Hunter v. Underwood Joint Appendix

    No. 84-76

IN  T H E

jlispmus (SLonxi ©f Wc\t pmiefr jiia te
October Term , 1984

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

Appellants,
vs.

V IC T O R  UN D ERW O O D  and CARM EN EDWARDS, for 
themselves and all others similarly situated,

Appellees.

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

JOINT APPENDIX

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

N e il  Bradley  
L a u ghlin  M cD onald  
C h risto ph er  C oates 
American Civil Liberties 
Union Foundation, Inc.
52 Fairlie Street N.W . 
Atlanta, Georgia 30303 
(404) 523-2721 
Counsel for Appellees

J am es S. W ard 
Special Assistant Attorney  

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

APPEAL DO CKETED JULY 9, 1984. 
PROBABLE JU R ISD IC T IO N  N O TED  O C TO B ER  9, 1984.



1

TA BLE OF C O N TEN TS

Page

Com plaint ___________________________________________A-l

Answer ________________________________________—------ A-6

M otion to Amend A nsw er____ __l___1___________ __.. A-9

Judgment of U nited States District Court 
for the Fifth Circuit, July 15, 1980 ___________  _-A l l

Excerpts from Testimony of J. Mills T hornton  _________ A -l6

Excerpts from Deposition of J. Morgan Kousser __ r____ A-28

Certificate of Service ________________________________ A-33

Affidavit of Service ________________  ___________ ___ A-35

Opinion of the U nited States Court of Appeals 
for the Eleventh Circuit, April 10, 1984, which 
is the judgm ent in question, is printed in the 
Appellants’ Jurisdictional Statement heretofore 
filed, at Appendix A.

M emorandum Opinion of the U nited States District 
Court for the N orthern District of Alabama,
August 11, 1978, a relevant opinion, is printed in 
the Appellants’ Jurisdictional Statement heretofore 
filed, at Appendix D.

M emorandum Opinion of the U nited States District 
Court for the N orthern District of Alabama, 
December 23, 1981, a relevant opinion, is printed 
in the Appellants’ Jurisdictional Statement heretofore 
filed, at Appendix E.



11

R E L E V A N T  D O C K E T E N T R IE S

Com plaint filed ____________________________ _June 21, 1978
M otion of plaintiffs for preliminary

injunction filed _______ ____________________ June 21, 1978
On hearing on motion of plffs for preliminary injunction 

before the Hon. Frank H. M cFadden — Oral m otion 
of plffs to adm it Neil Bradley Pro Hac Vice —
Granted — Testimony of plaintiffs — Plffs rest — Oral 
m otion of defts for directed verdict — R uling re­
served — Testimony of defts — Defts rest — Rebuttal 
testimony of plffs — Plffs rest — Argum ent of counsel 
on m otion of deft to dismiss — All matters taken
under advisement __________________________ July 19, 1978

Clerk’s Court M inutes that m atter of preliminary in­
junction is taken under advisement and m otion of 
defts to dismiss is taken under advisement; written 
findings of fact, conclusions of law and judgm ent 
to be entered by the court —
filed and e n te re d ___________________________ July 19, 1978

M emorandum Opinion — filed and entered — August 11, 1978 
O R D ER that plffs’ m otion for preliminary injunction 

is overruled; further that defts’ motion to dismiss is 
granted in part and causes of action num bered I,
II and III are dismissed; further that defts’ motion 
for stay is granted; further that plffs’ m otion for ad­
mission of additional exhibits is granted; ru ling on 
the m otion to dismiss as to the fourth cause of action 
is held in abeyance pending further briefs; any such 
briefs should be subm itted w ithin 20 days of the

Date

date of this order — filed and e n te re d ______August 11, 1978
M emorandum opinion dated February 2, 1979

filed and entered _________ ____________ _. February 5, 1979
O RD ER dated February 2, 1979 in accordance with 

the m em orandum  opinion entered contemporaneously



Ill

that defendants’s m otion to dismiss is granted with 
respect to plaintiffs’ fourth cause of action; further 
that the other causes of action having been hereto­
fore dismissed, the case is dismissed, with costs taxed
against the plaintiffs filed and entered ___ February 5, 1979

Notice of appeal of plaintiffs from the final 
judgm ent entered on February 2,
1979 filed ______ _______________ _______ February 23, 1979

