Hunter v. Underwood Motion to Affirm

    1 '
iCr,

v'>.v:-



QUESTION PRESENTED

Did the court of appeals err in 
holding that Section 182 of the 1901 
Alabama Constitution was enacted with 
a racially discriminatory purpose and 
continues to have a racially 
discriminatory effect?

- l -



TABLE OF CONTENTS

Question Presented............ i
Table of Contents....................  ii
Table of Authorities.................  ii
Motion to Affirm.....................  1
Statement of the Case................ 1
Summary of Argument..................  18
Argument.............................. 20
Conclusion............................ 31

TABLE OF AUTHORITIES
Cases:
City of Mobile v. Bolden, 446 U.S.

55 (1980)..................  6
Crawford v. Board of Education,

458 U.S. 527 (1982)........ 7
Dunn v. Blumstein, 405 U.S. 330.... 23, 27
Evans v. Cornman, 398 U.S. 419 (1970) 23
Guinn v. U.S., 238 U.S. 347 (1915).. 11
Hill v. Stone, 421 U.S. 289 (1975).. 26
Kramer v. Union Free School Dist.,

395 U.S. 621 (1969)........ 7
Kusper v. Pontikes, 414 U.S. 51 (1973) 28

25
Michael M. v. Superior Court, 450 U.S.

464 (1981)........................
Mt. Healthy City School District v.

Doyle, 429 U.S. 274 (1977).......  7, 24
Reynolds v. Sims, 377 U.S.533 (1964) 23
Richardson v. Ramirez, 418 U.S. 24

(1974)............................. 29
Scheinberg v. Smith, 659 F .2d 476

(5th Cir . 1981)...................  16
Sherbert v. Verner, 374 U.S 398

(1963)............................. 25
U.S. v.Alabama, 252 F. Supp. 95

(M.D.Ala. 1966)................. 8, 9, 11
U.S. v. U.S. Gypsum Co., 333 U.S.

364 (1948)........................  22
Village of Arlington Heights v.

Metropolitan Dev. Corp., 429 U.S.
252 (1977)..............6, 7, 16, 17, 26

Washington v. Davis, 426 U.S. 229
(1976)............................. 6

Washington v. State, 75 Ala. 583
(1884)............................ 16' 27

Statutes and Constitutional Provisions:
Fourteenth Amendment.... 6, 18, 19, 20, 21
Readmission Act of June 25, 1868,

ch. 70, 15 Stat. 74.............. 4
Rule 52, F.R.Civ.P.................



Section 182 of the 1901 Alabama
Constitution ....................  passim

Tenth Amendment ..................  18» 28
Other Authorities:
Hackney, Populism to Progressiivism

in Alabama (1969)   8
Kousser, The Shaping of Southern

Politics (1974)   8
McMillan, Constitutional Develop­

ment in Alabama, 1798-1901: A
Study in Politics, the Negro, and 
Sectionalism (1955)   8

Official Proceedings of the Consti­
tutional Convention of the State of 
Alabama, 1901 ....................  18

Woodward, Origins of the New South
1877-1913 (1971)   8

MOTION TO AFFIRM
Appellees, pursuant to Rule 16, 

hereby move that the judgment of the 
United States Court of Appeals for the 
Eleventh Circuit be affirmed on the 
grounds that the evidence of racial motiv 
ation and racial effect of the state con­
stitutional provision at issue is both 
clear and unchallenged, that the issues 
raised by the appellants are frivolous, 
and that the questions are so insubstan­
tial that argument is not warranted.

STATEMENT OF THE CASE 
"With the end of Reconstruction, the 

white citizens of Alabama moved to reas­
sert their once unquestioned political 
supremacy," and joined the group of eleven 
states which adopted suffrage restrictions 
first adopted in 1890 in Mississippi and 
known as the Second Mississippi Plan.
J.S. A-8. "When the Alabama constitu­



tional convention assembled in May 1901, 
the question was not whether to disfran­
chise the Negro but rather how to do so 
constitutionally." J.S. A-9. The conven­
tion adopted several suffrage provisions, 
one of which disfranchised persons con­
victed of certain crimes— section 182 of

