*1 law, mittee; Henry County matter of did not breach its Democratic Ex that Zions Committee, Hill, fiduciary summary judg- as a and duty to Lion ecutive committee properly granted ment is for Zions. Be- executive com all situated; plaintiff’s only similarly ruling disposes cause this of and Demo mittees claim, States, remaining counter- Party defendant’s De cratic of the United adjudicated, this court claim remains to be fendants. 54(b) the Federal
finds that under Rule A. No. 89-T-381-S. Civ. just no Rules of Civil Procedure there is Court, States District United delay entry judgment final reason to Alabama, M.D. S.D. plaintiff’s defendant all of claims. Aug. 1990. Accordingly, foregoing based on good appearing, cause
IT HEREBY IS ORDERED summary
1. Defendant’s motion
judgment granted. to have final
2. Defendant is entitled against
judgment entered its favor plain-
plaintiff respect with to all claims complaint.
tiff’s complaint is dismissed
3. Plaintiff’s prejudice and on merits. judgment This order and a final en-
tered this date shall suffice as the court’s
ruling in matter and no further order prepared
need be counsel. Emory New
Thomas HAWTHORNE man, individually on behalf all situated, similarly persons Plain
other
tiffs, BAKER, capacity his official
John Democratic Ex of the State
Chairman Alabama; State ecutive Committee Executive Committee
Alabama; Etheridge, Holt Chairman J. County Henry Executive Com
John C. Falkenberry, Leslie Proll and Ed- Still, ward Birmingham, Ala., plaintiffs. for Gale, III, Fournier J. Gregory H. Haw- ley, Maynard, Cooper, Gale, Frierson & North, James L. Birmingham, Ala., Susan Russ, Ala., Montgomery, England, John H. Jr., England Bivens, & Tuscaloosa, Ala., for Baker and State Democratic Comm. Fred D. Gray, Tuskegee, Ala., Solomon Seay, Montgomery, Ala., plaintiff-inter- for venor Keith.
Solomon Seay, Montgomery, Ala., for de- ponents Ala. Party, Jerome Gray and Joe Reed re m/protective order m/quash only. Cohen, Vincent H. Sutin, L. Anthony John Keeney, C. Roger Patton, Jr., L. Washington, D.C., Schoen, David Mont- Ala., gomery, for defendant DPUS. Christine Varney, A. Counsel, Gen. Dem- ocratic Committee, National Washington, D.C., for defendant DNC.
Philip Smith, H. Talladega, Ala., for Tal- ladega County Democratic Executive Com- mittee. Keith, Jr., Selma,
Alston Ala., for Dallas County Democratic Executive Committee. Cleveland, Clifford W. Prattville, Ala., Autauga for County Democratic Executive Committee.
Shelby County Democratic Executive Comm., Montevallo, Ala., pro se. Winston Griggs, Henry County Demo- Comm., cratic Headline, Ala., Executive pro se.
Raymond Bailey, Chair, Ala., Baileyton, for Cullman CDEC. Chair, Harris, Wedowee,
James Ala., for Randolph CDEC. Walker,
Dorman Ala., Montgomery, for Geneva, Madison, Clair, Tuscaloosa, St. Pickens, Bibb, Chambers Montgomery, Marion, Coffee, Lawrence, Marengo Hale CDECs. White,
Gary Springs, Ala., Double defendant Winston CDEC.
