Hunter v. Underwood Brief for Appellants

    No. 84-76

IN T H E

JSutprrme Court ®f Wc\t pmtrfr States
October Term, 1984

N ELL H U N TER, et al, individually, and on behalf of all 
other members of Board of Registrars in the State of Alabama,

Appellants,
vs.

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 FOR APPELLANTS

Edward St i l l *
Reeves & Still
Suite 400 Commerce Center 
2027 First Avenue North 
Birmingham, Alabama 35203 
(205) 322-6631 
*  Counsel of Record

N e il  B ra d ley  
L a u g h lin  M cD onald  
C h r isto ph er  C oates 
American Civil Liberties 
Union Foundation, Inc.
52 Fairlie Street N.W. 
Atlanta, Georgia 30303 
(404) 523-2721 
Counsel for Appellees

J a m es  S. W ard 
Special Assistant Attorney 

General
2100-16th Avenue South 
Suite 300
Birmingham, Alabama 35205 
(205) 939-0811 
Counsel for Appellants



1

QUESTIONS PRESENTED
I. Whether the Court below erred in holding that section 182 
of the Alabama Constitution of 1901 violated on account of 
race the Fourteenth Amendment with respect to those con­
victed of crimes not punishable by imprisonment in the peni­
tentiary.

II. Whether the Court below erred in failing to recognize the 
jurisdiction and authority conferred upon the State of Alabama 
by the Tenth Amendment to the United States Constitution 
to administer its electoral process, including the conditions 
under which the right of suffrage may be exercised.

III. Whether the Court below erred in failing to recognize the 
authority and jurisdiction conferred upon the State of Alabama 
to disfranchise those convicted of crimes involving moral tur­
pitude pursuant to the “affirmative sanction” language in sec­
tion 2 of the Fourteenth Amendment to the United States Con­
stitution.

IV. Whether the Court below erred in failing to recognize that 
the State of Alabama has an interest in disfranchising persons 
who are convicted of crimes involving moral turpitude, regard­
less of whether or not the crime is a felony or a misdemeanor 
and regardless of whether or not the crime is punishable by 
imprisonment in the penitentiary.

V. Whether the Court below erred in failing to find that sec­
tion 182 of the Constitution of Alabama of 1901 was not adopt­
ed with the intent, and has not had the affect, of disfranchising 
proportionally more blacks than whites or in the alternative 
that the Appellants demonstrated the existence of a permissible 
motive which led to the same result, that is the enactment of 
section 182 of the Constitution of Alabama of 1901.



11

TA BLE OF CO NTEN TS
Page

Questions Presented __ ...___ ...__..._____ .______ ..----------  i

Table of Contents______________•_-------  --- ------.------  ii
Table of Authorities _________________________________  iii
Opinions Below ____________________________    1
Grounds of Jurisdiction of Supreme Court ..     2
Constitutional Provisions Involved _________   2

Statement of the Case ________________________________  4
Summary of Argument__ ____________________  ~... -..._ 11
Argument ___________________________________________ 13
Conclusion _______________________________ __________ 31
Certificate of Service ________________________________  34
Affidavit of Service _________________________   36
Appendix __________________________________   A-l



TABLE OF AUTH O RITIES
Cases: Page

American. National Bank v. Federal Deposit Insurance
Corp., 710 F2d 1928, 1533-34 (11th Cir. 1983) ..................13

Bradford Electric Light Co. v. Clapner,
284 US 221 (1931) ____ ____________________ _______

Butts v. Nichols, 384 FSupp 573 (S.D. Iowa 1974) ........... ...28
Chicago v. Atchison, T. & S.F.R. Co.,

357 US 77 (1962) ______________________ __.....___.__ 2
Detroit v. Murray Corp., 355 US 489 (1958) ............. ............ 2
Duncan v. Piothress, 657 F2d 691,

702 (5th Cir. 1981) __________________.____________  30
Dusch v, Davis, 387 US 112 (1967) ______________________2
Hobson v. Pow, 434 FSupp. 362 (N.D. Ala. 1977) ......  21.28
Holley v. Askew, 583 F2d 728, 730 (5th Cir. 1978) ............... 30
Kronlund v. Honstein, 327 FSupp. 71

(N.D. Ga. 1971) __________________ ________13, 25, 26, 27
Kusper v. Pontikes, 414 US 51 (1933) ........ ................... ....... 29
Lassiter v. Northhampton County Board of

Elections, 360 US 45 (1959) _____________13, 23, 24, 29, 30
Michael M. v. Superior Court of Sonoma

County, 450 US 464 (1981) ________ ___........... ..... ......... 20
Oregon v. Mitchell, 400 US 177 (1970) ....... ...... ..25, 29, 30, 31
Orr v. Orr _________________________________________ 20
Palmer v. Thompson, 403 US 217 (1977) ...... .. .................19, 20
Popev. Williams, 93 US 622 (1904) _________________13, 29
Pullman Standard v. Swint, 456 US 273 (1982) _________14
Richardson v. Ramirez, 418 US 24 (1974) __ 12, 22, 23, 24, 27
Shepard v. Trevino, 575 F2d 1110 (5th Cir. 1978) ________24
Underwood v. Hunter, 604 F2d 367 (5th Cir. 1979) ____ 1, 5
Underwood v. Hunter, 622 F2d 1042 (5th Cir. 1980) ___ 1, 6
Underwood v. Hunter, 730 F2d 614 (11th Cir. 1984) -----1,7
United States v. Tonry, 605 F2d 144 (5th Cir. 1979) __ 29, 30

Ill



TABLE OF A U TH O RITIES -  (Continued)

PageCases:
United Gas Pipeline Co. v. Ideal Cement Co.,

369 US 134 (1962) __________________________________2
Village of Arlington Heights v. Metropolitan 

Developing Corp., 429 US 252 (1977) ____________ 9,10,19
Waddy v. Davis, 445 F2d 1 (5th Cir. 1971) ___________28, 29
Washington v. Davis, 426 US 229, 233 (1976) ___ _______ 20
Washington v. State, 75 Ala. 582, 585 (1884) _______13, 26, 28

Statutes:

28 USC 1254(2) _____________________________________ 2

Other Authorities:
First Amendment to the United States

Constitution _________________________________ 25, 26, 29
Eighth Amendment to the United States Constitution ____25
Tenth Amendment to the United States

Constitution _____________________ i, 3, 5, 12, 29, 30, 31, 32
Fourteenth Amendment to the United States

Constitution ___________ i, 2, 5, 12, 19, 22, 24, 25, 30. 31, 32
Section 178 of the Alabama Constitution of 1901 ........10, 16, 18
Section 180 of the Alabama Constitution 

of 1901 _______________________ ________10,11,15,16,17
Section 181 of the Alabama Constitution of 1901 _______16, 17
Section 182 of the Alabama Constitution

of 1901 ______ i, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 29, 30, 32, 33

Section 191 of the Alabama Constitution of 1901 _________11
Section 194 of the Alabama Constitution of 1901 ... 10, 16, 18
Section 780 of the Alabama Constitution of 1901 ________15
Alabama’s Constitution of 1875 _____ __ _______ 10, 11, 17,27
Section 2-801 of the Georgia Constitution________ ___ 25, 26
Rule 52(a) of the Federal Rules of Civil Procedure _____ 13



No. 84-76

IN TH E

JSuprams Court ©£ W$z Pmie& jiiates
October Term, 1984

N ELL HUNTER, et al, individually, and on behalf of all 
other members of Board of Registrars in the State of Alabama,

Appellants,

vs.

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 FOR APPELLANTS

OPINIONS BELOW
The opinion of the United States Court of Appeals for the 

Eleventh Circuit upon which this appeal is based appears in 
730 F. 2d 614 (11th Cir. 1984) and is included in the Appen­
dix to the Appellants’ Jurisdictional Statement, at pp. A-l to 
A-14.

The opinions of the United States Court of Appeals for the 
Fifth Circuit involving prior appeals and dispositions in this
case appear in 604 F. 2d 367 (5th Cir. 1979) and 622 F. 2d 
1042 (5th Cir. 1980) and are included respectively in the 
Appendix to the Appellants’ Jurisdictional Statement, at pp. 
B-l to B-4 and in Joint Appendix filed herein, at pp, A-l 1 
to A-l 5.



2

The opinions from which the Appellees eventually appealed 
to the United States Court of Appeals for the Eleventh Circuit 
are included in the Appendix to the Appellants’ Jurisdictional 
Statement respectively, at pp. D-l to D-l 3 and E-l to E-7.

