Hunter v. Underwood Brief of Amicus Curiae in Support of Appellees

    No. 84-76

In THE

G I m tr l  n i  t t y  I t t t t p f t  f t t o t w

October T erm, 1984

Nell H unter, et al. individually, and on behalf of all other 
members of Board of Registrars in the State of Alabama,

Appellants,
v.

V ictor U nderwood and Carmen E dwards, for themselves 
and all others similarly situated,

Appellees.

APPEAR PROM THE UNITED STATES COURT OP APPEARS 
POR THE ELEVENTH CIRCUIT

BRIEF OF AMICUS CURIAE  NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF APPELLEES

J ulius Chambers 
L ani Guinibr*
P enda H air

99 Hudson Street
New York, New York 10013

B ichard Brippault
Columbia University 

School of Law 
435 W est 116th Street 
New York, New York 10027

Attorneys for the N AACP  
Legal Defense and 
Educational Fund, Inc.

* Counsel of Record

Dated: January  7, 1985



TABLE OF CONTENTS
Page

Table of Authorities .............. iii
Statement of Interest of Amicus

Curiae ...................   1
SUMMARY OF ARGUMENT .............. 4

I. VOTING IS A FUNDAMENTAL 
RIGHT WHICH MAY NOT BE 
DENIED UNLESS NECESSARY TO 
PROMOTE A COMPELLING STATE
PURPOSE ......................  8
II. THE MISDEMEANANTS
DISENFRANCHISEMENT CLAUSE 
WAS ADOPTED FOR INVIDIOUS 
RACIALLY DISCRIMINATORY 
REASONS IN VIOLATION OF THE 
FOURTEENTH AMENDMENT ........ 18
III. DISENFRANCHISEMENT OF 
POOR WHITES BECAUSE OF 
THEIR POLITICAL BELIEFS OR 
LACK OF WEALTH VIOLATES THE 
FIRST AND FOURTEENTH
AMENDMENTS ..................  26
!V. RICHARDSON v. RAMIREZ,
DOES NOT INSULATE THE MIS­
DEMEANANTS ' DISENFRANCHISEMENT 
CLAUSE FROM STRICT
SCRUTINY ..................  32

l -



V, THE TENTH AMENDMENT 
PROVIDES NO PROTECTION FOR A

Page

STATE DISENFRANCHISEMENT 
MEASURE WHICH VIOLATES THE 
FOURTEENTH AMENDMENT ......... 39

VI. THE MISDEMEANANTS 
DISENFRANCHISEMENT CLAUSE 
VIOLATES THE VOTING RIGHTS 
ACT .........................  40

CONCLUSION ....................... 42

ii



TABLE OF AUTHORITIES

Cases;
Allen v. State Board of Elections,

Page

393 U.S. 544 (1969) ........  2
Anderson v. Celebrezze, 460 U.S.

780 ( 1 983) ................... 10
Anderson v. Martin, 365 U.S. 399

(1964) ....................... 2
Arlington Heights v. Metropolitan 

Housing Dev. Corp., 429 U.S.
252 ( 1977) ...... . 18, 1 9,24,28,36

Bullock v. Carter, 405 U.S. 134
( 1 972) ......................  31

Carrington v. Rash, 380 U.S. 89
(1 965) ................   29

Cipriano v. City of Houma, 395 U.S.
at 701 ( 1 969) ...............  30,32

City of Mobile v. Bolden, 446
U.S. 55 ( 1 980) ........  2,25,36,37

City of Rome v. United States, 446
U.S. 156 (1 980) .........  25,39,40

Clements v. Fashing, 457 U.S. 957 
(1982) 10



Page
Connecticut Citizen Action Group

v. Pugliese, No. 84-431 (WWF) 
(D. Conn. Sept, 25, 1984), 
stay den *d , F. 2d _____
(2d Cir. Oct~ 1, 1984) ...... 12

Dunn v® Blumstein, 405 U.S® 330 
(19*72) 11,29

East Carroll Parish School Bd. v . 
Marshall, 424 U.S. 636 
( 1976) .................. O

Evans v. Cornman, 398 U.S. 419
( 1 970) ............. ......... 9,30

Fitzpatrick v. Bitzer, 427 U.S.
445 ( 1 976) ................... 40

Gomillion v. Lightfoot, 364 U.S.
339 ( 1 960) ................... 25

Guinn v. United States, 238 U.S. 
347 ( 1 91 5) .............. . 23,25

Harris v . Graddick, 593 F.Supp.
128 (M.D. Ala. 1984) ........ 41

Harper v . Virginia Board of 
Elections, 383 U.S. 663 
( 1966) .... .................. 9,3 1

Illinois State Board of Elections 
v . Socialist Workers Party, 
440 U.S.■173 (1979) ......... 1 0

iv



Page
Kramer v. Onion Free School Dist.