1the Alabama Constitution of 1901. The 
appellees, Victor Underwood and Carmen 
Edwards, challenged this provision's dis­
franchisement for misdemeanors. The chal­
lenge was to misdemeanors included either 
in a list of crimes or under the rubric of 
involving moral turpitude in the disfran­
chising provision. Both appellees had 
been affected by the operation of §182 for 
each had been convicted of uttering a 
worthless instrument (writing an 
insufficient funds check). Underwood had

1. The text of this section is found 
at Jurisdictional Statement, 2-3, herein­
after, J.S. ___ .

been purged from the the roll of qualified 
electors by the Jefferson County Board of 
Registrars and Edwards had not been 
allowed to register by the Montgomery 
County Board of Registrars.

Suit was filed in federal district 
court on June 21, 1978 against the regis­
trars of Jefferson and Montgomery 
County. The plaintiffs and defendants 
were both certified as class representa­
tives. J.S. D-2. Five causes of action 
were presented. The only one which was 
ruled on by the court of appeals and pres­
ented for review here, is the claim that 
section 182 was specifically adopted to 
disfranchise blacks on account of race and
has had and continues to have that 

2effect.

2. The complaint also alleged that 
the fundamental right to vote on an equal 
basis with other citizens was being denied



The evidence showed that the 1901
suffrage provisions were racially 
motivated and that they had a disparate 
impact in 1903 and in the four year period 
prior to filing suit— 1974-78.

The evidence presented by the defen­
dant registrars was basically the same as 
plaintiffs. They defended the case on the 
theory that the 1901 suffrage provisions 
were valid because they were passed "with 
the purpose to disfranchise poor whites 
equally with blacks." J.S. 17.

without a compelling state interest, that 
the disfranchisement provisions were a 
discriminatory denial of equal protection, 
and that the moral turpitude provision was 
vague and indefinite. The complaint was 
later amended to allege that the suffrage 
provisions of the 1901 constitution 
violated the Act of Readmission, Act of 
June 25, 1868, ch. 70, 15 Stat. 74. The 
district court ruled against plaintiffs on 
all causes of action, and all were 
properly presented and argued to the court 
of appeals. Plaintiffs, appellees here, 
contend that the record supports their 
claims on all causes of action, and would 
rely upon all claims as alternative 
grounds to support the judgment of the 
court of appeals.

The district court found the suffrage 
provisions constitutional. First, it 
said, "[t]here is simply 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 con­
vention." J.S. E-5. It also concluded 
that the state had a valid state interest 
in disfranchising those convicted of vio­
lating its laws, and then concluded that 
if a state enactment has a dual motiva­
tion, "an impermissible legislative motive 
standing alone will not invalidate legis 
lation for which there is a permissible 
basis." J.S. E-5. The district court 
made no findings on racial effect.

The court of appeals reversed, 
finding that the district court had 
"brought its inquiry to a premature 
end." J.S. A—6. To the district court, 
the presence of a permissible motive ended

- 5 -



the inquiry. The court of appeals stated 
that the law is "that the existence of an 
illicit legislative motive does not auto­
matically result in a conclusion of uncon­
stitutionality." J.S. A—7, n. 7 (emphasis 
in original). The court of appeals cor­
rectly applied the appropriate legal stan­
dard as set out in this Court's decisions.

First, it held that for plaintiffs to 
establish a successful fourteenth amend­
ment claim in matters affecting the 
elective franchise, they must establish an 
intent to abridge the franchise on account 
of race, citing City of Mobile v. Bolden, 
446 U.S. 55 (1980) (plurality opinion), 
and Washington v. Davis, 426 U.S. 229 
(1976). If mixed motives are involved, 
defendants must prove by a preponderance 
of the evidence that the same decision 
would have been made had the impermissible 
purpose not been considered, citing 
Village of Arlington Heights v. Metropol­

- 6 -

itan Housing Development Corp., 429 U.S.
252 (1977), and Mt. Healthy City School 
District Board of Education v. Doyle, 429 
U.S. 274 (1977). It then held that in 
matters involving discrimination on the 
basis of race, the permissible motivating 
interest articulated by the state must be 
compelling, citing Crawford v. Board of 
Education, 458 U.S. 527 (1982), and the 
means employed must be precisely drawn to 
accomplish exactly the objective that the 
state purports to further, citing Kramer 
v. Union Free School District, 395 U.S.
621 (1969). J.S. A-5, A-6.

