The Bolden Decision Stonewalls Black AspirationsBy Laughlin McDonald
Vol. 2, No. 8, 1980, pp. 11-17
The Supreme Court's latest voting rights decision, City of Mobile v. Bolden(April 22, 1980), is bad news for Blacks. The Court held that no system of elections could be attacked on racial grounds, even one such as Mobile, Alabama's, which has the effect of totally excluding Blacks from office, unless it could be shown that it was adopted, or was being maintained, for the express purpose of discriminating against minorities. The Court also set up standards for proving "purpose" which are all but impossible to meet. The effect of Bolden will be to give new respectability to old-style, White-only politics in the South and bring to a halt the modest gains in Black office holding of the last decade.
Mobile, built around the rim
Page 12of Mobile Bay, 31 miles north of the Gulf of Mexico, is Alabama's second largest city and only seaport. It was founded in 1702, and retains today a distinctive blend of the traditional and the modern. It is the home of the famed Azalea Trail, 35 miles of streets that in the spring of the year wind through blossom-strewn bay area neighborhoods and suburbs. It is home too of the Bankhead Tunnel beneath Mobile Bay, an engineering marvel of its day and the first underwater traffic tube ever built in the South.
There are some accommodations to modern times, however, which Mobile has declined to make. One of those is to the rights of Blacks to participate equally with Whites in city politics. Although 35 percent of Mobile's nearly 200,000 residents are Black, no Black has ever won an elective city office. This exclusion is the result of Mobile's use of at-large voting for election of its three-member City Commission.
Where voting is at-large, as in Mobile and thousands of other jurisdictions in the South, all the voters elect all office holders. By contrast, where voting is by districts, only the voters in each district elect their own representatives. District voting allows for the creation of majority Black districts capable of electing minority candidates, even in jurisdictions which as a whole are majority White and where severe race relations cause voting to be strictly along racial lines. At-large voting, however, submerges concentrations of Black population in the White majority, neutralizing, or diluting, minority voting strength. Whites, quite simply, can out vote Blacks, assuring that minority candidates never hold political office. That is exactly what has happened in Mobile.
The exclusion of Blacks from politics was not accidental, nor the result of the normal give and take of politics. It was carefully planned. After Reconstruction ended in 1877, and federal troops were withdrawn, the Southern states set about systematically to take the vote away from Blacks and reduce the Fifteenth Amendment to dead letter law. The main work of disfranchisement was accomplished through a series of state constitutional conventions. Mississippi held the first in 1890, and Alabama followed with its own in 1901. The stated purpose of the convention was "the absolute disfranchisement of the Negro as a Negro." One delegate who addressed the Alabama convention caught precise-
Page 13ly the mood of the assembled legislators. With rhetorical embellishment he declared, "It is our purpose, it is our intention, and here is our registered vow to disfranchise every Negro in this state and not a single White man. "
The Alabama convention adopted a two stage program. The initial measures included a grandfather clause for veterans and their descendants, allowing most Whites to register without meeting other requirements, and a so-called good character test. The permanent plan, which went into effect on January 1, 1903, included a poll tax, a literacy test, and education, employment, and property qualifications for voting. Shortly after the convention, the legislature authorized the Democratic Party to conduct all-White primaries, with the result that even those few Blacks who actually got registered were denied the right to vote in the only election in the state that had any meaning.
The impact of these various restrictions was predictable and devastating. Black voter registration began to plummet with amazing swiftness. By 1908, there were only 3,742 Blacks registered to vote in the entire state of Alabama. In Mobile County, the regime of White rule was so firmly reestablished that as late as the end of World War 11, only 275 Blacks were listed on local voter rolls.
A series of Congressional enactments during the 1950s and '60s, culminating with the Voting Rights Act of 1965, with its ban on literacy tests, was to have changed the complexion of Southern politics. Once Blacks were given the right to register and vote without hindrance, it was assumed they would be able to participate fully and equally with Whites in elective politics. But in places like Mobile, that was not to be.
In spite of greatly expanded Black voter registration, Black candidates consistently went down to defeat at the polls. It soon became apparent to local Blacks that even if every eligible Black in Mobile was registered, and even if every registered Black voted for Black candidates, Blacks would still lose because of deep-seated racial division and at-large voting.
After years of frustration, a group of Blacks in Mobile brought a lawsuit in 1975 in the federal district court charging that at-large elections denied them the right of equal political participation and diluted their voting strength in violation of
Page 14the Fourteenth and Fifteenth Amendments, and §2 of the Voting Rights Act of 1965. They based their legal claims primarily upon a 1973 court of appeals decision, Zimmer v. McKeithen, which held that at-large voting is unconstitutional where the political process is not equally open to Blacks and they have less opportunity than Whites to elect representatives of their choice.