Transcript of proceedings had before the Honorable 
Frank H. McFadden in Birmingham, Alabama on
July 19, 1978 filed _________________________ April 2, 1979

M otion of defendants for summary
judgment, filed _________________________October 15, 1979

Opposition of plffs to defendants’ m otion for
summary judgm ent, filed ______ 1________ October 19, 1979

M otion of plffs to certify the class action
allegation, filed ________________________October 25, 1979

Certified copy of judgment, USCA, issued as and for 
the mandate on Oct. 29, 1979, that the judgm ent 
of the District Court is VACATED in part and 
REVERSED in part; and the same is REMANDED 
to the District Court in accordance with the opinion 
of Court; it is further ORDERED that the defts- 
appellees pay to the plffs-appellants the costs on 
appeal, to be taxed by the Clerk
of Court — f i le d _______________________ November 2, 1979

M otion of plffs for preliminary
injunction, filed __________________________January 5, 1980

Response of defendants to plff’s m otion for
preliminary injunction, filed ________ ........January 16, 1980

N O T IC E  OF IN T E R L O C U T O R Y  APPEAL given by 
Plaintiffs from the denial de facto of the m otion for 
preliminary injunction filed in this action on the 
15th day of January, 1980 — filed ________ February 7, 1980

Date



IV

M emorandum Opinion, filed _____________February 14, 1980
O R D ER  in accordance with the M emorandum 

Opinion entered contemporaneously that plffs’ 
m otion for preliminary injunction is OVER­
RULED, filed; entered 02-14-80 _______February 14, 1980

Certified copy of O R D ER  from U. S. Court of Appeals 
for the Fifth Circuit that the m otion of appellants 
for an injunction pending appeal is DENIED, filed, 
filed February 19, 1980 ______  __________ .March 28, 1980

O R D ER dated April 17, 1980, that Counts one, two 
and three of the com plaint are dismissed in accord­
ance with the M emorandum Opinion entered by the 
Court August 11, 1978—further that the rem aining 
Count in this action, Count four, be m aintained by 
plffs as a class action on behalf of persons as set out 
in this order—further that the suit may be m aintained 
against the defts as a class representing all members 
of the sixty-seven county boards of registrars in the 
State of Alabama, filed; entered 04-18-80 ____April 18, 1980

Certified copy of judgment, U. S. Court of Appeals, 
dated July 15, 1980, and issued as mandate Septem­
ber 11, 1980, affirming the order of the District 
Court and ordering that plaintiffs-appellants pay to 
defendants-appellees the costs on appeal to be taxed 
by the Clerk, USCA, with certified copy of opinion, 
bill of costs, original record and two supplemental 
records attached (Kravitch, Henderson and Reavley,
Circuit Judges) — filed ______________ September 15, 1980

M otion of the plffs for leave to amend the complaint 
with am endm ent thereon, filed — 05-15-81 
GRAN TED; Entered 05-15-81 _____________ April 24, 1981

ANSW ER of the defts to the complaint, filed ___ May 6, 1981

M otion of the defts to dismiss or in  the alternative,
M otion to strike plffs’ m otion to amend complaint

Date



V

Date

by adding a fifth cause of action, filed —
05-15-81 OVERRULED; Entered 05-15-81 _____May 8, 1981

Request of the plffs for admission by the defts with
exhibits attached, f i le d ___________ ___ ____  May 12, 1981

M otion of the defts to dismiss fifth cause of
action, filed ____ _____________ _____ _______-_June 5, 1981

O R D ER ON PR E-TR IA L H EA RIN G  held May 11,
1981, dated July 2, 1981, that Joseph J. Trucks is 
DISMISSED as pty deft, filed;
Entered 07-08-81 ____________________________ July 6, 1981

On trial before the Hon. Frank H. McFadden —
Argument of counsel on m otion of defendants for 
summary judgment — oral order overruling motion 
of defendant for summary judgm ent for failure to 
exhaust administrative remedies and holding motion 
of defendant to dismiss fifth cause of action in avey- 
ance entered — M otion of defendants to amend 
answer to fourth cause of action filed — Oral order 
granting m otion to amend answer entered — Evidence 
of plaintiffs presented (no testimony) —- Plaintiffs 
rest — Oral m otion — Oral motion of defendants to 
dismiss — R uling reserved — Testimony of defend­
ants — Defendants rest — Taken
under advisement ________________ ________-Ju ly  21, 1981

