Case Memorandum from Alfieri to Guinier on Overbreadth Theory

    b

BOZE}4AN V. STATE: OVERBREADTH THEORY

Anthony V. Alfieri
Case }lernorandum

Lani Guinier

June 28, 1983



I. INIRODUCTION

The purpose of this memorandum i-s to analyze the consti-

tutional doctrine of overbreadth in the context of Bozeman v,
State, 401 So.2d 167, (efa. Crim. App.), cert. denied, 401 So.2d

L7l (era. 1981), cert. denied, 454 u.s. 1058 ( 1982) . rn Bozeman,

petitioner Maggie S. Bozeman was indicted for and charged with

a three eount vlolation of Alabama Code S17-23-L (tgl 5)(herein-

after "S17-23-1.__ or the "Code"). Section 77 -23-l proscribes

"I11ega1 voting or attempting to vote." It reads:

Any person who votes more than once at any election
held in this state, or deposits more than one ba11ot
for the same office as his vote at such electionr or
knowingly atEempts to vote when he is not entitled
to do so, or is guilty of any kind of i11ega1 or
fraudulent voting, mustr oo conviction, be imprisoned
in the penitentiary for not less than two nor more
than five years, dt the discreti-on of the jury.

In its indictment, the State of Alabarna alleged that l.'ls.

Bozeman had voted i11-ega11y in the Democratic Primary Run-Off

Election of September 26, 1978. This allegation stemrned frorn

1"1s. Bozeman's asserted participation in an effort to assist

elderly and illiEerate blaek voters in casting absentee ballots

in the aforementioned eLection. The State claimed that 39

absentee ballots submitted by voters who were assisted by

I"ls. Bozeman were cast i11egal1y. Because of her asserted in-

volvement in the casting of these ballots, Ms. Bozernan was

convicted of violating section t7 -23-7 of the Alabama Code.

She was sentenced to serve a four year perlod of imprisonment

in the State penitentiary. The quesEion to be addressed in
this rnemorandum is whether the Alabama Code can survive a

constitutional challenge mounted on the ground of overbreadth.



2

II. RIGHT TO ASSIST VOTII{G

At the outset, I will assume the existence of a right

to assist voters Ln the casting of absentee ba11ots. The logic

of this assumption derives from section l973aa-6 of the Voting

Rights Act. 42 U.S.C. S1971 et seq. Section 1973aa'6 provides,

in relevant part, that "(a)ny voter who requires assistance

to vote by reason of blindness, disabilityr or inability to

read or write may be given assistance by a person of the voterrs

choice." Since partlcutar voters are entitled to be assisted

in the process of voting, Logic suggests the implication of

a corollary right to assist voters in the process of voting.

Without this implied right, the substantive import of section

l973aa-6 would be rendered meaningless. Indeed, absent the

right to assist' the right to assistance rings hollow.

The assumed right to assist a certain class of voters
S

in the activity of voting ser/es as an analytic fift premise.

Several consequences flow from this prernise. Each concerns

the notion of protected rights. Because the act of assistance

is conceptually vague, it admits to broad definition. Properly

defined, it mLrsc be deemed to include elemenEs of both speech

and association. Although the precise nature of these elements

will vary in aceordance with the circumstances of assistance'

their constitutionally protected stature will remain constant.

This stature is entranced by the frct that the acE of assistance

is specifically directed towards the exercise of the political
constitutional

franchise. The significance of this exercise addsAluster



to the implied right to assist voters. l"loreover, it introduces

a fourth element into the jurispnrdence of assistance. This

element concerns the right of interstate travel or movement.

Since Ehe Alabama indictment charged Ms. Bozeman with i11ega1

assistance in connection with absentee voting, the issue of

interstate travel and its potential infringement is starkly

raised, By definition, an,absentee voter is "(o)ne who dwel1s

abroad" or "(o)ne who is absent from his usual place of resi-

dence or domicile." Black's Law Dictionary 22 (4tfr ed. 1968).

Given this definition, it is a simple matter to envision

how diminished absentee voting assistance might restrain an

individual from engaging in interstate travel. For the potential

absentee voter would be forced to entertain the unfair calcttlus

of choice between the right to vote and the right to travel,

a Hobson's dilemrna that denies a just outcome.



4

III. PROTECTED RIGMS

The gloss of constitutionality which encornpasses the

sphere of voting assistance stems from two general sources.

The first source concerrrs the contours of the First Amendment.

The second source concerrrs the strlrcture of the Constitution.

The First Amendment establishes the right to freedom of speech.