Specifically, Zimmer said that dilution could be shown by proof of such things as: a history of official racial discrimination, particularly in registering and voting; a disproportionately low number of minority-group members elected to office; a lack of responsiveness on the part of elected officials to the needs of the minority community; depressed socio-economic status of minorities; majority-vote requirements; tenuous policy favoring at-large voting; lack of access to-candidate slating by minorities; large district size; lack of residential requirements for candidates and anti-single shot voting laws. Later appeals court decisions made it clear that discriminatory purpose was necessary for a constitutional violation, but that proof of the factors in Zimmer was enough to show invidious purpose in the use of at-large voting.
The Mobile plaintiffs proved most of the Zimmer factors -"massive official and private discrimination," no Blacks elected to office, lack of responsiveness by city government, etc. As a consequence, the district court found at-large elections for the City Commission unconstitutional under the Fourteenth and Fifteenth Amendments and ordered them replaced with district voting.
The city appealed. It pointed out that Mobile had adopted at-large elections in 1911. Since Blacks had been disfranchised by that time, the motive in choosing at-large voting could not, the city argued, have been racially discriminatory. The city also contended that it was under no duty to insure proportional representation for any racial group and that the remedy imposed by the district court in abolishing the commissioner form of government exceeded the powers of the court.
The court of appeals upheld the district court in 1978. It acknowledged that proof of intent to discriminate was required in litigation under both the Fourteenth and Fifteenth Amendments. It concluded, however, that even an innocently formulated election plan could be maintained for the purpose of diluting Black voting strength, and, if the aggregate of Zimmer factors were shown, as they had been in Mobile, proof of discriminatory intent was made out.
The city appealed to the Supreme Court. The case was argued in March, and again
Page 15in October, 1979, and was decided on April 22, 1980. The Court reversed and sent the case back to the court of appeals for further consideration.
Since the law of dilution had so recently been approved and applied by the Supreme Court in a 1973 case, White v. Regents, most observers assumed that if there was reversal in Bolden, it would be because the remedy imposed by the lower court abolishing Mobile's form of government was too extreme, and that the underlying law of dilution would not be changed. But that was not to be. The case was decided very nearly in the worst possible way for the Black plaintiffs.
There were six opinions in Bolden: a plurality decision by Justice Stewart, joined by Burger, Powell, and Rehnquist; separate concurring opinions by Stevens and Blackmun; and dissenting opinions by Marshall, Brennan and White. The critical opinion, and the one which controlled the outcome of the case, was that of the plurality. It held that the Mobile challenge could not be based on the Fifteenth Amendment, since it protects only the right to register and vote without hindrance, and not the right to have the vote count. To reach that conclusion, the plurality had to ignore prior Supreme Court decisions invalidating discriminatory procedural requirements for exercise of the franchise, even though the abstract right to vote, as in Mobile, was unimpaired. Cases as early as 1915 had held that "the right to have one's vote counted" was of equal importance as "the right to put a ballot in a box." Accordingly, such practices as ballot box stuffing had been found unlawful, as well as the all-White primary, even though Blacks had full access to the ballot for general elections.
As for the Fourteenth Amendment claim, the Court said plaintiffs must show that Mobile's at-large voting was conceived or operated as a purposeful device to further racial discrimination. The Zimmer factors were most assuredly insufficient to prove an unconstitutionally discriminatory purpose." Purpose could be shown by proof that at-large voting was adopted or maintained, "in part 'because of,' not merely 'in spite of,'" its adverse racial effects. The plurality, in a terse and oblique analysis, found Bolden to be "consistent" with White v. Regents.
Stevens, the newest justice on the Court, wrote a concurring opinion that was extraordinary. For him, an election plan would be unconstitutional only if it was totally irrational or entirely motivated by a desire to discriminate. Thus, the adoption of at large voting for the express purpose of excluding Blacks from office would nevertheless be constitutional if there was any additional legitimate reason for its use. "I believe we must accept the choice to retain Mobile's commission form of government as constitutionally permissible even though that choice may well be the product of mixed motivation, some of which is invidious."
Stevens is the first Supreme Court Justice in modern times to rule that the Constitution tolerates a certain amount of racial discrimination. If his position is adopted by a majority of his brethren, the present court, assembled in largest part by Richard Nixon, will have virtually repealed the Fourteenth and Fifteenth Amendments.
The case was sent back to the court of appeals to determine whether the Black plaintiffs could meet their new burden of proof. The plaintiff's Voting Rights Act contention was not definitively ruled on, although four of the nine justices indicated that its effect was no different from that of the Fifteenth Amendment. Whether the plaintiffs can show invidious purpose, or whether they will prevail on their argument that the statute prohibits use of election procedures that have only discriminatory effect, remains to be seen.