Terry Davis, Terry Davis, P.C., G. G. Coxwell, Jr., Monroeville, J. Milton Ala., Ala., Montgomery, Blacksher, James U. for Monroe CDEC. Ala., Seale, States Constitu- Livingston, amendments to the United
Robert M. through 42 Sumter enforced U.S.C.A. CDEC. tion as as defen- plaintiffs named Ala., III, Butler, Lindsey, Wallace H. Party of the United dants the Democratic *3 Choctaw CDEC. States, Executive the State Democratic Jr., Florence, Ala., Musgrove, T. William chair, and its of Alabama Committee for Lauderdale CDEC. Henry County Democratic Executive the Hill, Ala., Williams, B. Lee Grove single-judge and its chair. Committee defendant Clarke CDEC. all plaintiff class of district court certified a Ala., Macon, Wetumpka, for defen- Joe court Democrats in black Alabama. Elmore dant CDEC. of all 67 certified a class defendant Prestwood, Andalusia, Ala., for M. James County Democratic Executive Committees Covington defendant CDEC. in Alabama. Executive the State Democratic Under JOHNSON, Judge, Circuit Before selecting its existing plan for Committee's THOMPSON,
HOBBS, Judge, and Chief 105 House each of state’s Judge. District male and persons, one
districts elects ORDER female, four-year terms. The to serve one a number state committee then authorizes THOMPSON, District MYRON H. organizations appoint to of other Judge: on committee. One persons to serve Emory Hawthorne and Plaintiffs Thomas Demo- organizations is the Alabama these Newman, themselves and oth- on behalf of (“ADC”), state-wide, cratic Conference in Ala- Democrats er African-American political organization. predominantly black bama, in lawsuit that recent claim this on appoints 23 to serve The ADC members of the State changes in the way committee’s ex- the committee. The state and mem- Democratic Executive Committee in was isting plan, as last modified County the 67 bers of precleared by the States United are must be Executive Committees selected General. Voting Rights under 5 of the precleared amended, 42 as U.S.C.A. Act of April shortly before this lawsuit In three-judge court has been This 1973c. filed, adopted a was the state committee pursuant claims to hear these convened selecting plan for its members. new and 42 U.S.C.A. 28 U.S.C.A. § change from a fixed proposed to committee changes 1973c. We conclude appointments requirement of 23 additional as to the state preclearance are guarantee that designed to to a formula county com- and as 45 of the committee persons the com- proportion of on black mittees. equal proportion would at least mittee In- general population. of blacks I. ap- allowing to fill the stead of the ADC plaintiffs filed this April On among Demo- from all black pointed seats District Court in the United States lawsuit crats, plan called state committee’s Alabama, claim- the Middle District appointed members to be for additional local, Party at its ing that the Democratic among the unsuccessful only from state, has denied them national levels candidates, descending according order citizens of African-American and other each received in the of votes number equal to that of opportunity Alabama United States At- committee election. The party representation on citizens for white preclear torney General refused plaintiffs rested bodies. The governing noting particular concern about plan, his Voting Rights 2 of the their claims appointed provision which allowed amended, 42 U.S.C.A. Act of only among blacks be filled from and fifteenth slots to on the fourteenth who ran unsuccessful campaigns.1 The At- sel for the state committee informed the torney General wrote “change that this ... court argument, however, that, oral al- could result in persons selection of in ma- though the primary June election has now jority black districts who had failed to at- passed and committee members have now tract local black support.” elected, been the state committee has not implemented part
In January response new plan to the At- changing torney objection, General’s method of appointing state com- blacks mittee modified its new selecting committee.
members.
proposal,
previous
This
like the
Like
committee,
the state
45 of the Coun-
one,
abolishes the
of the ADC and ty Democratic Executive Committees
groups
other
appoint
additional mem-
*4
across the State of Alabama have altered
bers.
plan, however,
The new
modifies the
systems
their
members,
for selecting
and
provision governing the
number
blacks
many
implemented
have
pre-
them without
on
committee;
the state
requires
it
that the
clearance
Attorney
from the
General. Sev-
proportion
persons
of black
on the state
enteen of these
adopted
committees
plans
committee must be at
equal
least
to the
which merely provide
appointment
for the
proportion of
general
blacks in the
popula-
members
addition to those who are
tion or the proportion of
voting in
blacks
elected. The
counties,
for 16 of these
the
gubernatorial
primary,
however, differ from the state committee’s
greatest.
plan
whichever is
The
also modi-
plan in
they provide
that
appoint-
for the
fies the manner in
requirement
which this
ment of both black and white additional
met;
is to be
provides
it
that
the black
members.5 The seventeenth committee’s
members elected in
primary
are to se-
plan
plan for the Autauga County
blacks,
lect the additional
—the
only
but
from the
Democratic Executive Committee—is sim-
qualified
blacks who
but were not elected.3
ilar to the state committee’s in that it pro-
In March
the state committee sub-
vides
appointment
for
only.