This freedom against abridgement is among the "fundarnental

personal rights and liberties secured to all persons by the

Fourteenth Amendment against abridgement by a state. " Thornhill

v. Alabama, 310 U.S. 88, 95 (1939).

The safeguarding of these rights to the ends that
men may speak as they think on matters vital to them
and that falsehoods may be exposed through the
processes of education and discussion is essential
to free governement. Those who won our independence
had confidence in the power of free and fearless
reasoning and comrmrnication of ideas to discover
and spread political and economic trcth. Noxious
doctrines in those fields may be refuted and their
evil averted by the courageous exercise of the right
of free discusslon. Abridgement of freedom of speeeh
... however, impairs those opportunities for public
education that are essential to effective exercise
of the power of correcting error through the processess
of popular goverrlment.

Id. at 95.

- In the context of voting, freedom of speech is especially

important. It is irnportant because the sunrival of a democratic

polity hinges on Ehe liberty afforded political expression.

This liberty, manifested in the ability "to discuss publicly

and tnrthfully all matters of public concerrl without ... fear

of subsequent punishment. " , ld. at 101-102, is fundamental to

the American system of governmenc.



The maintenance of the opportunity for free political
discussion to the end that goverrment may be respon-
sive to the will of the people and that changes may
be obtained by 1awfu1 means r :tn opportunity essential
to the security of the Republic, is a fundarnental
principle of our constitutional system.

Baeeett v. Bullitt, 377 U.S. 360, 373 n.10 (1964).

The First Amendment also establishes the right to freedom

of assembly and, by extension, the right to freedom of associa-

tion. The "right of free association, a right closely a11ied

to freedom of speech ... lies at the foundation of a free

society. " Shelton v. Tucker , 364 U.S . 479 , 486 ( 1960) . "This

First Amendment freedom to gather in association for the

purpose of advancing shared beliefs is protecEed by the

Fourteenth Amendment from infringement by any State."

Democrat_ic ParEv of U.S. v. i'Iiseonsin, 450 U.S. 107, l2l (1SSt;.

As such, it is considered to be'tttdfi insepafable aspect of the

'liberty' assured by the Due Process Clause of the Fourteenth

Amendment". NAACP v. Alabama, 357 U.S. 449, 460 (1958). otrr

form of government is built upon this foundation of liberty.

Accordinglyr every citizen is guaranteed "the right. to engag?---,/

in political o<pression and association. This right (is)

enshrined in the First Amendment of the Bill of Rights."

NMCP v. Button, 371U.S. 4L5, 43t (1903)(quoting Sweezv v.

New Hampshire, 354 U.S. 234, 250-257 ( 1957)) .

The "political franchise of voting" arlses from the

st ncEure of the Constitution. Yick trlo-v. Hopkins, 118 U.S.

220, 226 (1886). See a1so, Dunn v. Blumstein' 405 U.S. 330,

336 (1972). "Though not regarded strictly as a natural right",



6

the franchlse is regarded as a "fundamental political right,
presen/ative of all rights. " }!. at 226. Because of its

fundamental st,atus, the franchise is intimately tied to the

guaranty to every State of a Republican form of governrnent.

U.S. Const. aft IV, S4. See, Ohio ex re1. Brvant v. Akron

Iletrop. Pk- Dist. , 281 U.S. 78, 79-80 (1929); Hiehland Farms

Dairy v. Asnew, 300 U.S. 608, 6_ (1936); Board of Public

Utilities, Etc. v. Citv of Kan., 496 F. Supp. 389, 396 (1980).

Indeed, "statutes distributing the franchise ... 'consti-tute
the foundation of our rep

405 U.S. at 337 (quoting
a?",rt"tive society. "'. D:nn v. Blumsf ein,

Kramer v. Union Eree School Distriet,
395 u.s. 62L, 626-630 (1SOS;;.

The right of interstate travel also emerges from the

stratcture of the Constitution. See, Shapiro v. Thompson,

394 u.s. 618, 630-631 (1S0e1.

The constitutional right to Eravet from one State
to another ... occupies a position fundamental to
the concept of our Federal Union. It is a right that
has been firmly established and repeatedly recognized.

... (The) right finds no explicit mention in
the Constitution. The reason, it has been suggested,
is that a right so elemenEary was conceived from
the beginning to be a necessary concomit,ant of the
strbnger Union the Constitution created. In any
event, freedom to travel throughout the United
States has long been recognized as a basic right
under the Constituti.on.

United SEaEes v. Guest, 383 U.S. 745, 757 -758 (1966).