GROUNDS OF JURISDICTION 
OF SUPREME COURT

This appeal arises from an action seeking to have declared 
unconstitutional on various grounds section 182 of the Ala­
bama Constitution of 1901. The Appellees succeeded in re­
versing the District Court and prevailing in the United States 
Court of Appeals for the Eleventh Circuit which held that sec­
tion 182 of the Alabama Constitution of 1901 violates on ac­
count of race the Fourteenth Amendment to the United States 
Constitution with respect to those convicted of crimes not pun­
ishable by imprisonment in the penitentiary. The final judg­
ment of the United States Court of Appeals for the Eleventh 
Circuit was entered on April 10, 1984. A timely notice of ap­
peal was filed on July 2, 1984 in the United States Court of 
Appeals for the Eleventh Circuit. The jurisdiction of this 
Court is invoked under the provisions of 28 U.S.C. 1254(2) in 
that a state constitutional provision was invalidated as repug­
nant to the United States Constitution, specifically the Four­
teenth Amendment thereof.

Cases that sustain the jurisdiction of this Court include:

Detroit v. Murray Corp., 355 US 489 (1958)
Chicago v. Atchison, T. & S.F.R. Co., 357 US 77 (1958)
United Gas Pipeline Co. v. Ideal Cement Co., 369 US 134 

(1962)
Dusch v. Davis, 387 US 112 (1967)
Bradford Electric Light Co. v. Clapner, 284 US 221 (1931)

CONSTITUTIONAL PROVISIONS INVOLVED
1. Sections 1 and 2 of the Fourteenth Amendment to the 
United States Constitution:



3

SECTION I

“All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United 
States and of the state wherein they reside. No state shall make 
or enforce any law which shall abridge the privileges or immu­
nities of citizens of the United States; nor shall any state de­
prive any person of life, liberty, or property without due pro­
cess of law; nor deny to any person within its jurisdiction equal 
protection of the laws.”

SECTION 2

“Representatives shall be apportioned among the several 
states according to their respective numbers, counting the 
whole number of persons in each state, excluding Indians not 
taxed. But when the right to vote at any election for the choice 
of electors for president and vice-president of the United States, 
representatives in Congress, the executive and judicial officers 
of a state, or the members of the legislature thereof, is denied 
to any of the male inhabitants of such state, being twenty-one 
years of age, and citizens of the United States, or in any way 
abridged, except for participation in rebellion, or other crime, 
the basis of representation therein shall be reduced in the pro­
portion which the number of such male citizens shall bear to 
the whole number of male citizens twenty-one years of age in 
such state.”

2. The Tenth Amendment to the United States Constitution: 
“The powers not delegated to the United States by the Con­

stitution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people.”

3. Section 182 of the Alabama Constitution of 1901:
“The following persons shall be disqualified both from regis­

tering, and from voting, namely:
All idiots and insane persons; those who shall by reason of 

conviction of crime be disqualified from voting at the time of 
the ratification of this Constitution; those who shall be con­



4

victed of treason, murder, arson, embezzlement, malfeasance in 
office, larceny, receiving stolen property, obtaining property 
or money under false pretenses, perjury, subordination of per­
jury, robbery, assault with intent to rob, burglary, forgery, 
bribery, assault and battery on the wife, bigamy, living in 
adultery, sodomy, incest, rape, miscegenation, crime against 
nature, or any crime punishable by imprisonment in the peni­
tentiary, or of any infamous crime or crime involving moral 
turpitude; also, any person who shall be convicted as a vagrant 
or tramp, or of selling or offering to sell his vote or the vote 
of another, or of buying or offering to buy the vote of another, 
or of making or offering to make a false return in any election 
of any person to any office, or of suborning any witness or reg­
istrar to secure the registration of any person as an elector.”

STATEMENT OF THE CASE
This case was initiated when the appellees filed a complaint 

seeking to have declared unconstitutional section 182 of the 
Alabama Constitution of 1901 insofar as it applied to offenses 
carrying a penalty of one year or less, that is crimes not punish­
able by imprisonment in the penitentiary, and to enjoin its 
further application and for a preliminary injunction to have 
them, and the class they represented, restored to the voting lists 
in their respective county or to be allowed to register to vote 
in their respective county. (J.A. 1) In response, the appellants 
filed a Motion to Dismiss which raised, among other things, 
the following:

a. That the State of Alabama had an interest in disfranchis­
ing individuals who are convicted of crimes involving moral 
turpitude pursuant to section 182 of the Alabama Constitution 
of 1901, regardless of the length, kind or place of confinement, 
that not being the standard or condition which gave rise to this 
State interest.

b. That the State of Alabama had a compelling state inter­
est or in the alternative a rational basis for disfranchising those



persons convicted of crimes involving moral turpitude, regard­
less of the length of sentence.

c. That section 2 of the Fourteenth Amendment to the 
United States Constitution either expressly allowed or exempt­
ed from the operation of section 1 of that Amendment provi­
sions of state law such as section 182 of the Constitution of Ala­
bama of 1901 and conferred upon the State of Alabama the au­
thority to disfranchise moral turpitude misdemeanants. (R. 6)

In later motions and pleadings, the appellants additionally 
asserted as defenses the right under the Tenth Amendment to 
the United States Constitution to determine the conditions un­
der which the right of suffrage may be exercised and the right 
to constitutionally exclude from the franchise those persons 
convicted of crimes involving moral turpitude.

The District Court, after an evidentiary hearing, overruled 
appellees’ request for injunctive relief and granted the appel­
lants’ Motion to Dismiss (R. 24-32, 33-34 and J.S. pp. D-4 to 
D-14). On appeal, this decision was reversed on a procedural 
ground not in any way connected with the merits. Underwood 
v. Hunter, 604 F. 2d 367 (5th Cir. 1979) (J.S. pp. B-l to B-4) d

Thereafter, appellees again filed a Motion for Preliminary 
Injunction in the District Court seeking similar relief to that 
originally requested. While pending, the appellees filed a No­
tice of Interlocutory Appeal with the Fifth Circuit and a Mo­
tion for Injunction Pending Appeal, again in an effort to gain 
the opportunity to vote in some upcoming elections. The Mo­
tion for Preliminary Injunction was denied by the District 
Court, the Motion for Injunction Pending Appeal was denied 
by the Fifth Circuit (R. 49-51 and 58-59) and the appeal was 
decided adversely to the Appellees as the Fifth Circuit opined 
that the District Court properly denied the latest attempt for 
injunctive relief because Appellees failed to demonstrate that 
any irreparable harm would result if the injunction was not

5

References to the Jurisdictional Statement filed on behalf of the Ap­
pellants in this cause will be cited in the manner above.



6

granted. Underwood v. Hunter, 622 F. 2d 1042 (5th Cir. 
1980) . (J.A. pp. A-ll-15) 2

Language espoused in dealing with the issues involved is 
found in the second opinion in Hunter, supra, and is as follows:

“Plaintiffs (appellees herein) failed to meet the second ele­
ment, a showing of irreparable harm. Although each had been 
disfranchised for conviction of a crime involving moral turpi­
tude, an individual in Alabama can have his right to vote re­
stored if pardoned. ALA. CODE Section 12-15-15, see Section 
17-3-5. Victor Underwood was purged from the voting list of 
Jefferson County on April 30, 1977 for conviction of issuing a 
worthless check and two and one-half to three years prior to 
the July 19, 1978 hearing on the initial preliminary injunction. 
Although officials of the Jefferson County Board of Registrars 
informed Underwood of the procedure for having his voting 
rights restored, he has made no effort to comply, nor has he 
alleged any difficulty in complying with this procedure. Car­
men Edwards was purged from the voting list of Montgomery 
County pursuant to her conviction for the crime of issuing a 
worthless check in May 1978. Although she attempted to re­
ceive a pardon, for purposes of restoration of her voting rights, 
from the Mayor of Montgomery, she was told that she must 
wait at least a year. She has not sought a pardon since the wait­
ing period has elapsed.

Neither plaintiff, then, has presented any evidence which in­
dicates that a proper application for a pardon would not have 
been granted. Under these circumstances, we cannot find that 
granting a Motion for Preliminary Injunction is either neces­
sary or appropriate. . . . ”

Subsequently, appellants Motion for Summary Judgment on 
Appellees’ first three causes of action was granted. (R. 65-66 
and J.S. pp. D-l - D-3). After a hearing on the remaining cause 
of action, specifically the appellees’ fourth cause of action 
which alleged that section 182 of the Alabama Constitution of 
1901 was enacted with intent to deprive blacks the right to

2This opinion contains an excellent recital of the procedural history of 
this case through that appeal.



7

vote, the District Court denied appellees any relief and found 
in favor of the appellants. (R. 174 and J.S. pp. E-l - E-7) . 
However, this decision was reversed as reflected in the decision 
of Underwood v. Hunter, 730 F. 2d 614 (11th Cir. 1984) (J.S. 
pp. A-l to A-14).