of blacks
plan
mitted the
Attorney
new
to the
Gener-
al,
county
The other 28
yet
he has
committees
al-
but
to issue a
have
decision.4 In
month,
process
tered the
by
that
same
the state
members
committee be-
are
gan
elected;
accepting qualification papers
they
lines,
have redrawn
candi-
district
dates
plan
changed
under the new
for the June
the nature of the units from which
gubernatorial primary.
elected,6
Coun- members are
changed
or
the num-
plan
1.
proposed
The 1989
also
primary purpose
behind all
these
way which the state
changes, according
committee’s Vice-Chair-
to counsel for the state com-
person Minority
mittee,
for
Affairs is
authority
selected and the
is the transfer of
over who will
way
appointed
in which blacks are
appointed
to the state
fill the
seats from the exclusive con-
existing
executive
committee’s
rules,
board. Under
trol of the
to all
ADC
black elected
members
committee,
automatically
the President of the ADC
including independents
the state
Affairs,
Vice-Chairperson Minority
as
serves
those
affiliated with
Alabama New South
Coalition, new,
by
appointed
the 23 committee members
predominantly
organiza-
a
black
9, 1990,
elect three of
July
ADC
their
to serve
number
tion.
brief filed on
Defendants’
proposed
board.
executive
Under the
5.
plan,
Vice-Chairperson Minority
Affairs
committee,
by
4. Since the
would be elected
the entire
state committee submitted its
state
preclearance,
Attorney
ADC'sthree
executive board seats
General
re-
would
has
quested
Attorney
objected
thereby
be
additional information and
eliminated.
General
ex-
provisions
tended
plan.
to these
his time to render a decision.
well
in the
See 28
§
C.F.R.
51.37.
Turner, Acting
2. Letter from James P.
Assistant
General,
LaPierre,
following
to Albert W.
5.
Ala-
These 16 committees are from the
Baldwin, Chilton,
Dale, Dallas,
Party,
Clay,
bama Democratic
dated
counties:
December
Geneva, Jefferson, Lowndes, Marion, Randolph,
1989.
Russell,
Tuscaloosa, Walker,
Tallapoosa,
Wil-
cox, and Winston.
provides
3. for selection of the
Vice-Chairperson
Minority
by
Affairs
members,
guarantees
Many
black
propose
elected
6.
to elect their members from
proportionate
county
share of
seats on the
commission districts rather than from
precincts
executive board.
or beats.
therefore,
court,
particular
from a
is whether the
are
ber of members elected
covered
district.7
plaintiffs
filed
On March
A.
alleging
additional claims in this lawsuit
the conten
We must address first
many, if not
that the state committee and
county
tion of the state and the
committees
all,
pro-
of the 67
committees were
they
subject
are not entities
ceeding
implement
plans for select-
previ
requirements of
5. This court
having
ing their
without
first
parties
ously
political
held that
this
preclearance
secured
under
5 of
Vot-
state,
empowered by
they
to the extent
are
ing Rights Act of
as amended. After
primary election s and
the state to conduct
court was convened to
three-judge
delegates
to have their national convention
claims,
plaintiffs’
plain-
hear the
selected,
5. MacGuire
are
dropped
against
their claims
20 of the
tiffs
Amos,
(M.D.Ala.1972)
F.Supp. 119
county committees.
court)
curiam)
(Rives,
(per
(three-judge
Varner, JJ.).
Johnson,
po
“Where
II.
given
by a
parties
litical
are
such head
*5
Voting Rights
Act of
Section
of
statutory grant
authority,” the
specific
of
1965,
amended, requires
jur-
that certain
explained, “their
rise to the
court
actions
isdictions, including
of
the State
Alabama
State,”
by the
with the
level of actions
subdivisions, preclear any change in
and its
right
“specifically
in their elections
to vote
“standard, practice
procedure
or
with re-
a
guaranteed
Voting Rights
in the 1965
Act.”
in
spect
voting
to
different from that
force
v. Board
Id. at 121.
United States
of
Cf.
1,
or effect on November
1964.”
U.S.
110,
Sheffield, 435 U.S.
Commissioners of
jurisdiction may
A
obtain
C.A.
1973c.