No. 15, 395 U.S. 621
( 1969) ................... 5,10

Lassiter v. Northampton County Board 
of Elections, 360 U.S. 45 
(1959) ...................... 37

Lubin v. Panish, 415 U.S. 709
(1974) ..................... 31

NAACP v. Button, 371 U.S. 415
( 1 963) .   2

Personnel Administrator of Mass, 
v. Feeney, 442 U.S. 256 
(1979) ......... ......... .... 24

Phoenix v. Kolodziej ski, 399 U.S.
204 ( 1970) .........  31

Project Vote! v. Ohio Bureau of 
Employment Services, 578 
F. Supp. 7 (S.D. Ohio 
1 982) .......      13

Reynolds v. Sims, 377 U.S. 533
( 1 964) .     9

Richardson v. Ramirez, 418 U.S. 24
(1974) ....  7,32-36,38

Rhode Island Minority Caucus,
Inc. v. Baronian, 590 F .2d 372
(1st Cir. 1979) .............  1 2,1 3

v



Page

Rogers v. Lodge, 458 U.S. 613
(1982) ................... 2,25,37

Smith v. Allwright, 321 D.S. 649
(1944) ...................... 2

South Carolina v. Katzenbach, 383
U.S. 301 (1966)...... 20,23,38,40

United Jewish Organizations v .
Carey, 430 U.S. 144 (1977) .. 2

United Public Workers v. Mitchell,
330 U.S. 75 ( 1 947) .......... 30

United States v. Marengo Co.
Comm'n , 731 F .2d 1546 (11th 
Cir. 1984), appeal dismissed, 83 
L.Ed.2d 311 (Nov. 5, 1984)(No.
84-243) .................. 1 1,41

United States v. State of Alabama,
252 F. Supp. 95 (M.D. Ala.
1966) (three judge court) ... 21,23

Voter Education Project v.
Cleland, No. 84—1181A
(N.D. Ga.) .....___ ......... 14

Washington v. Davis, 426 U.S.
229 ( 1 976) ...................  20,36

Wesberrv v. Sanders, 376 U.S. 1
( 1964) .......................  9

vi



Page

White v. Regester, 412 U. S. 755
(1 973)' ..................   37

Williams v. Rhodes, 393 U.S. 23
( 1 968) ...............    10,39

Yick Wo v. Hopkins, 118 U.S. 356
( 1886) ...................   4

Constitutional and Statutory Provisions
U.S. Const. First, Fourteenth and

Fifteenth Amendments ........ Passim
U.S. Const. Tenth Amendment .... . 7,39,40
Voting Rights Act of 1965, 42

U.S.C. § 1973(a) Section 2
as amended in 1982 .......... 7,40

Ala. Const. of 1901, Section 182 Passim
Ga. Const. Art. 2 Sec. 1,

para. 3(a) ................... 35

Other Authorities
After the Voting Rights Act: 
"""“""Registration ’ Barriers, Report of 

the Subcommittee on Civil and 
Constitutional Rights of the House 
Committee on the Judiciary,
98th Cong., 1st Sess.
(October 1984) .............. 14,16

- vii



Page

Note, Restoring the Ex-Offender's 
Right to Vote: Background
and Development, 11 AM,
Grim. L. Rev. 721 (1973) .... 34,35

P. Lewison, Race, Class and
Party 81 (1963) ............. 24

Schmidt, Principle and Prejudice:
The Supreme Court and Race in 
the Progressive Era. Part 3:
Black Disfranchisement from the 
KKK to the Grandfather Clause,
82 Colum. L, Rev. 835 
( 1 982) ....___ .............. 21,27

Special Project, The Collateral 
Consequences of a Criminal 
Conviction, 23 Vand. L. Rev.
929 (1 970) ....... ..........  34-35

- viii



No. 84-76

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1984

NELL HUNTER, et al. INDIVIDUALLY,
AND ON BEHALF OF ALL OTHER MEMBERS 

OF BOARD OF REGISTRARS 
IN THE STATE OF ALABAMA,

Appellants,

VICTOR UNDERWOOD AND CARMEN EDWARDS, 
FOR THEMSELVES AND ALL OTHERS SIMILARLY 

SITUATED,

Appellees.

APPEAL FROM THE UNITED STATES COURT OF 
APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

STATEMENT OF INTEREST OF AMICUS CURIAE

The NAACP Legal Defense and Educa- 

tional Fund, Inc. is a non-profit corpora­

tion which was established for the purpose



2

of assisting black citizens in securing 
their civil rights. It has been cited by 
this Court as having "a corporate reputa­
tion for expertness in presenting and 
arguing the difficult questions of law 
that frequently arise in civil rights 
litigation." NAACP v. Button, 371 O.S.
415, 422 (1963). The Legal Defense Fund 
has appeared before this Court on numerous 
occasions representing parties or as 
amicus curiae in cases raising constitu­
tional and statutory issues concerning the 

1
right to vote.

See e.g., Rogers v. Lodge, 458 U.S. 613 
TT982) (amicus curiae); City of Mobile v. 
Bolden, 446 O.S. 55 ( 198 0 ); United J ewi s h 
Organizations v. Carey, 436 U.S. 144 
(16^7); East Carroll Parish School Bd. v. 
Marshall, 4njTTfTsT~?55"~(T976 );' Allen vT State Board of Elections, 393 U.S. 544 
(19££); Anderion v. Mart fin, 375 U.S. 399 
(1964); Smith v. Allwright, 321 U.S. 649 
(1944).



3

This case presents intertwined 
questions involving the grounds for 
disenfranchisement of voters and the proof 
and significance of racially invidious 
intent. The Legal Defense Fund is
actively involved in challenging State 
standards, practices and procedures which 
abridge the right to vote. These State 
restrictions fall with greatest weight on 
blacks, other minorities, and the poor. 
The Court’s resolution of the issues 
presented by this case may materially 
affect the ability of amicus to advance 
its program of vindicating the right to 
vote.

Letters consent ing to the filing of 
this brief by both parties are being 
lodged with the Clerk of Court.



4

SUMMARY OF ARGUMENT 

The issues raised by this case go to 
the heart of American ' democracy —  the 
right to vote, and the right to be free 
from invidious racial discrimination.