Bolden, with its requirement of a smoking pistol, places all but impossible burden upon those challenging racially discriminatory election procedures. Since invidious intent can no longer be shown by past discrimination and its continuing effects, only those challengers will win, presumably, if they catch elected officials making overtly racial defense of at-large voting. None but the innocent or, apparently, Supreme Court justices, can expect that to happen very often. Public officials, especially those who are sued and are represented by counsel, rarely admit to racism. Bolden means that Blacks in jurisdictions which use at-large voting—including most Southern cities, counties and school boards
Page 16—will be denied any remedy for exclusion from office.
There is no question that at-large voting in majority White jurisdictions means no Black elected officials, except in those few cases where a particular Black candidate is able, against all the odds, to put together a winning coalition. In Georgia for example, which is about 26 percent Black, only 16 Blacks held elected office on county governing bodies, about three percent of all office holders. Not only is the absolute number quite small, but of the 18 Black county officials, practically all were elected from majority Black counties or voting districts. Blacks in Georgia's majority White counties or districts, for all practical purposes, cannot get elected to office. The figures for other offices, such as city councils and school boards, are as bad or worse. Fifteen years after abolition of the literacy test and massive Black voter registration, at-large voting continues to shut Blacks out from equal participation in elective politics in Georgia and elsewhere in the racially polarized South.
The pernicious effects of Bolden extend far beyond the exclusion of any particular candidates from office. It deprives the entire Black community of the chance effectively to redress the problems of racial discrimination through normal political channels. When a Black sits on a city council and helps decide who will be the new city clerk or police dispatcher, the chances of a Black applicant being considered and actually hired are dramatically improved.
When Blacks participate in the decision about where to pave streets, chances are sharply increased that the dirt road in the long neglected Black section of town will get resurfaced. There is a growing consensus among Southern Blacks, in fact, as evidenced by the large number of voting rights cases brought since the early 1970s, that the whole range of discrimination related problems, in housing, services, employment, etc. can best be remedied through equality of political participation. Bolden brings to a halt this transfer of political power brought about by Zimmer and other vote dilution cases. It stonewalls the legitimate demands of the Black community.
The decision is a veritable prescription for litigation and an ever expanding civil rights enforcement bureaucracy. Minorities, denied access to local political power as a means of bringing about change, will now be forced to take each and every one of their discrimination claims to court or to a federal agency for redress. Such a result is a profligate use of the scant resources of the minority community, and an unnecessary burden upon the judiciary and the national government.
Bolden will have other effects independent of governmental responsiveness, and ominous in their implications for race relations. By refusing to recognize the intrinsic value of equal political participation and protect it, the Court has sown the seeds of contempt for the lawful processes of the courts and elective politics. Marshall, the only Black ever to sit on the Court, made just that point in a stinging dissenting opinion: "If this Court refuses to honor our long-recognized principle that the Constitution 'nullifies sophisticated as well as simple-minded modes of discrimination,. . . it cannot expect the victims of discrimination to respect political channels of seeking redress."
Congress has the power to remedy Bolden by enacting legislation declaring voting procedures which have racially discriminatory effect are unlawful, regardless of their purpose. An example of the exercise of that power is §5 of the Voting Rights Act of 1965, which requires "covered" jurisdictions, including most of those in the South, to pre-clear changes in voting procedures with the Department of Justice or the federal courts in the District of Columbia to make certain they do not have the purpose or effect of discriminating against minorities. Section 5, with its dual purpose or effect standard, is an enlargement of
Page 17the protection of the Fifteenth Amendment which according to the Bolden plurality, prohibits only purposeful discrimination. The statutes were found to be constitutional by the Supreme Court in 1966 shortly after their enactment and were more recently upheld in a case decided the same day as Bolden. The Court states in City of Rome v. United States: "(Section 5's) ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the purposes of the Fifteenth Amendment even if it is assumed that §1 of the Amendment prohibits only intentional discrimination in voting."
There is also recent precedent for action by Congress to remedy the effects of regressive Supreme Court decision making. In Alyeska Pipeline Service Co. v. Wilderness Society, the Court disallowed awards of attorneys' fees to prevailing plaintiffs in civil rights lawsuits. Congress responded by enacting in 1976 the Civil Rights Attorneys Fees Awards Act, making the entitlement of prevailing parties to fees a matter of statutory right.
It would be a relatively simple matter mechanically to draft legislation remedying Bolden. Section 2 of the Voting Rights Act of 1965, a general prohibition of unlawful voting practices which four of nine present Supreme Court justices say prohibits only purposeful discrimination, could be amended to read:
Accompanying legislative history could make clear that Congress was acting in light of Bolden to render unlawful election schemes such as Mobile's which have the effect, regardless of their purpose, of denying equal access by Blacks to elective office.
No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any, State or political subdivision which has the purpose or effect to deny or abridge the right of any citizen of the United States on account of race or color...
>If amendment could be accomplished during the next session of Congress, Bolden would prove to be an opportunity, and not simply a crisis.
Laughlin McDonald is executive director of the Southern Region office of the ACLU in Atlanta.