Bozeman v. Wallace: An Analysis of Selective Prosecution and the Voting Rights Act

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BOZEtAii V. WAILACE:

AN A}IALYSIS OF SELECTTVE PROSECUTION A}TD THE VOTING RIGHTS ACT

subrnitted to Professor Elizabeth Bartholet in the
Serninar on Pub1ic Interest Litlgation: Race and Poverty
in Satisfaction of the Written Work Requirement

Lawrence S. Lustberg

I'Iay 2, 1983



TABLE OF CONTENTS

r. TNTRODUCTION ....1

II. SELECTIVE PROSECUTION ....7

III. VAGUENESS ....L7

IV. CONSTITUTTONALLY PROTECTED RIGHTS ......22

The right to vote ..... ..22

The right to vote absentee ...23

The ricrht to assistance... ...24

The riqht to orqanize and assist voters.... ......2')

V. INTENT ....28

VI. VOTING RIGETS ACT. ......38

vrr. coNcLUSroN... .....44
The parties .... ...44

Plaintiffs... ......44

Defendants ....46

Injunctive Relief ......48

VIII. NOTES. ......52

Notes to Introduction ... -. -52

Notes to Section II... .....54

Notes to Section III.. .....5I
Notes to Secti-on IV. .. .....65
Notes to Secti.on V ....59

Notes to Section VI ...75

Notes to Conclusion . . .80



LIST OF APPENDICES

APPENDIX A--Indictment of Ma99ie Bozeman

APPENDIX B--Draft of Petitj.on for Writ of Habeas Corpus

APPENDIX C--Draft of Courplaint for Declaratory and Injunctj.ve
Relief

AppENDIX D--Letter from Professor Peyton Mccrary to Lani Guinier
(FebruarY 7, 1983)

Please note that Appendices B and C were first drafts' The]t have

"fi.iay unaergone iig"iiicant alteration. Ilowever, as of the
6;ta ;t sutuniision, lecond drafts had not yet been completed'



INTRODUCTION

During the last week of September, L978, tlaggie S. Bozeman,

47, and Julia R. Wilder , 66, were engaged in last minute work on

the campaign of Howell Hef1in, who was involved in the Democratic

primary Run-Off for the office of United States Senator from Alabama.

Bozeman and Wilder had long been politically active in Pickens

County. This week their work consisted mainly of assisting elderly

and illiterate blacks to vote absentee. 1,1s. Bozeman and !1s. !{ilder

picked up a number of absentee ballot applications at the circuit

clerk's office. By themselves or through other workers they distri-

buted them ten to'twenty at a time to voters unable to get to the

poIls. The ballots rrrere sent to either the voters' homes or to one

of the workers; in either case, Bozeman, Wilder or one of their

co-workers visited the absentee voter to discuss thei.r choice with

them. Often, they brought the ballots to be notarized, though they

did not personally deliver them to the courthou=".1

As a result of these activities, Bozeman and Wilder were indicted

on three counts of violating Alabama Code 517-23-1, "Il1egal voting

or attempting to vote." (hereinafter, 517-23-1). Section L7-23-L

reads:

Any person who votes more than once at any election
held in this state, or deposits more than one ballot
for the same office as his vote at such election, or
knowingly attemPts to vote when he is not entitled to
do so,-oi is guilty of any kind of illega1 or fraudu-
Ient voting, must, on convictj.on, be imprisoned in the
penitentiaiy for not less than two no5 more than five
years, at the discretion of the jury.-

The State's case against Bozeman and Wilder was based entirely

on circumstantial evidence. The defendants picked up a large number

of absentee ballot applications. They had a large number of absentee

ballots maj-led to their homes. The ballots, which were examined by



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investigators for the state,3 *"t" all voted the same. Many of

the batlots were signed by Wilder or Bozeman; they admitted to

having so signed and say they did so with authorization of the

elderly voters and after the voters had symbolically touched

their hands to the Pens. Further, most, if not all, of the voters

swore before a notary public that they had signed the ballots.

Many of the e1derly, illiterate blacks testified for the state.4

Their testimony is confusing, as one would exPect from a grouP ranging

in age from 72 lo 93 years o1d. Many did not know what they were

doing, and several do not remember filling out the ballots or signing

their names, but most apparently authorized Bozeman, Wilder or one

of their co-workers to vote for them, and remember being visj.ted by

a man, presumably the notary public. One literate but elderLy woman,

who was visited by Bozeman, tried to vote on election day, but was

told that she had already voted absentee. Ilowever, Wilder and

Bozeman claim only to have dropped her ballot off and not to have

filled it out for her. Nor is there evidence to the contrary.

Based upon this evidencer5 Bor"*an and Wilder were convicted

and sentenced by seParate all-white juries to four years. They

served nine months, though they were able to participate in a work

release program much of the tj.me. During their period of imprison-

ment, they became a natj.onal cause "6flUt.: in February, Lg82, a 13-

day l,larch and motorcade across Alabama made national headlines.

Later, a demonstration of support for them j.n Washington coincided

with the end of the Senate fillibuster against, and ultimate Passage

of, the extension and liberalization of the 1955 Voting Rights Act.

Finally, in November, L982, the two women were released on parole.

It was at this point that the involvement of the NAACP Legal



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Defense and Education Fund, Inc. (hereinafter, "LDF") began. LDF,

by its attorney, Lani Guinier, has pursued and continues to pursue

a two-pronged attack on the Bozeman/Wilder convictions. First, a

habeas corpus petition is about to be filed attackj.ng the sufficiency

of the indictment, the evidence and the judge's charge to the jury,

and making constitutional claims based uPon the protected nature of

the activity involved, the vagueness and overbreadth of SL7-23-1

and the selectivity of the investigation and prosecution of Bozeman

and Wild"t.6 Second, based on a sense that 517-23-1 was enacted

with the intent to prevent blacks from voting, and has always been

used against either blacks or whites assj.sting blacks to vote, LDF

seeks to enjoin the enforcement of the statute. To this end,

professor Peyton llcCrary of the Department of History, University of

South Alabama, has been exami,ning the history of the statute. His

research shows the following:

First, the historical context in which 517-23-1 was enacted

provides strong circumstantj.al evidence of discriminatory intent

behind the statute. The statute tras enacted in 1875 by a "redeemer

Iegislature"--the first white, Democratic legislature elected after

Reconstruction, and a legisi.ature preoccupied with the re-establish-

men(of white supremacy in Alabama. The Alabama redeemer legislature

enacted numerous discriminatory statutes, several of which aimed at

black disenfranchisement under the guJ.se of election regula+-ion and

reform.

Second, S17-23-1 itself was an object of partisan manipulation:

Iabelled a new statute by the redemption legislature that enacted it,

S17-23-1 was actually a variation of a statute that was originally

enacted by the Republican controlled legislature in 1858, and altered



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and re-altered by successive DemocraticT and Republj-can legislatures

in 1871 and 1873 before being embodied in 517-23-1 as we now know it,

in 1875. lhis partisan manipulation provides strong evidence that

the Democrats viewed 517-23-1 as one means for achieving their PoIi-

tical goal of white suPremacy.

Third, this lras a period in which racial hatred appeared daily

in the streets as well as in the statehouse. Numerous incidences

of rioting against blacks, Iynchings and shootings by night-riders

are reported, even as the legislature required blacks to re-register

and instituted at-Iarge voting in Dlobile in order to dilute the

black vote.

Fourth, however, there is also direct, concrete evidence of the

intent of the legislature in enacting 517-23-1. For example, the

January 9, 1875 lrtrcbile Reqister rePorted that, "It is undoubtedly the

purpose of the Alabama legislature to enact an Election Law which

will prevent hereafter the great frauds which have been corunitted

with the negro vote."8 And, on March 3, 1875, shortly after the bilt

was passed, a Democratic legislator defended it in the Montgomery

Dailv Adverti.ser in these terms:

It is an established fact that a white man cannot
easily vote more than once at one election--they
do nol all look a1ike, and, in many cases, for the
past ten years, courts, not of their own sel6ction
were only too glad to trump up such charges"

Two days later, the Daily Advertiser reported that "Governor Houston

has approved the new election law for the state. Goodbye to negro

repeating and packing of negroes around the courthouse on eLection

daY. u 10

Finally, the statute was discriminatorily enforced from the

start. Indeed, the period from 1874 to total disfranchisement in



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1901 is commonly thought to be the highest period of voter fraud

in Alabamars history. l,lost such fraud was directed to preventing

blacks from voting. Rarely punished, even as a misdemeanor under,

for exampie, Alabama Code 517-23-7,11 even if it, wasrthe punish-

ment was far more lenient than that to which blacks were subjected

under 517-23-1.12 It is LDF's theory that the selective enforcement

of these statutes has contj.nued to this day, and that Bozeman and

Wilder are only the most recent victims of it.
Given this historyl3 and my research, f have drafted a Complaint

for Decraratory and rnjunctive Rerief.l4 This compraint requests,

inter a1ia, an injunction against the enforcement of S17-23-1 based

primarily upon the Voting Rights Act, 42 U.S.CJ 51971, et ses. The

case presents several novel and interesting legal issues, which are

addressed in the six sections that foIIow. Section II summarizes

the doctrine of selective prosecution and applies it to the facts of
this case. Section fII mounts an attack against 517-23-1 as vague,

particularly in light of the selective prosecution that we allege.
Section IV sorts out the constitutional or statutory rights here

at issue and argues that there is not only a right to vote, but also

rights to vote absentee, to be assisted in voting and to lend voter
assistance. Section V argues that a case can be made for invalidating
517-23-1 solely on the basis of the discriminatory intent with which

it was enacted, ot, j.n the alternative, that such intent must be

consj-dered important evidence of present intent to discriminate in
enforcement of the statute. Section VI discusses the applicability
of the Voting Rights Act to this case in particular and to enjoining
enforcement of a criminal statute in general. And Section VII con-

cludes by addressing several procedural problems and summarizing by



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way of raf,lcction5 on the practice of public lntarcrt litigation-

Aa of,tcn in thir area of public intcrest litigation, we begln

wlth an inJuatice. the qucatLon then bccomcs one of the appropriate

lcaa1 vchlcle to rcdrass tt. Thls memorandum explores scvcral

avenuGs for the vl,ndlcation of !lg. Bozemln t s and t*tt. lfilder'8 con-

rtitutional rights and wltlr them the votlng rlghtg of black votars

throughout A1abana.



II. SELECTIVE PROSECUTION1

LDF has sought to employ a theory of selective Prosecution

to attack Bozeman and Wilder's convictions on habeas review and

to enjoin the enforcement of 517-23-1 as a violation of the Voting

Rights Act. This section lays out the doctrine of selective prosecu-

tion, demonstrating how difficult it is to make out a successful

selective prosecution claim and surveying the cases in which such

claims have succeeded. It then applies this doctrine to the facts

of this case and to the relief we request'

The doctrine of selective Prosecution is a corollary of the

Equal Protection Clause. Currently in vogue due to the controversy

surrounding prosecutions of non-registrants for the draftr2 tbe

selective prosecution defense is often raised by criminal defendants.

Here, we employ it in a novel manner: an affj-rmative effoSt to enjoj-n

the enforcement of a statute.3

The Equal protection Clause4 is violated not only when a statute

makes arbitrary and invidious classifications unreasonable in light

of the statute's purpose, E, *-, Mclauqhlin v. Florida' 379 u.s'

1g4, 1go-1g3 (1964), but also when a statute is applied unequally

so as to discriminate against similarly situated persons based upon

impermissible criteria. The semi.nal case on selective prosecution

is Yick Wo v. Hopkins, 118 U.S. 355 (1885). There, the city of

San Francisco prohibited the operation of a laundry facility without

permission of the Board of Supervisors, unless the facility was housed

in a brick or stone building. Id. at 357. Thcugh a lawful exercise

of the state,s police power, the statute was criminally enforced

such that Chinese laundry operators were alone denj.ed permission to

operate wooden faciliti.=-5 The Court wrote:

...the facts shown establish an administration directed



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so exclusively against a particular class of persons
as to warrant and require the conclusion that, what-
ever may have been the intent of the ordinances as
adoPted, they are applied by the public authoritj-es
chaiged with their administration...with a mind so
unequal and oppressive as to amount to a practical
denial by the State of that equal protection of the
Iaws whiEh is secured...by the broad and benign Pro-
visions of the Fourteenth Amendnent to the Constitu-
tj.on of the united states. Though the law itself be
fair on its face and impartiaL in appearance, yet, if
it is applied and admj.nistered by public authority
with an-evil eye and an unegual hand, so as practj.cally
to make unjust and illegaI discriminations between
persons in-similar circumstances, material to their
ii.gfrts, the denial of equal rights is still within the
Prohibition of ttte Constj-tution.

118 U.s. at 373-374.6

Since Yick Wo, the elements of a selectj.ve Prosecution claim

have been clarified by the lower courts. Indeed, the Circuits

appear to be unanimous that in order to establish a prima facie

case of selective prosecution, one must satisfy two reguirements:

(f) there must be a showing that the defendant was singled

out for prosecution while others similarly situated have

not been Prosecuted for simj-Lar behavior; and

l2l there must also be a showing that the discriminatory selec-

tion of a given defendant was intenti.onally based upon an

impermissible ground, such as race or relj.gion, or exercise

of a protected or Constitutional right, such as free speech.

The burden on a defendant alleging selective Prosecution is a

heavy one. Indeed, there are only four reported cases in the Courts

of Appeals holding that impermissible selective Prosecution o".urred.8

prosecutors are deemed to have broad, almost

Thus, substantiating a claim of selective
In part, this i-s because

unbounded discreti-on. 9

prosecution implicitly entails rebutting a strong presumption that

a gi,ren prosecution for violation of a criminal law is in good faith.10



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Furthermore, even "the cOnscious exercise of Some selectivity in

enforcement is not in itself a federal constituti.onal violation. "

Ov1er v. Boles, 368 U.S. 448,456 (L962) (prosecution under habitual

criminal statute).11 Thus, it is permissj.ble for the government to

prosecute only flagrant or particularly vocal violators of a given

Iaw. Though this seems to infringe the right to free speech, the

government's j-nterest in effective deterrence is said to outweigh

the individual's interest in exercising her constitutional rights

in this context.l2 Nor is the fact that enforcement has been or is

lax alone proof of the selectivity required to make out a selective

prosecution clai*.13 Finally, even if one proves that a selection

has occurred which is beyond that permitted the prosecutor in the

normal course of her duties, the putative victim of selective Prose-

cution must stil1 show that such selection vras an act of intentional

discrimination based upon an impermissible criterion, such as race,

or the exercise of a constitutional rigrrt.14

The result of this doctrinal development j.s that, though selective

prosecution is pled as boilerplate by many criminal defendants, it is

rarely a successful defense. Seemingly outrageous instances of

infringements of, for example, First Amendment rights are tolerated

in order to enhance enforcement Of the income tax 1"r=r15 while

examples of dissimilar treatment of similarly situated persons abound.15

Still, the few successful cases are instructive. In United States

v. FaIk, Ellpg, the defendant was prosecuted for refusing to submit

to induction into the armed forces and for failure to possess a draft

card. His prima facie showing of selective prosecution included the

following:



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--a published government policy not to Prosecute violators
of the card possessj-on regulations, along with the defen-
dantrs statement that over 251000 such violators were not
being Prosecutedi

--the defendant's status as an anti-war activist and draft
resistance counsellor ;

--the prosecutorrs statement that a number of high-ranking
officials had participated in the decision to Prosecute;

--the lengthy delay in seeking an indictment;

--the stated government policy of prosecuting only those
who refuse induction, where defendantrs refusal was based
on legitimate conscientious objector status'

479 E.2d al 623, In 1i9ht of this evidence, the Seventh Circuit,

sitting B !EE, reversed the District Court and remanded the case

for a hearj.ng on the selective Prosecution i="rr.. 17

In United States v. Steele, .ggpg, the defendant was Prosecuted

for and convicted of refusing to answer guestions on the 1970 Census

form. He was an anti-census activist who, for example, distributed

a pamphlet entitled "Big Brother is Snooping." 46L F.2d at 1151.

The defendant presented minimal evidence in support of his selecti.ve

prosecution claim: he knew of "six other Persons who had completely

refused on principle to complete the census forms. None of those

had taken a public stand against the census and none were recommended

for prosecution." ;p. at 1151. The court, concerned about the failure

of the census information gathering system to aPprehend even those

violators located by defendant, and about the compilation of back-

ground reports on members of the census resistance movement, reversed

the conviction. The court held:

An enforcement procedure that focuses uPon the vocal
,/ offended is inherentJ.y suspect, since it is vulnerable

to the charge that those chosen for prosecution are
being punished for their exPression of ideas, a consti-
tutionally protected right.
The goveinment offered no explanation for its selection

of defendants, other than prosecutorial discretj.on. That



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answer simply will not suffice in the circumstance
of this case.

Id. at 1152.

Finally, United States v. Crowthers, ESEE, involved the

prosecution for disorderly conduct of a number of partici.pants

in six "Masses for Peace" held on the Pentagon Concourse in 1970.

Based solely on the fact that these demonstrations, involving from

five to 185 people, gave rise to prosecutions, but L5 other approved

political or religious ceremonies involving, for examPle, the West

point Cadet Choir and up to 450 people did not, the Fourth Circuj-t

reversed defendantrs convictions. The court wrote:

We do not hold that the government may not lawfuJ-Iy
close ffi concourEe of the Pentagon to public access.
We do not hold that it may not forbid all meetings
of anyTnd every sort whatsoever within the concourse.
We do not hold that it may not reasonably control-
publicT6etings in the concourse by the application of
objective standards fair to all. AII that we hold is
that it may not permit public meetings in support of
governmentil poticy and at the same time forbid public
meetings that are oPPosed to that policy.. -

what the government has done here is to undertake to
suppress a viewpoint it does not wish to hear under the
guise of enforcing a general regulation prohibiting
disturbances on government proPerty. In choosing whom
to prosecute, it i.s plain that the selection is made not
by measuring the amount ot obstruction or noise but
because of general disagreement with ideas expressd by
the accused.

456 F.2d at Lo79.18

Though the generative power of these cases must be regarded as

weak in tight of the difficulty of drawing generalizations from them,

as well as the many cases cited, -W, they do provide a list of

factors to be gathered in disco.r"tyrl9 or otherwise developed in the

course of the formulation of this case. Thus, for example, the fact

that the officials who enacted S17-23-L knew of the impact that it

would have on protected constitutional rights,20 indeed, intended it,



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might well create a compelling case for a finding of selective
2LprosecurLon. The activities of other grouPs that engage in absentee

voting assistance should be discovered, in an effort to discern

dissimirar treatment of those similarly engaged.22 And the fact that

we know Bozeman and wilder to be black political activists, seen in

the light of these cases, takes on increased significt"tt'23

Though the cases discussed, -g}!E,, are federal cases, the federal

courts have imposed a selective Prosecution doctrine upon the states

as welI. See, *-, Yick Wo v. Ilopkins, .ggEg.i Cox v' Louisj'.ana ' 379

u.s. 535, 556-558 (1965). In Cox, the supreme court reversed the

convictj.on of a civil rights demonstrator for obstructing public

passages where other meetings or parades that had obstructed traffic

had been permitted. The court, per Justice Goldbetg, errote:

It is clearly unconstitutional to enable a public offi-
cial to deteriine which expressions of view will be
permitted and which will not or to engagg ln invidious
discriminatj.on among persons or grouPs either by use_ of
a stiiute providing a system of broad discretionary licen-
sing power or, as in ttrl,s case, the equivalent of such a

"y=t.i, by selective enforcement of an extremely broad
Prohibitory statute.