Turning to the case at hand, the 
court of appeals made a thorough review of 
the record showing the motivation for both 
the entire convention and the suffrage 
provisions in particular, noting that the 
expert witnesses for both sides testified 
that these motivations must be viewed as a 
whole. Relying upon official proceedings

- 7 -



of the convention introduced into evi-
3dence, scholarly works, the testimony of 

experts for both sides and other exhibits, 
the court of appeals found the racial 
motivation clear.

The end of Reconstruction opened the 
way for "the white citizens of 
Alabama...to reassert their once unques­
tioned political supremacy. The 1890's 
ushered in an era of disfranchisement not 
only in Alabama but throughout the 
South." J.S. A-8. With the rise of 
populism in the 1890s the black vote had 
acquired added leverage. Ibid. The court 
of appeals, in part relying upon the 
decision of United States v. Alabama, 252

3. C. Woodward, Origins of the New 
South 1877-1913 (1971); S. Hackney, 
Populism to Progressivism in Alabama 
(1969); M. McMillan, Constitutional 
Development in Alabama, 1798-1901: A
Study in Politics, the Negro, and 
Sectionalism (1955); and J. Kousser, The 
Shaping of Southern Politics (1974).

F. Supp. 95, 98 (M.D. Ala. 1966) (three- 
judge court), found that n[w]hites, Demo­
crats and Populists alike, vied for black 
ballots in any way they could, with 
favors, pardons of convictions, outright 
vote purchase and massive electoral 
fraud." Both courts below agreed that the 
turn of the century conventions were 
spurred on by a concern of federal inter­
vention, J.S. A-8, E-3, especially by the 
narrow defeat of the Lodge force bill in 
the Senate in 1890, which called for 
tighter federal control of all phases of 
voting, from registration to ballot 
tabulation. The most effective way to 
avoid federal intervention, the reformers 
believed, was to eliminate the Negro 
vote. According to the court of appeals:

In the words of one delegate to the 
1901 convention, "Now we are not beg­
ging for 'ballot reform' or anything of 
that sort, but we want to be relieved 
of purchasing the Negroes to carry 
elections. I want cheaper votes. ...

- 9 -



When the Alabama constitutional 
convention assembled in May 1901, the 
question was not whether to disfran­
chise the Negro but rather how to do so 
constitutionally. In his opening 
address John B. Knox, the president of 
the convention, declared:

And what is it that we want to 
do? Why it is[,] within the limits 
imposed by the Federal Constitution, 
to establish white supremacy in this 
State.

1 Official Proceedings [of the Consti­
tutional Convention of the State of 
Alabama, May 21st, 1901 to September 
3rd, 1901] at 8;... In Knox' words,
"if we would have white supremacy, we 
must establish it by law— not by force 
or fraud." I Official Proceedings at 
9.

J.S. A-9.
The court of appeals found that the 

suffrage committee, borrowing from the 
successful methods of the Second Missis­
sippi Plan and those of other states, 
sought to achieve the convention's objec­
tive "by setting on devices that would 
subvert the guarantees of the fourteenth 
amendment without directly provoking a 
legal challenge." J.S. A-9. Multiple 
devices were adopted because of a concern

that one or more of the methods might be 
held invalid. The court of appeals noted 
that this was a well-founded fear, for a 
grandfather clause similar to Alabama's 
was struck down in Guinn v. United States, 
238 U.S. 347 (1915) and Alabama's poll tax 
was held unconstitutional in United States 
v. Alabama, 252 F. Supp 95 (M.D. Ala.
1966) (three-judge court). J.S. A-10, ns. 
9 and 10.

While there was scant record in the 
debates over the adoption of section 182, 
the court of appeals found the source of 
the crimes included and excluded in the 
section shed light on the motives of the 
drafters.

The crimes selected by the suffrage 
committee had their origin in an 
ordinance drafted and submitted by John 
Fielding Burns, a Black Belt planter. 
See I Official Proceedings at 511. 
According to Dr. McMillan:

[t]he crimes [Burns] listed were 
those he had taken cognizance of for 
years in his justice of the peace



court in the Burnsville district, 
where nearly all his cases involved 
Negroes. For example, among those 
[Burns would have] disfranchised 
were persons guilty of larceny, 
bigamy, seduction, incest, rape, or 
attempt to rape, burglary, or 
attempt to burglarize, vagrancy, 
wife beating, forgery and "those who 
are bastards or loafers or who may 
be infected with any loathsome or 
contagious disease."