Clerk’s Court M inutes dated July 21, 1981 that this 
case is taken under advisement; w ritten findings of 
fact, conclusions of law and judgm ent to be entered
by the court; filed; Entered 07-22-81 ______ _-Ju ly  22, 1981

ORD ER (N O T IC E OF A C TIO N  RAISING T H E  
QU ESTIO N  OF C O N ST IT U T IO N A L IT Y  OF A 
ST A T U T E  OF T H E  U N IT E D  STATES) that pur­
suant to 28:2403 the court certified the Attorney 
General that there is drawn in question in this case 
the constitutionality of the Act of June 25, 1868, 
ch. 70, 15 Stat. 73, filed; Entered 07-29-81 ____July 29, 1981



VI

M emorandum Opinion filed;
entered 12/23/81 _____________________December 23, 1981

O R D ER  in accordance with the m em orandum  of 
opinion that judgm ent is granted in favor of the 
defendants and that the complaint is DISMISSED; 
costs taxed to the plaintiffs, filed;
entered 12/23/81 ------------------------------- December 23, 1981

Notice of appeal of plffs from the final judgm ent 
entered on 4/18/80 and
12/23/81 filed _______ _____________ _ December 29, 1981

Date



A-l

IN T H E  U N IT E D  STATES D IST R IC T  C O U R T  
FO R T H E  N O R T H E R N  D IS T R IC T  OF ALABAMA 

SO U TH ER N  DIVISION

V IC T O R  UN DERW OOD and )
CARM EN EDWARDS, for them- )
selves and all others similarly )
situated )

)
PLA IN TIFFS, )

)
vs. )

)
N ELL H U N T E R , JOSEPH J. )
TRUCKS, individually and as mem- )
bers of the Board of Registrars of )
Jefferson Co., and TH O M A S A. )
JER N IG N A N , CLARICE B. )
ALLEN, CLEO F. CHAMBERS, )
individually and as members of )
the Board of Registrars of Mont- )
gomery Co., on behalf of all other )
members of Boards of Registrars )
in the State of Alabama )

)
DEFENDANTS. )

CA78 M0704S

CO M PLA IN T

1. This action arises under the First, Fifth, T hirteenth , 
Fourteenth and Fifteenth Amendments of the Constitution of 
the U nited States and 42 U.S.C. §§1971, 1973, 1981 and 1983. 
Jurisdiction is vested in this Court by 28 U.S.C. §§1331 (a ) , 
1343 (3) and (4), and 2201. T he m atter in controversy ex­
ceeds, exclusive of interests and costs, the sum of ten thousand 
dollars. This is an action for appropriate equitable relief and 
declaratory judgm ent of the unconstitutionality of Ala. Const., 
Art. VIII, §182 (1901) , to the extent that it disqualifies from



A-2

being registered or voting persons convicted of certain offenses, 
and to prevent deprivation under color of state law, statute, 
ordinance, regulation, custom or usage of rights, privileges and 
imm unities secured to plaintiff, including the rights to due 
process, equal protection, and the unabridged participation in 
the electoral process protected by the First, Fifth, T hirteenth , 
Fourteenth, and Fifteenth Amendments of the Constitution of 
the U nited States and by T itle  42 of the U nited States Code, 
§§1971, 1973, 1981 and 1983.

2. Plaintiff Victor Underwood is a white citizen of Ala­
bama, over the age of 21 years, and a resident of Jefferson 
County.

3. P laintiff Carmen Edwards is a black citizen of Alabama, 
over the age of 19 years, and a resident of Montgomery County.

4. Defendants Nell H un ter and Joseph J. Trucks are mem­
bers of the Board of Registrars of Jefferson County. T here is 
presently a vacancy on said board. Defendants Thom as A. 
Jernignan, Clarice B. Allen, and Cleo F. Chambers are mem­
bers of the Board of Registrars of Montgomery County. All 
defendants are sued individually and in their official capaci­
ties as members of the Boards of Registrars, and as representa­
tives of the class of all members of the Boards of Registrars of 
the counties of the State of Alabama.