§
965, 974,
(1978)
122, 98
the United tions, party or officials are chosen are sub- Id. tion. ject preclearance requirement to the of sec- 5, permissible scope fact, pursu- Under 51.7. In tion 5.” C.F.R. § inquiry limited to three-judge Attorney court’s is regulation, ant to this General 5, by a “is covered but in 1983 approved whether the state committee’s required 1989, subjected objected fed- a version in has not been revised Allen v. Board noting objections in that “the State scrutiny.”' expressly his eral Elections, 544, 561, of officers and members 89 S.Ct. selection (1969). undisputed Democratic Executive It is L.Ed.2d Committee] [State county may implemented not and the this submission be the state committee’s meeting preclearance require- pre- without have not been committees’ the central inquiry this ments of Section 5.”8 “Given only point cleared. following in most cases both black and white from the 28 committees are 7. These Chambers, Cherokee, Barbour, Bibb, members, but in four cases black members counties: Clarke, Coffee, Coosa, Crenshaw, DeKalb, El- only. Hale, Houston, Escambia, more, Fayette, Henry, Lawrence, Lee, Limestone, Lamar, Lauderdale, Turner, Acting James P. Assistant 8. Letter from Pickens, Montgomery, Morgan, Perry, LaPierre, Marengo, General, Ala- to Albert W. Clair, Washington. Shelby, St. Party, December dated bama 22 of these committees for at least appointment of additional include the
1Q95
role of the Attorney General in formulating
task is to determine whether discrimination
implementing
interpretation
“plausible
[his]
is a
consequence” of the change.
scope
of its
is entitled
particular
defer-
Webster,
Turner v.
9. Defendants' brief
filed
at 14.
Id. at 21.
mul
and creation of
argues
appoint-
that
in electoral boundaries
The state committee
preclear
voting
not relate to
ti-member districts
general
ments in
do
Matthews,
ance);
appoint-
covers
5. Whether
Perkins v.
under
391-92,
need not reach.
an issue this court
27 L.Ed.2d
ments is
91 S.Ct.
spe-
under the
holding
(1971)
is that
(changes
Our narrow
boundaries
electoral
here,
presented
where
circumstances
at-large
cial
elections
cover
from ward to
both
process
is intended
appointment
5); Allen,
393 U.S. at
ed under §
process and thus is
the elective
ameliorate
to at-
(change from district
S.Ct. at 833
it,
process
appointment
directly tied to
5);
under
28 C.F.R.
large voting covered
state committee
by
5. The
is covered
51.13(e)
“any change in the
(§ 5 covers
appointment procedure
argues that its
or the bound
constituency of an official
plan which should
action
is an affirmative
unit”).
voting
aries of a
coverage.
5’s
Whether
not fall within §
have
of the
committees
Sixteen
such,
or
plans, as
should
affirmative action
appointment of both
provisions for the
coverage is
fall
5’s
should not
within §
supplement
members to
black and white
not reach. Our
matter we need
again a
provi-
find
elected members.12
that
We
that,
certain fea-
merely
because
concern
poten-
appointments has the
sion for white
they
la-
are
tures in the —however
voting. Should
discriminate as to
tial to
voting
poten-
and have
beled—relate
trigger
in elections
electoral success
discriminate,
pre-
must be
tial to
white
the selection
cleared under
5.§
vot-
could dilute black
appointments
such
by reducing
proportion
ing strength
C.
rep-
thus
who are
chosen
the new
plaintiffs
claim
Perkins, 400 U.S.
voters.
resent black
See
county commit
adopted by 47 of the
suffrage
(“right of
91 S.Ct. at
bring the
features which
tees have several
dilution
by a
or
can be denied
debasement
coverage.
agree
We
5’s
within §
vote”) (citation
weight
of the
citizen’s
Twenty-eight
these committees.
to 45 of
omitted).
have in some
county committees
Autauga County
only change
way they elect their
manner altered
*7
plan is
Democratic Executive Committee’s
have redrawn district
Some
members.11
Counsel for
appointment
blacks.
for
of the
lines,
changed the nature
some have
plan
that such a
the committee contends
selected,
are
which members
units from
Whether
has no
discriminate.
changed the number of
have
and others
itself,
subject
pre-
is
change, by
such a
district.
particular
members elected from
need not reach.13
is
issue we
clearance
an
changes
that such
established
It is well
committee’s coun-
understand from the
We
potential for
voting
and have
affect
county
which the
sel that the districts from
discrimination,
are covered
such
were
are elected
committee’s members
City Lock
of 5. See
requirements
1, 1964, the bench-
after
adopted
November
125,
States,
103
460 U.S.
hart v. United
coverage,14
were
5
but
mark date
(1983)(increase in
74 L.Ed.2d
for use
preclearance
never submitted
governing body
city
of seats on
number
plan
The committee’s
committee elections.