M. McMillan, supra, at 275 n. 76. In 
newspaper accounts, "Burns estimated 
the crime of wife-beating alone would 
disqualify sixty percent of the 
Negroes." J. Gross, Alabama Politics 
and the Negro, 1874-1901 244 (1969) 
(cited in PI. Exh. 9).

J.S. A-10, A-ll.
The court of appeals also found that 
according to the experts for both sides, 
"the evident racial animus of section 182 
was used to induce delegates representing 
poor whites to vote for other provisions 
in the suffrage article, such as the poll 
tax, that were contrary to their 
interests." J.S. A-ll.

The court found that the 
"[p]laintiffs have more than shouldered 
their burden of showing that racially dis­

criminatory intent was a motivating factor 
in the adoption of section 182," and that 
the registrars conceded the point in their 
brief. J.S. A-ll and n. 12. The regis­
trars repeat that concession in their 
jurisdictional statement, arguing that 
"the entire suffrage article had the 
intention to disenfranchize poor whites 
equally as well as blacks." J.S. 10. 
(Emphasis theirs.)

The evidence showed that section 182 
had a racially discriminatory impact at 
the time of adoption and currently. 
According to the defendants' expert 
witness, Dr. J. Mills Thornton, who had 
reviewed statistics regarding the race of 
those incarcerated in 1901, section 182 
had disfranchised more than 12,000 blacks 
and about 1,000 whites. See transcript of 
July 21, 1981, 78-79. Appellees also 
introduced analyses of the Montgomery and 
Jefferson County registrars’ records of



persons purged from the roll of voters
because of convictions covered by section
182. No evidence was offered by the
registrars on this issue. The court of
appeals found that the intended racial
effect continued to the present:

[The convention delegates'] perception 
of the disparate impact of section 182 
turned out to be correct. The regis­
trars' expert estimated that by January 
1903 section 182 had disfranchised 
approximately ten times as many blacks 
as whites. This disparate effect per­
sists today. In Jefferson and Mont­
gomery Counties blacks are by even the 
most modest estimates at least 1.7 
times as likely as whites to suffer 
disfranchisement under section 182 for 
the commission of non-prison offenses.

J.S. A-ll.
Having found the record clearly 

established both a racially discriminatory 
motivation and impact, the court of 
appeals turned to "the state's burden to 
demonstrate that the section would still 
have been adopted had a permissible state 
reason been the sole consideration." J.S.
A-ll, A-12. The registrars argued that

the state had an interest in denying the 
franchise to those convicted of violating 
its laws, but the court of appeals con­
cluded that it was "unable to discern any 
evidence that the rule was actually 
intended to serve that interest." J.S. A— 
12.

The court of appeals noted that there 
were glaring omissions in the disfran­
chisement provision, serious offenses 
being omitted, indicating an inconsistency 
with the theory that a "good government" 
purpose lie behind the law. But beyond 
that, the court said, there was nothing in 
the convention proceedings or the consti­
tution itself to suggest a good government 
purpose. J.S. A-12.

Indeed, while it is true that the 
avowed objective of the suffrage 
committee was to deny the vote to the 
corrupt and the ignorant, see I 
Official Proceedings at 1257, defen­
dants' expert freely admitted under 
cross-examination that the phrase the 
"corrupt and the ignorant" referred



specifically to blacks and lower-class 
whites.

4J.S. A-13.
The court of appeals had no need to 

reach the balancing test of Arling ton 
Heights to determine if section 182 would 
have been adopted in the absence of the 
racially discriminatory motive, because it 
found that there had been no permissible

4. The court of appeals also 
rejected the state's argument that a state 
supreme court decision, Washington v. 
State, 75 Ala. 583 (1884) provided a 
legitimate state interest for the 
convention in 1901. That decision, 
seventeen years prior to the convention, 
held that disfranchisement of those 
convicted of crimes involving moral 
turpitude was within the state s right to 
protect the integrity of the vote. The 
state argued that most convention 
delegates were lawyers and therefore must 
have been aware of that decision. T e 
court of appeals found this theory of 
causation too attenuated, and also ruled 
that when fundamental rights are at issue, 
it is up to the state to prove its motivations, it being impermissible for a 
court to speculate as to what permissible 
state motives might exist, citing 
Scheinberg v. Smith, 659 F.2d 476, 483 .
2 (5th Cir. Unit B 1981). J.S. A 13,
1 4 .

