City of Mobile v. Bolden, 446 U.S. 55 (1980)

Contents:
Author: Justice Blackmun

Show Summary

City of Mobile v. Bolden, 446 U.S. 55 (1980)

MR JUSTICE BLACKMUN, concurring in the result.

Assuming that proof of intent is a prerequisite to appellees’ prevailing on their constitutional claim of vote dilution, I am inclined to agree with MR. JUSTICE WHITE that, in this case, "the findings of the District Court amply support an inference of purposeful discrimination," post at 103. I concur in the Court’s judgment of reversal, however, because I believe that the relief afforded appellees by the District Court was not commensurate with the sound exercise of judicial discretion.

It seems to me that the city of Mobile, and its citizenry, have a substantial interest in maintaining the commission form of government that has been in effect there for nearly 70 years. The District Court recognized that its remedial order, changing the form of the city’s government to a mayor-council system, "raised serious constitutional issues." 423 F.Supp. 384, 404 (SD Ala.1976). Nonetheless, the court was "unable to see how the impermissibly unconstitutional dilution can be effectively corrected by any other approach." Id. at 403.

The Court of Appeals approved the remedial measures adopted by the District Court, and did so essentially on three factors: (1) this Court’s preference for single-member districting in court-ordered legislative reapportionment, absent special circumstances, see, e.g., Connor v. Finch, 431 U.S. 407, 415 (1977); (2) appellants’ noncooperation with the District Court’s request for the submission of proposed municipal government plans that called for single-member districts for councilmen, under a mayor-council system of government; and (3) the temporary nature of the relief afforded by the District Court, the city or State being free to adopt a "constitutional replacement" for the District Court’s plan in the future. 571 F.2d 238, 247 (CA5 1978).

Contrary to the Court of Appeals, I believe that special circumstances are presented when a District Court "reapportions" a municipal government by altering its basic structures. See also the opinion of MR. JUSTICE STEWART, ante at 70, and n. 15. See Chapman v. Meier, 420 U.S. 1, 20, n. 14 (1975); Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187 (1972). I also believe that the city’s failure to submit a proposed plan to the District Court was excused by the fact that the only proposals the court was interested in receiving were variations on a mayor-council plan utilizing single-member districts. Finally, although the District Court’s order may have been temporary, it was unlikely that the courts below would have approved any attempt by Mobile to return to the commission form of government. And even a temporary alteration of a long-established form of municipal government is a drastic measure for a court to take.

Contrary to the District Court, I do not believe that, in order to remedy the unconstitutional vote dilution it found, it was necessary to convert Mobile’s city government to a mayor-council system. In my view, the District Court at least should have considered alternative remedial orders that would have maintained some of the basic elements of the commission system Mobile long ago had selected -- joint exercise of legislative and executive power, and city-wide representation. In the first place, I see no reason for the court to have separated legislative and executive power in the city of Mobile by creating the office of mayor. In the second place, the court could have, and in my view should have, considered expanding the size of the Mobile City Commission and providing for the election of at least some commissioners at large. Alternative plans might have retained at-large elections for all commissioners while imposing district residency requirements that would have insured the election of a commission that was a cross-section of all of Mobile’s neighborhoods, or a plurality-win system that would have provided the potential for the effective use of single-shot voting by black voters. See City of Rome v. United States, post at 184, n.19. In failing to consider such alternative plans, it appears to me that the District Court was perhaps overly concerned with the elimination of at-large elections per se, rather than with structuring an electoral system that provided an opportunity for black voters in Mobile to participate in the city’s government on an equal footing with whites.

In the past, this Court has emphasized that a district court’s remedial power "may be exercised only on the basis of a constitutional violation," and that "the nature of the violation determines the scope of the remedy." Swann v. Board of Education, 402 U.S. 1, 16 (1971). I am not convinced that any violation of federal constitutional rights established by appellees required the District Court to dismantle Mobile’s commission form of government and replace it with a mayor-council system. Accordingly, I too would reverse the judgment of the Court of Appeals, and remand the case for reconsideration of an appropriate remedy.

1. In Reynolds v. Sims, the Court quoted Mr. Justice Douglas’ statement that the right to vote "includes the right to have the vote counted at full value without dilution or discount . . . ," 377 U.S. at 555, n. 29, as well as the comment in Wesberry v. Sanders, 376 U.S. 1, 8, that "`one man’s vote in a congressional election is to be worth as much as another’s.’" 377 U.S. at 559.

2. This finding distinguishes this case from White v. Regester, 412 U.S. 755. In White, the Court held that, in order to establish a Fourteenth Amendment violation, a group alleging vote dilution must

produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question -- that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.