37g U.S. at 557-55g.24 Similarly, a doctrine of selective Prosecu-

tion has developed within most of the states.25 The state of Alabama

is illustrative of one in which that doctrinal development is akin

to that developed in the federal courts. Thus, just last year, the

Court of Criminal Appeals of Alabama wrote that:

...to illustrate discriminatory enforcement of a statute
o= "-*rrrricipaf ordinance, three elements must generalIy
be proved: ielectivity in enforcement; selectivity t!?t
is intentional; and selectj.vity based upon some invidious
or unjustifiabie standard such as race, religion or other
arbitiary classification. It is insufficient merely to
show that other violators have not been prosecuted, that
there has been laxity j.n enforcement, or that there has
been conscious exercise of some selectivity in enfor"e.ent.25

The words ring famj.Iiar. And so are the results, for following this



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s!,andard has consistently resulted in the denial of motions to

dismiss for selective prosecution.2T However, as in the federal

courts and in several other jurisdictions, there exist a few AIa-

bama cases in which selective Prosecution has resulted in the

reversal of convictions. In Simonetti v. Citv of Birminqham, 314

so.2d 83, g2-g4 (Ala.Crim.APP. 1975), the conviction of one of only

four persons arrested for violation of Sunday closing laws was

reversed where, as in !i1!g!g, ggpE, the process culminating in

defendant,s prosecution was seen as investigatively incomplet..28

And, in Associated Industries of Alabama v. State, 314 So'2d 879

(ala.Crim.App. 1975), the court found that several organizatj-onal

defendants were impermissibly discriminated against in being

prosecuted for technical violations of the state corrupt Practices

Act, where similar activities had gone unpunished earli"r.29 These

cases are rather poorly reasoned, and, like the federal cases in

which selective prosecution claims succeed, provide little guidance

for generalization. One strains to create a definitive Line from

so few Points; here, the tine that can be drawn dictates strict

scrutiny of prosecutorial selections where First Amendment rights,

or other protected political activity, are involved. such is the

case here.

The allegations in the Bozeman complaint adequately state a

prima facie case of selective Prosecution. Prosecutions are

alleged to be rare breaches of a de facto policy of non-prosecution'

brought based upon race or uPon the exercise of protected political
30actLvLty. Intent j.s either Present or inferred from the legislative

history of s17-23-I.31 Accordingly, a violation of the equal protec-

tion clause is alleged. Depending uPon the facts, as they are



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revealed by historj.cal research and discovery, a comPelling case

for selegtive Prosecution may be made out. However' several problems

remain. First, the Procedural posture of this case presents the

selective Prosecution claim in an atyPical setting: normally rai-sed

as a defense to a criminal prosecutj.on, or on habeas corPus, here it

comprises a count in an affirmative suit seeking injunctive relief.

Both the possibility and the difficulty of obtainj.ng such injunc-

tive relief are established propositions of law. In Two Guy-s from

Ilarrison-Allentown, Inc. v. McGinlev, 366 U.S. 582 (1951), the Supreme

Court rejected appellant's contentions that it had been the victim of

discriminatory enforcement of Pennsylvania's Sunday Closing Law' The

Court wrote:

Recognj.zing that a mootness problem exists because
Uefriih Couity now has a new District Attorney, appel-
Iant contendi that there are still pending prosecu-
tions against its employees initiated as a result of
the a1l5ged discrininat6ry action. Since appellant's
employeei may defend against any such Proceeding that
is aclually irosecuted on the giound of unconstj.tutional
discriminalion, we do not believe that the court below
wag incorrect in refusing to exercise its injunctive
Powers at that time

365 U.S. at 582.32 Though denying such relief here, the Eso Guvs

court made it clear that, 5.n the appropriate circumstances, equitable

relief against discri.minatory prosecution was a proper te*"dy'33

Here, the circumstances are far more appropriate for injunctive

relief. There has not been a relevant change in law enforcement

persOnnel, as there was in Ttlo Guvs, and the practice at issue here

regard.s over one hundred years of enforcement of 517-23-1' Moreover'

no prosecutions are currently pending against members of the plaintiff

class, to which such members could be remitted for relief'34

However, in O'Shea v. Littleton, 4L4 U.S. 488 (L974), the Supreme

Court denied injuncti.ve relief against a number of black plaintiffs



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-35
alleging discriminatory enforcement of the laws. The Court held

that plaintiffs did not have standing to attack a pattern and

pract5.ce of which they themselves had not yet been victimized,

414 U.S. at 493-499, and so could not demonstrate the irreparable

harm necessary for injunctive relief . 4L4 U.S. at 499-504.36 Ho!'rever,

this case can be distinguished from ours: there, plaintiffs did not

"seek to strike down a sinqle state statute, either on its face or

as appliedr" !|. at 5OO, let alone a statute enacted with clear

discriminatory intent, as rre have here. There the injunction was

bload, and created a general federal superintendancy of the state

courts; here, the injunction prayed for is limited to enjoining the

enforcement of the statute, and would not even require the continuing

jurisdiction of the court. There, the harm complained of $ras a

speculative deprivation of a wide range of civil rights; here, the

complaint is based upon the Voting Rights Act and specifies the Past

and continuing harm to voting strength and the particularized chilling

of voting-related activities.
The particularity of the harm complained of and the relief prayed

for makes this case more appropriate for injunctive relief than was

O'Shea and mi.nimizes the courtrs intrusion into local administration

of the I"r".37 It becomes a compelling case given the vagueness of

s17-23-Lr38 the prot,ected nature of the rights at i==rr.,39 the

discriminatory intent behind the statute,40 and the jurisprudence

of the Voting Rights Act, under which it is brought.4l

Fina1ly, the application of a theory of selective prosecutj-on

may depend upon when a prosecution is deemed to begin; certain Pro-

spective plaintiffs have been investigated or harassed, but not
42prosecuteo. others have been indicted but not tried.43 Do these



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parties come within the traditional scope of selectj.ve prosecution

doctrine? Insofar as pre-prosecution choices can be consj.dered an

aspect of the appLication and admj.nistration of the law, see Yick Wo

v. Hopkins, EgpI3, 118 U.S. at 373-374, the ans$rer must be in the

affirmative.44

Generally, then, a theory of selective Prosecution is tenable

on the facts as we allege them. Further, the probability of success

on such a claim increases where it is brought in the votj.ng rights

context, and in conjunction with the theories enumerated, infra.



III. VAGUENESS

On appeal in the Alabama Court of Crimj.nal Appeals, defendants

Bozeman and Wilder challenged 517-23-1 as .r"9rr".1 In this section,

I examine the merits of that claim, arguing first that the

statUte is, in fact, unclear, and second, that as a matter of law,

it comports with the constitutional definition of vagueness pro-

pounded by the SuPreme Court.

The vagueness of 517-23-1 is apparent: it proscribes "vottingl

more than oncer" "knowingly attempt[ing] to vote when...not. entitled

to do so,,, and "any kind of illegal or fraudulent voting." The

court re jected Wilder's vagueness claj.m by construj.ng the last clause

of S1Z-23-1 as exactly equj.valent in meaning to either or both of

the first two clauses. The court wrote:

Clearlyrthelangiuageofthestatutereflectsa
common understanding that "ilIegaI or fraudulent
voting" i.s voting more than one ballot for the
same 5ttice, or ittempting to vote when one is not
entitled to do so. The statute thus gives due
notice of the criminal consequences of such action.

401 So.2d at 150.

The court further argues that no intent or scienter requirement

can be read into 517-23-1. It is true that in@,

52 AIa. 2gg (1875), cited by the court, the Supreme Court of

Alabamaheldthat,.[t]heoffencedenouncedbythestatute...isvoting
more than oncer" 52 AIa. at 3O2, and no intent reqUirement is men-

tj.oned as a requirement of either proof or pleadirrg.2 However, in

Gordon v. State, 52 AIa. 308, 309-310 (1875), the Court read a

scienter requirement into the statute: "'A11 crime exists, primarily

in the mind.' A wrongful act and a wrongful intent must concur, to

constitute what the law deems a crime." Gordon thus reversed the



-18-

conviction of a defendant who voted when not entitled to do so

because his parents told him that he had attained the age of 2l

when he had not done "o.3
Wilson and Gordon, though seemingly inconsistent, are actually

faithful to the language of SL7-23-L.4 The statute distinguishes

on its face between voting more than once, for which there is no

scienter requirement, and voting when not entitled to do Sor for

which there is one. Only with respect to the latter violation is

the word "knowingly" used in the statute. Nonetheless, the court

insists that "illegal or fraudulent voting" may mean either voting

more than once or voting when not entitled to do so. Whether there

is a scienter reguirement for illegal or fraudulent voting is left

uncertaini the courds dictun that 'even if the phrase 'illega1 or

fraudulent voting' is subject to differing interpretations, !.re may

rely on the remainder of the statute to provide a clear statement

of what conduct is proscribedr"5 leaves us little to reJ.y on.

Thus, not only does the court fail to explain why the "any kind

of il}egal or fraudulent voting" clause is not entirely superfluous.

Not only does it, in the alternative, fail to supply meaning to the

phrase "any kind of illegal or fraudulent voting." But, additionally,

it fails to clarify the most basic elements of "illegal or fraudulent

voting,'--the necessity of proving intent or scienter.S The statute

is therefore void for vagueness.

"It is a basic principle of due process that an enactment is

void for vagueness if its prohibitions are not clearly defined. "

Gravned v. Citv of Rockford, 408 U.S. 104,108 (19721. A statute

is impermissibly vague if the person of common intelligence cannot

reasonably know how to adjust her behavior so as to be in conformity



-19-

with the statute. The doctrine therefore simply incorporates notj-ons

of fair notice or warning.T Although the vagueness of a statute

must be considered in lighE of interpretations of it by state courts

or other interpreting agencies,S the interpretation of S17-23-1

rendered by the Court of Criminal Appeals does not salvage the statute.

rndeed, the confusion of the court indicates that s17-23-1 remains

a mystery to judges, let alone to persons of ordinary intelligence'

clauses remain undefined at best, muddled at worst. The reasonable

person is left unguided as to the meaning of the broad proscription

against "any kind of illegal or fraudulent voting" and, given the

facts of this case, of "voting more than once'as we11.9

The case for invalidating, or enjoining the enforcement of

S17-23-1 as impermissibly vague is strengthened by two factors'

First, my argumentr.gg3g, if accepted, leaves much of the statute,

and particularly the vague sections of it, without an intent or

scienter requirement. The absence of such a requirement, the Supreme

Court has consistentLy held, renders a vague statute "little more

than a traP for those who act j.n good faith."10 Indeed, as a general

matter, "the constitutionality of a vague statutory standard is

closely related to whether that standard incorporates a requirement

of mens g."11 There vras no showing of intent or knowledge in

the instant case. Indeed, the Court of Criminal Appeals rejected

defendant Wilderts assertion that she committed only "some techni-cal

imperfectionsr"12 b""ing its affirmance of the jury verdict on

circumstantial evidence giving rise to "a reasonable inference incon-

sistent with the appellant's innocencer'13 b,ra never explicitly

finding i.ntent or knowledge. In fact, there is evidence in the

appellate decision that defendant Wilder, at least, Iacked criminal



-20-

intent. According to the court, wilder argues that "the testimony

presented by the state did not 'reveal a single instance of unauthc'rized

voting.,,14 In arguing that there was no unauthorized voti.ng, I{ilder

appears to refer to the "voting when not entj.tled to do so" clause

of 517-23-1. Yet the indictment is for voting more than o""" ' 
15

wilder was not, therefore, aware of which clause of s17-23-1 she was

bei.ng prosecuted under--strong evidence that she did not know that

she had committed any illegal acts.16 :

In addition to being vague on its face, then, SL7-23-1 was here

applied so that this vagueness was prejudicial to Bozeman and Wilder.

The facts indicate that, as late as at the appeals stage, the defen-

dants did not know precisely with what they had been charged, or

what elements they needed to prove in defense. Howeverr anY reference

to facts is not even necessary in this case, for here 517-23-1 fails

a vagpeness challenge for a second set of reasons' Since "the

uncertainty induced by the statute threatens to inhibit the exercise

of constitutionally Protected rights,"17 greater specificity in the

statute is required.lE The reason underlying this is clear: "vagueness

may in itself deter constitutionally protected and socially desirable
10

conduct,"Ie because "[u]ncertain meanings inevitably lead cltizens to

!steer far wider.of the unlawful zone...than if the boundaries of the

forbidden areas rrrere clearly marked. "'20

Were constitutional rights not involved in this case, courts

would apply Iess stringent requir"*ett=;21 rather than examining

statutes on their face and deciding whether or not they miqht deter

the lawfu1 exercise of constitutional rights, "vagueness challenges

to statutes which do not involve First Amendment freedoms [would be]

examined in light of the facts of the case at hand."22 Here, those



-) 
t-

facts require a finding of unconstitutional vagueness in any 
"lrerrt.23

However, the rights at stake here are constitutional.24 Therefore,

a more exacting test is used, one which necessarily invalidates

S17-23-1 as vagrue.

Of course, the issue of vagueness and that of selective Prose-

cution are inextricably interwoven. Indeed, the real problem with a

vague statute is that it creates the opportunity for arbitrary, and

therefore discriminatory, enforcement of the 1"r=.25 Therefore,

the allegations as to the vagueness of 517-23-1 bolster our arguments

as to the selective enforcement of the statute, and vice-verr".26

At least under federal L^rr27 then, vagueness is a claim worth
.29pursuLng , not merely because it may be used to j.nvalidate 517-23-1,

but also because it strengthens our claims under the Voting Rights

Act.



IV. CONSTITUTIONALLY PROTECTED ACTIVITIES

Whether 517-23-1 is challenged as applied, the result of

selective prosecution, or unconstitutional on its face, the result

of vagrueness, it is important to show that the enforcement and/or

scope of the statute affects or may affect the exerci.se of protected

constitutional rights. The complai.nt alleges an infringement, or

a chilling, of several such rights: first, the right to vote; second,

the right to vote absentee; third, the right to be assisted in the

exercise of the right to vote; and fourth, the riqht to organize to

assist others, or otherwise to advocate for political activity. This

section of the memorandum attempts to establish each of these as a

constitutional rightr.

The riqht to vote. The right to vote has been consistently

held to be a constitutional right.l Thus, it is clear'that, insofar

as the discriminatory enforcement and vagrueness of S17-23-1 may re-

sult in the outright denial of the right to vote for those convic"ed

of violating the statute, and/or dilute that right for all blacks

in the state by chilling the exercise of the vote by blacks,2 a

protected right is infringed.

The right to vote freely for the candidate of one's
choice is of the essence of a democratic society, and
any restrictions on that right strike at the heart of
representative government. And the right of suffrage
can be denied by a debasement or dilution of the weight
of a citizenrs vote just as effectively as by wholly
prohibiting the free exercise of the franchise.

Revnolds v. Sims,.9!E,377 U.S. at 555. Though it is true

that a convicted criminal may constitutionally be stripped of her

right to vote,3 a deprivation of rJ.ghts may not occur j-f based uPon

the violation of a statute invalid on its face or as applied.4



-23-

In general, the right to vote is an important and uncontrovertible

onei that it is at stake here requj.res that strict scrutinys b"

applied in testing the clarity of the statute and the selectivity

of its enforcement.5

The riqht to vote absentee. There is arguably a right to

vote by absentee ballot flowing from the Voting Rights Act.7 However,

the issue of absentee voting can also be raised, to a constitutj-onaI

leveI, in two ways. First, the cases hold that, while one does not

have an absolute right to vote by absentee barlotrS it is clear that

once a state has enacted provisions establishing such a right, these

may not invidiously discriminate against certain citizens j-n viola-

tionoftheEqua1Protectionc1ause.9Thus,in@,
414 U.S. 524,52g lLg7[l, the Supreme Court held that New Yorkrs

absentee voting provision rrras invalid insofar as it allowed some

prisoners to vote by absentee ballot and others not to, based uPon

county of residence. Implicitly applying an equal protection ana-

lysis, the Court found that this distinction bore no rational

relationship to a legitimate state ".d.10
A s1milar analysis could be utilized here. Alabama has absentee

voting provisio[sr11 and our argument is that, though such provisions

are apparently constitutional on their face, their application

abridges equal protection because of the selective enforcement and

vagueness of 517-23-1. APPlying Yick Wo in the voting context,

we argue simply that, as applied, s17-23-1 denies blacks in Alabama

an equal right to vote absentee, or chills the exercise of that

right, just as if the statute \^rere discriminatory on its fa"e'L2

Second, S17-23-1 operates not only to discriminate unjustly

against blacks, or against citizens engaging in protected activity,



-24-

but it is also unconstitutional as a complete and total deprivation

of the right to vote, fot those unable to get to the pol1s. The

Supreme Court has distinguJ,shed between a total denial of the right

to vote and a mere burden upon that right. In a series of deci-

sions involving prisoners' right to vote absentee, where they were

not otherwise disenfranchised, the Court has, on the one hand, refused

to order states to provide absentee ballots to inmates where alter-

natj.ve methods of providing the vote were availabl..13 On the

other hand, where failure to provide absentee ballots resulted in

an absolute bar to voting, the Court has struck down the state

statutes at j.ssue.14 Here, the discriminatory enforcement of

517-23-1 so chilIs the exercise of the vote by absentee ballot--or

completely denj.es it for the convicted violator of its vague termsl5--

that it amounts to a complete denial of the right to vote for those

otherwise unable to vote, by virtue of a9€, disability, etc. This

assumes an extremely severe chilling effect, but this is a matter

of proof, not of legal argument.

The riqht to assistance. Assistance is now a statutory right

pursuant to Section 208 of the Voting Rights Act, 42 U.S.C. S1973aa-6,

which reads

Any voter who requires assistance to vote by
reason of blindness, disabj-lity, or inability
to read or write may be given assistance by a
person of the voterrs choice...

Hovrever, prior to this amendment, which was enacted on June 29, L982,

the courts had been reading a right to vote into the Voting Rights

Act as it existed previouslyr" or as a constitutional prerequisite

to effective enjoyment of the right to.rote.l7 As the court wrote

in United States v. State of Louisi-ana, 265 F.SupP. 703, 708 (E.D.



-25-

La. 1966), aff 'd, 385 U.S. 270 (1970):

...if an illiterate is entitled to vote, he is
entj.tled to assistance at the pol1s that will
make his vote meaningful. We cannot impute to
Congress the self-defeating notion that an i1-
litirate has the right to pulI the lever of a
voting machine, but not the right to know for
whom he PuIIs the lever.