"Theremotive established in the record, 
was no evidence from which the district 
court could have tound that section 182 
would have been adopted had a permissible 
reason been the sole consideration." J.S. 
a - 13 .  It concluded that there was nothing 
present which could "render immune a pur­
posefully discriminatory scheme whose 
invidious effects still reverberate 
today," and reversed and remanded. J.S.

A-13, A-14.
The appellants unsuccessfully sought

a stay of the mandate from the court of

5 The court of appeals noted that 
it was’the appeUantsL P°sitionsthaat ^  
first prong of also

^ironiousV Uading of theslaaW."rgd.S.tA-
11, 12. In e££®°t 1  permissible motivethat the presence of Pe impermissible
negates the existence °obeals also stated 
motive. The co» « ! advance the
f ata"l‘ofhethee9fJancrise to poor whites as
^permissible purpose . under the second 
prong of ArlingtoiUleiahte-



appeals, from Justice Powell, and sought 
to have the district court delay entering 
injunctive relief. On June 12, 1984, the 
district court entered an order enjoining 
all registrars in Alabama from enforcing 
section 182 insofar as it applies to mis­
demeanors.

Summary of Argument 
Once the plaintiffs proved that 

section 182 of the Alabama Constitution of 
1901 was intended to discriminate against 
blacks and had the intended effect, they 
established a prima facie violation of the 
fourteenth amendment.

It order to rebut that showing, the 
state had the burden of establishing that 
its restriction of the elective franchise 
served a compelling state interest by the 
least restrictive means available, and 
would have been adopted without regard to 
the racially discriminatory motive.

Neither the tenth nor the fourteenth 
amendment provides the state the authority 
to discriminate on the basis of race 
regarding the elective franchise.

The registrars defended the case on 
an incorrect view of the law. They 
believed that any permissible motive for 
adopting section 182 would automatically 
vitiate any discriminatory motive, and 
that an attendant intent to discriminate 
against poor whites cancelled out, in 
effect, the intent to discriminate against 
blacks.

The court of appeals correctly held 
that the registrars failed to establish 
that there was any legitimate reason for 
adopting section 182, and that the proof 
of racially discriminatory purpose and 
effect rendered it violative of the 
fourteenth amendment.



Argument
Section 182 Was Adopted With The 
Intent, And Has Had The Effect, Of 
Disfranchising Proportionately More 
Blacks Than Whites.________________

This case presents a fairly simple 
issue. The appellant registrars argue 
that even though the 1901 constitutional 
convention adopted the petty crimes 
provision for the purpose of disfran­
chising substantially all blacks, the 
provision does not violate the equal 
protection clause of the fourteenth amend­
ment because there was also an intent to 
disfranchise some whites, i.e., poor 
whites. Their defense has no merit be­
cause (a) what is being infringed involves 
both race and the elective franchise and 
(b) discrimination against poor whites 
would not stand up under scrutiny as a 
compelling state interest.

The evidence showed, and the court of 
appeals so found, that the intent to 
discriminate against black persons by the

adoption of section 182 was clear. Given 
the historical record established by 
appellees, it cannot be said that the 
court of appeals was in error in finding a 
clear intent to discriminate, and appel­
lants do not contend otherwise. Indeed, 
the element of intent, while necessary to 
establish a fourteenth amendment claim, 
was never really in dispute in this liti­
gation and it is not an issue before this 
Court. The appellants adhere to their 
previous position in their argument for 
review— "the entire suffrage article had 
the intention to disenfranchise poor 
whites equally as well as blacks." J .S . 
10. (Emphasis theirs.)