The right of suffrage, the right 
which is "preservative of all rights," 
Yick Wo v. Hopkins, 118 U.S. 356, 370
(1886), is the cornerstone of the American 
political system. A state’s denial of the 
right to vote to any member of the 
community may be sustained as constitu­
tional only if it is narrowly tailored to 
promote a compelling state purpose.

The clause of Section 182 of the 
Alabama Constitution of 1901 which the 
court below declared violative of the 
United States Constitution is precisely 
the type of State restriction of the 
franchise which this Court has stated must 
receive "close and exacting examination."



5

Kramer v. Union Free School Dist. No, 15, 
395 U.S. 621 , 626 ( 1969). The clause
completely denies the right to vote to 
otherwise eligible citizens of Alabama 
convicted of crimes not punishable by 
imprisonment in the penitentiary —  e.g. , 
misdemeanors —  involving "moral turpi­
tude." Such a denial of the right to vote 
may be sustained only if it is necessary 
to promote a compelling State purpose.

It is at the point of inquiry into 
the State's purpose, however, that the 
denial of the right to vote becomes joined 
with an even uglier affront to American 
democracy —  invidious racial discrim­
ination. The United States Court of 
Appeals for the Eleventh Circuit found, 
and the historical record fully supports 
this finding, that the clause was adopted 
for racially invidious reasons, as part of 
a broad and thoroughgoing program of white



6

Alabamians to disenfranchise blacks.
Appellants, however, argue that the 

clause may be sustained because it was 
adopted as an element of a disfranchise­
ment scheme aimed as well at "populists™ 
or "poor whites,™ not just blacks. This 
argument, even if it were a correct 
reading of the State's purpose, does not 
help their case. The denial of the right 
to vote on grounds of political belief or 
socio-economic status is as impermissible 
as disenfranchisement by reason of race. 
Like discrimination against blacks, 
discrimination against poor whites or 
Populists cannot be a compelling state 
interest.

Appellants remaining arguments are no 
more than makeweights. While this Court 
has held that the disenfranchisement of 
felons does not, in and of itself, violate 
the Equal Protection Clause of the



7

Fourteenth Amendment , Richardson v« 

Ramirez, 418 U.S. 24 (1974), this case

does not involve the disenfranchisement 

for commission of a crime s impl iciter. 

Rather, this case turns on a disenfran­
chisement clause adopted for constitu­

tionally proscribed reasons —  either 

invidious racial animus as appellees 

allege and the Eleventh Circuit found, or 
political and wealth-based discrimination 

as appellants contend. Richardson v. 

Ramirez can provide no shelter for a 

measure which was intended to deny the 

franchise to a group of voters because of 

the color of their skin, their lack of 
assets, or their political beliefs. Nor 

does the Tenth Amendment provide a shield 

for a denial of the franchise in violation 

of the Equal Protection Clause of the

Fourteenth Amendment.



8

Finally, the clause in question 
violates section 2 of the Voting Rights 

Act of 1965, 42 U.S.C. § 1973(a). As
amended in 1982, section 2 bars the use of 
voter qualifications which result in a 

denial of the right to vote on account of 
race or color. Even if the adoption of 
the clause is held not to have been the 
product of invidious racial intent in 
violation of the Fourteenth Amendment, it 
surely results in a denial of the right to 
vote on account of race or color.

I. VOTING IS A FUNDAMENTAL RIGHT 
WHICH MAY NOT BE DENIED UNLESS 
NECESSARY TO PROMOTE A COMPELLING 
STATE PURPOSE.
The Court has frequently emphasized 

the central role played by the right to 
vote in the American system of constitu­
tional government. The right to vote "is 
of the essence of a democratic society, 
and any restrictions on that right strike



9

at the heart of representative govern­
ment ." Reynolds v. Sims, 377 U.S. 533, 555 

(1964). "No right is more precious.... 
Other rights, even the most basic, are 
illusory if the right to vote is under­
mined ." We sherry v. Sanders, 376 U.S. 1, 
17 (1964). See also Evans v, Cornman, 398 

U.S. 419, 422 (1970).
In order to secure fully our system 

of democratic self-government, state 
restrictions on the right to vote have 
often been found constitutionally invalid 
upon close examination. The right to 
vote may not be taxed, Harper v. Virginia 
Board of Elections, 383 U.S. 663 (1966); 
one person's vote may not be given less 
we ight than any other person's, e.g ., 
Reynolds v. Sims; Wesberry v. Sanders; and 
the State may not unduly restrict the 
ab ility of new parties or independent 
cand idates to obtain positions on the



10

ballot. See, e.g., Anderson v. Cele- 

brezze, 460 U.S. 780 (1983); Illinois

State Board of Elections v. Socialist 

Workers Party;, 440 U.S. 173 (1979); 

Williams v . Rhodes, 393 U.S. 23 (1968).

Cf. Clements v. Fashinq, 457 U.S. 957,
. r a a w o ™  —     .m .» — a m .

964-65 (1982).
Burdens on the right to register and 

cast a ballot, the heart of the constitu­

tionally protected right to vote, are 

subject to strict scrutiny. " [I]f a

challenged state statute grants the right 

to vote to some bona fide residents of 

requisite age or citizenship and denies 

the franchise to others, the Court must 
determine whether the exclusions are 

necessary to promote a compelling state 

interest." Kramer v. Union Free School 

Dist. , supra. , 395 U.S. at 626-27. In
such a case, "the general presumption of 
constitutionality afforded state statutes



11

and the traditional approval given state 
classifications if the Court can conceive 
of a 'rational basis' for the distinctions 
made are not applicable." Id. at 627-28. 
Rather, the state must show "substantial 
and compelling reason" for the denial of 
the franchise, Dunn v. Blumstein, 405 U.S. 
330, 335 (1972) and must utilize the
"least restrictive means" to achieve that 
goal. Id. at 353.

