motivation behind the 1876 statute. They also supply the necessary ingredient of unresponsiveness in a maintenance claim. Lodge, 639 F.2d at 1375. The accuracy of the historian’s analysis of the intent behind the reduction of expenditures for black pupils is confirmed by his comparison of Mobile trends to trends in North Carolina. Blacks in North Carolina were disfranchised around 1900; until that time they enjoyed relatively free voting privileges. Before that time, per-pupil school expenditures for blacks remained relatively equal and did not decrease as was the case in Mobile. After about 1900, a difference in North Carolina rates begins to appear. From this plaintiffs’ historian concludes that when the election system and voting practices afforded blacks the opportunity to protect their interests in the school system — or when federal pressure did so after 1954 — blacks received more even-handed treatment in the delivery of school services. The court agrees and so finds. As to the remaining elements of the test enunciated in Lodge, the court readopts its original findings. More recent events further substantiate the finding that the at-large election system is being and has been maintained for a racially discriminatory purpose. This court previously found, Brown v. Moore, 428 F.Supp. at 1130, that as recently as 1970, another judge of this court was forced to threaten members of the Board of School Commissioners of Mobile County with $1,000 per day contempt fines for their refusal to comply with orders to desegregate the public schools. As of the time of retrial, no order had been entered in the Mobile County school desegregation case, Davis v. Board of School Commissioners, No. 3003-63-H, declaring that Mobile County finally has a unitary school system. There is, further, the matter of the 1975 and 1976 bills proposed in the Alabama Legislature. The Kennedy and Sonnier Bills: 1975-76 In 1975, shortly following the commencement of this lawsuit, black State Representative Cain Kennedy introduced a bill into the Alabama Legislature proposing a single-member district election system for the school board. House Bill 1243 (Reg. Sess. 1975). Mr. Kennedy advertised his bill as a local bill prior to introduction. The school board offered to support the bill (hereinafter “Kennedy Bill”) if the dates of the plan’s phase-in provisions were amended; it sent its former legal counsel, George Stone, to Montgomery to draft the necessary amendments. The Alabama Legislature passed the modified bill on October 10,1975, as Act 1150. The Mobile school board then obtained a dismissal of the claims against it in this case on the grounds that passage of single-member district legislation mooted the challenge to the at-large election scheme. Order of November 21, 1975. On February 7, 1976, less than three months after the order of dismissal, the school board instituted a state court action attacking the constitutionality of the Kennedy Bill. The basis of the suit was that the final version of the Kennedy Bill differed materially from the originally advertised bill. Among the fatal variances, however, was one demanded by the board members themselves: alteration of the dates for phasing in the single-member district plan. In their public statements on the suit, the defendant commissioners proclaimed that they would not take a position in state court for or against the constitutionality of the Kennedy Bill, but with the actual or constructive knowledge and acquiescence of the defendants, their counsel aggressively attacked and “most strongly urge[d]” judicial condemnation of the Kennedy Bill in state court. The plaintiffs in the instant federal court case were not served or notified of the pendency of the state court case. No one defended the constitutionality of the Kennedy Bill. The Circuit Court of Mobile County promptly entered the judgment sought by the school board, holding the Kennedy Bill invalid. Order of February 17, 1976. On March 1,1976, the plaintiffs moved to rejoin the school commissioners as defendants, and this court granted the motion on March 8, 1976. The proceedings were delayed for over three months, and as a result no final decision could be rendered by this court prior to the 1976 school board elections. The defendants guaranteed this result by refusing to file an answer in the action until July 12,1976, after a motion for default judgment had been filed by the plaintiffs. Following their rejoinder as defendants, the school board proposed a second single-member district bill, which was introduced as a “general law of local application” by State Representative Nat Sonnier of Mobile on July 8,1976. House Bill 1060 (Reg. Sess. 1976). School board members previously had attempted to persuade black State Representative Gary Cooper to introduce the bill, but he refused to do so. Cooper, suspicious of the school board’s motives, testified at trial in 1976: I felt that it was a ploy being used by the Mobile County School Board so that they could come back and tell the Judge here in Mobile that we were trying to get a bill passed. Of course, we knew that if the bill passed ... it could be challenged, and it would mean another two or three years before any result could come to this problem. (Tr. 365). Immediately following the introduction of the “Sonnier Bill”, the school board moved to continue further proceedings in this case while the legislature considered the bill. The defendants also sought to dismiss the suit in September, 1976, claiming that the plaintiffs, acting through se