265 F.Supp. at 708.18

These arguments are compelling. The Supreme Court's pro-

nouncements on the right to vote have always been worded in

terms not merely of a right to vote, but of an effective right

to vote.I9 Here, too, the legal issue is clear, and what remains

is the empirical question of whether black voters' statutory and

constitutional rights to voter assj.stance are abridged or chilled

by the selective enforcement of 517-23-1.

Riqht to orqanize and assist voters. In addition to denying

and/or chilling the right to vote, we allege that the selective

enforcement of 517-23-1 denies and/or chills the rights of members

of the plaintiff class to organlze, encourage or assist blacks to

.rote.20 The right to organize and assist voters could, of course,

stem directly from the right of voters to be assisted; it would,

we could argue, be an absurdity for there to be a right to be

assisted, but no right to offer assistance. However, there are

also independent constitutional grounds underlying this right,

which stem from the First Amendment's right to freedom of associa-

tion.21 As in Kusper v. Pontikes,22 the right to assist voters'

as Bozeman and wilder did, derives from the "freedom to associate

with others for the common advancement of political beliefs and

ideas -[which] is a form of rorderly grouP activity' protected by

the First and Fourteenth Amendments-"



-26-

The exi.stence of the right to assist voters is bolstered by

other cases involving the right to political associatj'on' In s11f

v. Buttonr.ggP_El, the court struck down provisions of chapter 33 of

the Code of VirginS.a, which prohibited and made criminal the soli-

citation of clients for litigation. Holding such provisions viola-

tive of the First and Fourteenth Amendments, the Court pointed out

that for blacks in states like virginia "association for litigation

may be the most effective form of political association,'23 since

', Ig] roups which find themselves unable to achieve their objectives

through the ballot frequently turn to the courts."24 The NAACPTs

modus operandi, which the Court described in great detailr25 *"y "o'
conform to a strj.ct construction of the Pirst Amendmentr but

I{e need not, in order to find constj.t'utj.onal protec-
tion for the kind of cooperative, organizational acti-
vity disclosed by this rlcord, whereby Negroes seek
through Lawful mian" to achieve legitimate political
endsr'"rrU=or" such activity under a narrow, Iiteral
.orr"lpiion of freedom of speech, petitign gI assembly.
ror tirere is no longer any doubt that the First and
Fourteenth Amendmenf,s prolect certain forms of orderly
grouP activity.

371 U.S. at 430.

The activity with which we are concerned is even less objection-

able than that discussed in NAACP V. Button. while both involve

the rights of parties attempting to assist indigent blacks, the

assistance of voters faIls within the electoral arena--a more

traditional sphere of politj.cal activity beyond which the NAAGP

was forced to go by the political exigencies of repression. Such

assistance is not prohibited, as solj.citation was, but rather

encouraged, by existing law. Furthermore, the denial of the right

tO assist voters is far greater and more direct an intrusion on

First Amendment freedoms than is, for examPle, a requirement that



-27-

an organization discloee its tnenbcrohip rol1s.26 Thus, while

there are no calts dircctly proclaiming the rlght to assist

voters, these caaos, along with traditional notions of freedom of

acrociation, creatc a rlght that the enforcenent of, 517-23-1

infrlngcs, jutt aa lt inf,ringes the right to vote, thc right to

vote abecntac, and the right to aeaistance wfien votlng.



V. INTENT

Assuming that the hiseorical evidence vindicates our claim

thacslT-23-lwasenactedwit,hdiscriminatoryintent,thesigni-
ficance of such intent nevertheless remains at issue' Such dis-

criminatory intent, in t,he passage of the statute may be IegaIIy

significant in two distinct ways. First, I will argue that' such

intent may be used to invalidate the statute, even though it is

neutral on it,s face. And second, I will argue thae proof of

discriminacory intent in the enactment' of s17-23-1 provides the

requisite intent for equal protection, and t'herefore selective

prosecuuion,-prrrpo"."r1 as well as for Fifteenth Anendment

2_purposes. rn essence, the question becomes how to use discri'mina-

tory intent,, once it has been proved. Ever the shield against

public interest litigation, how can it, be used as a sword' here?

The effect of discriminatory intent in the passage of a

facially neutral statute is that statute's validity is said to

be limited by the supreme court's decision in Palmer v' Thompson'

403 U.S. 2L7 (1971). There, the court refused to prohibit the

closing of a municipal swimming pool by the city of Jackson'

Mississippi, even though that closing was clearly motivated by

racial animrs.3 Justice Black wrote t'hat "no case in this Court

has held rhar, a legislat,ive act may violate equal Prot,ection

so1e1y because of ehe motivations of the men who voted for it.l'

403 U.S. aC 224. He went on to argue the functional basis for

this holding:

First, it is extremely difficult for a court Eo

ascertain the motivation, or collection of different
motivations, that, tie behind a legislative enactment...
Furthermore, there is an elemene of futility in a



-29-

judicialaetemPttoinvalidatealawbecauseof
the bad mot,ivei of its supporters. If the law
isstruckdownforthisreason,ratherthanbe-
cause of its facial content or effect, it would
presumablybevalidasSoonaschelegislature
or relevant governing body repassed it for
differene reasons.

Id. at 225. Justices Douglas, White, Brennan and Marshall

dissented. In his eloquent, dissent, Justice lftrite argued that

courts attempt to discern legislative purpose all the time'

That purpose was relevant here because, as Justice White Con-

cluded,

Thecityhasonlyoppositiontodesegregat,ionto
oftei-i! a justi?icllion for closi'ng the pools '
and this oplosition operates both tso demean the
Negroes of- iackson anb to deter them from exer-
cising their constitutional and statutory.lights'
ffre 

-i6cord is clear that, these Public facilities
had been maintalned and would have been maintained
butforoneevent:acourtordertooPenthemto
all citizens without regard to race'

Id. aE 271.

Palmer v. Thompson rePresents a Potentially significant

hurdle Co invalidating 517-23-1 sole1y on grounds of the intent

underlying it. It is, however, a hurdle that can be overcome.

First, the decision is not authoritat,ive: four justices dis-

sented, and a fifth, Justice Blackmun, seems to limit the holding

of the case to its facts, disagreeing with both Justices Black

and White and intimat,ing that Justice Black's emphasis upon

,,the difficulty and undesirability of resting any constitutional

decision uPon what is claimed to be legislative motivation" is

mere d,ictum. Id. at 229-4

Addition"*r, Palmer v. Thompson is distinguishable from

the Bozeman case. Indeed, the Court argues that Palmer involved

state action neutral in effect, whereas here we allege and hope



-30-

tro prove that, the deerimental effects of 517-23-1 disproportion-

ately devolve uPon the black voters of Alabama'

l,loreover, a strong argument can be made t'hat Palmer v.

Thompson either never \.ras, or no longer is, good law' In ehe

first place, Justice White seems to get the better of his argu-

ment with Justice Black. White's discussion of precedent is

compelling; the cases do indeed hold Ehat inquj-ries into motiva-

tj.on are necessary and significant.5 Justice B}ack, on the

other hand, relies almost completely on a single case, UniEed

States v. OrBrien, 3gL U.S. 367 (1968). There the Court held

a statute prohibieing the burning of draft cards not to be a

violation of the First Amendment, even if it was enacted with the

inCent to infringe the constitutional right to freedom of

speech.6But@isnotd,ispositiveofourCase.The
Court held in O'Brien that the statute there at issue did not

have the effect of infringing constitutional rights. We, however,

allege and I have arguedT that the enforcement of 517-23-1 has
8

precisely such an effect. l,tore fundamentally, ehe O'Brien

Court failed to confront' the exPress language of Gomillion v.

Lighrfoot | 354 u.s. 339 (1960).9 In Gomillion, a vote dilu-
. 10trLon caser che Court, treatss intent as the lynchpin of a

Fourteenth and FifCeenth Amendm"tt ."=".11 Effect is merely

evidence of such intent,, but "[a]cts generally lawful may be

unlawful when done to accomPlish an unlawful end."12 Purpose,

rather t,han the achievement of an unlawful end, is disposiuire.l3

The authority, therefore, is conflicting. On the one hand,

cases like Gomillion, @.!, and @ argue chat'

discriminatory intent in the legislatioh of a provision may alone



- 31-

serve to void that Provision.14 On the other hand, cases like

palmer and O'Brien15 may be cited for Ehe contrary proposition--

that legislative purpose is.wholIy irrelevant to the constitu-

tionality of legislation and that a statute may only be invali-

dated if it has a proven unconstitutional effect. AdditionalIy,

numerous cases assume an interrnediate position, holding that

either unconstitutional PurPose or impermissible effect may inva-

- 16Iidate a law.--

The cases do not therefore resolve the issue of whether there

is a pg se rule that discrimination in enactment of a statute

invalidates that, statute. compeJ.ling argiuments exist on both sides

of the issue, and perhaps the only question will be what the judge

had for breakfast. Further, the importance of t'he issue diminishes

where proof of unconstitutional effect is adduced. Here, the effect

of Ehe discriminatory enforcement of s17-23-1 is both a denial

of the equat protection of the laws, based upon race, and the

chilling of the exercise of constitutionally protected rights'

However, proof of these effects may be elusive. st'atistics

concerning the use of 517-23-1 may not be available, and chilling

effects are notoriously difficult to measure. Therefore, an

argumenr rhat s17-23-1 is invalid in light of its legislative

purpose retains potential utility. Furthermore, such an argu-

ment appears particularly persuasive when viewed through the

lense of recen!, analogous Supreme court oginions.

Generally, two types of recent cases supPort an argument

that legislatj.ve intent ought to be dispositive of a statute's

validit,y. The first is the general line of race discrimination

cases that have been decided during the last decade or so. In



-32-

the Title VII.t".,17 the Supreme Court has clung to the notion

that intent is the gravamen of a finding of employment discrj'-

mination. Even as the Court has developed a doctrine of "disparate

impactr,,18 it has made it clear that "impact" is merely a surrogiate

for discriminatory intent, where that intent is difficult of

proofbecausefaciallyneutralemplolrmenttestsareinuse,which

nevertheless have a discriminaCory result. Thus, for example,

there is no Title vII disparate impact violation where an employer

Proves the business necessity of her employment test' thereby

proving that her actions trere not mot,j.vated by (for example) racial
10animus.'v Similarly, under the "disparate treatment" method of

proving emplo'ment discriminat,ion under Tit1e vIIr20 "It]he ultimate

factual issues are...simp1y whether there was a pattern or practice

of...disparate treatment and, if sor whether the differences were

racially premised."21 Further explaining, the Court in Internat,ional

Broth.erhood of Teamsters v. United States h'rote:

"Disparatetreatment"suchasisallegedint'he
preslnt case is the most' easily understood tyPe
of discrimination. The employer simply treats
somepeoplelessfavorablythanothersbecause
of their-race, co1or, religion, sex or national
origin. Proof of discriminatory motive is criti-
cal, although it can in some situations be inferred 22
from the mere fact of differences in treatment

Here, too, intent remains the crux of the matteri stat'istics are

merely evidence of intent where more direct proof is not
23avaLlaDle.

That Tit,le VII cases have retained intent as ehe foundation

for a finding of liability has been reaffirmed in two recent cases.

In Pullman-Standard v. Swint, LO2 S.Ct. 178L, 1784 (1982), the

Court held that under 42 U.S.c. 52OO0e-2(h), "absent a discrimina-

tory PurPose, the operation of a seniority system cannot be an



-33-

unlawful employment, practice even if the system has some discri-

minatory conseguence". "24 And, in Texas Department of Corununity

Affairs v. Burdine,45O U.S. 248,253 (1981), the Court, in laying

out the nature of the evidentiary burdens placed on the parties in

a Title VII action, held that "the ultimate burden of persuading

the Crier of fact that the defendant intentionallv di.scriminated

against che plaintiff remains at all times with the plaintj.ff. "

[emphasis added] Thus, if the defendant rebuts plaintiff's prima

25 , !Ea ^--!L^1^-- -------l .:-tacLe caser the plaj.ntiff may nonetheless succeed in provi-ng

that she was the vict,im of intentional discrimination "by persuading

the court that a discriminatory reason more likeJ.y motivated the

employer ...,,26 Intent thus remains the focus of the Title VII

inquiry. ltore important, effects seem to have taken on Ciminished

j.mportance. In connecticut v. Teal , L02 S.Ct. 2525 (1982), t,he

Supreme Court held that, notwithstanding a Promot,ion process

ultimately more favorable to blacks than to white.,27 such a Process

was a viol-ation of Tit,Ie VII if it utilized at some preliminary

point the results of a discriminatory t'est. Rejecting the

so-caI}ed "bottom line" defense, Justice Brennan wrote:

The Court has stated that a nondiscriminatory
"bottom line" and an employer's good faith efforts
to achieve a nondiscriminat'ory work force, might
in some cases assist an employer in rebutting the
inference that Particular act,ion had been inten-
tionally discriminatory...But resolution of che
factual question of intent is not what is at
issue in this case. Rather, petitioners seek
simply to justify discrimination against respon-
d.ents, on the basis of their f avorable treatment
of other members of respondents' racial grouP-
Under Title VII, "A racially balanced work force
cannot immunize an employer from f-iability for
specific acts of discrimination. "

L02 S.Ct. at 2535 [citat.ions omitted].



-34-

In direct contradistinction to cases like Palmer v.

Thompson, Teal Strikes down a test neutral on its face and

ultimately neutral in operat,ion, simply because it contains

a component that tradj.tionally denotes discriminatory motive'

While at the opposite end of the ideological sPectrum, EL

is eherefore wholly consistent with the recent equal protect,ion

cases decided by the supreme court, which also emphasize intent

rather than result, and explicitly weaken the holding in Pa1mer'

Intent is gaining rather than losing momentum aS a factor in

assessing egual protect,ion claims. Ironically, that may help us

here, where intent is known but effect merely alleged.

A second line of cases supPorts the proposit,ion that, it is

appropriate to look to the legislative intsent lying behind 517-23-1'

Though intent may be held dispositive, the issue remains of

whether lecrislative intent in enacting a statute is an appropriate

object of judicial inquiry. The Palmer court rejected the notion

that such intent should be examined, but two recent cases contravene

that view. In Schweiker v. Wil-Eenr29 the Supreme Court rejected

an equal protection challenge to the denial of Supplemental Security

Income benefits t,o patients in public mental institut'ions' The

Court's inquiry included an analysis of the intent, of Congress.

Justice Blackmun wrote that nappelJ-ees have failed Eo produce any

evidence that the intent of Congress was to classify on t'he basis

of mental hea1th."30 The clear implication of Justice Blackmun's

statement is that such evidence of Congressional int'ent might well

have mandated. a different result. Similarly, in Kassel v. Consoli-

dated Freightways Corp., 31 the Court held that Iowars truck-length

Iimitations unconstitutionally burden interstate commerce. fn so



-35-

doing, both the plurality opi.nj.on by Justice Powell and, even

more forcefully, the concurring opinion by Justj.ce Brennan,

probe the intent of the Iowa legislature and find an intention

to burden interstate .o*.t"..32 Wilson and @!, then, to-

gether stand for the proposition that a federal or state

legislative provision may be invalidated on constitutional

grounds because it is enacted with impermissible intent, though

they leave unresolved whether such intent is alone dispositive.

we might well argue that it is.33

Taken together, these very recent Supreme Court cases hold

that legislative intent matters, and t'hat results may not. So

viewed, they provide powerful ammunition for arguing that the

clear discriminatory intent behind 517-23-1 ought either to

invalidate the statute per se, or to make a major contribution

toward its invalidation, when combined with other grounds.

One way in which proof of the discriminatory intent behind

the Passage of 517-23-1 can contribute toward making a case for

enjoining the enforcement of the statute is in providing the

intent, requj.red to Prove a CaSe of Selective Prosecution.34

Under the formula developed. in Arlinqton Heicrhts, supra, " It]he

historical background of tal decision is one evident.iary source

[for proving intent], particularly if it reveals a series of

official actions t,aken for invidious purposes."35 Thus,

Arlinqton Heiqhts stands both for the proPosition that intent

must be proved and for the proposition that it can be proved

by reference to the intent of the legislature in enacting the

statute at issue, even if that statute is neutral on its face.

Sinilarly, the recent school desegregation and Title VII cases



-36-

hold that, present neutral acts are illegaI if they do not serve

to elimj.nare the ef fects of past, intentional discriminatj.on. Thus,

in Dayton Board of Education v. Brinkman (Davton II)r 443 U.S. 526,

537 ll979l, the SuPreme Court wrote:

Given intentionally segregated schools in 1954,
however, the Court of Appeals was quite right in
holding that the Board was thereafter under a con-
tinuing duty to eradicate the effects of that
system, and that the systemwj.de nature of the
violation furnj.shed prima facie proof that cur-
rent segregation in the Dayton schools was caused
at least in part by prior intentionally segrega-36
t,ive of f icial. acts.

And in Griqqs v. Duke Power Co.r.ggg,, the Court ltrote that,

under Tit.Ie VII, "practices, procedures, or tests neutral on

eheir face, cannot be maintained if they oPerate to rfreezel

the status quo of prior discriminatory employment Practices"'37

These cases stand for the proposition that Presene intent may

be inferred from prior intentional discrimination in t'he formu-

Iation and enforcement, of policies, Particularly where there is

a legal duty ro remedy such past discrimination.33 This is

true even if Che present Practic'es are neutral on eheir face.

However, in City of Mobile v. Boloen, Eg33, the Court

seemed to dj.sdain this method of proof :

...Past discrimination cannot, in the manner of
original sin, condemn governmental action that
is not itself un1awful. The ultimat,e question
remai.ns whether a discriminatory intent has been
proved in a given case.

446 U.S. at 74. Prior to Egl5]gg, inferences of present intent

from past discrimination had been a common technique in voting

rights cases, both in the Supreme Court and in lower.orrt=.39

Seen in this Context, p!]93 is aberrational. Indeed, in recent

cases, the courts have retreated from this Bolden dictum. In



-37 -

Roqers v. Lodqe, L02 S.CC. 3272, 3275 (1982), the Supreme Court

quoted Arlinqton Heiqhts and held that "determini.ng the existence

of discriminatory PurPose 'demands a sensitive inguiry into such

circumstantial and direct evidence of intent as may be avai1ab1e. l "

The Court then affirmed the findings of the District Court thac

discriminatory intent could be inferred from Past intent'ional

discrimination. Justice White wrote:

Evidence of historical discriminat,ion is relevant
to drawing an inference of purposeful discrimina-
tion, particularly in cases such as this one where
the evidence shows that discriminatory Practices
were commonly utilized, that they $rere abandoned
when enjoined by courts or made iIIegaI by civil
rights legislation, and that they were replaced
by laws and practices which, though neutral on 40their face, serve to maintain the status quo.