Id. at 766. The Court affirmed a judgment in favor of black and Mexican-American voters on the basis of the District Court’s express findings that black voters had been "`effectively excluded from participation in the Democratic primary selection process,’" id. at 767, and that

" . . . cultural incompatibility . . . , conjoined with the poll tax and the most restrictive voter registration procedures in the nation ha[d] operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary."

Id. at 768.

3. Thus, I disagree with MR. JUSTICE STEWART’s conclusion for the plurality that the Fifteenth Amendment applies only to practices that directly affect access to the ballot, and hence is totally inapplicable to the case at bar. Ante at 65. I also find it difficult to understand why, given this position, he reaches out to decide that discriminatory purpose must be demonstrated in a proper Fifteenth Amendment case. Ante at 61-64.

4.

The petitioners here complain that affirmative legislative action deprives them of their votes and the consequent advantages that the ballot affords. When a legislature thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment. In no case involving unequal weight in voting distribution that has come before the Court did the decision sanction a differentiation on racial lines whereby approval was given to unequivocal withdrawal of the vote solely from colored citizens.

* * * *

According to the allegations here made, the Alabama Legislature has not merely redrawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights, and, to that end, it has incidentally changed the city’s boundaries. While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights.

364 U.S. at 346, 347.

5. I also disagree with MR. JUSTICE MARSHALL to the extent that he implies that the votes cast in an at-large election by members of a racial minority can never be anything more than "meaningless ballots." I have no doubt that analyses of Presidential, senatorial and other statewide elections would demonstrate that ethnic and racial minorities have often had a critical impact on the choice of candidates and the outcome of elections. There is no reason to believe that the same political forces cannot operate in smaller election districts, regardless of the depth of conviction or emotion that may separate the partisans of different points of view.

6. And this is true regardless of the apparent need of a particular group for proportional representation because of its historically disadvantaged position in the community. See Cousins v. City Council of Chicago, 466 F.2d 830, 852 (CA7 1972) (Stevens, J., dissenting), cert. denied, 409 U.S. 893. This does not mean, of course, that a legislature is constitutionally prohibited from according some measure of proportional representation to a minority group, see United Jewish Organizations v. Carey, 430 U.S. 144.

7. This view is consistent with the Court’s Fourteenth Amendment cases in which it has indicated that attacks on apportionment schemes on racial, political, or economic grounds should all be judged by the same constitutional standard. See, e.g., Whitcomb v. Chavis, 403 U.S. 124, 149 (districts that are "conceived or operated as purposeful devices to further racial or economic discrimination" are prohibited by the Fourteenth Amendment) (emphasis supplied); Fortson v. Dorsey, 379 U.S. 433, 439 (an apportionment scheme would be invalid under the Fourteenth Amendment if it "operate[d] to minimize or cancel out the voting strength of racial or political elements of the voting population") (emphasis supplied) .

8. Gerrymanders may also be used to preserve the current balance of power between political parties, see, e.g., Gaffney v. Cummings, 412 U.S. 735, or to preserve the safe districts of incumbents, cf. Wright v. Rockefeller, 376 U.S. 52. In Gaffney, the Court pointed out:

[I]t requires no special genius to recognize the political consequences of drawing a district line along one street, rather than another. I t is not only obvious, but absolutely unavoidable, that the location and shape of districts may well determine the political complexion of the area. District lines are rarely neutral phenomena. They can well determine what district will be predominantly Democratic or predominantly Republican, or make a close race likely. Redistricting may pit incumbents against one another or make very difficult the election of the most experienced legislator. The reality is that districting inevitably has and is intended to have substantial political consequences.

412 U.S. at 753.

9. Thus, for example, there is little qualitative difference between the motivation behind a religious gerrymander designed to gain votes on the abortion issue and a racial gerrymander designed to gain votes on an economic issue.

10. As Mr. Justice Douglas wrote in his dissent in Wright v. Rockefeller:

Racial electoral registers, like religious ones, have no place in a society that honors the Lincoln tradition -- "of the people, by the people, for the people." Here, the individual is important, not his race, his creed, or his color. The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that District B must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on. Cf. Gray v. Sanders, 372 U.S. 368, 379. The racial electoral register system weights votes along one racial line more heavily than it does other votes. That system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense. Of course race, like religion, plays an important role in the choices which individual voters make from among various candidates. But government has no business designing electoral districts along racial or religious lines.

* * * *

When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion, rather than to political issues, are generated; communities seek not the best representative, but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.