Appellees first three causes of action can be summarized as 
follows: That the misdemeanors listed in section 182 as dis­
franchising offenses unconstitutionally infringe upon the fran­
chise because they deny the franchise without a compelling 
state interest, that the misdemeanors listed in section 182 as 
disfranchising offenses denied appellees equal protection of the 
laws because more serious offenses are not disabling and that 
disfranchisement for conviction of a “crime involving moral 
turpitude” is based on a definition that is vague and indefinite 
and denies plaintiffs the right to register and to vote. As stated, 
the appellants’ Motion for Summary Judgment as to these 
three causes of action was granted and although made a basis 
of the appellees’ appeal to the Eleventh Circuit, these causes 
of action were not discussed by the Court below as it reached 
its decision on the basis of the appellees fourth cause of action. 
The fourth cause of action alleged that the list contained in 
section 182 was specifically adopted because of its supposed 
disproportionate impact on blacks with the intent to disfran­
chise blacks, thereby abridging the right to vote on the basis 
of race.

Two hearings were conducted in this case. The first was 
held in July of 1978 and the testimony adduced at that hearing 
related mainly to the first three causes of action. The evidence 
at that hearing revealed the following:

Various lists prepared either by the local District Attorney 
or the State Attorney General were used by the appellants in 
determining whether a certain crime had been found to involve 
moral turpitude as well as lists prepared by these offices out­
lining which crimes disqualified one from voting pursuant to 
section 182 of the Alabama Constitution of 1901. (R. - 1978 - 
27, 28, 33, 34 and 36) .3 Testimony revealed specifically that



8

the appellants had the use of an Attorney General of Alabama’s 
opinion which specifically opined that the crime of issuing 
worthless checks was one involving moral turpitude and there­
fore disqualifying under section 182 of the Alabama Constitu­
tion of 1901, that crime being the one for which the named 
appellees were convicted. (R. - 1978 - 34, 37-38, 57-58). Fur­
ther testimony revealed that if a crime was not in any of these 
lists, the local District Attorney’s office or the Attorney Gen­
eral’s office would be consulted to determine whether the 
crime was disqualifying. (R. - 1978 - 29, 36, 58-59, 62-63) .

In this connection, we would point out that Exhibits intro­
duced at the 1981 hearing established beyond doubt that the 
Appellants administered section 182 in an impartial man­
ner and without regard to race. Significantly, the Eleventh 
Circuit in its opinion below recognized the Appellants’ good 
faith in administering this section without reference to race. 
(J.S. p. A-13).

Appellee Underwood, who is white, was purged from the 
voting list in Jefferson County, Alabama because of his con­
viction of the crime of issuing a worthless check. He had been 
convicted of this crime some two and one-half to three years 
prior to July of 1978 and had been purged from the voting 
list in May of 1977. (R. - 1978 - 28, 49) . To this date, he has 
not sought his statutory right and remedy of a pardon which 
would restore to him the right to vote, although he was aware 
of the same since May of 1977. (R. - 1978 - 51 and J.A. p. 
A-14).

Concerning the named appellee Carmen Edwards, she had 
been convicted in the Montgomery City Court of the crime of 
issuing a worthless check in May of 1978. (R. - 1978 - 39) . Her 3

3Because one hearing made the subject of this appeal occurred in July 
of 1978, that is the hearing on the Appellees’ initial request for a prelimi­
nary injunction, and the other occurred in July of 1981, that is on the 
merits of the Appellees’ fourth cause of action, record references to the 
1978 hearing will be preceded by designation of the year 1978 and refer­
ences to the record of the 1981 hearing will be preceded by the designa­
tion of the year 1981.



9

testimony revealed that she was notified that she would have to 
wait one year before she could apply to obtain a pardon and 
therefore the right to vote. (R. - 1978 - 41-43) . As in the case 
of Underwood, she has refused to utilize this simple procedure. 
(J.A. P. A-14).

The second hearing in this case involved the previously ex­
plained fourth cause of action. The crux of this hearing in­
volved testimony by expert witnesses from both sides, the ap­
pellants’ expert being J. Mills Thornton, III, a professor of 
Southern History at the University of Michigan. (J.A. p. 
A-16) . It was the contention of the State of Alabama at this 
hearing, as buttressed and amplified by the testimony of 
Thornton, that section 182 of the Alabama Constitution of 
1901 was passed for political reasons, that it was passed with 
the intent to disfranchise whites as well as blacks, a brief sum­
mary of this testimony being as follows.

According to Dr. Thornton, the purpose of the Alabama 
Constitutional Convention of 1901 in adopting section 182, 
was political, i.e., to repel the populist revolt and to make it 
impossible for the Democratic party in Alabama to be again 
challenged. (J.A. p. A-17) . In Thornton’s opinion, the passage 
of section 182 was part and parcel and in furtherance of this 
avowed political purpose of the convention. (J.A. p. A-17) . 
Since the populists were made up of predominantly poor 
whites, and the Democratic party predominantly of rich and 
conservative whites, the blacks became the block of votes that 
would decide which party’s candidates got elected. (J.A. p. 
A-19). Therefore, according to Thornton, the following was 
abundantly clear:

That the disfranchisement of poor whites zvas an equally im­
portant intention and motive of the delegates to the Constitu­
tional Convention of 1901 and the drafters of the Constitu­
tional provisions resulting from the convention as was the 
disfranchisement of blacks.4 Section 182 of the Constitution of

4In the decision of the Court below, it is held that the appellants did 
not advance the denial of the franchise to poor whites as a permissible 
purpose under the second prong of the test announced in Village of



10

Alabama of 1901 was part of the plan, purpose and intention 
of the delegates to the convention, according to Thornton, to 
prevent and disfranchise poor whites as well as blacks, for po­
litical reasons. (Emphasis supplied) (J.A. p. A-19) .

In support for this opinion, Thornton cited various pieces 
of documentary evidence, articles or written materials pub­
lished shortly after the Convention, the inner play and appli­
cability of other sections passed by the Constitutional Conven­
tion which demonstrated that section 182 applied with equal 
force and effect and with the purpose to disfranchise poor 
whites as well as blacks, e.g. section 178, 180 and 194 of the 
Constitution of Alabama of 1901, sections 178 and 194 being 
poll tax provisions, which had the effect of disfranchising more 
whites than blacks, and finally the fact that section 182 was 
hardly debated or mentioned at all at the convention, a fact 
recognized and agreed to by the Court below. (J.A. pp. A-19 - 
A-25) . The scant reference to section 182 at the Convention, 
according to Thornton, was because Alabama’s prior constitu­
tion, that being the Constitution of 1875, already had a provi­
sion that provided for the disfranchisement of any one con­
victed of a crime which resulted in imprisonment in the 
penitentiary. (J.A. p. A-23) . Section 182 of the Alabama Con­
stitution of 1901 repeated this phrase and then added a long 
list of crimes. However, each crime listed carried a punish­
ment upon conviction of imprisonment in the penitentiary. 
Therefore, this listing was unnecessary because these crimes 
were all included in the general phrase of disfranchisement for 
conviction of crimes resulting in imprisonment in the peniten­
tiary. (J.A. p. A-23) . However, according to Thornton, they 
were added because the white public associated these crimes 
with blacks and the behavior of blacks to commit such crimes. 
This, according to Thornton, was an obvious factor that sec-

Arlington Heights v. Metropolitan Developing Corp., 429 US 252 (1977). 
However, it is more than obvious from the above testimony of Thornton 
that the appellants did introduce evidence in support of their theory that 
the denial of the vote to poor whites was a permissible motive for the en­
actment of section 182.



11

tion 182 was not passed for the sole purpose of disfranchising 
blacks because, as explained, the Constitution of 1875, al­
though phrased differently, already provided for disfranchise­
ment for the conviction of the same type crimes. (J.A. p. A-23) .

Finally, Dr. Thornton testified and emphasized that in read­
ing the proceedings of the Constitutional Convention of 1901 
a person should not be misled. The theme of the speeches and 
debates is to disfranchise blacks and not to disfranchise any 
whites. However, Thornton cautions that this is misleading 
and false and was intended only as a public relations ploy in 
order to convince the white electorate that they should vote 
for the articles adopted by the Convention because, in reality, 
after the expiration of the temporary plan, contained in sec­
tion 180, which would only last 13 months, the entire suffrage 
article had the intention to disenfranchise poor whites equally 
as well as blacks. (J.A. p. A-27).

The importance of Thornton’s testimony on this appeal is 
two-fold. First of all, it demonstrates that section 182 was not 
passed with the intention to disfranchise blacks or concomi­
tantly, even if one were to conclude that it was, that there was 
another and permissible motive, the disfranchisement of poor 
whites as well.

Before closing it is imperative to note the following. All the 
crimes listed in section 182 which are not punishable by im­
prisonment in the penitentiary, and which are still viable, in­
volve moral turpitude. (J.S. p. D-8) . Therefore, one can only 
be disfranchised in Alabama if he is convicted of a felony or a 
non-felony involving moral turpitude, a non-felony being a 
crime not punishable by imprisonment in the penitentiary. 
The issue then becomes whether the state can disfranchise per­
sons convicted of moral turpitude crimes, those being the still 
viable crimes added by the drafters of section 182.