The evidence also showed, and the 
court of appeals so found, that section 
182 had the intended discriminatory effect 
by 1903 and continues to have that effect 
today. J.S. A-ll. Again, the appellants 
do not contend otherwise. Their defense

- 2 1 -



has always been concerned only with 
motives. The stark disparate racial 
impact remains unchallenged.

The court of appeals explicitly found 
that appellees had established a prima 
facie case: "In reviewing this record we
are left with a firm and definite 
impression of error by the court below 
with respect to the issue of intent. 
Plaintiffs have more than shouldered their 
burden of showing that discriminatory 
intent was a motivating factor in the

6adoption of section 182..." J.S. A-ll. 
Having shown that appellees were denied 
the right to participate in elections on 
an equal basis with other citizens of the 
jurisdiction, they established a violation

6. In so reversing the finding of 
the district court, the court of appeals 
used the test appropriate to reversing a 
finding of fact as clearly erroneous under 
Rule 52, F.R.Civ.P., United States v. 
United States Gypsum Co., 333 U.S. 364,
395 (1948). See also, J.S. A-6.

- 2 2 -

of a constitutionally protected right,
Dunn v. Blumstein, 405 U.S. 330, 336 
(1972) a "'fundamental political right,... 
preservative of all rights.'" Reynolds v. 
Sims, 377 U.S. 533, 562 (1964). Before 
this right can be restricted, "the purpose 
of the restriction and the assertedly 
overriding interests served by it must 
meet close constitutional scrutiny."
Evans v. Cornman, 398 U.S. 419, 422 
(1970). To restrict the elective fran­
chise, the state must demonstrate that the 
restriction is "necessary to promote a 
compelling governmental interest," and "if 
there are other, reasonable ways to 
achieve those goals with a lesser burden 
on constitutionally protected activity, a 
State may not choose the way of greater 
interference. If it acts at all, it must 
choose 'less drastic means.' Shelton v. 
Tucker, 364 U.S. 479, 488 (I960)," Dunn v. 
Blumstein, at 342, 343.

- 2 3 -



The state has to establish one other 
evidentiary element in a case such as this 
where the intent to discriminate in the 
right to the elective franchise has been 
prima facie established. It was required 
to show by a preponderance of the evidence 
that, if it had a permissible motive in 
adopting the restriction, the restriction 
would have been adopted even in the 
absence of the discriminatory motive. Mt. 
Healthy City School District Board of 
Education v. Doyle, 429 U.S. 274 (1977). 
The court of appeals correctly held the 
state to this standard. J.S. A-5 to A-7.

The existence of a compelling state 
interest, i.e. , a permissible motive, is 
not a matter for conjecture or theory by 
the state's lawyers. It must be one 
actually held by the state as evidenced by 
an authoritative state body, either the 
legislature or the state court. The court 
of appeals so held, J.S. A-13, n. 14, and

- 2 4 -

this holding conforms to the holding of
Sherbert v. Verner, 374 U.S. 398, 407 

7(1963).
The registrars here argue that there 

were, in addition to racial motives, two 
non-racial reasons for adopting section 
182— to disfranchise poor whites and to 
deny the franchise to those convicted of 
violating its laws. Quite apart from the 
tautology that discrimination aimed at all 
blacks and some whites remains discrim-

7. In Sherbert v. Verner, 374 U.S. 
398, 407 (1963), this Court refused even 
to assess a proffered justification for 
infringment of first amendment rights 
because it had not been made to the state 
supreme court. The opinion went on to 
state "there is no proof whatever to 
warrant such fears...as those which the 
respondents now advance [and] it would 
plainly be incumbent upon the [state] to 
demonstrate that no alternative forms of 
regulation would combat such abuses 
without infringing First Amendment 
rights." Cf_., Michael M. v. Superior 
Court of Sonoma County, 450 U.S. 464, 470 
(1981) (legislative purpose had been 
presented to and accepted by the highest 
court of the state) (plurality opinion).

- 2 5 -



ination against blacks, discrimination in
the entitlement to the elective franchise
(in other than elections of special
interest because of wealth) must serve a
compelling state interest, Hill v. Stone,
421 U.S. 289, 298 (1975). The registrars
have not as yet articulated what
compelling state interest it is which is
served by disfranchising poor whites, and

8none is readily apparent.