Georgia v.
preclearance);
Unit
subject to
submitted to
526, 531-32,
therefore due to be
States,
ed
this reason.
(1973)(changes Attorney General for
36 L.Ed.2d
noted,
supra.
notes 5 &
some of these 28
12. See
supra. As
note
11.See
plans
provisions in their new
have
committees
affecting
change
("Any
appointment
See 28 C.F.R.
51.12
for the
ostensibly expands
though
voting,
given
even
...
reasons
it
and white. For the
both
pre-
that,
order,
voting rights
meet the section 5
... must
because
conclude
later in this
we
requirement”).
clearance
appointment
provide
for the
these
members, they
preclear-
5§
are
white
14.See 42 U.S.C.A. 1973c.
well.
ance as
We cannot reach similar conclusions as
ing.” Perkins, 400
at 396-97,
U.S.
91 S.Ct.
to the remaining two of the 47 county at 441.
committees: the Greene and Monroe Coun-
Counsel for
the state committee in-
ty Democratic Executive Committees.
formed this court at oral argument that its
Plaintiffs have failed
any
to submit
evi-
new
yet
implemented
be
in full
dence that
these
county
committees
and that the
quo
status
is effectively still
have changed
way
they select their
plan.
Under these circumstances,
members.
we conclude that we
enjoin
must
enforce-
ment of the
new
unless and until it is
III.
precleared.16 We understand, however,
The final issue for the court is an
that the circumstances are quite different
appropriate remedy. Because the purpose
with regard to many of the 45 county com-
5 is “to 'prevent the
institution of
mittees
plans,
whose
we conclude, must be
changes
might
have
purpose
or
precleared. Many committees have al-
effect of denying or abridging
ready enforced their
plans,
new
and new
vote
color,”
account of race or
Perkins,
members have been chosen under them.
States I, therefore, I Voting Rights Act. would tion 5 of the voters. Afro-American agree judgment court’s with re newly with the of permit elected black members the I spect county plans. the do not various twenty-three per- to select the SDEC however, powers agree, that our remedial part of the additional seats as sons fill by majority suggested are as limited as plan proposed remedy an until a is interim therefore, and, respectfully opinion must requirements of 5 which meets Section judgment. portion dissent from that of the Voting Rights Act. of the only re- majority concludes that its say This not to that the entire election Party’s is to enforce the Democratic course plan to be and selection does not have electing choosing mem- plan of a precleared. Obviously, represents it com Neither the law nor the to the SDEC. bers be sub prehensive program that should not require a resolution. facts of this case such Depart piecemeal to the Justice mitted made three Party Democratic state however, judge panel, ment. As a three elec- changes to the executive committee remedy authority we to fashion a have the 1) process: the “loser tion and selection “appropriate” presented to the situation ap- an eligibility” qualifying rule for County Hampton v. us. See NAACP seat; 2) in which the pointed the manner 166, 36, Comm’n, n. 470 U.S. Election calculated; appointed of seats is number 1138 n. 84 L.Ed.2d 3) appointive provision placing Matthews, (1985); U.S. Perkins Afro- powers in the hands the elected 396-97, 431, 440-41, 27 91 S.Ct. L.Ed.2d As more members of SDEC. American (1971). fashioning Factors relevant majority opin- in the thoroughly discussed “the nature appropriate remedy include ion, changes directly affect the first two of, changes complained whether have a for dis- voting and could reasonably it clear at the time of was Thus, that appropriate it is crimination. changes by election were covered that unless changes not be enforced these Perkins, at 5.” 