SUMMARY OF ARGUMENT
Section 182 of the Constitution of Alabama of 1901 was not 

adopted with the intent, and has not had the effect of, disfran­



12

chising proportionally more blacks than whites. While there 
was little or no debate at the Constitutional Convention of 
1901 concerning this section and little or no evidence concern­
ing its passage, it is clear that its purpose was political, that it 
was passed with the intention to repel the populist revolt oc­
curring at the time and to end any future threat to the Demo­
cratic Party. This political purpose was achieved by enacting- 
provisions, including section 182, which had the equal and 
concomitant intention of disfranchising poor whites as well as 
blacks, while some provisions, specifically the poll tax provi­
sions, having the effect of disfranchising many more whites 
than blacks. Consequently, the alleged racial intention in pass­
ing the provision in question was at least equal to the intention 
of disfranchising poor whites as well and therefore, the Appel­
lees failed to meet their required burden of proof. Unfortu­
nately, the Court below completely ignored and failed to even 
consider or discuss any testimony from the Appellants’ expert 
which supported this logical and historically accurate position.

In any event, the Appellants demonstrated the existence of 
a permissible reason or motive for the passage of section 182, 
that is this section would have been passed anyway either be­
cause its purpose was to disfranchise poor whites as well as 
blacks, because the State has a right to disfranchise those who 
commit crimes involving moral turpitude or because the State 
has the right to enact such provision pursuant to the Tenth 
Amendment or the Fourteenth Amendment to the United 
States Constitution. Simply stated, this provision would have 
been passed and the same result achieved regardless of any alle­
gations concerning illicit motive or protected conduct.

The Appellants submit that the State of Alabama has every 
right to exclude from voting those who have been convicted of 
crimes involving moral turpitude, without regard to the length 
or term of punishment, because of the “affirmative sanction” 
provision found in section 2 of the Fourteenth Amendment to 
the Constitution of the United States, as applied and explained 
in Richardson v. Ramirez, 418 US 24 (1974), because they 
have an interest in purifying the ballot box, to prevent against



13

violation of election laws and to exclude those from the fran­
chise who have a greater tendency to violate the State’s crimi­
nal laws, particularly where crimes involving moral turpitude 
are concerned, Kronlund v. Honstein, 327 F. Supp. 71 (N.D. 
Ga. 1971) and Washington v. State, 75 Ala. 582, 585 (1884) 
or because of the power expressly reserved to the States to set 
terms and conditions for the qualification of voters at its elec­
tions, including the condition of previous criminal record, as 
recognized in such cases as Pope v. Williams, 93 US 622 (1904) 
and Lassiter v. Northhampton Board of Elections, 360 US 45 
(1959).

It is clear that a state has a right to disfranchise those who 
commit crimes involving moral turpitude. It is incongruous 
and lacking in logic to state on one hand that the State has 
this right but to ignore this right when one alleges that the 
vehicle for such disfranchisement was passed based upon an 
alleged impermissible motive. To carry the rationale and hold­
ing of the Court below to its fullest extreme, a provision of 
law would have to be stricken down which deprived the right 
to vote to murderers, those persons convicted of election of­
fenses or those who violated the public trust, if it could be 
shown that a motive in passing such a regulation was an imper­
missible one. This cannot and must not be the law.

ARGUMENT

I. Rule 52 (a) of the Federal Rules of Civil Procedure.
A mistake has been committed. The mistake, however, was 

not committed by the District Court but by the Court below 
when it concluded that the District Court’s finding of lack of 
discriminatory intent in the adoption of section 182 was clearly 
erroneous. (J.A. p. A-6) .

There is little room for argument that the dearly erroneous 
doctrine embodied in Rule 52 (a) means that the lower court’s 
finding of fact shall stand unless the reviewing court is left 
with a definite and firm impression that a mistake has been 
made. American National Bank v. Federal Deposit Insurance



14

Corp., 710 F. 2d 1528, 1533-34 (11th Cir. 1983) . Furthermore, 
it is clear that this standard of review applies to findings of 
both subsidiary and ultimate fact, the ultimate factual ques­
tion in this case being whether or not section 182 was passed 
with a discriminatory intent. Pullman-Standard v. Swint, 456 
US 273 (1982). It is also quite clear that the only way the 
Court below could conclude that the District Court erred in 
finding that section 182 was not passed with discriminatory in­
tent was to completely and totally ignore the testimony of the 
appellants’ expert, Dr. Thornton. As a matter of fact, a review 
of the opinion below reveals that reference was made only to 
the testimony of the appellees’ expert without any considera­
tion to the testimony of Dr. Thornton or to the secondary 
pieces of evidence offered and explained by him. A considera­
tion of his testimony and its support leaves firm the conclusion 
that the District Court was correct in its finding that section 
182 was not passed with a discriminatory intent.

Because the opinion below is highlighted by its failure to 
consider or even cite the well reasoned testimony of Dr. Thorn­
ton and because his testimony is important not only to the 
present issue but those to follow, it is set forth now in some 
detail.

As previously eluded to, Dr. Thornton explained that the 
purpose of the Alabama Constitutional Convention 1901 and 
adopting section 182, was political, that is to repel the populist 
revolt and to make it impossible for the Democratic party in 
Alabama to again be challenged. According to Thornton, the 
passage of this section was part and parcel and in furtherance 
of this avowed political purpose of the Convention. Since the 
populists were made up of predominantly poor whites and the 
Democratic party predominantly rich and conservative whites, 
the blacks became the block of votes that would decide which 
party’s candidates got elected. (J.A. p. A-19) . As a result, it 
was abundantly clear that the disfranchisement of poor whites 
was an equally important intention and motive of the delegates 
of the Constitutional Convention of 1901 and the drafters of 
the Constitutional provisions resulting from the Convention as



15

well as the disfranchisement of blacks. Section 182 was part of 
this intention and of the plan and purpose of the delegates to 
prevent and disfranchise poor whites as well as blacks. (J.A. 
p. A-19) .

In support of this opinion, Thornton cited among other 
things, the following, all of which failed to appear in any form 
or fashion or be discussed in any manner by the Court below:

1. According to Thornton, John K. Knox, the President of 
the Convention, wrote a magazine article in 1905, which, in 
essence, stated that the purpose of the Convention was to elimi­
nate from the electorate all of the ignorant and the vicious re­
ferring equally to both blacks and whites, that being the reason 
why the temporary plan, or as referred to in the District 
Court’s opinion as the fighting grandfather clause, was limited 
to only 13 months. (J.A. p. A-20, J.S. p. E-4).

2. According to Dr. Thornton, there were three separate 
votes at the Convention which defeated proposals to extend 
the temporary plan, which was codified in section 180 of the 
Constitution of Alabama of 1901. Since the temporary plan 
would allow more whites to register to vote, the defeat of these 
proposals extending the plan is evidence that the delegates to 
the Convention were equally concerned about disfranchising 
whites as they were blacks, therefore eliminating the populists, 
this obviously being done for political reasons. (J.A. p. A-21) .

It is important to note that the District Court perceived the 
significance of this testimony. This is manifested by the fol­
lowing reference in its opinion:

“ . . . In committee, a provision known as the fighting grand­
father clause’ was developed. . . . Alabama’s version, in sec­
tion 780 (sic.) of the Constitution, allowed the franchise to 
those descended from veterans of the Revolutionary War, the 
War of 1812, the war with Mexico, the Civil War for the Con­
federacy and the Spanish-American War. The bulk of the de­
date was on this clause. That portion of the debate concerning 
the section disfranchising (sic.) for crimes only treated the in­
clusion of violations of the vagrancy statute.



16

# *  *
. . . However, one point is clearly made. The State has a 

valid interest in denying the franchise to those convicted of 
violating its laws . . . The legislative history especially keyed 
the suffrage provisions to this interest. The expressions of con­
cern around constitutionality by those at the convention who 
doubted the constitutionality of the suffrage provisions lay 
elsewhere — on the fighting grandfather clause. There is sim­
ply nothing in the legislative history to lead one to decide that 
the provisions disenfranchising those convicted of crimes are 
based upon the racism present at the Constitutional Conven­
tion.” (Citations omitted). (J.S. p. E-4 - E-5) .

3. The fact that section 182 was hardly discussed at the Con­
vention. (J.A. p. A-22). Undoubtedly then, the main concern 
of the Convention as related to suffrage provisions was the 
fighting grandfather clause found in section 180 of the Consti­
tution, a provision to which section 182 applied.

4. An article written by Frances Caffey in 1905, Caffey be­
ing a lawyer practicing in Montgomery at the time of the Con­
vention, wherein he stated that it was generally wished by 
leaders in Alabama to disfranchise many unworthy white men 
and to rid the State of the corrupt and ignorant among its 
electorate, white as well as blacks, again to stem the populist 
tide. (J.A. pp. A-21-22).