In the voting rights arena too, then, proof of past inten-

tional discrirnination may suffice to Prove Present intent to
4t For us, this is crucial, as it is unlikelydiscriminate.'- For us, thj.s is cruc1al,

that we could dispositively prove that any particular incidence

of selective Prosecution was motivated by racial animus- The

pattern of discriminatory enforcement of 517'23'1, plus a

statute intentionally racist in its j.ntent, must serve to Prove

intent where direct evidence of present intent is practically

unavaiIabIe.42



VI. VOTING RIGHTS ACT

lhe complaint, as noh, drafted, alleges that, the selective

enforcement of 517-23-1 is a violation of the Votj.ng Rights Act,

42 U.S.C. S197L et seq. (hereinafter, tshe "Act"). There are,

however, no rePorted cases in which the Act has been used to

enjoin the enforcement of a criminal statute, outside of a

particular Prosecution. In this section, I argrue by analogy and

from legislarive history, that an injunction of 517-23-1 on

grounds of selective enforcement is within the scope of the

Act.

It is clear thaE the Aet can be used to enjoin the oPerat'ion

of statutes.l Under 42 tJ.s.c. S1973b, courts may enjoin the use

of various tests or devices, Such as literacy tests, education

tests, moralj-ty tests or language requirementsr2 as well as tradi-

tional section 2 violations.3 Additionally, the Act may be used

to enjoin discriminatory practices, even if done Pursuant to

Statutes neutral on their face.4 Furthermore, ie is important to

note that the Voting Right,s Act, in the form of its 1957 prede-

cessor statute, 42 U.S.C. 51971(b), has been used to enjoin

criminal prosecutions that t^rere designed to intimidate, threaten

or coerce blacks attempting to exercise their right Eo vote.5

Though Paragraph t7 of the Complaint alleges that, the selective

enforcement of 517-23-1 intimidates, threatens and coerces plain-

ciffs in violation of 42 u.s.c. S1973i(b), it is difficulc to

see why this section should be applied any differently than is

S1971(b).5 Indeed, 51973i(b) is braoder than its predecessor

statute: it is not, Iimited to federal elections and, signj-fj--



-39-

cant,Iy, it includes under its proCective umbrella persons

"urging or aiding any Person to vote." Additionally, the

Fifth Circuit has hinted that the burden placed upon a

s1973i (b) complainanr might be lighter than that placed

upon a S1971(b) Plaintiff.T
Additionally, the complaint alleges that the selective

enforcement of 517-23-1 constitutes a violation of section 2

of the Voting Rights Act.8 That this practice fits ldithin the

language of sectiort 2 cannot be disputed: the enforcement of

517-23-1 is indeed a "standard, practice or Procedure...which

results j.n a denial or abridgement of the right...to vote on

account of race or colorrn though discriminatory impact will

have to be proved at tria1.9 The fact that most section 2

cases involve vote dilution by virtue of at-large elect,oral

systems, annexations, etc. does not exclude discriminatory

enforcement Practices from the sectionrs ".op".10 Furthermore,

r-E r.s ctear Irom the debate surrounding the !982 extension of

the Voting Right,s Act, that a wide range of Practices are

contemplated by section 2. According to the House Judiciary

Committee:

These Practices include: inconvenient location
and hours of regj.stration, dual registration
for county and city elections, refusal to appoint
minoricy registration and elect,ion officials,
intimidation and harassment, frequent and unneces-
sary purgings and burdensome re-registratj-on
requirements, and failure to provide or abusive 11manipulation of assistance to illiterates.

Indeed, Che House Report goes on tso give an examPle of intj.mi-

dation and harassment that sounds particularly familiar:

Evidence of intimidation and harassment lvas- -.
found in Phoenix, A1abama, where Arthur Sumbry



-40-

wasconvictedandsentenced!ofouryearsfor
unauthorizedvoterregist'ration.l,lr.Sumbray
was assisting his Pregnant wif e, a deput'y re-
gistrar.SimilarevidenceexistsinPicke'=12
County- -.

The clear implicat,ion is thaE, the intent of congress was, and is,

to proscribe such practice=,13 indeed, perhaps, to Prevent

precisely what happened in this case, and to rectify t'he selec-

Cive enforcement, of election laws to the det'riment of blacks ' 
14

The remaining problems for us are onJ.y those of proof--proof of

discriminatory irnpact on blacks disenfranchised or unassisted

because of the direct or chilling effect of the enforcement of

s17-23-1.

There is one remaining legal argument, against the proposi-

tion that, the Voting Rights Act' can be used to enjoin t'he enforce-

ment of a crimj.nal statute. By analogy, the state may argue

that. the cases in which the courts have denied criminal defen-

dants a right co remove their cases to federal court, when

investigared, indicted or prosecuted for the purpose of denying

rhem or orhers the right to vote, should aPPIy here. qity 05-

Greenwood v. Peacoc!1, 384 U.S. 808 (1966). The argument wi}l be

that t,o aI1ow the federal courts to interfere in the enforcement

of a state statute would be "to urork a wholesale dislocation of

the historic relaeionship between the state and the federal courts

in the administration of che criminal Law"'15

This is not the place t,o debate the intricacies of the

federar removar statute, 28 u.s.c. s1443.16 Suffice it to

say that, the supreme court has drawn questionable discinctions

between, for example, prosecut,ions based on the exercise of

one I s right,s to full and equal enjoyment of public accomodations



-4 1-

under S20l(a) of the Civil Rights Act of Lg64,l7 and prosecutions

based uPon the assistance of others who rrrere exercising their

right eo vote.18 The result of these thin distinctions has been

that, Peacock has not been consistently followed, at least in t,he

voting righes context, in the lower "oott".19
Even assuming that, Voting Rights Act cases, similar to ours,

are not removable to federal court, a ProPosition in doubt in

the Fifth and ELeventh Circuits, the applicability of that axiom

to our case is less than clear. Removal cases involve a direct

intrusion of the federal courts into a particular state criminal

proceeding. Like the injunctions Proscribed in Egltgg-
Harris, 4O1 U.S. 37 (1971),20 removal of particular cases involves

the usurPation by the federal courts of st,ate Power .over a

specific controversy. Removal indicates a distrust of the

states' ability to fairly adjudicate mat,ters involving federal

guestions, and thereby undermines our federalist system and its

basis in comity. However, these principles are not implicated

here. Here it is the state that, through a pattern of discrimina-

tory enforcement of a vague statute, has infringed and continues

Co infringe rights protected by the U.S. Constitution. The

federal courts are not asked to Snatch a particular case or

Controversy from state control, aS no Prosecution is pendj.ng.

Rather, the Complaint requests merely that the federal court

exercise its traditional, broad equity powers where it finds

a violation of federal rights. As Judge Wisdom wrote in United

states v. McLeod, .ggpg, in approving equitable relief in such

a situation:
The defendants urge that t,he Supreme Court's



-42-

decision in Citv of Greenvlog9 vt Feacock,
limiting the removal of civil rights ca-sgs,
indicatts a policy of general applicability
to restrict federal interference with stat'e
criminal proceedings- To the contrary, the
Court in Peacock made clear that it was not
deciding E@Eion of federalism, but had
Iimited its consideration to the construc-
t,ion of che statute t'here involved. Expli-
citly and emphatically it reaffirmed t'he Power
of the federal courts to redress flagrant
denials of federally guaranteed rights,
whether by means of injunction, habeas
corPus, direct Supreme Court review, crimi-
na1 prosecution under 18 U.S.C. 5241, or
civil liability under 42 u.S-c. 51983.

385 F.2d at 747 [citations and notes omit,tedl . What is at

issue here is an injunction against unconstitutional practices

and not interference with state practices; this is standard

judicial activity and an entirely appropriate exercise of the

federal power.

it should be noted that cases like 3@,,
even Peacock are useful because they provide a vital

syllogism that is at the core of the analysis in

infringing
2tor botn.

sri11,

Whatlev and

Iink in the

this section. Each ho1ds, or assumes, that unjust prosecutions

on voring rights violate either s1971 (b) , S1973i (b) ,

We have seen that, the Voting Rights Act can be

used to enjoin the enforcement of unconstitutional statutes'22

We have seen that the Act can be used to enjoin the unconst'i-

tutional application of statutes constitutional on their f""..23

Here we find that, it can be used to enjoin particular criminal

prosecutions--those that comprise harassment or intimidat'ion,

and hence deny or chiII the right to vote.24 It is but a sma1l

step further to hold that the Act may enjoin the enforcement of

statutes that inevitably and foreseeaUty25 lead to selective

prosecution infringing the right to vote along racial lines '



-43-

On chc ottrEr hand, it would be a large step to excludc f,rom

thc voting Right! Act's purvie$, a practice that so lnpi.ngea

on thc riEhe to vot! of, blacks in Alabana.



VII. CONCLUSION

In the concluding sect,ion of this memorandum, I will

briefly address Cwo Procedural issues that might arise in

this litigation: the Party structure of the suit, and the

appropriateness of injunctive relief. I will then surnmariee

what has come before, in terms of the lessons to be learned

about the nature of public interest litigation.

The parties

A. Plaintiffs: We have asked that this suit be certified

as a class act,ion pursuant to Rule 23(b) (2) of the Federal Rules

of Cj-vi1 proced,ure.l The wisdom of such a reguest is not obvious.

On the one hand, the equitable relief that would be obtained by

a single Party would be as effective as the equitable relief

obtained by a 23(b) (2) cLass.2 On the other hand,t"l."" action is

an attractive option in light of the Particular named plaint'iff

with whom we began this lj.tigation, namely Maggie Bozeman.3 A

suit in which Bozeman is individual plaintiff will necessarily

focus on the detrimental effect of tshe enforcement, of 517-23-1

on organizers, and on the injustice of prosecuting people such as

Bozeman. This is the focus of the habeas petition t'hat we are

filing. The affirmative Voting Rights claim is intended to focus

on the effect of the enforcement of 517-23-1 on black voters

throughout Alabama, whose righEs are chilled since they are

disproSortionately illiterate and unorganized. At least at a

symbolic level, then, Bozeman is somewhat inapposite aS an

individual litigant.4



-45-

she may also be an imperfect plaintiff on a technical

}evel. As one who has been prosecuted once, Bozeman does not

necessarily have standing to request relief for future sPecu-

lative harm to herself. Tightened standards of "injury-in-

fact,, require that Bozeman show more than "[p]ast exposure

to ilregar conduct..."5 The existence of a class, however,

denotes the wider effect of 517-23-1 prosecutions; indeed,

we argue, the chilling effect of Ms. Bozeman's prosecution

itself, contj.nues to affect blacks throughout Alabama.6

Additionally, there are Problems with the relief that Bozeman,

individually, might be able to ask for. As a convicted felon,

she might be unable to seek injunctive rel-ief since she may

be deemed not to have nclean hands.'7 And, insofar as the real

harm to Bozeman is her disenfranchj.sement under 517-3-3r8 the

court could order a remedy involving an alteration of that

statute, rather than an injunction concerning 517-23-1, which

we seek.

These problems woul-d not present insuperable barriers

were a class action not PossibLe. However, they do argue in

favor of certifying a 23(b) (2) class. Bozeman would be a

class member both because she has been disenfranchised as a

result of the selective enforcement of 517-23-1 and because,

were she able to vote, her votes would be diluted as other

class membersr votes are--by the chilling of black voting,

black absentee voting, assistance to black voters and political

organization of black voters.9 Of course, it might be argued

that Bozeman's claims Lack commonalityrl0 or typicalityrt' ot

that she is not an adequate class representative, 12 since her



-45-

interests conflj,ct with members of the class who, as average

voters, would prefer that voting fraud be punisnea.13 However,

such an argument misconceives the nature of the remedy we seek.

We do not seek to vindicate Bozeman's rights to be free from

imprisonment for what she has done; this is the nature of her

habeas Petition. Rather, this action seeks to prevent Alabama

from discriminatorily enforcing its law, for to do so chills

the exercj.se of all black voters I constitutional rights and

results in a dilution of their votes and "an abridgement or

denial" under section 2 of the Voting Rights Act. Furthermore,

insofar as the Complaint is based uPon a First Amendment right

to freedom of association, such a right extends to both organj-zers

and orgarri"e"s.14 Thus, the conflict between Bozeman and the

class who are simply black voters is iIlusory. In the context

of the enforcement of 517-23-1, they have identical go"1".15

B. Defendants: So far, the named defendants are the Governor

of Alabama and the State Attorney General. These are Proper

defendant,s:evenbeforetheVotin9RightsAct,@,

93p5g., involved a suit against the Alabama Attorney General, and

Wesberrv v. Sanders, 376 U.S. 1 (1964), involved a suit against

the Governor of Georgia. The passage of the Act has not altered

the appropriateness of these defendana=.15 Indeed, it may even

be proper to sue state legisratot=.17

The questions of whether the state of Alabama itself shouLd

be sued remain. While many suits have been brought against

states under the Votinq Rights Actrl8 these have all been brought

by the United States Pursuant to the exPress authorization of

42 U.S.C. SSL971(c) and 1973j(d), which permit suit against states-19



-47 -

Note, however, that the Eleventh Amendment20 clenies the federal

courts jurisdiction over suits brought by individuals against

states,2l bot not to suits brought by the United States against

states.22 The question seems merely to be a matter of pleading,

however. State officials can certainly be enjoined to obey the

Iaw where, as here, the relief requested is prospective and not

a matter of damag"".23 Th.t"fore, it seems unnecessary to in-

clude the state as a Party.

Finally, there is a question as to whether additional

defendants ought to be joined in this action. The Secretary of

state has constitutional and statutory duties with regard to

electionr,24 so he/she Probably ought to be joined. More impor-

tant, the Attorney General's power over law enforcement in the

state is less than complete: under Alabama Code 536-15-1, * .s'' ,

he/she has discretion to prosecute legal Proceedings in the name

of the stater'U ry, direct the prosecution of criminal .."t=r25

and may advise or direct district attorrr"y".27 His/her only

relevant duty is to attend to criminal cases pending in the state

Supreme Court or Court of Criminal Appe"1".28 In light of this

very precatory description o.f responsibilities, I have reconmended

that one or more local district attorneys be included as defen-

dants. However, Alabama has numerous distri-ct attorneys; joining

them a1l would be unwieldy and would create-potitical"prbbl"*=.29

Choosing a few particularly bad DAs might create the impression

of a suit to remedy past harms rather than attain prospective

relief. certifying a class of defendants, on the other hand,

can itself be a problematj.c and complex proc.drt".30 Therefore,

in the interest of simplicity, and recognizing the reality that

{



-48-

a given district attorney is unlikely to contravene an injunc-

tion against the state Attorney General, the option of not

joining the district attorneys as defendants becomes an attrac-

tive one.

Iniunctive Relief

The appropriateness of injunctive relief has been a theme

throughout this memorandum. We have seen that injunctive relief

is a potential remedy for impermissible selective Prosecution,

within the discretion of the trial iuage.31 I argued that this

case was distinguishable from O'Shea v. Littleton, .9gPI3, in

that this matter involves less speculative harm, as well as a

narrovrer, Iess intrusive remedy.32 We have also seen that

the injunction is an appropriate remedy where a statute abutting

on constitutional rights and lacking a scienter requirement is

vague on its f..".33 r have argued that an injunction is

appropriate where a statute tdas enacted with discriminatory

intent.34 And, r have shown that the voting Rights Act can

be used to enjoin statutes, practices, and, particularly, prose-

cutions that infringe the right to ,rot".35

Throughout, I have avoided the issue of the propri.ety of

enjoining state court Prosecutions in general. In Younger v'

tlarris, -9gg3., and its Progenyr36 the Supreme Court has created

a doctrine based upon a strict construction of the requirement

that "irreparable harm" be shown and grounded in considerations

of comj.ty and federalism. Thus, it now seems clear that, as a

prosecution does not in and of itself constitute irreparable harm,

and as federal courts should generally not intrude on the business

of the states, neither injunctj.ve nor declaratory relief is an



-49-

appropriate remedy to a pending state crimj.nal prosecution.

However, our case is distinguishable from Younser and its

progeny. Younser concerned a situation in which a criminal

proceeding $ras already pending, against a defendant who was

unable to make any claims of bad faith prosecution or continuing
37narassment. Here, the federal intrusion is of a lesser degree,

aS no prosecution is pending. Further, the very essence of our

complaint is a Pattern of discriminatory Prosecutions against

members of the plaintiff class or those assisting thern. Although

. the Younger Court wrote that 'rthe existence of a rchilling

effectr...has never been considered a sufficient basis, in and

of itself, for prohibiting state actionr"33 this language.

becomes mere dictum where the state interest is slight, the

state action unconstitutional and the statute being enforced

vague on its face.

The cases following fgg3ggg extend its holding in many

dj.rections, but do not change the basic requirements that either

a claim be pending or bad faith not be alleged. Thus, Samuels

v. l,lackell, Eg!E,, extends Younserts principles to the declara-

tory judgrment action. Perez v. tedesma, 40L U.S. 82 (1971),

decidedtheSamedayasYounqer:.nd@,39preventsfedera1
courts from enjoining the admission of evidence in an ongoing

state proceeding. Huffman, supra and Trainor, .ggpg, extend

Younqer to certain civil proceedings.40 Hicks, gg3g., extends

Younger to the sj-tuation in which state proceedings commence

after the federal complaint is filed, but before any proceeding

of substance on the merits have taken p1ace. And Rizzo, -9gp4.,

extends the principles of Younger td tfre actions of executive

I



-50-

agencies, such as PoLice dePartments. However, none of these

cases can be construed to aPPIy to the situation existing here'

Indeed, this case is far, closer to those cases in which Younqer

has been held not to apply.41 On balance, then, an injunctj'on

seems an aPProprj.ate remedy, as the principles of Igg95' do

not apply to the problem presented here.

**t

Addressing Procedural issues such as the appropriateness

of the class action and the barriers that notions of federalism

place in the way of an injunction is a way of life for the

public interest litigator. Indeed, the issues that arise in

the context of this lawsuit are, in general, PrototyPical for

litigation addressing issues of race and poverty. Though the

purpose of this action is to invalidate one statute (517-23-1)

using another statute (the Voting Rights Act), the public

interest litigator attemPts to achieve success by essentially

constitutionalizing the problem. Reference to the most

general expression of justice and equality that our society's

jurisprudence has to offer best fills in the gaPs left by

statutes.

Constitutionalizing an issue is the most effective way

to achieve results that are substantively just. But with

constitutionalization comes the host of issues that this paPer

has explored. The constitutional rights at stake must be

established.42 Constitutional grounds, such as vaguet""=r43

or selective Prosecution,44 must be explored. Intent must be



-5 1-

proved.45 Throughout, the appropriateness of the relief prayed

for must be considered. And, in the end, Humpty Dumpty must be

put together again by fitting all of this within the applicable

statutory framework. 46

proceeding by analogy ,47 on" manipulates lega1 doctrine

to extend a statute beyond its normal confines. In so doing,

one is confronted with historical irony: usj.ng the Voting Rights

Act to address problems of selective Prosecution echoes of the

voting rights cases of the earLy 1960s, litigated by te.ams

consisting of peopJ.e like John Doar, Burke Marshall, Harold

Greene, Thomas Flannery and even Robert Kennedy. In extending

the Voting Rights Act beyond its current usage, one conjures

up the glory days of the past. And one comes to the realization

that public interest litigation is a continuing struggle.