"The right to travel is a part of the'liberfy'of
which the citizen cannot be deprived without due process of

1aw under Ehe Fifth Amendment." Kent v. Dulles, 357 U.S, 116,



127 (1958). In,this respect, the rlght to travel is a "consti-
tutlonal llberty closely related to right of free speech and

assoclation". Aptheker v. Seeretary of State, 378 U.S. 500,

517 ( 1964) . As such, it constltutes an "'wons1.tgtg!al, personal

rightr, a right whose exercise may not be conditioned." Ernn

v. Blumstein, 405 U.S. at 341 (quoting Sbapl-ro v. Thompson,

394 U,S. aE 643 (Stewart, J., concurring)(emphasls ln original)).



8

IV. OVERBREADTH IHEORY

"Our Constitution is designed to maximize individual

freedoms within a framework of ordered liberty. Statutory

limitations on those freedoms are examined for substantive

authority and eontent as well as for definit6ness or certainty
of expression." Kolender v. Lawson, 75 L.Ed.2d 903, 909 (1983).

Court directed exarnination of such "lirnitations" seeks to

determine the "potential for arbitrarily suppressing First

Amendment liberties", Shuttles\.rorth v. City of Birmingharu,

382 U.S. 87, 91 (1SOS;, or abridging fundamental personal

rights. This potential danger is "inherent in a penal statute'

like that in question here, whieh does not aim specifically
the

at evils withinAallowable area of State control, but, on the

contrary, sweeps within its amblt other activities", Thornhill

v. Alabama, 310 U.S. at 97, in an effort to "set a net large

enough to catch all possible offenders". United States v. Rgese,

92 u.s. 214, 221 (1876).

In order to deter State legislatures from pursuing legi -

tirnate governmental ends by rneans which "sweep unnecessarily

broadly" and thereby invade areas of protected constitutional

freedom, NAACP v. Alabamg, 377 U.S. at 307, the Supreme Court

has fashioned two complementary techniques of statutory

invalidation. These techniques Eranslate into the doctrines

of vagueness and overbreadth. Traditionally, courts have

"viewed vagueness and overbreadth as 1ogica11y related and

s imilar doctrines . " l(plender v. Lawson , 7 5 L. Ed .2d at 910, n. B.



9

The "objectionable quality" of vagueness and overbreadth

is rooted in the "danger of tolerating, in the area of First

Amendment freedoms, the existence of a penal statute susceptible

of sweeping and improper application." NAACP v. Button, 371 U.S.

ax 433. Since these and related freedoms are "delicate and

vulnerable, as well as supremely precious in our society ...
(t)he threaE of sanctions may deter their exercise almost as

potently as the actual application of sanctions." Id. at 433.

Furthermor€r "(b)ecause First Amendment freedoms need breathing

space to survive, government may regulate in the area only with

narrow specificity." Id. at 433,

Under the overbreadth doctrine, constitutional freedoms,

particularly in Che First Amendment region, "are protected

noc only against heavy-handed frontal attack, but also frorn

being stifled by more subtle goverrrmental interference." Bates

v. Citv of LittLg Rock, 361 U.S. 516, 523 (19-). In this waY,

re8ulatory measures, "no matter how sophisticated' cannot

be employed in purpose or in effect to stifler penalize, or

curb the exercise of First Amendment rights. " Louisiana ex re1.

Gremillion v. NAACP, 366 U.S. 293, 297 (1S-;. Certainly,

"(c)onstitutional rights would be of 1itt1e value if they

could be ... indirectly denied". Harmon v. Forssenius, 380

u.s . 528, 540 ( 1965) .

The significance of Ehe overbreadth doctrine sterns, in

large measure, from its threshold recognition chat "indispensable"

rights and liberEies may suffer irreparable damage because



10

of the intended or unintended consequences of governmental

regulatory action. NAACP v. Alabarna,357 U.S. at 461 , In light
of this recognition, the doctrine commands that "the power

to regulate must be so exercised as not, in attaining a per-

missible end, unduly to infringe (on) protected freedom."

canrwell v. Connecticur, 310 U.S. 296, 304 ( 19_) . Hence,

"even though the governmental purpose be legitimate and sub-

stanCial, that purpose cannot be pursued by means that broadly

stifle fundamental personal liberties when the end can be

more narrowly achieved." Shelton v. Tucker, 364 U.S. at 488.