The lower federal courts have 
recently decided or are currently con­
sidering dozens of cases challenging
state-imposed barriers to voting under the

2
First and Fourteenth Amendments. The

The courts have recognized that 
state administrative practices, such as 
limitations on voter registration to 
inconvenient times and locations, or dis­
crimination in the appointment of voter 
registrars on grounds of race or political 
affiliation, can effectively abridge the 
ability of citizens to register, and 
therefore implicate the right to vote. 
See, e.g., United States v. Marengo Co. 
Convm'n, ^31 F. 2d 1569-70 (11th Cir.



12

ramifications of the arguments made in 

this case go well beyond the narrow issue 

of denying the franchise to certain mis­

demeanants.
For example, in Connecticut Citizen 

Action Group v. Pugliese, No. 84-431 (WWF)

(D. Conn. Sept. 25, 1984), stay den'd, ___

F. 2d _____ (2d Cir. Oct. 2, 1984), the Court 
ordered the appointment of thirty special 

assistant registrars to conduct registra­

tion door-to-door and at various sites in 

the community. That case involves the 

claim that holding registration at only 

one location in the city of Waterbury, 

Connect icut violates the First and 

Fourteenth Amendments.

1984); Rhode Island Minority Caucus, Inc. 
v . Baronian, 5"§T5 FT 2cl 375 (1st Cir .
JT IW . —



13

In Rhode Island Minority Caucus, Inc, 
v. Baronian, 590 F.2d 372 (1st Cir. 
1979) t the Court held that allowing 
registration drives to be conducted only 
by members of the League of Women Voters 
is unconstitu tional if racial animus 
played a part in the decision. Several 
courts have enjoined state and local 
refusals to permit registration forms to 
be distributed in public agency waiting 
rooms. E.g. r Project Vote! v. Ohio Bureau 
of Employment Services, 578 F. Supp. 7
(S.D. Ohio 1982).

Other cases challenging barriers to 
voting are pending. In Georgia, for 
example, citizens in many counties must 
travel distances of 60 miles or more in 
order to register at county courthouses 
which are open only during normal business 
hours -- when most citizens are at work. 
The difficulty in registering is com­



14

pounded by the fact that the state has no 

rural public transportation. The failure 

to permit registration at satellite 

locations and during evening and weekend 

hours is currently being challenged in the 

case of Voter Education Project v. Cle- 

1 and , No. 84-1181A (N.D. Ga.). Similar 

registration barriers are at issue in 

cases in Louisiana, Michigan, Arkansas, 

Missouri, and Mississippi.

The devastating effect of such 

barriers to registration was recently 

documented by a congressional subcommit­

tee . After the Voting Rights Act; 

Registration Barriers, Report of the 

Subcommittee on Civil and Constitutional 

Rights of the House Committee on the 
Judiciary, 98th Cong., 1st Sess. (October

1984). The subcommittee concluded:



15

A number of states limit regis­
tration to a single central location 
in a county, usually the county 
courthouse. ...

Many registration offices are 
open only on weekdays and during 
normal business hours. Many offices 
are closed during lunch hours. In 
Virginia, most registration offices 
only have regularly scheduled office 
hours between 8 am—5 pm. Over half 
are not open 5 days a week, and one 
quarter are only open one or two days 
a week. These limited hours conflict 
with the working hours of most 
people. Thus, working people must 
take time off from work in order to 
register.

... Courthouses are rarely 
located in the minority community, so 
minority citizens are required to go 
to an unfamiliar part of town to 
register.... [I]n rural areas, the 
long distances to the courthouse 
coupled with the lack of public 
transportation turns getting to the 
courthouse into a Herculean effort.

Third is the problem of intimi­
dation. In Johnson County, Georgia, 
the white sheriff makes a point of 
stationing himself outside of the 
door of the voter registration office 
in the courthouse when blacks come to 
register. ...

... In Shenandoah County, 
Virginia, the registrar' s office is 
located in the basement of the county
jail.



16

In Waterbury, Connecticut ... 
the registrar refuses to deputize any 
volunteers. In other places, 
deputization is done selectively. In 
Worcester, Massachusetts, the 
registrar does not deputize volun­
teers from the poor side of town ....

The technicalities of the form 
also raise barriers. In New York, 
signatures are required on both sides 
of the form, otherwise the registra­
tion is invalid. Other states 
require the form to be notarized. 
This requires the registrant to find 
a notary public, and usually involves 
a fee for the service. In effect, 
this may work as an illegal poll tax.

Dual registration is yet another 
barrier to full electoral participa­
tion. This requires citizens to 
register separately for both city and 
county elections....

Purge laws, while not facially 
objectionable, may operate unfairly. 
Seven states purge voters without 
individual notice. In Alabama, 
selected counties with a higher 
percentage of black voters have been 
purged. Subcommittee Report at 
4 - 1 0 .

Acceptance of appellant's argument 

that the states have absolute, unreview- 
able control over voting requirements and



17

qualifications would permit the continued 
existence of several barriers and ob­
stacles to voting, such as those described 
above. Yet, these modern-day versions of 
the poll tax are no more constitutionally 
acceptable than their historic predeces­
sors. Preservation of the precious right 
to vote requires that all barriers to 
voting be subjected to strict constitu- 
tional scrutiny and permitted only when 
justified by compelling governmental 
interests.