Therein lies at least part of the excitement of a case like

this one. This case is but one battl,e in a long war against

injustice of the most reprehensible and immoral sort. Tf this

excitement is sometimes tempered by the practical politics of

today--for exampre, in the choice of parti""48--then that is

only because the war is in fact a Political one. For beneath

the technical legal issues that are Part of any lawsuit, public

interest litigation concerning race and poverty always involves

an exercise of one I s o!{n morality and political values.



Introduction

This description
from the sunmary

NOTES

of Bozeman and Wilder's activities derives
of Wilder's testimony at her trial, as that

in Wilder v. State, 401 So.2d 151, 153-159sunmary aPPears
(AIa.Cr.App. ), writffi.za L67 (1981).

The indictment against Bgzeman, which is confused and multi-
plicative, is attached as Appendix A.

The already questionable technique of breaching the secrecy
of the baI1oi box by examining absentee ballots and corela-
ting signatures wltL votes is-made more reprehensible- by the
facl thit the only ballots actually examined e/ere 39 ballots
notari.zed by Paul Ro}lins, a black notary public from Tusca-
loosa. With respect to the secrecy of the balIot box, !E,
€.9., United gtaleg-\r-'--E!ate of Louisiana, 265 F'Supp' 703,
715 (E.D.La. 1'1 1967); N.L:T.B, v.
Groendvke rranip;;i,-E*', 372 F.2d Lgz, 1ar (loEfi-m

2 ,1967) .

A copy of a draft of the Petition for Writ of Habeas Corpus is
attalLed as Appendix B. As this memorandum "goes_to press"
that petition- is undergoing significant modifj.cations, some
of whlch I have suggested or been consulted on.

At least one, Lou Somerville , 93, now claims that the District
Attorney, PeP Johnston, told her that she would Lose her food-
stamps ii sfrl aia not testify on behalf of the state, and in
support of the staters case.

Bozeman and 9{ilderrs convictions were also based on a series of
iiiegufarities at trial and the incompetence of defense counsel.
The irregularities included the all-white juries, racist state-
ments by the prosecution in closing argument, and the admissj'on
of out-6f-couit statements of witnesses from the prosecutorrs
notes, in contravention of the witnessesr testi:nony. _ Additionally,
there has been some discussion of the incompetence of Bozeman
and 9{ilder's d,efense counsel who, for examPle, did not realj'ze
that he could interview the prosecution's witnesses before trial-
and who himself injected significant racial innuendo in the
trial. fiowever, for political reasons, LDF has refused to
raise the compeience of counsel as a basis for habeas relief'



In 1&70, the
legislature.
control from
the year of

Democrats captured one house of the Alabama state
It was not until L874 that they regained complete

the Republican "Carpetbaggers," making the latter
the redeemer election.

Mobile Reqj.ster, January 9, 1875, lt 2.

9
llontgomerY Daily Advertiser,

10
Montgomery Daily Advertiser,

11

-53-

March 3, 1875, at 2.

March 5, 1875, at 3.

Section L7'23-7 is entitled "Altering
elector." It was enacted at the same
reads: '

or changing vote of
time as 517-23-1 and

Any person who fraudulently alters or changes the
vote of any elector, by which such elector is preven-
ted from voting as he intended, must, on conviction,
be fined not less that s100.00 nor more than $1000.00,
and imprisoned in the county jail for not less than
30 days nor more than six months.

See also 517-23-3, Bribing or attempting to influence voter
]f5'ciE[ing ftinaering her in the free exercise of the vote) t

s17-23-8, Disturbing elector on election day (including
preventing one from freely casti.ng her ballot). Both of
Lhese statutes were enacted in 1875; both are misdemeanors.

L2
For example, one who is convicted of violating 517-23-I loses
her righi to vote pursuant to 517-3-3(3). However, convic-
tions ior violations of the statutes described in note 11,

.ry353., do not result in disfranchisement.

I3
This history is based upon a lengthy telepfrong_colY?Isation
I had with Frofessor Peyton McCrary on April 22, 1983'

L4
Attached as ApPendix C.



-54-

II. Selective Prosecution

1
This section discusses the doctrine of selective Prosecution.
it ao"" not deal with the related area of vindictive Prosecu-
tion, excePt tangentially. See infra, at 8, note 9-'- On the
a;;i; of vindicrive prosecutffi',fggt""t"rry Blacklg4ge--v.
peirv , 4L7 u.s. 2L tlgzE); North 67offia v'-Pearce' 395 u's'
711 (1969).

2
CorrDare United States v. Wayte, 549 F.Supp. 1376, 1379-1385
Tffi.i dismissed on selective prose-
cution groundi) and United States v. Eklund, 55I P.SupP. 964,
965-959 (S.o. - iora-f d despite alIega-
tion of selective Prosecution) -

The selective Prosecution allegation
into Bozeman's petition for Writ of
dix B, at 32-36.

has also beenincorPorated
Eabeas Corpus, infra, APPen-

u.s. coNsT., amend. xw, s1 ("nor [shall any state] deny to
.rry p"t=on within its jurisdiction the equal protection of
the laws. ")

In yick wo, supra, 240 out of 320 laundries in san Francisco
*"raffi" byffi;ese persons. A11 but ten were constructed
of wood. A1i g0 non-Cirine"e laundry operators !'rere granted
permits, but more than 200 chinese operators were denied
licenses. 118 U.S. at 358-359.

see also Sunday Lake Iron company 'tr. Township of wakefield,
z4,7ffi -
tion cLause of the Fourteenth Amendment is to Secure every
p.i=ot within the State's jurisdiction against intentional
and arbitrary discrimination, whether occasioned by express
terms of a slatute or by its irnproper execution through duly
constituted agents.") (referring to disolmination in property
valuation); turner v. Foqqhe, 396 U.s. 346 (1970) (system
i;;-;;i;cl].n@rinconstitutiona1where,thou9h
neutral on ils-face, it resulted in a great disparity between
the number of blacks in the county and the number on the
grand jury 1ist, and where 171 of the 178 people eliminated
for reasons of ;'uprightness" and "intelligence" v'ere black) '

See, e.s., United States v. Diggs, 613--F.2d 988, 1003-1004
]o'A--ffi. as u.s. 982 (1980); uniteio:i.-ffi. as u. s . e8? t: ?991i uliled
states v. eourggi,f{l lre9 L 22L i 1::_9iI: _Ie 12\,^ ,,Y",+,:?
Ec.-ffi. TqE Cir. Lg76);-lifrFtea
ffi; ;oi i:re izot, 121r (2nd cir. Le74), q

- F?A ?-  /a-l n.l- \ aa-{-ffi, 602 8.2d.564, 568-570 (3rd Ci r.) , cert.
-v---E-v

ffiar (1929); united states v. Dll4sgn, 598 F'



2d 839, 859 (4th Cir- ) , cert denied, 444 U'S' 94L
United States v. Lichqrnsffi,J-jffi.2d L272 (sth

-55-

.D.N.Y., z)ta \D.lJ.!\ o r. LzeLl , 
=-:-:,

(t97e) ;
Cir. ) r

(2nd Cir. L982);
].,29L (D.CoIo. 1981)

iie1:-=ffia'i llgtiii-uq1.i!a-ii"d.= ". r.* , 47s ffia--er-67tn
cir' 1973) (en bancl; ' 584 F'2d 864
(8th cir. 1978)--u;ile .2d 1148 (9th
Cir. L972)i uniie 6?9 l.zd 774, 782 (10th

1980) ; United. gEetes
, cerE. clenLes,

ai;: igeoi, 2 (1e81) ' lhese cases
i"pr.=.trt.;iffiE tfiie-ffit recent or the most prominent case
on selective prosecution in each circuit'

United States v. Falk, supra, (active draft resister prosecuted
EltFa'ft card) ; Unit9d -S|ate: Y, , 

Ste9le '
supra, (census iesistance activist prosecuted for fa5'Iing to
anshrer questaons on a census form);-United States v' Crowthers'
4s6 F.2d Lo74 (4th cir Ls72i l;;;iiciP "

arrested on peniifon public coi:course); City,gf .EvansYiIle, In9:
;.Gaseteria,sri.2d,232,237(7thCir.ffiperm5.t
ffi;ationbecauseitwasIe9a11ycuttingPr}99sl.^.g
also Glicker v. ltictri,gan Liquor Coqlrol Cotnnission, 150 F'2d 96

?6EF ei inatorv qus-
ii"ii""-of-a fi.erioi-ficense, but no opinion on the merits of
the claim) .

See. e.o., united states v. Goodwin, Lo2 s.ct. 2485, 2492, n.11
lfezt-ie'is s) t BordenkirchPr v, Hayes'
434 U.S, 357, 364 (1978) (discretion to prosecuEE, to plea bar-
gain and to select charges).

10
united states v. Blitst LIt, supra | 626 ?. 2d aE 782i United

ieffi& .i BG6; uqitgd=st+Effi
ffi'4ffi (Iorh cir.), gert.-@, 429 u.s.

ffig:ii. 6;:+T:'ffi,i'62a;
11

see also United states v. Amon, 659 F.2d 135L, 1355 (10th Cir'
ffi'z)F" , sup{a, 6?9 -\.29- ll 78?i;;ir;e FEl-at lool ' Iln+leq Elalesoffiog (7th cir. 1980); uniteq sFates

Dicros, supra, of J !' . zcl aE ruuJ ; urrr LEtr s uq eE-
T=ffiioffiog (7th cir. re80); unite{ sFatesv.ffi; ;;';,-sag-i'.zd';i- e6e , attornev eeggfl=..=-'il

ii=l c-E+o:...'..rrri ch N.)rt-hern Aid comrnittee, 530 !-. supp.ffiffi-Eteffirrish Northern Aid commi . suPp.

United states-&-Egg-ertv., E6-F . SuPP . L286 ,

See, *-, United Ste!e-E-v-:-Amon, suPra, 659 F'2d at l'356-1357;
United Srares tffiSZffiA4z7 (5th Cir. 1981);
Oiffi, 6sz P.2d LL26, 1136, n.r4 (1st-cir.

, 646 F-2d L93, 195-196 (5th
ai;:'is , 538 F.2d Lsz, 181-(]o!l

L2

ai;: itao); 501 F.2d 325, 328 (7th cir' ) '



-55-

cert. denied, 444 U.S. 979 (L979)i Cook v- City of Price,

ffis, Rickman and Stout are all cases in-
i6-I'inilE'ti:ffi-p-roteffiF rhe ffis seem ro treat these
cases with particular antiPathY.

I3
See, e.s., United States v. Ca1dwe1l, 544 F.2d 591, 696 (4th
ffi: ffii; es, 401 F.2d 915, 925
(D.C. Cir. f , 266 F.SuPP. 318,
324-325 (S.D.N.Y. see Busche vt
Burkee, 649 F.2d 509, 517 n.10 (7th Cir.-ftSfffno selective
Ffficution absent actual governmental policy of non-prosecu-
Lion); United States v. Wayle, supra (selective prosecution.
found w eEl-policy of non-enforcement,
except with respect to vocal protestors).

14
See, e-g,-, Snowden v. Huohsg, 321 U.S. 1r_9.(1944); -leaoue v.
Alexander, offi.cl-cir. igeir rproor- offfiffinai
Effientorchi11in9ofFirstAmendnentrightsrequired);
LeClair v. Saunders, 627 F.2d 606, 509 (2nd Cj: ir. 1980) (intent
required); United States v. 3E, !!EB, 502 F.?9 .t_!q8-
569 (intent required); Ef v. ers,631 F.2d 572, 577
(8thcir.198o)(intent@eracia11ydiscrirnj.na-
tory sentencing). The requlrement that j.ntent be shown reaffirms
the fact that ielective Prosecution is but a variant of egual
protection analysj.s. See infra, section V at 35-37. Note
ilso that in stlndard @affitection analysi.s a classification
is sustained only if it bears a substantial relationship to
an important gov-rnment interest. If it does, then no imper-
missiLle classification is made and thus, no selectj.ve Prose-
cution claim can succeed. See, ry--, Hatheway v. Secr9t?Ty
of the Arnv, 641 F.2d L376 (9th Cir. 1981) (court martaalang
EomGffiG only for engaging in unnatural copulation suffi-
ciently related to governmentaL interest in a strong military);
United States v. Herman, 589 F.2d 1191, 1203-L204 (3rd Cir.

ers as between judicial and executive
branches a significant government interest underlying the use
of prosecutorial discretion) .

I5
See supra, section II, note L2.

15
See, €.e., United States v. Boss, 652 F.2d 36 (10th Cir. 1981)
lFErmiffinf e of several parti.cipants in
a single cri:ne).

L7
Falk has received mixed reviews from the commentators. See,
6, Commentr The Ramifications. gf Unit?d,Stales vr-FglE-gn
Equaf Protectio crimination, 65 J.CRIM.

- ! : . 
-- 

.@4) (approving Falk's burden-shifting
approach) ; Note, Discriminatory EnEorcetenE of F-'edefal Penel
Laws, 34 OHIO ST. oning the wisdom of



-57 -

FaLk holding).

18
I have not discussed the case of City of Evansville, Ind. v.
Gaseteria, suPra. The case is ot
fis Effi;aFtaom-cited and apparently not based upon the
modern selective Prosecution doctrine. Still, it can be cited
for the proposition that the law cannot be selectively en-
forced ai to a party solely on the basis of that party'9
lawfu] activitiLs. In Gaseteria, a gas station was denied
i1 op"roting permit applffnTlffiased upon a 1e9a1-pricing
polily, though other,-neutral reasons were alleged-by the
Lity. Today, those reasons might well_suffice to defeat a
sellctive piosecution claim. f have also not mentioned
several, district court cases. 9gg Unit,ed States v. W4IE,
supra , 54g r.iupp. at 1379-1385-(i re
FiEilnent f aillh to rebut defendant's showing that. only the
irost vocal draft resisters were prosecuted, that this was
based on a policy developed by high government officials not-
withstanding First Amendment problems); United States v.
Robinson, gif f.supp. 1063, (w-D.Mo- 190@r
vj.olation of wireylp statute overturned where similar behavi.or
by the government-wlnt unpunished); Z?yTE_ot,Ge-orqi+ v. ,Citv.
oi Atlanta, 276 ?.SuPP. 892 (N.D.Ga. L967 ) (injunction Issuect
ffiesEn discrirninltory enforcement of Sunday closing law 

_

where drug stores selling all kinds of goods !'refe allowed
to stay open, while defendant variety store was not). For
a favoiable appraisal of the result in Robinson, see Comment,
Intentiona1DiscriminatoryEnforcement@atute
niii

19
See United States v. Cammisano,413 F.SuPP. 886 (W.D.Mo. 1976)
lFv to court's order requirj'ng
ai in camera inspection of documents relevant to motion to
dismiss on grounds of seLective prosecution); Note, Defense
Access to gvidence of piscriminal,orv Prosecuiion, I97ffifilf,.- be filed
with the complaint, sometime during May.

20
See infra, section IV.

2L
See United Stateg Y:WCI!9, !.g!Ig, 549 F.Supp. at 1384' Note
S-a't !61Enment -off icials knew that
their en6Enent policy would have a detrimental effect on
constitutional rights. There is no evidence in g3J!9. tlat
congress knew that the Military selective service Act, 50
U.S:C.App. S45I, €t !9g.., would be enforced discriminatorily.
Herer w€ have no polffiy of selective enforcement or non-
prosecution, as eiisted in Wayte and Falk, ffi, 479 F'2d
ar 62t. naiher, we aIIege iEscrimiilE6ryffive on the
part of the ALabama legislature in 1875. See suPra at 4'5;
infra, section V.



22

See generall
ffi-a: sion: Enforc

coNN.B.J. 425 (L974\ i Give1ber,

-58-

6Flent of criminaL Law , 48ve !;nr orcemenE or \-rlr1!Li!la:!---j::.:=::,
ve

23

see united states v. steele, supra, 461 F.2d at 1151-1152;
ffit silFE, aso F.2d at Lo77-1080;
di 96-a] 311 F.suPP. at 106'4-1065;

' !E'' 376 F'SUPP'

See Falk, supra, 479 F.2d at 623i Steele, sllPrq, 461 F'2d at
iiirffi,@, -""g;-sag r.supFlraEr:Effias - As in
these casesffiaemffillin-a Wilder !{ere political activists on
behalf of causes (for example, black votj'ng) unpopular with
the authorities. We al1egl that Bozeman and Wilder are being
prosecuted for their race, as well as for their political
activities.

24
cox is not, despite this language, considered to be a selec-
d.-pr"seiutioir case. It ia, howeverr 11rl oft-cited and
i*p"tli"t First Amendment case, dealing with freedom of assem-
brv.

25

f'\JllN.P.U. a-J \-J, a I t , ----- -- I t : I

crirninal Law, 1973 U.rLL.L.F. 88, Note, prosP-cgtqrr?I-p1?959:
ffi potenri.al for Abuse, 21 DEPmEElEEv. 485 (197r);

iffijinatorv Enf orcemen!--eE-lrte
Penal Laws, i Note,

35 N.w.2d 308 (Mich. I

26
Deshazo v. city of Huntsvill-e, 415 So. 2d 1100 , 1103 (AIa ' Cr '
EF (re82).

27
See, e.9., Williams v. State, 393 So.2d . 492, 494 (AIa.Cr.App.
I5Ei)tili@), coble v. citv of-E!+i:EP,
38e so.2d 52i,ffi(;i;.ffit ;
irgao); st"ri!v-". iiii "r ai;miqeEffi,ffio.2d 1131 , tL32-
1133 (Ala.c So'2d 1134 (1979)' See

atso Burler v. 
- StateJ{.t$.]fa 203 , 205'207 (AIa. Cr.App '

rlfflffiv intent required to show improper selec-
tj.ve prosecution wheie defendant was Prosecuted for more
serious charge than co-defendants); Johnson v.,state, 335 So.

2d 663, 676 iwla) (acceptabre to pr@leader
of prison riot).

hesitation to uphold selective Prosecution
an anornaly, as there appeared to be no

of discriminatory intent or invidious
In light of courtsr
claims, Simonetti is
showing in the case

28



discrimination. This point was not lost on the dissenter.
314 So.2d at 97-98 (CateslJ., dissenting).

)a
In Associated Industries, too, the court fails to explain the
inv or intent underlying the selective
prosecution finding, provoking a dissent. 314 So.2d at 898--gOf (Moore , J. , concurri.ng in the result and dissenting in
part) .

30

35
In light of the former
point dictum. 4L4 U.S.

37
This problem could also
since, in O'Shea, there

-59-

holding, the dissent labels the latter
at 511-512 (Doug1as , J., dissenting) .

be analyzed as a question of mootness,
was no longer an active case or contro-

See infra, section IV.