5. The property qualifications, section 181 of the Constitu­
tion of Alabama of 1901, the poll tax provisions, sections 178 
and 194 of the Constitution of Alabama of 1901 and the crimes 
provision, section 182 of the Constitution of Alabama of 1901, 
applied to all persons who were eligible for registration under 
the temporary plan, that being section 180 of the Constitution. 
According to Thornton, this is an important factor that the in­
tention Convention was to disfranchise poor whites equally as 
well as blacks. (R. 1981 - 64-66) .

This opinion of Thornton is supported not only historically 
but logically. Appellees argue that section 181 was enacted to 
accomplish disfranchisement of blacks because it added re­



17

quirements of literacy and ownership of property, two require­
ments which were not included in section 180. But it is the 
apparent disparity of these two provisions which demonstrates 
that section 182, itself, was not passed with a discriminatory 
intent. This is so because both section 180 and 181 of the Ala­
bama Constitution of 1901 set out the individuals who desire 
to register must not be disqualified under section 182. Conse­
quently, if section 182 was passed solely to disfranchise blacks, 
then it would certainly seem that those registering under sec­
tion 180 would not be subjected to the disqualifications under 
section 182 the same as those individuals registering under sec­
tion 181, a provision appellees certainly claim was enacted only 
to disfranchise blacks.

6. The fact that the permanent registration plan, section 181 
of the Alabama Constitution of 1901, and as discussed by Dr. 
Thornton at J.A. pp. A-17-18, would go into effect 13 months 
after the Constitutional Convention of 1901 and would apply 
equally to whites and blacks and have the effect of disfranchis­
ing from the electorate vicious whites as well as blacks. (R. - 
1981 - 67-68).

7. As noted, section 182 was hardly discussed at the Conven­
tion. Thornton opines the reason for this is because the Ala­
bama Constitution of 1875 already had a provision which pro­
vided for the disfranchisement of anyone convicted of a crime 
which resulted in imprisonment in the penitentiary. Section 
182 repeated this phrase and then added a long list of crimes. 
However, each crime listed, with rare exception, carried a pun­
ishment upon conviction of imprisonment in the penitentiary. 
Therefore, this listing was unnecessary because these crimes 
were all included in the general phrase of disfranchisement 
for conviction of crimes resulting in imprisonment in the peni­
tentiary. Consequently, this is an obvious factor in concluding 
that 182 was not passed for the sole purpose of disfranchising 
blacks. This fact, according to Thornton, is in line with the 
unassailable premise that the intention of the drafters was to 
disfranchise whites equally with blacks and that these type



18

measures were needed in order to mislead the whites into 
favoring these provisions.

8. Appellants’ Exhibit 14, ignored by the Court below, 
which contains many quotations from the book McMillan, 
Constitutional Development in Alabama, 1798-1901: A Study 
in Politics, The Negro and Sexualism, demonstrating the bal­
ancing interest at the Convention of disfranchising whites as 
well as blacks for political reasons. This exhibit was intro­
duced through Thornton and as an aid to his opinion.

9. The fact that the poll tax provisions, sections 178 and 194 
of the Alabama Constitution of 1901 had the effect of disfran­
chising more whites than blacks and therefore was definitely 
part of the intention of the drafters to disfranchise poor whites 
as well as blacks. (J.A. pp. A-23-24) .

10. Finally, it is paramount to point out one observation 
made by Dr. Thornton. He tells us not to be misled by read­
ing or analyzing the proceedings of the Convention. He stresses 
that it “appears” that the themes of the speeches and debates 
at the Convention is to disfranchise blacks and not to disfran­
chise any whites. However, Dr. Thornton unequivocally rea­
sons that this is misleading and false and these debates were 
intended only as a public relations ploy in order to convince 
the white electorate that they should vote for the articles adopt­
ed by the Convention because, in reality, after the expiration 
of the time limit set out in the temporary plan, that being sec­
tion 180, which was only 13 months, the suffrage article had 
the intention to disfranchise poor whites equally, if not more, 
as blacks. (J.A. p. A-27) .

The District Court correctly found that Section 182 was not 
passed with discriminatory intent. It also correctly found 
that the drafters at the Convention were concerned that 
whites, on sectional and class grounds, would vote, (J.S. E-4) . 
The trial court was not erroneous in these conclusions but 
rather the Court below was mistaken and erroneous in ignor­
ing and disregarding the testimony of Dr. Thornton and its 
evidentiary support and in reversing the District Court.



19

II. The Appellees’ Burden and Permissible Motive.
The Eleventh Circuit pronounced that to establish a viola­

tion of the Fourteenth Amendment in the face of mixed mo­
tives, the Appellees must prove by a preponderance of the 
evidence that racial discrimination was a substantial and moti­
vating factor in the adoption of section 182. The Appellees 
shall then prevail unless the Appellants prove by a preponder­
ance of the evidence that the same decision would have resulted 
had the impermissible purpose not been considered. (J.S. p. 
A-5).

The Appellants assert that there was a failure to prove by a 
preponderance of the evidence that racial discrimination was 
a substantial and motivating factor in the adoption of section 
182. To be sure, there was present at the Convention a motive 
equal to any suggested by the Appellees, that is the motive to 
disfranchise whites equally with blacks for the purpose of 
stemming the populist tide. In support of this proposition, 
Appellants would most earnestly submit the testimony of Dr. 
Thornton listed above and the evidentiary support for the 
same as well as the entire amount and kind of evidence intro­
duced below by the Appellants, including affidavit testimony, 
the efficacy of the same being conceded by the Eleventh Cir­
cuit, that the section in question was administered without 
reference to race. (J.S. p. A-13 and R. p. 48) .

In this connection, we cannot agree with the Eleventh 
Circuit’s arbitrary strike of the pen in holding that Village 
of Arlington Heights v. Metropolitan Development Corp., 
429 US 252 (1977) supersedes language in Palmer v. Thomp­
son, 403 US 217 (1977) to the effect that a permissible 
purpose will always defeat an impermissible motive. (J.S. p. 
A-7) . This was the clear holding of Palmer, supra, in that the 
closing of city swimming pools was not found to be unlawful 
despite proof that the closing was motivated by a desire to 
avoid integration in light of proof that there was a permissible 
motive for the same, i.e. economics. Palmer v. Thompson, 403 
US 217 p. 224. Despite assertions to the contrary by the Court



20

below,, this Court did not disturb that rationale in the case of 
Michael M. v. Superior Court of Sonoma County, 450 US 464 
(1981) . In Michael M., supra, this Court stated the following- 
in support of the rationale cited above in Palmer, supra,

. . In Orr v. Orr, . . ., for example, the Court rejected one 
asserted purpose as impermissible, but then considered other 
purposes to determine if they could justify the statute. Simi­
larly, in Washington v. Davis . . . the Court distinguished 
Palmer v. Thompson . . ., on the grounds that the purposes of 
the ordinance there were not open to impeachment by evidence 
that the legislature was actually motivated by an impermissible 
purpose. . . .” (Citations omitted.)
Michael M., supra, 450 US 464 at p. 472 n.7.

As a matter of fact, in distinguishing Palmer, supra, this 
Court in Davis stated as follows:

“ • • • that the holding of the case was that the legitimate pur­
poses of the ordinances — to preserve peace and avoid deficits — 
were not open to impeachment by evidence that the council- 
men were rationally motivated by racial considerations. . . .” 
(Emphasis supplied) .
Washington v. Davis, 426 US 229, 233 (1976) .

Because the evidence is clear that there existed permissible 
motives for passing 182 or at least ones on an equal footing 
with any impermissible motive, the Appellees failed to meet 
their burden of proof. Hence, the Court below erred in hold­
ing to the contrary.

Even a finding that the Appellees met their initial burden 
of proof does not warrant reversal in this case. This is so be­
cause there was an obvious and very telling showing made by 
the Appellants that there were permissible motives which 
would have led to the passage of 182 without regard to any im­
permissible motives.

As support for the first permissible motive, that is the denial 
of the franchise to poor whites, we once again turn to the com­
pelling testimony and evidentiary support offered by Dr. 
Thornton. Suffice it to say, his testimony reveals the existence



21

of a motive, at least equal if not superior to any other motive, 
to disfranchise poor whites for the purpose of stemming the 
populist tide then threatening to remove the Democratic Party 
from power. The Eleventh Circuit would have one believe 
that this motive was not advanced as a permissible purpose by 
the Appellants. (J.S. p. A-ll, n., 12) . However, as this Court 
can see, there was substantial evidence of this purpose. It is 
significant to note that the Eleventh Circuit apparently recog­
nizes this motive and does not expressly or implicitly, for that 
matter, deny its existence or state that it is not a permissible 
purpose. The course chosen by the Court below was simply to 
ignore its existence.