In this case, appellants have failed 
to offer any compelling state interest 
which could justify the denial of the 
franchise effected by the challenged 
clause of Section 182. On either appel­
lants' or appellees' theory of the 
purposes of the framers of the Alabama 
Constitution of 1901, the clause was



18

adopted for a constitutionally proscribed

reason and not to serve a compelling state

interest.

II, THE MISDEMEANANTS DISENFRAN­
CHISEMENT CLAUSE WAS ADOPTED FOR 
INVIDIOUS RACIALLY DISCRIMINATORY 
REASONS IN VIOLATION OF THE
FOURTEENTH AMENDMENT

The Court of Appeals found that the 

misdemeanants disenfranchisement clause of 

Section 182 of the Alabama Constitution 

was adopted with the intent, and has had 

the effect, of disenfranchising blacks, 

(J . S . at A-6 through A-141.) The court 

properly applied the test for determining 

discr iminatory intent set forth by this 

Court in Arlington Heights v. Metropolitan 

Housing Development Corp,, 429 U.S. 252
( 1 977) , and its conclusion is amply 

supported by the legal and historical

record.



19

In Arlington Heights, the Court 
identified the factors which may be used 
to prove that a law, while fair on its 
face, was adopted for an invidiously 
discriminatory purpose: "The historical
background of the decision is one eviden­
tiary source, particularly if it reveals a 
series of official actions taken for 
invidious purposes." 429 U.S. at 267. 
"The legislative or administrative history 
may be highly relevant, especially where 
there are contemporary statements by 
members of the decisionmaking body, 
minutes of its meetings, or reports." Id. 
at 268. "The impact of the official 
action -- whether it 'bears more heavily 
on one race than another,1... —  may 
provide an important starting point. 
Sometimes a clear pattern, unexplainable 
on grounds other than race, emerges from 
the effect of the state action even when



20

the governing legislation appears neutral 
on its face.'5 Id. at 266, quoting
Washington v . Davis, 426 U. S. 229, 242
{ 1976) .

The Eleventh Circuit properly relied 
on each of these factors in reaching its 
determination that the disenfranchisement 
clause in this case was adopted for 
racially discriminatory purposes.

The ''historical background" to 
Section 182 is clear: " [B]eginning in
1890, the States of Alabama, Georgia, 
Louisiana, Mississippi, North Carolina, 
South Carolina, and Virginia enacted tests 
still in use which were specifically 
designed to prevent Negroes from voting." 
South Carolina v. Katzenbach, 383 U.S. 
301, 310 (1966). The Alabama Consti­
tutional Convention of 1901 "assembled 
largely, if not principally, for the 
purpose of changing the 1875 Constitution



21

so as to eliminate Negro voters." United 
States v. State of Alabama, 252 P. Supp. 
9 5, 98 (M.D. Ala. 1966) (three-judge 
court). "'What they want is a scheme pure 
and simple which will let every white man 
vote and prevent any Negro from voting, ' 
reported the Birmingham Age-Herald about
the delegates at the Alabama Constitu-
tional Convention of 1901." Schmidt,
Principle and Prejudice: The Supreme
Court and Race in the Progressive Era. 
Part 3; Black Disfranchisement from the 
KKK to the Grandfather Clause, 82 Colum. 
L. Rev. 835, 846 (1982).

The legislative history is also 
clear. "Delegate after delegate took the 
floor eager to be put on record as 
favoring ’the absolute disfranchisement of 
the Negro as a Negro'.... The Journals of 
the Convention leave absolutely no doubt 
as to what the delegates of the white



22

citizens of Alabama wished the Convention 

to accomplish: ... 'it is our intention,

and here is our registered vow to dis­

franchise every Negro in the state..,''"' 

United States v. Alabama, supra, 252 F. 
Supp. at 98, quoting comments by conven­

tion delegate reported in the Official 

Proceedings.
In developing their program of 

disenfranchisement, the delegates took 

care to avoid the strictures of the 
Fourteenth and Fifteenth Amendments. 

Instead of directly curtailing the 

franchise on grounds of race, the suffrage 
committee "made resort to facially neutral 

•tests that took advantage of differing 

social conditions. Disenfranchisement for 

commission of specified misdemeanors is in 

pari materia with the "grandfather 

clause," the poll tax, and the literacy 

test -- a clear pattern of measures



23

neutral on the surface but adopted for the 

purpose and having the effect of disen­

franchising blacks,, and which were 

subsequently declared invalid for that 

reason. See, e.g., Guinn v. United 

States, 238 U.S. 347 (1915) (grandfather 

clause), South Carolina v. Katzenbach, 

supra, 383 U. S. at 312, 33 3-34 (literacy 

test), United States v. State of Alabama, 

supra, (poll tax).
Although the clause at issue purports 

to utilize a racially neutral criterion 

misdemeanors involving moral turpitude —  

moral turpitude was intentionally defined 

to bring about the disenfranchisement of 

blacks, The suffrage committee of the 

Constitutional Convent ion chose offenses 

that were believed to be peculiar to 

blacks' low income and social status, such 

as petty property offenses, and minor 

sex-related crimes. (J . S. at A-10,



24

citing P. Lewison, Race, Class and Party 

81 (1963).) Appellants' own expert, Dr. 
Thornton, acknowledges that the disquali­

fying crimes were those “associated in the 

public mind with the behavior of blacks." 