See
31

32

33

inf ra , section V; gg3gg., at 4 -5 -

See also National Railroa4 Passenger Corporation v. Harris, 490
fraffi,

See, €.cr., Black Jack Distributors, Inc. v. Be!4re, 433 F.SuPP.
W;,ffiL e threatened
discrirninatory prosecution would chilL constitutional rights) ;
Moss v. Horniq, 314 F.2d 89, 93 (2nd Cir. 1953) (discriminatory
ffit found, but if it had been, injunctive relief
iould have been appropriate); Zayre of Georgia, I{rc. v..,City 9f
Atlanta, supra, 276 F.Supp at 844 (injunction agalnst d'LscrLmLna-
Affi-rosEci6Eiion under Sunday Closing Laws); Wade v. City-gnd
CountyofSanFrancisco,].86P.2d181,183(cffiqf
A atory enforcement of statute prohibiting
soiicitation of magazi.ne subicriptions enjoined); City of Coving-
tonv.Gausepoh1,ezs.w.2d1o4o(Ky.Ct.ofappeaffi
@nforcementofordinanceprohibitingdisp1aying
of wares on sidewalk enjoined). See also Jones v. Wa{e, 479
F.2d I17G, 1182, n. 11 i5th cir. f97sf--iEt;6-nsJ.a-s?E? injunc-
tive relief where facially neutral statute discriminatoriJ.y
enforced) (dictum). See generally Note, Selective Enforcement
of criminar Laws, suPi6 iE-.co-',.J. at
ffiifriliiEory Enforcement of state Penal r.awSr@,

j.nfra, section VII-at48-50.

Reversing the Seventh Circuit's decision in Littleton v. Berb1ing,
458 F.2d 389 (7th Cir. L972).

See
34

35



versy. But see GIay,v. saPders, 372 U.S. 368, 375-376 (1963)
(',tha voiffi'tiE ffi practice does not relieve a

.o"it of adjudicating its legality, particularly where the

-60-

pii"ti"" is deeply ro99e{- 11q. 1o3s standj'nsl : -*:l-tii;ii;i;n-,- eli u.3. s14 iusz4); uivor ot.ehi}tEl

See infra, secti.on III.
38

39
See

40
See

infra, section IV.

infra, section V.

4I

42

43

See infra, section vI. see also infra, section vII at 48-50.

one Albert Turner of Perry county, Alabama, is a potential
plaintiff of this kind-

yolanda clark and Adeline webster of sumter counly,.Alabama,
;;;-Fa.niior ptaintiffs of this kind. Their indictments
*"re-dismissed when the Prosecutor realized that the staters
case lacked merit.

44
See also Vorenberg, Decent Restraint of Prosecutorial Poh'er,
grnxnra.REv. -l;iL,
p"r"r- t"-i"iti"ie-investigation in an analysis of methods of
iestraining prosecutorial discretion, including undef-t1,"
A;;1;;o[6.ii"" clause); united States v. Ilooten, 662 F.2d
aia, aza (9th cir. 198L1 t indictment
can support a charge of vindictive prosecution") i Unj-ted States
v.Rice,65gF.2d524,526-5.i-istr,.Cir.1981)(apFfIt]il
seffiv"-tio=..ution standard to selection for investigation) ;

united states v. Ness,652 F.2d 890, 89I (9th Cir. 1981) ("to
case of selective prosecution a defendant

.""i ifroo, eiriaEnce of impermissible motive at some crlrqiel- *gge.
in the procedures ieadrng uP Eo Ene 1n1-t'a-'

1152 (systen oi'ai iotffints prosecution) ;

eiacf 
'Jick Distributors, Inc. v. Beq4e, suPra, 433 F.SuPp. at

affi citing Kr+hm v'
IJU.a-IJUO \grlJ(Jlrrlllg t']cls lq4brr 4'rvEse4>se-v"' ---:--:: ;-
Graham, 46L r.za zo: (eth cir. Le72)). E* 

= 
u"+i?g=?!1i"= "'f iz i s .2a- iD , zL6-zL7 ( eth cir . 19T trf TEsffiInEEorv

ltigiti""-a"es'not taint otherwise nondiscriminatory prosecution)



-61-

III. Vasueness

I
wilder v. state, 401 So.2d 151, 159 (Ala.Cr.App.), writ denied,
ffi1981); Bozeman v. lrale, 401 so.2d.167, 170 (Ala.
Cr.App.),writdenied,m(1981)"Hereinafter,I
will ie"eriffi Eiffinly to Wilder, ggp53., as that is the court's
only discussion of vagueness.

2
See Petition for Writ of Habeas Corpus, Appendix B, infra, Para. 18.
IE habeas petition argues that Wil-son requires proof of fraud to
establj.sh culpability under S17-t3:f

See also Carter v. State, 55 Ala. 181, 183 (1876).

Wilson and Gordon were decided under the 1873 predecessor statute
Effiff-23-lFfiTdh is cited by the court as Pamph.Act L872-73, S40.
It iead: "That any Person voting more than once at any electj'on
held in this State, or depositing more than one ballot for the
sane office at such election, or is guilty of any other kind
of illegal or frauduLent voting, shal1 be deemed gui]ty of a
felony." See, ggpIg, at 3-4.

401 So.2d at I5O.

Nor is it clear from the language of the statute or its subse-
quent interpretations whether an intent or scienter requirement
6xists for Lhe crirne of voting more than once. One could argue
either that the term "knowinglyr " which apPears before the
"attemptJ.ng to vote when not-entj.tled to do so" clause, should
apply io tle entire statute, or that the fact that "knowingly"
dols-not appear before the "voting more than once" cLause
specificalli exemPts : that crime from a scienter requirement.
W11son accoids with the latter interpretation of the statute.

Grayned v.See, e.s., Smith v. Goguen, 4LS U.S. 555, 572 (L974)i Grayned v'
eiEv ofnoct<ffi8 u.s. at 108, citing Papachristou v.eiEv 6-fr-Rock@8 u.s.
ffiiIffios u.s. Isffi1ry.faos -u.s. rs6, L62 

.(Ls72), -cmr
ffiioa u.s. zla,2s7 (19Gr); unffi

e rz. 6]-7 (1954) ; Jordan v. Dm.

-

ffiotz, 617 (1954); Jordan v. 9e,
nT,-Io-232 (1951); ianzetta v. ue@ 451, 453

. , 259 U.S. 385, 39r(1939); Connally v. General Construction Co., 269 U.S. 385, 39r
i$ze t , 255 u. s. 81, 89 (L929)

7g+ u.s. 2L5, 223-224
tates, 442 V.S. I00, 112-113

335, 348 (I971); McBoYIe(1979); uiEed-Eaffi
v. Unite , 27

(L926) i UnI

(Ie31).



Villa(,e of Hoffman Estates Y.-FliPsi{g,-\02 S.Ct. 1185, 1191, D'5
_s3 (le75) ; crlvlgl,-i!9I3,

dOg u.s.AETf6l--ffi trial courtrs interpretation of 517-23-1 as
ii-"pp"rr" in the jury instructions, Bozeman Transcript aE 20L-202,
does-irot shed much filnt in the statute. The judqe merely feld
the Statute and defin6d ttre terms "i1lega1" and "fraudulent" for
tfr. jury. The Bozeman trial transcript is the only such transcript
that has been made available to me.

It is not clear whether one must cast one's own ba110t in order
io Ue guilty of voting more than once. ff Sor there v'as no Proof
that Bozenan or Wildei themselves voted. See Peti-tion for Writ
of Habeas Corpus, appendix B, infra, Para.A. Nor is the act
of "voting" eier deiined, eith6?-ET the trial court or by any
of the appeals courts that have construed 517-23-1'

-62-

Colautti v. Franklin, 439 U.S. 379, 395 (1979) , quoting
ffiu.s.513, sz4 (1942).

U.S. at 395. See also United

10

Wilder, supra, 401 So.2d at 151.

United

L02 S.Ct. at 1193-LL94;
v. California,

438 u.s. azT+T4E?e6-]5ffal
supra, 405 U.S. at 153;

:ffi. s. 337 , 342 (L952) i
ffigr, 101-1oz Q945).

,e

L2

13
Id. at L62.

14
401 So.2d at

15

L51.

Colautti v. Franklin,
U,S. at 109; Smith v.

See also Bozeman, gg., 401 So.2d at 170-171'

See supra, section III, note 6.

16
To exacerbate the already considerable confusj.on, the judge
-harged the jury predominantly under the "any kind of ilIegal
or fiauduleni .t6titt9" clause of 517-23-1. See supra, section
III, note 8.

439 U.S. at 391; Grayned, s-]lPrg., 408
iupr., 415 u.s. ;fsTf

L7

supra,
Smith

ce es v. unJ.
nited States,

I8
Village of Hof fman Estates- r-. FIiP*.,

5 U.S. at 573;
ffisr-@gl.



19

20

United States v. National Dairy Co!P. , 372 U.S. 29, 36 (1953);
953) (citing cases).

Grayned, .g35g, 408 U. S. at _109 , . 
quoting_Bagqglt Y;-Bgllitt,37re. Wztz (1964) and speiser v. RaEIalI, 357 u.s.

5L3, 526 (1958).

United States v. National Dairv Corp., .ggpgg., 372 U.S. at 35.

-53-

United States v. Mazurie, 4L9 U.S.
analYsis,

extent with the vagueness inquirY
are at issue.

544, 550 (1975) . This is
which overlaps to a great
when constitutional rights

2l

22

23

24

See ggp5g., section rII, text accompanying notes 14-16.

infra, section IV.See

25
See, e.s., Villaqe of Hoffman Estates, supra, L02 S.Ct- 1193;
ffiynEtsu , !IP3, 405 u-s-&'ffiT l?Il]-citing Thornhill v. AIEEama, 3 L0 u. s . 88 , 97 -98
(1940).

26
See, €.g., United States v-:-lnese, 496 E.2d 204 (5th Cir. L974)
1lEguffis anonymous campaign materials,
in cqnbination with the lack of reported prosecutj.ons for this
type of violation of the statute, overrode prosecutorial discre-
tion, resultj.ng in reversal of conviction). Insco does not
explicitly discuss selectj.ve prosecution, though a similar ana-
Iysis is employed. The case does however present the vagueness
pioblem in the- context of a criminal prosecution for the violation
of election laws. See also United States v. Crowthers, SuPra,
4s6 F.2d at Loso-1oF(frEi- or-Jlc
of objectj.ve standards, in successful selective prosecution case).

27
State doctrine generally follows the federal in this area too. Thus,
for example, the Alabama d,octrine, though rather undeveloped, also
includes an objective standard for vagueness, E, e.qr., Tyus v-
state, 347 so.ia L377, 1384 (er".cr.App.), yf:fGl@ 327-0-2d

actual vagueness only where First Amendment rights are not at
issue, !E, g-:-g-_, Poe v. State, 389 So.2d L54, 155 (AIa.Cr.App.
I98o). -For frffi tEffiiSEffiourts been oblivious to the connectj-on
between vagueness and selectj.ve prosecution, Simonetti v, City of
Birminsham, supra, 3L4 So.2d at 95 (difficulty of enforcing vague

li3ETminatory ways). This is all, however, irrelevantIaws in noni
where, as here, the vagueness challenge is based uPon the U.S.
Constitution.



-54-

More relevant, perhaps, to a determination of whether
517-23-1 is vague is its similarity to other statesr statutes
iegarding voting fraud. Such statutes might indicate less
inl,rusivE means-of regulating voting and might demonstrate
ih. pos"ibilities for achieving greater clarity. - A brief
surviy of such statutes has revealed that, with the possible
excepiion of Massachusetts, Mass. General Laws, ch. 56, 526,
no olher state has a statute as vague as Alabamars. Most

=i"i"t.= prohibit voting more than once, as well as unauthorized
vot1.ng, birt do so in separate provisions. See, e.q'r 29A
Calj.f6rnia Code 529640 (separate subsections of the same
statute); Georgii coae SS21-2-571, 2L-2-572 (separate statutes).

Further research ought to be done comparing state statutes,
and their judicial interpretations, with 517-23-1, and ascer-
taining wfrit weight the existence of such laws should have on
our challenge to 517-23-1 as vague-

28
That claim aPpears in the ComPlaint,
10.

j.nfra, Appendix C, Para.



-55-

IV. ConstitutionalLy Protected Activities

I
See, r.e.r Ex parte Yarbrough, I10 U.S. 551 (188a); Guinn v'
ffii.ffitirffilel5 ) ; Reynords v. simsl-37ffiS .

ffiirgea) (cirinE cases); @, 405 u.s.
330 ; 336 ,3g7)) t ruraei_9__gtate aoar@ocialist
Workers PartYr';14
consEtl-l6?frl right to vote on a number of constitutional
provisions. ln addition to Amendments XV, XfX and XXVI, which
111 assume a "right of the cj.tj-zens. . . to vote, " one also
finds a right to vote implied in Art. I, SS2 and 4, Amendment I
and Amendment X1y, SSI (the privileges and irnmunities clause) and'

2.

2
An assumPtion implicit in this argument is that blacks are
particulirfy likLfy to be harmed by a chilling of the actj.vities
in which Bozeman and Wilder engaged. They are, we assume, more
Iikely to be illiterate, in J.ight of a century of_educational
depriiration, see, €.9. r Gaston County, North cqqqling_v. united
stites, 3gs 2trf,i8
Effie of historical ineguaJ.ities of educational oPPortunity) I
as well as more in need of organization in light of a political
system historically stacked against thern.

3
Richardson v. Ramirez, 4I8 U.S- 24 (1974).

See, e.s., Waddy v. Davis, 445 F.2d 1 (5th Cir. 1971) ("plaintiffs
Effi; ;6-"igffie the 1e9a1 results which fLow from
convictioni under constitutional state 14ryr " where no allegations
of uneven ap

Standard equal protection analysis requires that strict scrutiny
be applied to tlsting the fit between statutory classification and
Iegiiiative purpose *here there is either a suspect classification
at issue, or where, as here, fundamental rights or interests are
at stake. See, e.q., G. Gunther, CONSTITUTfONAL LAW: CASES AND

MATERTAT.S (m'Eh Efrggo) 908-97L; L. Tribe, Ai\',lERrcAN CONSTTTUTTOI'IAL
LAW, 515-7, et seq. For a case hOlding that voting rights are
iunaarientai EgEG for equal protection PurPosesr sg.E-r c'9',
Harner v. Virqinia Board-of Elect,ions, 383 U.S. 663, 570 (1956)

StrePiro v' TlomPson' 
-394 U.S. 616 (I959) (invalidaging state residency requLrements ror

welfare benefits based on the fundamental right to interstate
travel) .

See also, Yick l{o v. Hopkingt ?upla,.I18 U.S. at 370 (voting "is
i@ardEi-as@itIE f-right, because preservatj-ve
of all rights. " )



Most of the absentee voting provisions in the vot,ing Rights-lct
are merely expressed as r"coi'mendatj.ons. See 42 U 'S'C' 51973cc

er ses. Howe;;;;- 42 U.S.C. S1973aa-1 man;l;ges that the states
Fi*iA; r"r-ii".tt"" votins ii presidential and Vice Presidential
elections, for-eiiizens ndin their states or politj.cal subdiv1-
sions at the tirne of the election. An' Alabama statute that did
not conform to ihese dictates was invalidated in Prigmore v'
Renfro,355F.s"ip._eiltH.o.aii.Lg72),irf'a,4r0ffiT9.(I973)

C1early,S1973aa-ldoesnotapply.!othiscase,forourCom-
plaint .orr".rrr" ofi elections and- ipiU"s $rith particularity to
citizens voting UE.""". they are unlLle to be! tg the Po11s,
though they .;; ;;a outside- their state or political subdj'vision'
Nonerheless, Sfgiii"-i t"" U"en-i""of"a in tfre ComPlaint, Appendix
c, infra, puril-fg. Technically, this is incorrect and will be

ilaiffi. -i"*i".i, there is a strong argument that if a state
must provide absentee voting for sgTa,.pursuant to the Voting
Rights Act, ii should have io-piotidg'it.for a1L, especially in
light of the fundamental naturl of the rig!! !9 "n effective
ex6rci"e of the franchise. See infra ' al 23-24'

-65-

IO
cf., McDonald v. Board of Elections, g!EE, 394 U.S. at 808-809
Gr;p t6:!ffisica11Y disabled but
not to incarcerated)

I1
Alabama Code 517-10-3 states, in relevant Part:

(a) Any gualified elector of this state and any person
who, uut-ror having moved from the state within the
30 days immediately preceding the election, is a qualified
elector of this stltl who will be unable to vote at his
regular polling place because of his absence from the county
of his rlsidenle on the day of any primdty, general, special
municipal election, or who because of any physical illness
or infirmity which prevents his attendance at the polls,
whether he 1s within or without the county on the day of
the electionr hdy vote an absentee ballot, provided he
makes application in writing therefor not more than 50
nor less than 5 days prior to the election in which he

see, €.g., McDonaLd v. Board of Election conunissioners 9j-utg3g9.,
394 U.S. 802,

see, e.s., o'Brien v. skinner, 4]-4 u.s. 524, 529 11974); Dung-v.
EIumsffi, ffi!fr.ij.r&-u€rr-w3t i Ewa;S ;. l:--=:--, :==
uffiirgrtf (i;;hilitii," bised upon res@al
rnstitutes of ireiittl; Kraner v. UniP? Free School District'
395 U.s. 62L (1969) (pr6FEiy orrtnersnrp r
v. City of Houma, 395-U.S. 701 (1969) (same); Car.rington v.
ffig iigosj- t"tr*ins down statute-EEEt p:%TEited
ffii".*en from voting); Ilarper v. Virginia Board of Elections,
supra (poll taxes).



-67 -

desires to vote as authorized in this chapter'

L2
see. e.q., united states v. Penton, 2!2 F.Supp. I93 (M.D. AIa.
:'+'ffiz) -fJohn tice of discriminatory en-
forcement of state registration provisions); Brown v. Post,
27gE.SupP.50;fi-64(W.D.La.r.gee)(discrimin'ffi
enforcement of absentee ballot provision enjoined). See also
United States v. Raines, 362 U.S. L7 (1950) (under Voting

nction against discriminatory enforce-
meit of registration piovisions is proper) . Presumably, _the
1982 amendments to th- Voting Rights Act, see infra, at 39,
make it patently clear that discriminatory-enforcennent of
voting piovisions as well as the provisions themselves, see,
e.q. , oreson v. !{itchelI, 400 u.-s. LJ.2 (1970), are coveieT
by the Voting Rights Act.

13
McDonald v. Board of Electlon commissioners, E!PE, 394 U.S.

409 U.S. 512, 52L'522 (1973); O'Brj-en v.
414 U.s. at 529-530.

See supra, fntroductj.on, note L2 -

See, e.s., Hamer v. EIv, 410 F.2d L52, 155-155 (5th Cir'),
E!?i.-d6ie4-q6-ffig+Z (1959) (citing cases) ; United
ffi"=fftit"-or-r'ri="i""ippi, 256 F.soip . 344, 3TE--Jto.

erates to i,nto booth

L4

15

16

L7

I8

see Garza v. smith, 320 F.supp. 131, 133-139 (W.D.Tex. 1970)
]F?o@ce for disabled but not for illiterate
v6ters denies egual protection); Morrj.s v. Fortson, 26L F.
supp. 538, 540-54r (ft.o.ea. 196o)@j-ng.one
tr6ir assisting more than one illiterate person unconstitu-
tional) .

see also Puerto Rican organization for PoLitical 4e!i-9n v.
x:""pil3
575-T7trr cir. 1973).

see, e.s., Reynolds v. sims, supra,377 U.S. at 554-555, fn. 29t
m!";ff".@.-fr2-ra (1954) . rhese cases
@hts do not exist in the abstract; they are
only meaningful if they can be effectively exercised. Effec-
tivl exercise does not include "a right to have members of a

Goosby v. Osser,

ss. 1966). See al_44-9. LJVV t a

P arty Exe cut ivilcoffij=t tE
with them).