400 U.S. 91 S.Ct. re- the time preclearance is obtained. For important insofar 441. The latter factor is Party to achieve quired for the Democratic a as it indicates “deliberate defiance agree plan, a I with preclearance of would [Voting Rights] Act.” Allen v. State plan for majority opinion that the 1983 Elections, Board twenty-three seats at appointing black (1969). L.Ed.2d effect should not be S.Ct. followed and should be Party has made a substantial loser-eligibility given to the rule. pre- comply with effort in case to believe, however, por- that the I do not Voting requirements clearance placing complete pow- the 1983 tion of Rights proposed It first submitted Act. seats appointing Afro-American er over Attorney changes to the General in Demo- the Chairman Alabama objections made the At response In (ADC) enforced. must be cratic Conference torney plan, to that the Democratic General repre- the ADC parties agree Both Party before this Court. drafted only portion of the Afro-American sents It was General submitted Party. The of the Democratic March, 1990, expedit request with a Party attempted *9 pursuant to 28 C.F.R. ed consideration prac- patently unfair and undemocratic this 51.34(a). expedited consid Even without in a appointive power by placing the tice March, long eration, filing 1990 was by their body of Afro-Americans elected June, enough 1990 election before recog- group. As representative implicitly sixty Attorney the full allow the General a change this from majority, nized a days usually required to evaluate submis ignores significant a process that selection 51.9. The Gen sion. 28 C.F.R. § Democratic of the Afro-American portion eral, however, requested has democratically process to a voters considering Par the Democratic time for who those Afro-American members elects yet to make a final ty’s and has plau- no submission appointments make will plan. determination on this Under these the exclusive control of one Afro-American circumstances, given change group to a more democratically elected concerning appointment power po- has no Afro-American group represents the reso- discriminate, tential to I believe it is appro- lution political of a battle within Ala- priate give effect interim to bama Democratic Party. That choice has the change sought by the Party no potential discrimination, and thus no respect to the appointment power. violating the Constitution and Voting Rights Act. Although Faced not with a strictly applicable choice in this case, between the Voting plans, Rights I think Act it not only cases address- ing reapportionment “appropriate” plans also but also wise to are instruc- defer to the tive in Party’s political determining might what choice and “ap- be an allow the Afro- propriate” remedy. cases, In these American elected voting members of the SDEC to districts had appoint to be redrawn to account for additional members. A refusal to congressional seats added or allow removed adopted by the Demo- after national census. Because Party the old cratic could well result in a continua- plans were violation of the constitutional tion years for several prac- the unfair principle vote, of one man one they tice, could which the Party sought correct, not be enforced. Upham Seamon, See v. having one group impose Afro-American U.S. 1519-20, S.Ct. 71 its irrespective choices of the wishes of (1982). Often, L.Ed.2d 725 however, elec- other Afro-American groups. tion approached dates before new plans precleared
could be by the Attorney Gener-
al. Federal judge panels, therefore, three
routinely had to draft interim reapportion- plans
ment that would allow the elections go Supreme forward. The Court cau-
tioned judge these three pan- district court
els to be mindful
political
of the
choices of
they
the entities
were reviewing while be-
Joseph RUSSELL, Plaintiff,
ing
adopt
sure to
interim
that hon-
v.
ored the
Upham Seamon,
Constitution.
v.
TECHNOLOGIES,
AT
INC.,
& T
Thus,
U.S. at
S.Ct. at 1522.
Colum-
Corporation,
bus-McKinnon
standard under which the district courts
foreign
a
corporation,
operated in
Elkem-Holloway,
forming
interim
towas
Inc.,
foreign corporation,
defer
political judgments
leg-
Defendants.
islating body where such deference would
No. 88-259-Civ-T-17.
not
in a
result
Constitutional or Voting
Court,
United States District
Rights
Upham
Act violation.
Seamon,
v.
Florida,
M.D.
456 U.S. at
quoting
Tampa Division.
Weiser,
783, 794-95,
White v.
2348, 2354-55,
(1973);
L.Ed.2d 335
Sept. 7, 1990.
see Burton
Hobbie,
son, Hobbs, JJ.). and Thompson,
I see no reason applying for not the same changes
rationale to the before us. The is itself discriminatory against a
significant portion of the Afro-American Hobbie, voters. See Burton v.
543 F.Supp. (Johnson, J., at 243-43 concur-
ring) (refusing accept remedy interim discriminatory). itself was
choice appointive shift the power from