Joint App. at A-23.
The brunt of the non-penitentiary 

offenses clause was, and still is, borne 

by blacks. Joint App. at A-26 j J.S. at 

A — 1 1. Thus, the elements of proving

racally invidious discrimination identi- 

fied in Arlington Heights —  historical 

background, legislative history, pattern 

of discriminatory enactments, and dis­

parate racial impact -- are all present 
3

here. Taken together they prove the

3 Therefore, this case differs significantly 
from the veteran's preference upheld in 
Personnel Administrator of Mass. v ■ 
Feeney”, 4 42 U. S. 25(> ( 1979). Unlike
Feeney, in which the worthy and legitimate 
goals behind the veteran's preference were 
stipulated, the classification here is 
neither rationally based, traditionally 
justified nor beneficent. Indeed,



25

"'insidious and pervasive evil* of racial 

discrimination in voting." City of Rome 

v. United States, 446 U.S. 156, 174

(1980). A state restriction on the right 

to vote adopted for racially invidious 

reasons violates the Equal Protection 
Clause of the Fourteenth Amendment, Rogers 

v. Lodge, 458 D.S. 613, 621-22 (1982),

City of Mobile v. Bolden, 446 U. S. 55, 

66-67 (1980) (plurality opinion), as well 

as the Fifteenth Amendment. City of 

Mobile, supra, Gomillion v, hightfoot, 364 

U. S . 339 (1 960), Guinn v. United States, 

supra.

appellants concede racial antipathy behind 
the misdemeanant exclusion clause, and 
proof of its discriminatory purpose, 
contrary to the plaintiff' s case against 
the Massachusetts veteran's preference, is 
not solely based on inferences from its 
disproportionate impact.



26

III. DISENFRANCHISEMENT OF POOR
WHITES BECAUSE OF THEIR POLITICAL 
BELIEFS OR LACK OF WEALTH VIOLATES 
THE FIRST AND FOURTEENTH .AMENDMENTS

Appellants contend that the misde­

meanants exclusion clause of section 182 

was not adopted solely because of anti-

black racial animus, but rather was

adopted for "political reasons,” to

d isenfranchise as well "poor whites" or

"populists ." (Brief for Appellants at

9-10, 12). Appellants' theory is prob­

lematic as an interpretation of the 1901 
Alabama Constitutional Convention, but 

even if appellants' theory were true it 

could not save the disenfranchisement 

clause.
Appellants' theory assumes that the 

"racial'1 and "political" purposes of the 

Alabama Constitutional Convention were 

distinct. To the contrary, in turn-of- 

the-century Alabama and throughout the



27

Deep South at that time politics and race 

were largely intertwined. See Schmidt, 

Principles and Prejudices, supra, 82 

Colum. L . Rev. at 842-47. Even appel­

lants' expert Dr. Thornton, acknowledges 

that the Constitutional Convention 

delegates sought to achieve their "politi­

cal ," anti-Populist, goal by "eliminating 

the black vote that had —  the courting of 

which had represented the principal threat 

from the po int of view of conservative 
white democrats." (Joint App. at A-19.)

Moreover, in order to find that 

section 182 was "political" and not 

"racial" , the court must ignore most of 
the historical record. Appellants urge the 

Court "not to be misled by reading or 

analyzing the proceedings of the Conven- 

tion." (Brief for Appellants at 18.) The 

speeches and debates of the delegates, the 

anti-black statements, and the avowal of



28

anti-black purposes were all a "public 

relations gesture," (Joint App. at A-23, 

A-27). Appellants* expert acknowledges 

that " [ i] f you read the four volumes of 

the official proceedings —  a fate I 

wouldn' t wish on anyone --but if you 

happen to? you will come away with the 

sense that race simply dominates the 

proceedings of the Convention." (Id, at 

A-27). His solution is to ignore the 

statements and actions of the delegates 

and rely solely on their unstated inten­

tions? as he divines them. Thus would 

appellants have the Court ignore the 

approach for identifying intent set forth 

in Arlington Heights and pursued by the 

Eleventh Circuit.
Most importantly? however? appel­

lants' version of history cannot save the 

misdemeanants d i sen f ranch isement clause 

from invalidation. On appellants' theory



29

the clause is constitutional because it

was adopted with the intent to discrimi­

nate against "poor whites’* or "Populists." 

Such a contention would be laughable if it 

were not so offensive. The franchise may 

no more be denied on grounds of political 

belief or lack of wealth than it may be 

for racial animus.
" 1 Fencing out' from the franchise a 

section of the population because of the 
way they may vote is constitutionally 

impermissible. ’ [T]he exercise of rights 

so vital to the maintenance of democratic 
institutions, 1 ... cannot be obliterated 

because of a fear of the political views 

of a particular group of bona fide resi 

dents." Carrington v. Rash, 380 U.S. 89, 

94 (1965) " ' [D]ifferences of opinion* may 

not be the basis for excluding any group 

or person from the franchise." Dunn v_.