19



protected class elected in numbers equal to their proprtion
in tfre populatiotlr" 42 U.S.C. S1973b, as amended. It should
neverthallss, vre argue, include the right to assistance where
necessary and the right to vote absentee'

It should, however, be noted that often the courts pro-
claim rights, and then refuse to al1ow them to be effectively
exercised. compare Roe v. wade, 410 u.s. I13 (1973) (proclairy1ng

il;' ; i'l:.::m"ffi "ffiitl'3tli !i r ii'
necesary abortions); H.L. v. ltatheson, 101 S.Ct. 1154 (1981)
(parenti1notificatioffiendentminorsuphe1d).

20

-58-

See Complaint, APPendix C, infra, para. 11.

2L
The First Amendnent reads: "Congress sh.alI make no law respecting
an establishment of religion or prohibiting the free exercise
thereof i ox abridging the freedom of speech, or of the press;
or the right of, tie ieople peaceably to assemble, and to petition
the Government for a redresl of grievances." It is generally
applied to voting rights issues. See, 9:*-,,,H?rPPr v'.=virginr;3^
goird of Elections, lupra, 383 U.Sl-at T6E WiigEE v. l{ahan, 4r'8

ffi.ofii.-rg7g), aff 'd, ezo rffi-
19goj (no right to a referendrrrol@, 664 F.2d
eoo,-stjg(ot6cir,].981)(ri9ht.toffiredesireto
vote for specific individual on petition).

22

23

24

4I4 U.S. 5I, 56-57 (1973) (invalidating lllinois statute preventing
one from switching parties for prirnary elections within a 23-
month period)

371 U.S. at 431.

id. at 431.

25
id. at 420-422

26
See, e.s., NAACP v. Alabama,
El?e"Fcitm,

4

449, 460-453 (1958);
515, 52L-524 (1960);
Committee, 103 S.Ct.

iffit socialist

357 U.S.
361 U.S.

invalidatrng r
Workers Party disclose the recipients
bursements) (citing cases) .

of its campaign dis-



-59-

V. Intent

1
See supra, section fI.

2
Although the Voting Rights Act has been amended so that a finding
of intent is no longer required, the Fifteenth Amendment still
demands such a finding. see, 1a-, city of llobile v. Bolden,
446 U.S. 55, 62 (L980i. ffiofiEs ion
under the Act, as amended, it is not necessary to prove intent.
However, insofar as the effect vre allege is in terms of selec-
tive prosecution, which itself requires a showing of intent,
see supra, at 9, the issue may become significant. Note also
ffiEt-EfiTE action is being brought under the Fourteenth and
Fifteenth Amendments as well as the Voting Rights Act. Complaint,
Appendi.x C, infra, Para. 19-20.

3
The pool was only closed after a federal judge ordered it deseg-
regaled, 403 u.s. at 2L9. See also, id. at 249-254 (I{hite, J.,
diisenting) (including evidffieTEIt EFe city could have afforded
to keep the pools operating).

Justice Blackmun concurred in the result, based upon the facts of
the case. Eis opinion is not clear as to his view -of the role
of legislative motj.vation.

See, €.e., Adickes v. S.H. Kress & Co., 398 U.S. L44 (1970)
lEiadG t in restaurant because
of racial anirnus precludes summary judgrment); EpPerson v.
Arkansas, 393 U.S. 97, 107 (1968) (First Amendnrent vlolated
il-ffiEr the purpose or the effect of a statute is to advance
or inhibit a particular religion, quoting Abington School Dist-
rict v. Schempp, 374 U.S. 203, 222 (1953)); Jones v. Alfred H.
ffi.s. Aos,42L-422 (42u.s.c. @Irdrery racially motivated refusal to sell or rent") i Griffin v.
Countv School ioard of Prince Edward County , 377 U.S.-2TE,-737

ols unconstitutional
where objective !{as to avoid desegregation). See also Evans v.
Abney, g6e u.s. 435, 453 (1970) (nrennan, J., ffise ng) .-

391 U.S. at 382-385.

See supra, section IV; Complaint, Appendix

Though we aIIege unconstitutional results,
remains fundamental because we may not be
discriminatory prosecution based on race,
we aIlege. See infra, at 31.

C, infra.

the intent inquirY
able to prove either
or the chilIing effects



-7 0-

'rn. o'Brien court cites Y:iI1I="i=u*1-!89, slelee' les u's' 21

(1904), for suPPort a"d-att ---
American pres!-go. , 2g7 U.S. 233 (1936), as well as-95}Ell*98'
ffiv=i" ff each of these cases for fear of
entering .porr".i--iniini.te historical regression of useless
case analysis, aII culminating' in any event' in the precise
point I am aUie-to *if. *iifroui such lnalysis--that Palmer

ili".=-.il ;;;;" in doubt' see infra' at 30-31'

IO
GomilliOn involved a challenge to " 1:57 Alabama statute that
##tt-a:th;-';;;e;ti"= of ruikee€€ ' -cl'ansins it f ro:n a square

to an irregutai- Ze-sia.a fig"te,-ina in Lfre-Process' eliminating
all but four or five of 400-black voters from the cityrs voter
ro11s.

I1
364 U.S. at 341. ,

"ru . aL 347, quoting united States v' Reading ' 226 u's' 324' 357

Tfgrzl.

',,."a1sow'iW"il3.,;i;i3;,3!;iii.,i;1lj*iiI
TffieiFevill
considerations motivatea siite-aPPortionment, Supreme Court
would ,rot oi.ir"i"-pi=trict courl-'s finding t!?t there was no

suchmotivationandthus''oai".rj:ninati?t],tffi,
United States, 422 U'S' 357, 378-379 (:
ffiexation"',lii.i*i".,takenforthepurposeof
discrimirr"ti"g-igiinst Negroes.on account of their race has no

legitimacy o116"r our consi,itution or under [the voting Rights
Actl ...An annexation pr"""a-t;-b. of this kind and not proved

to have a justifiable basls is iorUS'dden by 55 [of the Act] '
whatever its actual effect *a'y have been or may be"')

r4co*irlior,, wright and city of Richmond are arl cases invorving
#iiffi;r,ffi,-Inu@LY sermane' However'

one coula "rg"" 
ifr"t in each t"se, notwithstanding the strong

language cj-ted supra, ".-li; 
ai="ii*inatory effects did exist'

1tr"1*", 
n.= itself been forlowed in fairry recent voting Rights

Act cases in the lower courts: .S""i-g'q" Cross v' Baxter'
604 F.2d B?s , BB2, n. 1o-Gah'ciiligffi.@1arse
electoral sYstem) '

at 222;

);; ;:;:"i;;;"il; , 
-;:4- 

i igz or-rr'riffiarsre*?::l?l: -{ ' , :}''

I6

i:i:ii;:"lni*i&ni;isi;;ii;e'il;[i;;at;n in constttuttonar raw,



-7L-

7g YALE L.J. 1205 11970) (motivation of legislators
government officials relevant. in :oT:.cases) ; Note,
i':=?:se :-d gederal Constitutional Adiudication' 83

I887 (1970 ) (c

See
18

I9

L7
Title VII of the Civil Rights Act of L954, 42 U.S.C. S2000e, €t
seq.

Griqqs v. Duke Power Co., 401 U.S. 424 (1971) '

40I U.S. at
411 U.S. 792
40s (1975);

2t

431. See also McDonnell Dquelas Corp. v. Green,- trszafam*i.
Dothard v. naw g77').

20
Disparate treatment analysis requires that the plaintiff
stroi (1) that she belongi to a iacial minorityt Q) that she
applied and was gualifiad for a job for which the employer was

"Lifing applican€s; (3) that, desPite her qualifications, she
was rejeci,La; and ial that after her rejection,- the position
remainld open and the employer continued to seek applicants from
persons of her gr:al.ificalions. - ttlcgonnell-Doug1as. 99fp:-Y: GIeen,
lupra,411U.s.at802;.Seea1soFurncoConstructaon..!W-

International Brotherhood ef, TeamslerE-v-:-United glglee, 431 U.S'

22
fd. Iemphasis added]

23
See also McDonnell Douglas CoTP-v* greeTr, -:HpIli llgco Construc-
ff""f".-. waters, supra, 438 u.s. aE s7E6'o'ffie

tEE' sti1l more sPecificitY:

A McDonnell Douglas prima facie showing is not the
eqffiuaI f inding of discrimination...
Rither it is simply proof of actions taken by the
employer from which we infer discriminatory animus
belause experience has proved that in the absence of
any other Lxplanation it is more likely thln not that
these actioni $rere bottomed on impermissible conside-
rations. when the prima facie showing j.s understood
in this manner, the employer must be allowed some
lattitude to introduce- evidence which bears on hi-s
motive.

24
Swint rlras not a shocking holding. The Act explicitly provides
S-"fai-fferent terms, conditions or privileges of emplolment

and other
Leqislative
HARV. L. REV.



maybeapPliedtodifferentemployeesbaseduPonabonafide
seniority system unless such difflrences are "the result of
an intention io discriminate because of race, color, reLigion'
sex, or nationir origin... ", 42 tJ.s.c. S2000e-2 (hl . .-9=. also
riins-worta eiiiinesl rnc. v. Haraison, 432 u's' 1 (1977) '

25
See supra, section V, note 23'

-+26
Id. aL 256. Burdine establishes the following allocation of
fria.""-ana offif presentation of proof in a Title VII case'
,,First, the pfaintiff has the burden of proving bY " 

preponderance
of the eviaeice-i-pti." facie case of dilcrimination. Second,
if the plaintiff sircceeds in proving tle prima facie case, the
burden shifts to the defendanl 'to irticulate some legitimate-
nondiscri.minitoiy reason ior tne employee's reject191.'' Third'
should the defendant carry this uurden, the plainlirf must then
have an opportunity to prove bY . preponderance of the evidence
if,.t the ilgitjrnata realons ofiered by the defendant were not
its true reasons, but were a pretext ior discrirninatj'on"' Id'
at 252-253 [citations omitted] '

27
This came about as a result of an affirmative action Program
that occurred after the results of the test had provided an

initial r"rrr-oiaering of app}icants. :.o2 S.ct. at 2529-2534'

-72-

Washinqton Davis, 426 U.s. 229 (1976) (citing
e ofAr 6n--Eei hts v. Metropolitan Housi

28
See, a.9 . tlt-_-€..cases) i vrJ

v
L

Devel LY. t a3J v'Y'

FMassachusetts
o{l-
Fee

These cases hold

-TWI7); Personnel
, 442 v.sffiz-
6 U.S. 55, 61-75 (L980) -

example, the Court in WeElgoEon v' uavrs
some rensrh "r,i*lIrrli"dffi chanse 'thE-EE;
vailingrule,"-4rau.s.at24t'rnafootnote'thecourtadded:

To the extent that Palmer suggests a generally appli-
cable pr"p"=ition thiA-@islitive PurPose is irrelevant
in conititutional adjudication, our prior cases--as
indicated in the text--are to the contrary; and very
shortlyafterPalmer,allMembersoftheCourtmajority
in that case lolfiffthe Court;s opinion in Lemon v.
Kurtzman, 403 U.S. 602 f igirl, which dealt ffiETiEE issue
ffi; financing for private schools and which
announced, as the Court irad several times before, that
the validity-of public aid to church-related schools
includes 

-.i6"" ii:quiry into the purpose of the chal-
lenged statute-

Id.at244,n.ll.SegalsoArlingtonHeighls'supra'429U'S'*, zss-zsa ("ffi;; tfr#eEpffiinlEE purpose
has been a motivating f actoi in the decj'sion ,' ")udicial
deference tto-iegi=iiti". judgmentl is no longer just5.fied. ")



-73-

29

30

31

32

450 u.s. 22L (1981).

450 U.S. aE 233-234. See also id. at 244, n.11. ("Ascertain-
ment of actual IlegisllEvETTuSose...remains an essential
step i.n egual protect j.on. rr ) (Powe11, J. , dissenting ) .

450 u.s. 662 (198r).

450 U.S. at 677, 580-587. Writing for the plurality, Justice
powell Looks mainly to the burden actually placed on interstate
commerce by the lowa statute, balanced against the reasonableness
of the stalute in achieving the state's goals, Id. at 67L-675.
Justice Brennan's concurrence, however, irgues th-at the motives
of the legislature shouLd be dispositive. Id. at 580-581. The
result is that, as in Schweiker v. Wilson, G are left not
knowing what role legi@ys. In thj,s case, w€
will be able to Present enough evidence of effect to create
Iiability, in combination with our finding of intent--even if
we cannol present enough evidence of effect to alone carry the
day.

See also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,
a63, 

=17 
and uPhoJ-ding

constitutionality of act banning the sale of milk in plastic
containers). BuL see United States Bal1road Retirement Board
v. Fritz , 44g ffi.-Tde
eongffii actual motives in enacting a statute, but rather
assuming that Congrress intended what it enacted).

See supra, sectio[ V, note 2.

429 U.S. aE 267, citinq Lane v. !{j.Ison, 307 u.s. 268 (1939)
(registrationprovisi.onffia1idbecausebasedin
p"rl on discrfiinatory grandfather clause earlj.er struck
&o*n by Court as intentionally discriminatory in Gginlt v.
united states , 238 u.s. 347 tigfs) ); Griffin v. s&63l1!-qgrr<!,giiffi;. schnelr, 8r F.supp. e

ffi;,ffiiegl (striiing down Arabama lFeracv
GFbecause of discriminatory intent in its passag€, as well
as discrimj-natory effect). Davis v. Schnell is particularly
apposite. There, trre court ffiist PurEose of
tnl afaUama legislature in enacting a literacy test for voter
registration provided the requisite showing of intent to
discriminate, where the statute was facially constitutional
but was being selectj-vely enforced. 81 F.supp. at 878-881.

33

34

35



-7 4-

36

37

38

39

40

41

42

See also Columbus Board of Education v. Pennick, 443 U.S. 449,
a'sii lTfe , 413
u.s. 189, 2r
Education, 402 U.q. 1,ffi

401 U.S. at 430.

Both the school desegregation and the Title VII cases, while rele-
vant to the general problem of proof of present discrirnination
by virtue of past intent, are idiosyncratic because they involve
a duty to act affirmatively to eradicate discriminatj.on. This
duty was imposed by Brown v. Board of Education, 347 U.S. 483
(1984) for Lne aesee actment of Title
VIf for the emplolzment discrimination cases. Of course, arguably
the same kind of duty was i:nposed in the instant case by the
enactment of the Voting Rights Act. r

See, €.9.r white v. Reqrester, 412 U.S. 755, 766 (1973); Nevett
y'.!i sffizzz (5th cir. 1978), cert. d6j=fr
EI'68 gsr (1980); Kirksev v. Board of supervisors of-EIntls
Citlr, Miss. , 554 F.2d 139 (5th Cir. 1977) .

See also Bolden v. City of Mobil#,
105[1633;
historical discussion); Perkj.ns v. City of

575 F.2d,2OL, 2L]. (8rh m

L02 S.Ct. at 3280.
542 E.Supp. L050,
remand, extensive
West He1ena, Ark.,

Here, too, it is unclear how large a role such past intentional
discrimination p1ays. It may be but one factor in the analysis,
or it may be dispositive. See supra, sectioD V, note 32.

Of course, past discriminatory intent may dissipate over time.
An argument can be made that the effect of the discriminatory
intent of the 1875 statute cannot possibly continue to be felt
over a century later. Our argument is that, Pursuant to that
intent, a pattern of dicri:ninatory enforcement evolved which
continues to this day. See qenerally Bolden v..City o{ Mobile,
AIa., supra, 542 F.Supp. at 1055-1058 (considering evLdence from
EfrFpoi€:Gvil War era with respect to existing electoral system)



-75-

VI. Voti.nq Riqhts Act

I
9999999 , 94--, Roaers v. Lo9ge,__sEPrSl-10?-:.9!:_1! 3?!;-citv gf. 

-
R6-me ifrniffi Uil56, 160 (1980); Mobile v. Bolden,

t United States v. Commissioners of Shef-
ffi'; Ai;. , its u.s.'r );-IJ.O (.l,:r/O,| ta!r(,gLELI ey !E!s!strtr

U.S. at 756-759i Allen v. State
544 (1969); searcy ffi55

Gaston Count , North Carolina v. United-States, 395 U.S- 285 (Ie69);
I-EEate of Louisiana v.

ffi.s. 145 (1955). .stqte of Louisi4la, q8,tates,
it-r *,pIe of a case'brought ffigzllTnis
was the Voting nigfrts Act of 1957, a predecessor statute of the
Voting Rights Act of 1965. The earlier statute was designed,
and, g6neritty used, to remedy particular instances of the depri-
vation of voling rights, rather than larger systemic problems,
such as at-large voling, annexation, etc., which are addressed by
the Voting nights Act of 1965, as amended. The Voting Rights Act
of L957 ii leis powerful than the Act of 1965 in many resPects.
For example, the latter act absolutely prohibits tests !".9;,
literacy- tests) that have had the PurPose or effect of denying
or abridging the right to vote on account of race or colorr - S42 V.S.C: SlgZgU, whj.le the former statute allows the use of
literacy tests in certain circumstances, regardless of intent or
effect, 42 V.S.C. S197I(a) (2) (C) . Similarly, under the latter
statute, there is clearly a private right of action, see, -*J
42 V.S.C. S 1973a(b) (nan aggrieved pbrson" may sue to enforce
the voting guarantees of the fourteerrth and fifteenth amendments),
while thi; is not clear under the former statute. Compare Good
v. Roy, 459 F.Srrpp. 403, (D.Kan. 1978) (no private-fgfiffif
aEfidii and Broofl v. Nacrelli, 33I F.Supp. 1350, 1351-1352 (E.D.
pa. r971);-affi5 (3rd cir. 1973) (private risht of
action exisEE)T

Often a plaintiff will join a 51971 action to her clain under

3l3li;=,T36 .e:!t',ffi 6',:i: I;3i"3'3: ffi
fd"'fif-f5th cir. 1981).

These are the vote dj.lution cases, such as those listed, !!PE,
section VI, note 1.

See, €.9., Toney v. White, supra (enjoining future selective
EffificaEon@ing removal of registrants from voter
rolts), United States v. St4te of Mississippi, 359 F.SuPp. 103
(5th Cir .c- 51971,
discrirninatory voter registration practices); Unj-ted States v.
State of Missi ssippi, 339 F.2d 679 ('5th Cir. 1964 ) (same) .