Yet a separate but perhaps the single most important per­
missible motive involves the question of whether the state can 
constitutionally disfranchise those convicted of crimes involv­
ing moral turpitude even if the crime for which the individual 
was convicted carries a maximum sentence of less than 12 
months incarceration. In examining this motive, the length of 
imprisonment is not compelling; rather, the important con­
cern is whether the crime involves baseness, vileness or moral 
turpitude.

Section 182 allows disenfranchisement under the following 
circumstances:

1. Conviction of any of the specifically enumerated crimes 
in that section;

2. Conviction of any crime punishable by imprisonment in 
the penitentiary;

3. Conviction of any infamous crime; or
4. Conviction of any crime involving moral turpitude.
Since the Appellees concede and do not challenge the above

portions of section 182 that allow disfranchisement for convic­
tion of a crime punishable by imprisonment in the penitentiary 
or for conviction of infamous crimes, it is extremely important 
to note then that all the enumerated crimes in section 182, 
with the exception of (1) assault and battery on the wife which 
is no longer viable because of the case of Hobson v. Pow, 434 
F. Supp. 362 (N.D. Ala. 1977), (2) living in adultery, which



22

is a felony only after three convictions and (3) miscegenation 
which no longer is punishable or viable, are felonies. However, 
Appellees still argue that the enumerated crime provision is 
invalid because some of the enumerated crimes have in­
cluded within them misdemeanors, e.g., if one embezzles or 
steals under a certain amount of money or value, the convic­
tion can only be a misdemeanor. However, all the crimes that 
are numerated in section 182 involve moral turpitude, and if 
the state can constitutionally disfranchise those who commit 
crimes involving moral turpitude, they can constitutionally 
disfranchise those convicted of the named crimes, regardless of 
whether the conviction is for a misdemeanor commission of the 
same. Significantly enough, the District Court in one of its 
opinions below found that all the non-felony crimes enumer­
ated in section 182 which are now viable are crimes involving 
moral turpitude, a finding which is not contested or argued. 
(J.S. p. D-8).

To support the existence of this permissible motive we could 
begin by examining this Court’s decision in Richardson v. 
Ramirez, 418 US 24 (1974) . In airalyzing that case, the follow­
ing language from one of the opinions of the District Court 
states succinctly the Appellants’ position:

. . . “The Court found ‘affirmative sanction’ in the second 
section of the Fourteenth Amendment. That section forbids 
the denial of the right to vote ‘except for participation in re­
bellion, or other crime’ . . . Although some of the discussion 
of the legislative history of the second section of the Four­
teenth Amendment speaks specifically of felonies known at 
common law, the actual language of the section speaks only of 
‘any crime’, and the Court is of the opinion that Ramirez may 
be properly applied to cases involving crimes other than fel­
onies . . . .” (J.S. p. D-10).

A close study of the Ramirez opinion also demonstrates that 
the legislative intention was not to limit section 2 to felonies 
only but rather to have it applied to “other crimes” . This sen­
timent is expressly seen in the following language from 
Ramirez:



23

“ . . . the legislative history bearing on the meaning of the 
relevant language of section 2 is scant indeed; the framers of 
the Amendment were primarily concerned with the effect of 
reduced representation on the states, rather than with the two 
forms of disenfranchisement which were exempted from that 
consequence by the language with which we are concerned 
here. Nonetheless, what legislative history there is indicates 
that this language was intended by Congress to mean what it 
says.” (Emphasis supplied)
Richardson v. Ramirez, 418 US 24, 43 (1974) . Moreover, as 
this Court noted, the House of Representatives, where most of 
the debate took place on section 2, clearly intended this section 
not to be limited to felonies only but also to other crimes. 
Richardson v. Ramirez, 418 US 24, 45 (1974).

More importantly, Ramirez, supra, is authority for the 
proposition that a state may disfranchise some individuals that 
have committed crimes carrying a maximum punishment of 
less than 12 months incarceration and not others. As stated by 
Mr. Justice Renquist,

. . Although the Court has never given plenary considera­
tion to the precise question of whether a state may constitution­
ally exclude some or all convicted felons from the franchise, 
we have indicated approval of such exclusions on a number of 
occasions. In two cases decided toward the end of last century 
the Court approved exclusions of bigamists and polygamists 
from the franchise under territorial laws of Utah and Idaho . . , 
Much more recently we have strongly suggested in dicta that 
exclusion of convicted felons from the franchise violates no 
constitutional provision. In Lassiter v. Northhampton County
Board of Elections,........ . where we upheld North Carolina’s
imposition of a literacy requirement for voting, the Court said 
‘residence requirements, age, previous criminal record . . . are 
obvious examples indicating factors which a state may take into 
consideration in determining the qualification of voters.’ ” 
(Citations omitted)
Richardson v. Ramirez, 418 US 24, 53 (1974).



24

Appellants would be remiss if they did not point out even 
what is obvious. Lassiter, supra, and the language from that 
case quoted above, makes no limitation in citing previous 
criminal record as a factor a state may take into consideration 
in determining the qualifications of voters. Certainly this case 
gives more than ample support for the position that a previous 
criminal record which includes the conviction of a crime in­
volving moral turpitude is a permissible motive in disfranchis­
ing a voter.

This analysis poses an obvious conflict for this Court to de­
cide. The Court below concluded that section 182 violated 
section 1 of the Fourteenth Amendment to the United States 
Constitution. However, it is now submitted that the State of 
Alabama has the right, pursuant to section 2 of the Fourteenth 
Amendment, to disfranchise those convicted of moral turpitude 
misdemeanors. If this is so, then the Court below erred in its 
holding. While not admitting that the framers of section 182 
had the intention to discriminate against blacks, even if this 
was the case, the State of Alabama, pursuant to section 2 of the 
Fourteenth Amendment, would have the authority to still dis­
franchise moral turpitude misdemeanants. This Court’s reli­
ance on Lassiter, supra, and especially the language from that 
case recognizing the ability of the State to consider a previous 
criminal record in deciding the qualifications of voters, in 
reaching a decision in Ramirez, supra, suggests that the State 
of Alabama cannot be condemned for what happened in this 
case.

The significance of this rationale did not escape the Fifth Cir­
cuit in Shepard v. Trevino, bib F. 2d 1110 (5th Cir. 1978), 
where the Court was presented with an equal protection argu­
ment concerning the re-enfranchisement of convicted felons. 
There, the State of Texas provided a mechanism for the re­
enfranchisement of those convicted of state felonies but not 
those of federal felonies. On this ground, federal felons 
brought an action contending violation of the equal protection 
clause of the Fourteenth Amendment. The Fifth Circuit re­
jected these equal protection claims and held that the Texas



25

system of allowing subsequent re-enfranchisement of convicted 
state felons but not convicted federal felons was valid. Accord­
ingly, this rationale which would sanction different treatment 
among the same class of individuals, i.e. felons, must be author­
ity for sanctioning the difference in treatment among the same 
class of individuals in this case, that is misdemeanants. And, in 
examining previous criminal record and those whom shall be 
disfranchised, the state may attach more significance to crimes 
involving moral deprivity or baseness. See Oregon v. Mitchell, 
400 US 117 (1970) .

Although the disfranchisement herein question is sanctioned 
by section 2 of the Fourteenth Amendment, it is the additional 
contention of the Appellants that the State of Alabama has a 
compelling interest in disfranchising those who commit crimes 
involving moral turpitude, regardless of the length of punish­
ment for the commission of such a crime. Consequently, the 
reason for the passage of section 182 would make no difference, 
the State not admitting in advancing any such argument that 
section 182 was passed with any discriminatory intent. In this 
regard, we would direct this Court to Kronlund v. Honstein, 
327 F. Supp. 71 (N.D. Ga. 1971). In that case the plaintiff 
attacked a section of the Georgia Constitution on the ground 
that it unconstitutionally deprived her of rights guaranteed by 
the equal protection clause of the Fourteenth Amendment and 
by the First and Eighth Amendment to the Constitution. The 
provision in issue there, section 2 - 801 of the Georgia Consti­
tution, disqualified those from voting who had been convicted 
of certain listed crimes or of any crime involving moral turpi­
tude punishable by imprisonment in the penitentiary. Plaintiff 
had been convicted of smuggling heroin into the United States, 
a crime determined by the District Court to involve moral 
turpitude.