Blumstein, supra, 405 U.S. at 355, quoting



30

Cipriano v. City of Houma, supra,, 395 

0.S. at 7 0 5 - 0 6 . Accord, Evans v. Cornman, 

398 U.S. 41 9, 422 (1970). As this Court 

observed in another contest, "Congress may 

not 'enact a regulation providing that no 

Republican, Jew or Negro shall be ap­

pointed to federal office.'" Un i t ed 

Public Workers v. Mitchell, 330 U.S. 75, 

100 ( 1 9 4 7 ). These cases clearly establish 

that where the right to vote is at stake, 

political minorities as well as racial 

minorities —  "popul ists" as well as 

blacks -- are protected by the Equal 

Protection Clause. The desire to vanquish 

one's political opponents or "fence out" 

citizens hold ing unorthodox beliefs has 

never withstood strict scrutiny or been 

found to serve a compelling state interest 

to justify the denial of the franchise to 

the disfavored group. Indeed, a finding 
that section 182 was adopted out of an­



31

tipopulist or anti-poor white animus would 
compel the determination that it violates 
the Fourteenth Amendment,,

"Wealthy like race, creed, or color, 

is not germane to one's ability to 
participate intelligently in the electoral 

process. Lines drawn on the basis of 

wealth or property, like those of race ... 

are traditionally disfavored" where the 

franchise is at stake. Harper v. Virginia 

Board of Elections, 383 U. S. 663, 668 
(1 9 6 6). This Court has consistently held 

unconstitutional under the Equal Protec­

tion Clause wealth-based restrictions on 

the franchise, such as the poll tax. 
Harper, supra, excessive filing fees, 

Lubin v. Panish, 415 U.S. 709 (1974), 
Bullock v. Carter, 405 U.S. 134 (1972), 
and statutes restricting to taxpayers the 

right to vote on bond issues, Phoenix v.

Kolodziej ski, 399 U.S, 204 ( 1970), Cipri-



32

ano v. City of Houma, 395 U.S. 701 (1969). 

The right of suffrage of "poor whites" 

like that of blacks is protected by the 

Constitution and may not be denied by 

measures aimed at them because of their 

lack of wealth.

IV. RICHARDSON v. RAMIREZ DOES NOT 
INSULATE THE MISDEMEANANTS* DISEN­
FRANCHISEMENT CLAUSE FROM STRICT 
SCRUTINY.
Appellants contend that the misde­

meanants disenfranchisement provision of 

section 182 is insulated from Equal 

Protection Clause review by virtue of this 

Court's decision in Richardson v. Ramirez, 

418 U. S . 2 4 (1974). In Richardson, the

Court cons idered that port ion of section 2 

of the Fourteenth Amendment wh ich limited 

the penalty of reduced state representa- 

t ion in Congress to denials of the 

franch i se "except for participation in 

rebel 1 ion, or other crimes." The Court



-  33  -

concluded that this provision gave 

'’affirmative sanction” to "the exclusion 

of felons from the vote,” Id» at 54.

The case sub judice differs from 

Richardson in two significant ways. First, 

the disenfranchising crimes in Richardson 

were felonies whereas the present case 

concerns an invidiously selected list of 

non-felonies. Richardson was predicated in 

part on an examination of the historical 

background of the Fourteenth Amendment. 

The Court noted that at the time of the 
Fourteenth Amendment's ratification most 

States had provisions in their constitu­

tions which prohibited, or authorized 

their legislatures to prohibit, the 

exercise of the franchise by persons 

convicted of felonies. Congress, in 

readmitting the seceded states to the 
Union, authorized those states to deny the 

franchise for" 'participation in the



34

rebellion or for felony at common law*." 

418 U.S. at 48,49. There was, however, no 
similar finding that the "historical 

understanding of the Fourteenth Amendment" 

confirmed the disenfranchisement of 

misdemeanants. Richardson has never been 

applied to uphold a disenfranchisement of 

non-felons.
Indeed, those states which disenfran­

chise citizens for criminal convictions 

have generally limited that penalty to 
convictions of election-related offenses, 

some subset of serious felonies, or at 

most all felonies and "infamous crimes." 

See generally Note, Restoring the Ex- 

Offender’s Right to Vote; Background and 

Developments, 11 AM. C r i m .  L. Rev. 7 2 1 ,  

727-29, 758-70 ( 1 9 7 3 ) ;  Special Project, 

The Collateral Consequences of a Criminal 

Convict ion , 23 Vand. L. Rev. 9 2 9 ,  9 7 5 - 7 7

(1970). According to these two surveys,



3 5

published in the early 1970’s, only two 

states, Alabama and Georgia disenfran­

chised for specified non-felony offenses, 

defined as involving moral turpitude. 

Note, supra, 11 Aits, Crim, L. Rev. at 

758-6 1 and 766 n. 217? Special Project, 

supra., 23 Vand. L. Rev. at 976 n.251. The 
current Georgia Constitution disenfran­

chises only persons convicted of "a felony 

involving moral turpitude." GA. Const. 

Art 2, sec. 1 para 3(a). {emphasis 

supplied). Consequently, Alabama may be 

the only state which today disenfranchises 

any category of non-felons.
The Court, however, need not resolve 

the applicability of Richardson to the 

exclusion of misdemeanants because what 

clearly sets this case apart from Richard­
son is not the felony/non-felony distinc­

tion but the finding of inv idious dis- 

cr iminatory intent. There was no conten­



36

tion in Richardson that the disenfran­

chisement provision at issue was adopted 

for racially discriminatory purposes, or, 

for that matter, out of a political or 

wealth-based animus. Richardson con­

sidered only the question whether the 

denial of the right to vote to felons was 

per se unconstitutional.
The presence of discriminatory intent 

is central to this Court's interpretation 

of the Equal Protection Clause of the 

Fourteenth Amendment. See, e ,g. , City of 

Mobile v. Bolden, supra, Arlington Heights 

v. Metropolitan Housing Development Corp,, 

supra, Washington v. Davis, 426 U.S. 229 

(1976). Particularly where the right to 

vote is at stake, state laws or practices 

which would be constitutional if they were 

adopted for a legitimate purpose have been 

held unconstitutional if they were adopted 
for a constitutionally proscribed reason.