-7 6-

42

5
See, €.e., United States v. Mcleod, 385 F.2d 734 (5th Cir. L967)i

-'*'
Uffiteffitat 2 (5th Cir. 1961) . cf . ,
Oitffis counry, Misslselpgi, 385 F.2d i35, L49

ent to interfere with
voting rights); United States v. LeFlore County, 37L F.2d 368
(5th dir.-Lg67i ' supra' the
court enjoined. arrests, 385 anfilrry
investigitions, id. aE 750-752, as well as the pending prosecu-
tions. All were-fie}d to be for the PurPose of harassing or
intimidating blacks in the exerclse of the right to vote, in
violatj.on oi 42 lJ.s.c. 51971(b). rn united states v. LeFLore
County, supra, ttt. couri did not frofa ld
no iuefr" the harassment that occurred. It merely refused to
labe1 the district court's ruling that there was not intent to
inhibit blacks from voting clearJ.y erroneous.

U.s.c. S197I(b) reads: 
l

No person, whether acting under color of law or otherwise,
shali intimidate, threaten, coerce or attempt to intimj.date,
threaten or coerce any other Person for the purpose of inter-
fering with the right of such Person to vote or vote as he
may choose, or of causing such other person to vote for, or
nol to vote for, any candidate for thd office of President,
Vice-President, pre-idential elector, Member of the Senate,
or Member of the-Eouie of Representatives, Delegates or
Commissioners from the Territories or Possessions, at any
general, special or primary election held soJ-ely or in
iart for tire purpose of selecting or electing any such candidate.

U.S.C S1973i (b) reads:

No person, whether acting under color of Law or otherwj.se,
shaLi inti:nidate, threaten or coerce, or attemPt to intimidate,
threaten or coerce any Person for voting or attempting to
vote, or intimidate, Lhieaten or coerce, or attempt to intimi-
date, threaten or coerce any Person for urging or aiding any
person to vote or attempt to vote, or intimidate, threaten or
coerce any person for exercising any P6vrers or duties under...
this title.

United States v. LeFIore Countv, supra, 371 F.2d at 37L, n'4'
ourt exPresses no view as to the

relationship between the two statutes, but does so in the context
of holding that there is a relatively heavy burden of-having to
prove intent to coerce or intimidate voters under 51971 (b) . The-tone of the note is that the result might have been different
under 51973i (b) .

Section 2, as amended, reads:

(a) No voting qualification or Prerequisite to voting or

42



standard, practice or procedure sha1l be imposed or
applied by any State or political subdivision in a
manner which results in a denial or abridgment of
the right to of any citizen of the Unlted States to
vote on account of race or coIor...

(b) A violation of subsection (a) is established if,
based on the totality of the circumstances, it is shown
that the political Processes leading to nomination or
election on the State or political subdivisj.on are not
egually open to participation by members of a class of
citizens protected by subsection (a) in that its mem-
bers have less opportunity than other members of the
electorate to participate in the political process and
to elect representati.ves of their choice. The extent
to which members of a protected class have been elec-
ted to office in the State or politj.cal subdivision
is one circumstance whj,ch may be considered: Provided,
That nothing in this section establishes a rigEm-
have members of a protected class elected in numbers
egual to their proportion in the population.

9
See Complaint, Appendix C, infra, para- 13-14.

10
Toney v. White, supra, 476 F.2d at 2O7-208i Coalition
ffi OilET Board of Elections of the City

of New York, 37O E.SupP. q2' 49-54, )O (5.u.N-r.r, 89, fd, 495
F:2fI0g0l-('Znd Cir . L9141 (various practices, inclu-ling polls
not opening on tj:ne, lack of bilingual materi.als, selective
enforlemenl of identification technigues, etc., violate section
2). ef ., Gremillion v. Rilgg4o, 325 F.Supp. 375, 378 (E.D.La.
tg7Ll-](Ttfr protected voters from an actual
or potential denial or abridgement of the right to vote only
wheie the basj.s for the infringement was racial discrirnination.")

11
H.R. Rep. No. 227,97th Cong., lst Sess. (September 15, 1981) at L4.

Id. at 15.

The House Judiciary Committee Report relies to a great extent on
U.S. Commission on Civil Rights, The Voting Rights.Act: Unfu1filled
Goals (1981). This report i.s ful@vi-dence that
ffi-orts an argument that Congress intended that the Act aPp1y
to situations similar to this one.

See New York Ti:nes, November 2, L982r Page unknown; Boston G19bg,
November 2, 1982, page unknown. In these two newspapers, arti.cles
appeared concerning Bozeman and Wilder's release on parole.
They began, "Two black women whose vote fraud convictions became
a rallying cry for extension of the 1965 Voting Rights Act won
their freedom yesterday... "

L2

13

I4



15

16

-7 8-

See also S. Rep. No. 4L7, 97th Cong., 2nd Sess. (May
25, Ig-EZ)-IFSa-ss.

384 U.S. at 831. fn Peacock, the defendants, petitioning for
removal, were members-oETivil rights group engaged in
registering blacks to vote. They were arrested and charged
with such diverse crimes as obstructj.ng the public streets,
i11ega1 operation of motor vehicles and inciting a riot.
384 U.S. at 811, 835. See aLso Johnson v. Mis?i?sipPi, 42J-
U.S. 213 (1975) (no removal for prosecution arising from
from picketing against race discrimj.nation in hiring).

28 U.S.C. S1443 reads:

Any of the following civil actions or criminal prose-
cutions, colnmenced in a State court may be removed by
the defendant to the district court of the United States
for the district and division embracing the place wherein
it is pending:

(1) Against any person who is denied or cannot enforce in
the courts of such State a right under any 1aw providing
for the equal civil rights if citizens of the United States,
or of aI1 persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any
Iaw providing for egual rights t ot for refusing to do any
act on the ground that it would be inconsistent with such
1aw.

Georgia v. Rachel, 384 U.S. 780 (1966) (removal granted)

Greenwood v. Peacock, E!p4, 384 U.S. at 826-827 (removal denied).

See, €.e., Whatley v. City of Vida1ia, 399 F.2d 52L (5th Cir.
ftr68I -lg-eiro s prosecuted f or activities
connected with voter regj.stration, which prosecution was in
violation of S1973i(b)); Davis v. State of Alabamq, 399 f.2d
527 (5th Cir. 1958) (remov ) explicitly
invoked, but not where activj,ties alleged did not fall under its
provisions). But see State of Louisiana L:_E9g!sUe, 418 F.
la 823 (srh ciiflffi'q') ate of
Ca1ifornia,413E..SupP.1o39(N.D.Ca1if.ffiied).
SEfrTsoTnompson v. Brown, 434 F.2d LA92 (5th cir. 1970) (action
EfluiFccffiidates against successful black candi-
dates removabLe under Voting Rights Act).

infra, at 48-50.

L7

t8

19

20
See

2L
See also McLeod, supra.



-7 9-

22

23

See supra, section VI, note 1.

9gp4., section VI, notes 4 , 10 .

24
See supra, section VI, notes 5, L2, 19.

25
The inevitability or foreseeability of the adverse conseguences
of a neutral rulE has further bearing on the questj.on of intent
to discri:nlnate. See, Personnel Adminj-strator of MaEsachusetts
v. Feenev, 5[fr,, r4"'u

26
See Searcy v. Williams, supra, 656 F.2d at 1011 (enjoining
ffitffi oi,E face because unconstiutionally
applied)

See



-80-

vII. Conclusion

Rule 23 .bl(€), Fed.R.Civ.P., 28 U.S.C-. reads:

An action may be maintained as a class action if the
prerequisites of subdivision (a) are satisfied, and in
addition:

(2) the party opposing the class has acted or refused
to act on grounds generally applicable to the c1ass,
thereby making appropriate final injunctive relief
with respect to the class as a whoLe;

A. Miller, Lecture to Advanced Civil Procedure C]ass, Harvard
Law School, Cambridge, Massachusetts (November 8, 1982) .

Though I have referred to Bozeman and Wilder throughout, Bozeman
is tf,e nasred plaintiff in this action, the more Politically
actj.ve of the t$ro, and the client of LDF.

The symbolic level is of great importance here. I have been
told rnany times of the necessity for maximizing favorable
publicity ttrat will result fronr this action. This, for exanple,
is one reason that LDF has insisted that George Wallace be the
named defendant. Generally, insofar as LDF's goals are to make
states vrary of actions such as these, and to combat a chj.11ing
effect on L1ack voters' exercise of their rights, such publicity
is cruciaL. Note also that LDF needs publicity in order to
maintain their funding, which comes largely from individual
donors, solicited by mail.

5
See, A-L-, o'Shea v. Lj.ttleton, suPra, 4I4 U.S. at 495-496t
ffi'cFfr ._:L_ltsgiqlel, supra,

,

supra, 385 F.2d a
fro-'Ionger pending). With resPect to the issue of mootness
in the clals action context, see, e.g. I Sosna v- Iowa, 4L9
U.S. 393, 397-403 (1975) (thou3 cEFmoffi
plaintiff, cfass action would proceed where case or contro-
versy had initially existed as to her, where controversy is
ongoing for other Llass members, and where plaintiff is an
adequale class rePresentative) t Unj.ted States Parole Commis-
sion v. Geraqhtv,- 445 U.S. 388 (

ffiion has been denied, where such denial is
being appealed).



I

See

-8 1-

Bozeman's political rj.ghts have, of course, also been chilled
by the enforcement of 517-23-1. The chilling effect o€ a pro-
sEcution alone, does not however, mandate equitable relief, See
infra, Et 49, n.38. Further, the purpose of the petition for
habeas corpus is to redress the particular harm incurred by
Bozeman

See Comment, The Rig_lrt to Nond*:c-rimin?!9ry Enforcement of State
ffial Laws r s
aocffie F;oEfFm-atic but not conclusj-ve)

g3p3., rntroduct j.on, note L2.

The assumption is that blacks will express common interests in
elections, interests opPosed to those of whites. lherefore,
chilling the black vote by chilling organizing, absentee voting
and assistance to voters, see supra, section fV, note 2, renders
black interests less likely to prevail and accorclingly demeans
every black vote cast.

10
Fed.R,Civ.P. 23(a) Q), 28 U.S.c.

11
Fed.R.Civ.P. 23 (a) (3), 28 v.S.C.

L2
Fed.R.Civ.P. 23 (a) (4), 28 U.s.c.

13
See, €.e. r Hansberry v. Lee, 311 U.S. 32, 44-46 (1940) (class
Effiurd:iiat ffie there are "duaL and potenrially
conflicting interests )

L4
See, ag_, NAACP v. ButtON, !3gE, 371 U.S. aE 429-43L.

In order to maximize the moral impact of this litigation, I have
recommended to LDF that a'rariety of plaintiffs be woven into
a single plaintiff class: blacks who have been Prosecuted and
convicted under S17-23-1, others who have been merely investi-
gated or otherwise harassed for violatj.ons of the Statute, and
still others who are average black voters, perhaps even voters
who have failed to vote for fear of legal reprisal under 517-23-1.
A class so constructed would make clear that the burden of the
enforcement of S17-23-I has fa11en not only on those who have
been subjected to its sanctions, but also to the black popula-
tion of Alabama as a whole. Obviously far more research could
be done, and may have to be done on issues of the structure of
the plaintiff c}ass. This, however, is a topic for another
memorandum, if necessary

15



I

16
Thus, for example, EPg t- Meier, 420 U'S' 1 (1975)
*ta ; voting nightsffi the North Dakota
Secretary oi Stite, an official similar in stature to
a state Attorney General, and United Jewish Orqanizations
of williamsbursh, rnc. v. ciigy

ich the Governor is a named
party. Currintly, most suits are brought against localities,
Lut inatogicallyl tfre sane principles hold true: Fee, 9-:-L-,
wise v. l,ipscomb, 437 U.S. 535 (1978) (suit against mayor
@ of Dal1as); Hathorn v. Lovorn, L02 s.ct.
242t tfieZ) (Iocal and countyffi

L7
See, €.c[., Morris v. Gressette, 425 F.Supp. 331 (D'D'C' L976) 'EEriaTTz ffie question of wherher state
Iffii"to.= *oy be sued j.s a difficult one. On the one hand,
it appears th;t the Speech and Debate Clause of the U-s. Consti-
tuti;;, which shields members of the U.S. Congress from civil
and criminal suit, S, *-, -@ v' United States Ser-
vicemen's Fund, a2tTs.-gr, 501-511 (

ffiend to state legislators, United S9ales v.
Gil]ock, 445 U.S. 350 (1980). However, sta€e legislators
ffioiectedbycommon1awnotionsof1e9is1at1Y9.imnunity,
".", a-L-, tennLy v. Brandhove, 34L U,S. 367 (1951), and
some courts ffi privilege to suits for injunc-_

-82-

tions as well as those for dasrages, see Star Distributors, Ltdt
v. Marino, 613 F.2d 4 (2nd Cir. 1980)Tv. Marino, 613 F.2d 4 (2nd Cir. 1980). [dltlitionally, many state
EoGEffiions, including Alabama's, have speech and debate
clauses. See Alabama Constitution Art. IV, S55. Yet cases
like Morriffi. Gressette belie this unanjrnity of doctrine;
indeeffitive injunctive relief against state
legislators under 42 U. S . C. 51983 are common . -e, 9-g-,
Dombrowski v. Pfister, 380 U.S. 479 (1955) (defendant was
chai.rman of [ffia legislative committee) .

18
See, g-&-, Georgia v. United States, 4I1 U'S' 526
ffiTteElEat .s. L28 (1e65);

380 U.S. 145 (1955) -

(1973 ) ;
State of

19
42 U.S.C. 5197L(c) reads, in pertinent part:

Whenever any Person has engaged or there are reasonable
grounds to Ui:.ieve that any person j.s about to engage in
iny act or practice which wouLd deprive any other Person
of any righi, or privilege secured by...this sect1on, the
Attorney General may institute for the united states, or
in the name of the lnited States, a civil action or other
proper proceedlng for preventive reli.ef, including an appli-
cation for a permanent or temporary injunction, restrai'ning
order, or other order.

42 U.S.c. S1973j (d) reads:



20

-83-

Whenever any Person has engaged or there are reasonable
grounds to believe that any Person is about to engage in
iny act or practice prohibited by section 1973 let seq. ] ,
the attorney General may institute may institute for the
United Statesr or in the name of the United States an
actj,on for preventive relief, including an application
for temporary or permanent injunction, restraining order,
or other order...

But see !gp3, section VI, note 2.

The Eleventh Amendment treads:

The Judicial Po$rer of the United States shall not be
construed to extend to any suit in law or equity, com-
menced or prosecuted agaj.nst one of the United States
by citizens of another State, or by Citizens or Subjects
of any Foreign State.

See, *_,Hans v. Louisiana, 134 U.S. 1 (1890) (E1eventh Amend-
fr6it aGs ffif a state from suing that state).
Note that the Eleventh Amendment does not act to bar suit, only
to bar suit in a federal court. The notion that because suit is
proper against the individual defendants, that the state can be
Lrought in as a pendent party is much disfavored of late. See Aldinqer
v.Howard, 427 U.S. 1 (1976lt Owen Eguipment & Erectiqn Co. v.
EpE-igz u . s. 36s (re78 ) ;
[fffi.s . zs:- (1e73) .

See Edelman v. Jordan, 415 U.S. 651, 669
313 (1934).

(1974), citing 4pneeoilraffi 292 U.S.

Edelman v. Jordan, gllp3, 415 U.s. at 663-571.

s36-14-1 (B ) .A1a. Const. Art. VIIf, 5193; Ala. Code

Ala. Code S35-15-12

Ala. Code 536-15-14

Ala. Code S35-15-15

A1a. Code S35-15-1(3)

2L

22

23

24

25

26

27

28

LDF
in

prefers not to Prosecute, for examPle,
Sumter County, who was Prevailed upon to

the District At,torney
dismiss the indict-

29



ment against ProsPective plaintiffs Clarke and Webster. See
supra,-sectioit II; note 4i. District Attorney Johnston, 6-ii-
EFother hand, is a prime target for LDP. Note that the
considerations at hand are political, rather than lega1ly
"pure" in some more academic sense.

30
See qenerally Note, Defendant Class Actions, 91 HARV.L.REV.
em' tfgZgtfiucker'v rd of Corunissioners,
4lO F.Supp.
of convin-ing the court that the named representatives of defen-
dant class satisfy RuLe 23, Fed.R.Civ.P.')

3I

-84-

See supra, section VI.

See, e.q., Trainor v. Hernandez, 431 U.S. 434
iloodeE3 s v. t'liranda,
ffiEFm'an v. Pursue, Ltd., 120ffi;

, 40r U.S. 66 (1971) .

401 U.S. at 49.

id. at 51. In this case, the chilling effect
Feason for relief. The harm under the Voting
as a result of discrirnination on the basis of
more direct.

32

See supra, section If.

See supra, section II. Note that if, as occurred in, for example,
ffir6-tf-georgia, supra, the court enjoined not the enforcement
ffi tEtffiscri.minatory enforcement of the statute,
this would require a court superintendancy of aL1 cases arising
under 517-23-1. Thus, in a sense, this is a more intrusj.ve remedy
than simply enjoining the enforcement of the statute as a whole,
though not-as intrusive as the relief prayed for in O'Shea v.
Littleton, supra.

See supra, section IIf.

See supra, section V.

33

34

35

36

37

38

(L977) i RLzzo v.
422 V.S. 332 (1975);
O'Shea v. Littleton,

is not the sole
Rights Act, and
race, is much

Also decided that day were Foyle v. Landry, 401 U.S. 77 (1971);
Oyson v. Stein, 401 U.S. 20 ,

ffiI97I), all foLlowing Younger.

39



v -85-

40
Huffman, supra, further extended Younger to injunctions against
ffi t--ppEfiI-t e proceedi ng s .

41
See,.*.,wrE,43oU.S.710-7I1(L977)(injunction
may rssue wnffidlfEf-Is ifioIIy prospective, where the risk of
pr6secution is great, and where constitutional rigltls are at
itatce); Allee v, Medrano, 4L6 U.s. 802, 814-815 (L974) (farm-
workers attefrFffiffiG'ionize, but being terrorized and intimi-
dated by 1oca1 police entitled to an injunction where no Prose-
cutions pending in state courts, and where a persistgnt Pattern
of official miiconduct existed, infringing constitutional rights);
Steffel v. Thompson, 4L5 U.S. 452 o974) (injunction may issue
ffi of a statute constitutional on its face,
w[rere proiLcution is threatened and Iike1y, bgt not pending);
Dombrolski v. Pfister, supra (injunction may issue where statute

EfrE-wtrere chilling effect of threatened
prosecutj.ons is alleged with offers of proof).

42
See supra, section Iv.

43

!.I8., section II -

!9PI1, section Ir.

See suPra, section V.

:gII31, section VI -

47
Here, we have Persuaded both by anal.ogy to other statutory areas,
such as Tit1e ?ff, gEg EgpE, iection V, or by analogy wit,hin the
voting rights field-6r-%-r example, retnoval doctrine, see supra,
section VI.

48
See supra, section VfI, note 29. Note also the problems that
arise because our plaintiff is Bozeman, whom we cannot, politi-
calIy displace as named plaintiff, though ideally we might want
to. See suPra, dt 44-46.

See

See
44

45

46
See