On this reasoning, "(b)road prophylactic n:1es in the

area of free expression are suspect." NAACP v. Button, 371

U.S. at 438. To sunrive close scrutiny, statutory cfassifi-

cations that restrict or inhibit the exercise of basic consti-

tutional freedoms must be "narrowly drawn", Baggett v. Bu11itt,
n.10

377 U.S. at 373,4 and carefully "tailored". Shapiro v. Thompson,

394 U.S. at. 631. "Precision must be the touchstone in an

area so closeLy touching our most preeious freedoms. " NAACP

v. Button, 37L U.S. at 438. Moreover, "if there are other,

reasonable ways to achieve (legislative) goals with a lesser

burden on constitutionally protected activity, a State may

not choose the rdqy of greater interference. If it acts at all,
iE rnust choose 'less drastic means. rrt D:nn v. BLumstein, 405

U.S. at 343 (quoting Shelton v. Tucker, 364 U.S. at 488).

The dual comrnands of narrowness and least drastie means

are especially forceful where, as here, a statute irnposes

"criminal penalties". Kolender v. Lawson, 75 L.Ed.2d at 910, n.8.



1l

In such instances, "the standard of certainty ls higher. "

IE. at 910, n.8. E, Wlnters v. New York, 333 U.S. 507, 515

(1948). In fact, the standard is so rlgorous that the Suprerne

Court occasionally has "invalidate(d) a criminal statute on

its face even when it could conceivably have had some valid
application." Kolender v. Lawson, 75 L.Ed.2d at 910, n.8.

Seer g:.B.cr Colantti v. Franklln, 439 U.S. 379, 394-401 (1979),

Lanzetta v. New JeEseyr 306 U.S. 451 (1939).



l2

V. OVERBREADTH CHALLH\GES

Under the doctrine of overbreadth, a litigant may challenge

a statute on its face or as applied to his peculiar circumstances.

To facilitate such challenges, the Suprerne Court has "modified

traditional nrles of standing and prematurlty." I'/alker v. Citv,
of Birmineham, 388 U.S. 307 (lg0l )(Brennan, J., dissentine).

In Walker, Justice Brennan, writing in dissent, attempted to

rationalize the Courtrs historical departure from the traditional
nrles governing constitutional adjudication. He explained that

the Court has "molded both substantive rights and procedural

remedies in the face of varied eonflicting interests to conform

to (the Court's) overridine dutv to insulate all individuals

frorn the 'chilling effect' upon exercise of First Amendment

frgedoms generated by vagueness, overbreadth and unbridled

discretion to limit their exercise." Id. at 344-345 (emphasis

in original).
P1ain1y, the "chilling effeet" caused by overreaching

statutes is sufficiently "weighty" to countenrail the principles
d

of starting. United States v. Raines , 362 U.S. 77, 22 (1960).

Raines put forward the theory of "weighty counten/ailing

policies", ld. at 22, ln order to justify limited exceptions

to standing prtnciples. The theory provides that where the

application of such principles would have an "inhibitory effect

on freedom of speech, they may not be app1ied." Id. at 22,

This rationale indicaces that the Raines exception is ltself



13

"predicated on the

New York v. Ferbeq,

sensitive nature of protected

73L.Ed.2d 1113, 11 (19S2)

express ion"

. It also

of consti-demonstrates that nrles abutting sensitive areas

tutional freedom are "suspect".

The trbe{ Courc undertook to mark and thereby clarify

the parameters of the modern overbreadth doctrine.

The scope of the First Amendment overbreadth doctriner
like most exceptions to established principles, rlust
be carefulLy tied to the circurnstances in which facial
invalidation of a statute is tnrly warranted. Because
of the wide-reaching effects of striking a statute
down on its face at the request of one whose own
conduct may be punished despite the First Amendment,
we have recognized that the overbreadth doctrine
is "strong medlcine" and have employed it with
hesitation, and then "on1y as a last resort. "
Broadrick (v. oklahoma) , 413 U.S.(001,) 613 (lgl3)...
We have, in consequence, insisted that the overbreadth
involved be "lgbsjLABE'ial" before the statute involved
will be invalEdE6d on its face.

Id. at 1130 (quoting Broadrick v. Oklahoma, 413 U.S. 601 , 613

(1e73)).

The condition of "substantial" overbreadth extends "'at
the very least' to cases involving conduct plus speech." Id.

at 1131 (quoting Broadriek v. Oklahoma, 413 U'S. at 615).