The Kronlund Court rejected plaintiff’s contention that the 
provision was unconstitutional on its face and as applied to 
her. The Court recognized that a State may constitutionally 
disfranchise otherwise qualified voters because they have been 
convicted of a felony. However, the Kronlund Court went fur­



26

ther and found that disfranchising only those convicted of 
moral turpitude crimes and not those convicted of non-moral 
turpitude crimes served a compelling state interest. In so hold­
ing that Georgia had a compelling state interest in disfranchis­
ing those convicted of crimes involving moral turpitude, the 
Court noted as follows:

“A State has an interest in preserving the integrity of her 
electoral process by removing from the process those persons 
with proven anti-social behavior, whose behavior can be said 
to be destructive of society’s aims. For this reason, a State may 
prohibit idiots and insane persons as well as those convicted of 
certain offenses from participating in her elections. A State 
may also legitimately be concerned that persons convicted of 
certain crimes may have a greater tendency to commit election 
offenses. Therefore, Georgia has a compelling State interest 
sufficient to justify the voting restrictions set forth in section 
2-801 of the Georgia Constitution. Since the State does have 
this legitimate interest to protect, this provision does not un­
justifiably abridge the plaintiff’s First Amendment rights.” 
Kronlund v. Honstein, supra, 327 F. Supp. 71, p. 73.

Not enough importance can be attached to the reasoning 
found in the case of Washington v. State, 75 Ala. 582 (1884) . 
In that case, the Alabama Supreme Court, in a racially neutral 
context, some 17 years before the Constitutional Convention 
of 1901, recognized that the State had an interest in disfran­
chising those who had been convicted of a crime involving 
moral turpitude. As stated by the Court

“ . . . The presumption is that one rendered infamous by 
conviction of a felony or other base offense indicative of great 
moral turpitude is unfit to exercise the privilege of suffrage, 
or to hold office upon terms of equality with free men who are 
clothed by the State with a toga of political citizenship . . . .” 
(emphasis supplied)
Washington v. State, 75 Ala. 582, 585 (1884) .

In concluding that the Appellants failed to meet their bur­
den of proof that section 182 would still have been adopted 
had a permissible state reason been the sole consideration, the



27

Court below did not even discuss, let alone mention, the in­
terest of the State in disfranchising moral turpitude misde­
meanants pursuant either to the rationale concerning the 
Ramirez, supra case or the rationale espoused in Kronlund, 
supra. Instead, the Court held that it was unable to discern 
any evidence that section 182 was actually intended to serve 
the State interest in denying the franchise to those convicted 
of violating its laws, assuming without deciding that this as­
serted State interest would pass constitutional muster. (J.S. 
p. A-12) . In support of that conclusion, the Court incredibly 
notes that there are glaring omissions from the non-prison 
offenses resulting in disfranchisement under section 182. It is 
this statement by the Court below which clearly portrays their 
failure to understand the issue involved and their misapplica­
tion of the appropriate and controlling law.

Obviously, the Court below is attaching great significance 
to the fact that all crimes not punishable by imprisonment in 
the penitentiary were not disfranchising, opining that if the 
Convention truly wished to vindicate a “good government” 
purpose it would have included such language in section 182. 
(J.S. p. A-12) . However, the only non-prison offenses result­
ing in disfranchisement which are still viable in Alabama are 
either felonies or crimes involving moral turpitude. Clearly, 
the inclusion of a provision allowing disfranchisement for 
crimes involving moral turpitude was not meant to include all 
non-prison offenses, the interest and concern of the State being 
to disfranchise those only who committed crimes involving this 
element. Moreover, as already explained by Dr. Thornton, the 
listing of these specific offenses in section 182 changed nothing 
from the effect of the Constitution of 1875.

While criticizing the Appellants for underinclusiveness, the 
result reached by the Eleventh Circuit results in absurd conse­
quences. In Alabama, the difference between grand or petty 
larceny, for example, is determined by the amount stolen, the 
determinative amount now being $25. Consequently, if one 
shoplifts articles of clothing from a store having a value of 
$25.01 they will be convicted of a felony and not be allowed



28

to vote while their partner, at the same time, could steal arti­
cles of clothing worth $24.99, and because this is a misde­
meanor, still be allowed to vote. Such a situation defies logic 
and strips the State of its ability to disfranchise moral turpitude 
offenders. See Butts v. Nichols, 384 F. Supp. 573 (S.D. Iowa 
1974). By trying to remove from the franchise those persons 
who have committed crimes involving moral turpitude, the 
State is simply trying to preserve the purity of the franchise. 
Hobson v. Pow, 434 F. Supp. 362 (N.D. Ala. 1977) and Wash­
ington v. State, 75 Ala. 582, 585 (1884) wherein it is recog­
nized that the purpose of the denial of the right of suffrage was 
to preserve the purity of the ballot box.

While the above discussion demonstrates the propriety of 
disfranchising those convicted of moral turpitude crimes re­
gardless of whether the crime is a felony or misdemeanor, there 
are some specific examples of cases where individuals have lost 
important rights on the basis of a conviction of a misdemeanor. 
In Waddy v. Davis, 445 F. 2d 1 (5th Cir. 1971) , the plaintiffs 
pled guilty to receiving unemployment compensation benefits 
by reason of misrepresentation, this crime being a misdemeanor 
and one involving moral turpitude. Because of this conviction, 
which carried a punishment of a fine of not less than $25 
nor more than $250 or imprisonment for no longer than 3 
months or both, plaintiffs were stricken from the voting list 
because the crime involved moral turpitude.

The Fifth Circuit, in affirming the District Court’s dismissal 
of plaintiffs’ complaint which alleged they had not been ad­
vised they would be removed from the voting list at the time 
pf their guilty plea, found the crime in question to be one 
involving moral turpitude and then stated the following:

“Plaintiff did not here contest the principle that the priv­
ilege of voting in a state is within the jurisdiction of the state 
itself, to be exercised as the state may direct and upon such 
terms as to it may seem proper, provided no discrimination is 
made between individuals in violation of the United States 
Constitution . . . The denial of the voting franchise to convicted



29

criminals raises no substantial constitutional question . . . 
(Citations omitted)
Waddy v. Davis, 445 F. 2d 1, 2-3 (1971) . See United States v. 
Tonry, 605 F. 2d 144 (5th Cir. 1979), where the Court re­
jected a claim that an individual’s First Amendment right had 
been denied where, as a condition to probation based upon 
guilty pleas to four misdemeanor violations, he was forbidden 
from running for any state or local office or engaging in politi­
cal activity during the term of his probation.

In the face of these multitude of factors, this Court should 
have no difficulty in reversing the Court below and finding 
that there was in existence permissible motives which would 
have compelled the passage of section 182 in any event.

It cannot be gainsaid that the Tenth Amendment to the 
United States Constitution reserves unequivocally to the State 
their right to administer the electoral process and to set quali­
fications and conditions upon the exercise of the franchise. 
Pope v. Williams, 93 US 622 (94) . There can be no argument 
that:

“ . . . to be sure, the administration of the electoral process 
is a matter that the constitution largely entrusts to the 
State . . .
Kusper v. Pontikes, 414 US 51 (1933) .

It is suggested that at no time, despite frequent opportunity 
to do so, has this Court ever undermined or weakened this 
power left specifically to the States by the Tenth Amendment. 
Quite to the contrary, when given the opportunity, this Court 
has written sweeping and persuasive comments concerning the 
power of the State to control their elections, e.g. Lassiter v. 
Northhampton County Board of Elections, 360 US 45 (1959) 
and Oregon v. Mitchell, 400 US 112 (1970) . As previously ex­
plained, this Court in Lassiter recognized the wide scope the 
State had in exercising its jurisdiction concerning the qualifi­
cations of voters, including previous criminal record. More­
over, and important for the purposes of this appeal, is the fact 
that this Court in Lassiter, supra, recognized the following:



BO

“So while the right of suffrage is established and guaranteed 
by the Constitution . . .  it is subject to imposition of the State 
standards which are not discriminatory and which do not con­
travene any restriction of Congress, acting pursuant to its con­
stitutional powers, has imposed . . . .”
Lassiter v. Northhampton County Board of Elections, 360 US 
45 (1959).

In reviewing this quote, it is significant to point out that in 
Lassiter, supra, this Court placed great weight on the fact that 
the literacy test was being applied in an equal and nondiscrimi- 
natory manner. Likewise, as admitted by the Eleventh Circuit 
in this case, the provisions of section 182 in question have been 
and are being implied in a neutral and nondiscriminatory 
manner.

Furthermore, these meaningful words from Mr. Justice 
Black have crucial significance to this case:

“ . . . It is obvious that the whole Constitution reserves to 
the States the power to set voter qualifications in State and local 
elections, except to the limited extent that the people through 
constitutional amendments have specifically narrowed the 
powers of the States . . . And the Equal Protection Clause of 
the Fourteenth Amendment was never intended to destroy the 
State’s power to govern themselves . . . .” (Citations omitted)

Oregon v. Mitchell, 400 US 117, 27 L.Ed. 2d 272, 283, 91 S.Ct. 
260 (1970) . See also Duncan v. Piothress, 657 F. 2d 691, 702 
(5th Cir. 1981), United States v. Tonry, 605 F. 2d 134, 148- 
149 (5th Cir. 1979) and Holley v. Askew, 583 F. 2d 728, 730 
(5th Cir. 1978) .