376 U.S. at 66-67. See also my dissent in Cousins, supra:

In my opinion, an interpretation of the Constitution which afforded one kind of political protection to blacks and another kind to members of other identifiable groups would itself be invidious. Respect for the citizenry in the black community compels acceptance of the fact that, in the long run, there is no more certainty that these individuals will vote alike than will individual members of any other ethnic, economic, or social group. The probability of parallel voting fluctuates as the blend of political issues affecting the outcome of an election changes from time to time to emphasize one issue, or a few, rather than others, as dominant. The facts that a political group has its own history, has suffered its own special injustices, and has its own congeries of special political interests, do not make one such group different from any other in the eyes of the law. The members of each go to the polls with equal dignity and with an equal right to be protected from invidious discrimination.

466 F.2d at 852.

11. In O’Brien, the Court described Gomillion as standing

not for the proposition that legislative motive is a proper basis for declaring a statute unconstitutional, but that the inevitable effect of a statute, on its face, may render it unconstitutional.

12.

It is unrealistic, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of a participant in the decisional process. A law conscripting clerics should not be invalidated because an atheist voted for it.

Washington v. Davis, 426 U.S. 229, 253 (STEVENS, J., concurring).

13. For example, if 55% of the voters in an area comprising two districts belong to group A, their interests in electing two representatives would be best served by evenly dividing the voters in two districts, but their interests in making sure that they elect at least one representative would be served by concentrating a larger majority in one district. See Cousins v. City Council of Chicago, 466 F.2d at 855, n. 30 (Stevens, J., dissenting). See also Wright v. Rockefeller, 376 U.S. 52, where the maintenance of racially separate congressional districts was challenged by one group of blacks and supported by another group having the dominant power in the black-controlled district.

14. I emphasize this point because, in my opinion, there is a significant difference between a state-wide legislative plan that "happens" to use multimember districts only in those areas where they disadvantage discrete minority groups and the use of a generally acceptable municipal form of government that involves the election of commissioners by the voters at large. While it is manifest that there is a substantial neutral justification for a municipality’s choice of a commission form of government, it is by no means obvious that an occasional multimember district in a State which typically uses single-member districts can be adequately explained on neutral grounds. Nothing in the Court’s opinion in White v. Regester, 412 U.S. 755, describes any purported neutral explanation for the multimember districts in Bexar and Dallas Counties. In this connection, it should be remembered that Kilgarlin v. Hill, 386 U.S. 120, did not uphold the constitutionality of a "crazy quilt" of single-member and multimember districts; rather, in that case, this Court merely upheld the findings by the District Court that the plaintiffs had failed to prove their allegations that the districting plan constituted such a crazy quilt.

15. Rejection of Mr. Justice Frankfurter’s views in the specific controversy presented by Baker v. Carr, 369 U.S. 186, does not refute the basic wisdom of his call for judicially manageable standards in this area:

Disregard of inherent limits in the effective exercise of the Court’s "judicial Power" not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has, time out of mind, been, and now is, determined. It may well impair the Court’s position as the ultimate organ of "the supreme Law of the Land" in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court’s authority -- possessed of neither the purse nor the sword -- ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements, and by abstention from injecting itself into the clash of political forces in political settlements.

Id. at 267 (Frankfurter, J., dissenting).

Contents:

Related Resources

None available for this document.

Download Options


Title: City of Mobile v. Bolden, 446 U.S. 55 (1980)

Select an option:

*Note: A download may not start for up to 60 seconds.

Email Options


Title: City of Mobile v. Bolden, 446 U.S. 55 (1980)

Select an option:

Email addres:

*Note: It may take up to 60 seconds for for the email to be generated.

Chicago: Blackmun, "Blackmun, J., Concurring," City of Mobile v. Bolden, 446 U.S. 55 (1980) in 446 U.S. 55 446 U.S. 81–446 U.S. 83. Original Sources, accessed July 12, 2024, http://www.originalsources.com/Document.aspx?DocID=DKABPF2PYIHUJJH.

MLA: Blackmun. "Blackmun, J., Concurring." City of Mobile v. Bolden, 446 U.S. 55 (1980), in 446 U.S. 55, pp. 446 U.S. 81–446 U.S. 83. Original Sources. 12 Jul. 2024. http://www.originalsources.com/Document.aspx?DocID=DKABPF2PYIHUJJH.

Harvard: Blackmun, 'Blackmun, J., Concurring' in City of Mobile v. Bolden, 446 U.S. 55 (1980). cited in 1980, 446 U.S. 55, pp.446 U.S. 81–446 U.S. 83. Original Sources, retrieved 12 July 2024, from http://www.originalsources.com/Document.aspx?DocID=DKABPF2PYIHUJJH.