37

Thus, in City of Mobile v. Bolden, 

supra, and White v. Regester, 412 U.S. 

755 (1973) the Court held that multi-mem­

ber or at-large election districts are a 

constitutional voting mechanism. When 

such a system, neutral on its face, "is 

subverted to invidious purposes," it 

violates the Fourteenth Amendment. Rogers 

v. Lodge, 458 U.S. 613, 621-22 ( 19 82)?

White v. Regester, supra, 412 U.S. at 

765-70. Similarly, in Lassiter v. 

Northampton County Bd. of El., 360 U.S. 

45 ( 1959), this Court held that a State's 

use of a literacy test to qualify voters 
is consistent with the Fourteenth Amend­

ment. Yet, in South Carolina v. Katzen- 

bach, supra, the Court held that where 

literacy tests "have been instituted with 

the purpose of disenfranchising Negroes, 

have been framed in such a way as to 

f acil itate this aim, and have been



38

administered in a discriminatory fashion," 

1 iteracy tests violate the Constitution. 

383 U.S. at 333-34.
In other words, even if Richardson v, 

Ramirez is interpreted to authorize the 

State of A1abama, for legitimate reasons, 

to disenfranchise persons convicted of 

non-felonies involving moral turpitude, 

the case does not support such action when 

taken for a constitutionally proscribed 

purpose. Appellees allege and the Court 

below found that the State acted out of 
racial animus, which the Fourteenth 

Amendment prohibits. Appellants contend 

that the State acted out of wealth-based 

or pol it ical animus, which are also 
constitutionally forbidden justifications. 

Appel 1 ants have alleged no constitution- 
ally permissible reason for the disen­
franchisement of non-felons, let alone a 

compelling state purpose. Under these



39

circumstances, the Court must affirm the 
Court of Appeals' conclusion that the 

disenfranchisement clause violates the 

Fourteenth Amendment.

V. THE TENTH AMENDMENT PROVIDES NO 
PROTECTION FOR A STATE DISENFRAN­
CHISEMENT MEASURE WHICH VIOLATES THE 
FOURTEENTH AMENDMENT

Appellants argue that the State of
Alabama has broad power secured by the
Tenth Amendment to grant or deny the
suffrage. But "no State can pass a law
regulating elections that violates the
Fourteenth Amendment...." Williams V.
Rhodes, 393 U.S. 23, 29 (1968). The
Thirteenth, Fourteenth and Fifteenth 
Amendments "were specifically designed as 
an expansion of federal power and an 
intrusion on state sovereignty." City of 
Rome v. United States, 446 U.S. 156, 179 
(1980). Particularly in the area of 
voting rights the Civil War Amendments



4 0

"supersede contrary exertions of state 

power." South Carolina v. Katzenbach, 383 

U.S. at 325. The principles of Tenth 

Amendment federalism articulated in 

National League of Cities v. Usery, 426 

D. S. 833 (1 976), do not constrain the 

Fourteenth Amendment. Fitzpatrick v. 

Bitzer, 427 U.S. 445, 451-56 (1976). See 

also City of Rome v. United States, supra, 

446 U.S. at 178-80 (National League of 

Cities does not limit the Fifteenth 

Amendment). In short, the Tenth Amendment 

provides no independent justification for 

a state disenfranchisement measure which 

violates the Fourteenth Amendment.

VI. THE MISDEMEANANTS DISENFRAN­
CHISEMENT CLAUSE VIOLATES THE VOTING 
RIGHTS ACT.

As amended in 1982, section 2 of the 

Voting Rights Act, 4 2 U.S.C. § 19 73(a) 

bars the use of any "voting qualification



41

or prerequisite to voting or standard, 
practice, or procedure....which results in 

a denial or abridgement of the right to 

vote of any citizen of the United States 

on account of race or color.” The section 

prohibits not only official action taken 
or maintained for a racially discrimina­

tory purpose, but also any official action 
that results in the impairment or denial 
of the right to vote of any citizen on 
account of race. United States v. Marengo 
County Commission, 731 P. 2d 1546 (11th 
Cir. 1984) appeal dismissed, 83 L.Ed.2d 
311 (Nov. 5, 1984)(No. 84-243). Thus, 
"discriminatory intent need not be shown 
to establish a violation." Id. at 1564.

Section 2 plainly applies to State 
restrictions on the right to register, as 
well as to districting schemes that dilute 
minority voting strength. Harris v.
Graddick, 593 F. Supp. 128, 132 (M.D. Ala.



4 2

1984). As the court below found, the 

disenfranchisement of misdemeanants 

disproportionately affects blacks (J. S. 

at A - 1 1 ) . Consequently, a prima facie 

case of a "voting qualification” which 

results in a denial of the right to vote 

on account of race is made out.

CONCLUSION

For the reasons stated, the decision 

of the United States Court of Appeals for 

the Eleventh Circuit should be affirmed.

Respectfully submitted,

JULIUS CHAMBERS 
LANI GUINIER *
PENBA HAIR

99 Hudson Street
New York, New York 10013

RICHARD BRIFFAULT
Columbia University 
School of Law 
435 West 116th Street 
New York, New York 10027



43

Dated:

Attorneys for the NAACP 
Legal Defense and Educa­

tional Fund, Inc., 
Amicus Curiae *

*Counsel of Record

J a n u a r y  1 , 1 9 8 5



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