The opinion of the Court below has the effect of conflicting 
and interfering with these previous pronouncements of this 
Court. Section 182 allows disfranchisement for felonies and 
for crimes involving moral turpitude, whether felonies or not. 
This certainly seems to be a restriction within the realm of the 
authority and jurisdiction left to the states by the Tenth 
Amendment and as reinforced by this Court in the decision



31

cited above, especially in the context of a statute neutral on 
its face which has been uniformly applied. To elect to disfran­
chise non-felons who commit crimes involving moral turpitude 
is certainly within the sphere contemplated by the Tenth 
Amendment, it being obvious that in determining an individ­
ual’s previous criminal record the State may attach more signifi­
cance to crimes involving moral depravity or baseness, for such 
a distinction does not offend the equal protection clause of the 
Fourteenth Amendment. See Oregon v. Mitchell, supra.

The decision of the Court below violates the Tenth Amend­
ment right of the State of Alabama to control its elections and 
to set the qualifications for the voters. To hold otherwise 
would destroy the complicated fabric woven by the framers of 
the United States Constitution and ratified by this Court in 
dealing with matters left to the States for consideration or ones 
in which the States interest must succumb to that of the Fed­
eral Government.

CONCLUSION
The Eleventh Circuit committed an eggregious error by au­

thoring an opinion which violates and intrudes upon the very 
essence of our Constitution and system of government. They 
have told the State of Alabama that a provision allowing dis­
franchisement for the commission of a listing of crimes which 
were almost unanimously felonies or involved moral turpi­
tude or for the commission of moral turpitude crimes generally 
is unconstitutional. They have told the State of Alabama that 
they could never pass a law which disfranchises individuals 
who commit moral turpitude crimes if there is also in existence 
an alleged impermissible motive, even though the provision in 
question is neutral on its face and has been applied in a non- 
discriminatory manner. Carrying the logic of the Court below 
to its most unfortunate extremes, a law providing disfranchise­
ment for murderers or for people who have been convicted of 
a violation of the public trust or election offenses would be 
striken down if there was also evidence that such a law was



32

passed because of the alleged existence of an impermissible 
motive.

Without admitting any discriminatory intent, Appellants 
would simply say that it would make no difference what their 
intentions were because the provision ip question merely ful­
filled a valid state interest, that is disfranchising those who 
have been convicted of crimes involving moral turpitude.

Obviously, the Court below failed to recognize the existence 
of permissible motives for the enactment of section 182 thereby 
allowing a State constitutional provision over 80 years in age 
to be striken. The Court below failed to consider evidence 
concerning the intention of the delegates to the Alabama Con­
stitutional Convention of 1901 and in so doing did not con­
sider the possibility of the existence of an intention equal to 
the one they found to be impermissible. In the face of a per­
missible and impermissible motive, the Court below failed to 
give any consideration to the permissible motive and chose 
rather to strike down the provision in question. In so doing, 
the Court below incorrectly interpreted this Court’s decisions 
and as a result has unconstitutionally applied the 'Fourteenth 
Amendment to reach an erroneous result.

Moreover, the Court below failed to consider the right of 
the State, pursuant to the Tenth and the Fourteenth Amend­
ment or because of an interest in purifying the ballot box or 
denying the vote to those convicted of violating its laws, to 
disfranchise those who commit crimes involving moral turpi­
tude regardless of the length of confinement. These constitu­
tional provisions serve as more than ample authority for per­
missible motives by the State of Alabama in enacting section 
182 and also demonstrate the fact that the provision would 
have been enacted if the alleged impermissible motive had not 
been considered at all. It is incongruous and lacking in logic 
to state on one hand that the State has the right to disfranchise 
those who commit crimes involving moral turpitude but to 
ignore this right when one alleges that the vehicle for such dis­
franchisement was passed based upon an impermissible motive.



33

We can only conclude the Appellants demonstrated that the 
Appellees failed to carry their burden, that the Appellees car­
ried theirs or that the Appellants had a constitutional right or 
separate state interest to pass the provision in question. In 
holding otherwise, the Court below erroneously voided as re­
pugnant to the United States Constitution section 182 of the 
Alabama Constitution of 1901.

Based on the foregoing and all contained in this Brief, 
whether case law, evidence or argument, Appellants implore 
this Court to reverse the judgment of the Eleventh Circuit 
Court of Appeals and to affirm the Order of the District Court 
upon which this appeal was based.

COUNSEL

C o r ley , M o ncus, B y n u m , & D e B u y s, P.C. 
2100-16th Avenue South 
Suite 300
Birmingham, Alabama 35205 
(205) 939-0811

Respectfully submitted,

Special Assistant Attorney General 
A ttorney for Nell Hunter, 

et al—Appellants



34

CERTIFICATE OF SERVICE
I, James S. Ward, a member of the Bar of the Supreme Court 

of the United States and counsel of record of Nell Hunter, et 
al, individually and on behalf of all other members of Board 
of Registrars in the State of Alabama, appellants herein, hereby 
certify that on November 21, 1984, pursuant to Rule 33, 
Rules of the Supreme Court, I served three copies of the fore­
going Brief for Appellants on each of the parties herein as 
follows:

On Victor Underwood and Carmen Edwards, for themselves 
and all others similarly situated, appellees herein, by deposit­
ing such copies in the United States Post Office, Birmingham, 
Alabama, with first class postage prepaid, properly addressed 
to the post office address of Edward Still and Neil Bradley, the 
above named appellees counsel of record, at Edward Still, Suite 
400, Commerce Center, 2027 First Avenue North, Birming­
ham, Alabama 35203 and Neil Bradley, ACLU Foundation, 
52 Fairlie Street NW, Atlanta, Georgia 30303.

On the Solicitor General, Department of Justice, by deposit­
ing such copies in the United States Post Office, Birmingham, 
Alabama, with first class postage prepaid, properly addressed 
to the post office address of The Solicitor General, Department 
of Justice, Washington, D.C. 20530.

On William Bradford Reynolds, Assistant Attorney General, 
Charles J. Cooper, Deputy Assistant Attorney General and 
Brian K. Landsberg, Esquire, by depositing such copies in the 
United States Post Office, Birmingham, Alabama with first 
class postage prepaid, properly addressed to the post office ad­
dress of William Bradford Reynolds, Assistant Attorney Gen­
eral, Charles }. Cooper, Deputy Assistant Attorney General 
and Brian K. Landsberg, Esquire, United States Department 
of Justice, Washington, D.C. 20530.

All parties required to be served have been served.



35

D a t e d :  N o v e m b e r  21 ,  1984

J am#  S. W ard 
Special Assistant Attorney General 
Attorney for Appellants



36

AFFIDAVIT OF SERVICE
STA TE OF ALABAMA )
JEFFERSON COUNTY )

I, James S. Ward, depose and say that I am an attorney in 
the law firm of Corley, Moncus, Bynum, & DeBuys, P.C. and 
I am the attorney of record for Nell Hunter, et al, individually 
and on behalf of all other members of Board of Registrars in 
the State of Alabama, the appellants herein, and that on the 
21st day of November, 1984, pursuant to Rule 33, Rules of 
the Supreme Court, I served three copies of the foregoing Brief 
for Appellants on each of the parties required to be served 
herein, as follows:

On Victor Underwood and Carmen Edwards, for themselves 
and all others similarly situated, appellees herein, by deposit­
ing such copies in the United States Post Office, Birmingham, 
Alabama, with first class postage prepaid, properly addressed 
to the post office address of Edward Still and Neil Bradley, the 
above named appellees counsel of record, at Edward Still, Suite 
400, Commerce Center, 2027 First Avenue North, Birming­
ham, Alabama 35203 and Neil Bradley, ACLU Foundation, 
52 Fairlie Street NW, Atlanta, Georgia 30303.

On the Solicitor General, Department of Justice, by deposit­
ing such copies in the United States Post Office, Birmingham, 
Alabama, with first class postage prepaid, properly addressed 
to the post office address of The Solicitor General, Department 
of Justice, Washington, D.C. 20530.

On William Bradford Reynolds, Assistant Attorney Gen­
eral, Charles }. Cooper, Deputy Assistant Attorney General, 
and Brian K. Landsberg, Esquire, by depositing such copies in 
the United States Post Office, Birmingham, Alabama with first 
class postage prepaid, properly addressed to the post office ad­
dress of William Bradford Reynolds, Assistant Attorney Gen­
eral, Charles J. Cooper, Deputy Assistant Attorney General 
and Brian K. Landsberg, Esquire, United States Department 
of Justice, Washington, D.C. 20530.



37

All parties required to be served have been served.

Spdri/al Assistant Attorney General 
Attorney for Appellants

Sworn to and subscribed before 
me this the 21st. day of November, 1984.