8. It is not at all clear that the 
registrars are actually arguing that 
disfranchising poor whites is a 
permissible reason for adoption of section 
182. They have consistently argued that 
the presence of this motive negates the 
finding that there was racial motivation 
under the first prong of Arlington 
Heights. The court of appeals 
acknowledged, and rejected this argument, 
and pointed out that "[t]he registrars do 
not advance the denial of the franchise to 
poor whites as a permissible purpose under 
the second prong of Arlington Heights." 
J.S. A-ll, n. 12. The registrars take 
exception to this statement of the court 
of appeals. J.S. 17. They argue that 
"the State demonstrated that section 182 
would have passed even in the absence of

- 2 6 -

The latter interest claimed might fit 
a category this Court has described as "a 
formidable-sounding state interest." Dunn 
v. Blumstein, at 345. But like the 
officials in Dunn, the registrars here 
simply did not prove their defense. The 
court of appeals found jio evidence in the 
record that the Convention intended any 
"good government" reasons for the 
expansion of the list of disfranchising 
crimes. J.S. A-12.

The registrars argue that Washington 
v. State, 75 Ala. 582 (1884), provides a 
"good government" rationale. This argu­
ment is faulty for several reasons.
First, there is no record that anyone men­
tioned Washington v. State in the debates 
of 1901, while schemes to disfranchise 
blacks were openly discussed. J.S. A-13,

any alleged rac 
apparently view 
poor whites and 
motive, but are 
argue that this

ial motive." Ibid. They 
discrimination aimed at 
all blacks as a non-racial 
unwilling to actually 
is a permissible motive.

- 2 7 -



n. 14. Second, as the court of appeals 
noted, a "good government" rationale is 
undercut by the omission of misdemeanors 
relatively more serious than writing a bad 
check, e.g., second degree manslaughter, 
assault on a police office, assault and 
battery, mailing pornography, and aiding 
the escape of a misdemeanant. J.S. A-12, 
n. 13. Third, as the court of appeals 
found, the registrars' expert witness 
freely admitted that in the convention 
debates, the phase the "corrupt and the 
ignorant" referred to blacks and lower 
class whites. J.S. A-13.

The registrars argue that the tenth 
amendment leaves the states an unfettered 
hand in the regulation of the elective 
franchise, quoting a sentence from Kusper 
v. Pontikes, 414 U.S. 51, 57 (1973). J.S. 
11, 12. Kusper did not so hold, and the 
sentence from that opinion immediately 
following the appellants' quote makes that

clear: "[I]n exercising their powers of
supervision over elections and in setting 
qualifications for voters, the States may 
not infringe upon basic constitutional 
protections." 414 U.S. at 57. Likewise 
the registrars' reliance upon Richardson 
v. Ramirez, 413 U.S. 24 (1974) avails them 
nothing, for whatever the power of states 
to disfranchise persons convicted of 
crimes, they cannot discriminate on the 
basis of race in the exercise of that 
power.

The court of appeals was correct in 
rejecting the defenses suggested by the 
registrars. The registrars simply 
defended section 182 under an erroneous 
view of the law. They believed that the 
existence of any allegedly non-racial 
motive attendant to a conceded racial 
motive would sustain the constitutionality 
of section 182. The court of appeals 
thoroughly examined the record to find any

_ o n _



basis for the registrars' defenses. J.S. 
A-ll to A-13. This examination revealed 
no evidence either that a permissible 
motive existed for the adoption of section 
182 or that section 182 would have been 
adopted in the absence of the racially 
discriminatory motive.

Conclusion
The decision below should be affirmed

because the court of appeals followed the
appropriate analysis under precedents of
this Court and its judgment is completely
supported by the evidence and the law.
For the reasons stated above, appellees
respectfully request that this Court
summarily affirm the judgment of the court
of appeals without the necessity of any
further argument. No substantial question
has been presented.

Respectfully submitted,
Edward Still*
Reeves & Still 
Suite 400 Commerce Center 
2027 First Avenue North 
Birmingham, AL 35203 
(205) 322-6631
*Counsel of Record
Neil Bradley 
Laughlin McDonald 
Christopher Coates 
American Civil Liberties 

Union Foundation, Inc. 
Atlanta, GA 30303 
(404) 523-2721
ATTORNEYS FOR APPELLEES