Indeed, where, as here, "conduct and not merely speech is

involved ... the overbreadth of a sEatute must not only

be real, but substantial as we11". Broadrick v. Oklahoma,

413 U.S. at 615.

The "requirement of substantial overbreadth may justi-

fiably be applied to statutory challenges which arise in

defense of a eriminal prosecution". New York v. Ferber,

73 L.Ed.2d at 1133. In general,"the (Supreme) Court's practice



l4

when confronted with ordinary criminal laws that are sought

to be applied against protected conduct is not to invalidate

the law in toto, but rather E__qgyeqEe t!__e__parcicu115,9myictiot1. "

Id. at 1133. However, this general practice is tempered by

consideration of the nature and impact of the criminal "penalty"

to be imposed. General practice has been altered because the
has

Courd realized that "persons whose expression is constitutionally
protected may well refrain frorn exercising their rights for

fear of criminal sanctions by a statute susceptible of

application to protected expression. " Village of Sehaumbugr

V. Citizens for a Bettet Entltrqnment, 444 U.S. 620, 634 (1980).

Thus, under modified standards of practice, "the penalty to

be imposed is relevant in determining whether demonstrable

overbreadth is substantial." New York v. Ferber, 73 L.Ed.2d

at 1133. Yet, "the fact that a criminal prohibition is involved

does not obviate the need for the inquiry or a priori warant

a finding of substantial oVerbreadth." Id. at 1133.

In a facial challengel "a courc's first task is to deter-

rnine whether the enactment reaches a substantial amount of

conscitutionally protected conducE. If it does not, then the

overbreadth challenge must fai1. " Village of Hoffman Esta-tes

v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982).

The Alabama Code at issue impinges upon a central core

of constitutionally protected rights and liberties. These

rights and liberties encompass both speech and conducE.

They include the freedoms of political expression and assoc!ation,



1s

as wel-1 as the rights of interstate travel and political fran-

chise. Essentially, the Code "makes a crime out of what under

the Constitution cannot be a erime. It is aimed directly at

activity protected by the Constitution." Coates v. Cincinnati,

402 U.S. 611, 616 (1971). As such, it is capable of reaching

and punishing constitutionally protected conduct. The "chilling

effect" produced by the Code's overbroad scope and criminal

penalty provision is.tantamount to the "sword of Damocles".

Arnett v. Kennedv, 4t6 U.S. 134, 23L (tgZ4)(Marshall, J.,

dissenting). Like Ehe "sword of Damocles", the Code's

"ehil1ing effect" hangs over the head of potential voters.,

absentree and otherwise' inhibiting their right to interstate

travel and their right to the free exercise of the political

franchise. l"loreover, its "chilling effect" infringes upon

the First Amendment freedoms of both voters in need of assistance

and individuals willing to give voting assistance.

Whether or not the Code intentionally seeks to abridge

this cluster of eonstitutional liberEies is irrelevant,.

The critical point is that the Code forces individuals to

choose between First Amendment freedorn and exposure to the

"uncertainties and vagaries".of criminal prosecution. New YoIk

v. Fgrber, 73 L.Ed,2d ax 1132, n,261 and between the right

to travel and the right to vote. b, Dunn v. Blumsteln,

405 U.S. at 342, In dolng so, the Code "too broadly and

lndiscriminately" inhibits and thereby restricts the exercise

of basic freedoms affirrnatively protected by the Constitution.



il

16

Aptheker v. State, 378 U.S. at 505.

An applied statutory challenge results in a similar

conclusion of overbreadth. As applied to the circumstances

surrounding Ms. Bozernants voter activity, a single overarching

point of fact is elear. Sirnply PUtr the record shows neither

the degree nor the kind of illegality Ms. Bozeman is alleged

to have committed. The record is wholly silent as to specific

instances of iI1ega1 conduct. Presumably, "a state cannot

foreclose the exercise of constitutional rights by mere 1abe1s. "

NAACP v. Button, 37L U.S. at 429. Yet' apparently such a

foreclOsure haS Occurred. As a Consequence, "innocent asSocia-

tions" have been "ensnared" in a Statutory trap. Broadrick-v.

OFI-ahoma, 413 U.S. at 6L4.

The Code resembles a statutory traP because it fails

to glve specific and meanlngful content to the term "illegal".
Fur=hermoF€r it casts the cntcial issue of mens rea in vague

and uncerEain terms. These definitional shortcomings open

the door to the Code's "selective enforcement against unpopular

causes." NAACP v. Button, 371 U.S. aE 435.

Historically, "(w)e cannot close our eyes to the fact"

that black voters have "engendered the intense resentment

and opposition of the politically dorninant white comrmtnity"

of Alabama. Id. at 435. Given this historical recognition,

one is hard pressed to believe that the State of Alabama

has acted in good faith in promoting,Via statrute and prosecution,

its legitimate interest in presenring the "integrity of the

electoral process". Democratic Party of U.S. v. I'Iisconsin,

450 U.S. at 107.