5. Attorney General W illiam  Baxley shall be served a copy 
of this complaint so that he may defend the constitutionality 
of the State Constitution provision challenged herein. 28 
U.S.C. §2403 (b ); Ala. Code, §6-6-227 (1975).

6. T he plaintiffs bring this action on their own behalf and
on behalf of all others similarly situated and against the de­
fendants in their official capacities, as individuals and as rep­
resentatives of their class pursuant to Rule 23 of the F.R.Civ.P. 
T he plaintiffs’ class includes all persons disqualified from be­
ing registered or voting by operation of Ala. Const., Art. VIII, 
§182 (1901) . T he defendants’ class includes members of 
boards of registrars of Alabama. T he prerequisites of subsec­
tions (a) and (b) (2) of Rule 23 are satisfied. T here are
common questions of law and fact affecting the several rights



A-3

of citizens to register and to vote. T he members of the classes 
are so numerous as to make it impracticable to bring them all 
before this Court. T he  claims or defenses of the parties are 
typical of the claims or defenses of the classes as a whole. A 
common relief is sought. T he interests of each class are ade­
quately represented by the named parties, and the parties op­
posing each class have acted or refused to act on grounds gen­
erally applicable to the class, thereby m aking appropriate final 
injunctive and declaratory relief with respect to the class as a 
whole.

7. Ala. Const., Art. V III, §182 (1901) , disenfranchises per­
sons who have been convicted of certain named offenses, any 
crime punishable by im prisonm ent in the penitentiary, or any 
infamous crime or crime involving moral turpitude. Because 
any crim e carrying a maximum penalty of more than one year 
is “punishable by imprisonm ent in the penitentiary,” only cer­
tain offenses carrying a penalty of 12 m onths or less, or a fine 
(hereinafter referred to as misdemeanors and m inor felonies) 
are disenfranchising offenses, namely, the ones listed in §182 
and those “involving moral turpitude."

8. Victor Underwood was a duly qualified and registered 
voter in Jefferson County. Because of a conviction for issuing 
a worthless check, his name was purged from the registration 
rolls by the Jefferson County Board of Registrars. Carmen 
Edwards is otherwise qualified to register to vote in Montgom­
ery County bu t has been denied registration by the Montgom­
ery County Board of Registrars because of her conviction for 
issuing a worthless check, an offense which is considered to be 
a “crime involving moral tu rp itude.”

9. There is between the parties an actual controversy as 
herein set forth. T he plaintiffs and others similarly situated 
and affected on whose behalf this suit is brought suffer irrep­
arable injury by reason of the acts herein complained of. Plain­
tiffs have no plain, adequate or complete remedy to redress the 
wrongs and unlawful acts herein complained of other than this 
action for a declaration of rights and an injunction. Any rem ­
edy to which plaintiffs and those similarly situated could be



A-4

rem itted would be attended with such uncertainties and delays 
as to deny substantial relief, would involve m ultiplicity of suits 
and cause them further irreparable injury, damage and incon­
venience.

FIR ST  CAUSE OF A C TIO N

10. T he misdemeanors and m inor felonies listed in §182 as 
disenfranchising offenses unconstitutionally impinge upon the 
franchise because they deny the franchise without a compelling 
state interest in violation of the First, Fifth, and Fourteenth 
Amendments of the Constitution of the U nited States.

SECOND CAUSE OF A C TIO N

11. T he misdemeanors and m inor felonies listed in §182 as 
disenfranchising offenses deny plaintiffs and the class they rep­
resent the equal protection of the laws as guaranteed by the 
Fourteenth Am endment of the Constitution of the U nited 
States because more serious offenses are not disabling.

T H IR D  CAUSE OF A C TIO N

12. Disfranchisement for conviction of a “crime involving 
moral tu rp itude” is based on a definition that is vague and in­
definite and denies plaintiffs and the class they represent the 
right to register and to vote in violation of the First, Fifth, and 
Fourteenth Amendments of the Constitution of the U nited 
States.

F O U R T H  CAUSE OF A CTIO N

13. T he list contained in §182 was specifically adopted be­
cause of its supposed disproportionate impact on blacks, with 
the in tent to disfranchise blacks.

14. T he disfranchising provisions of §182 abridge the right 
to vote on the basis of race, in violation of the First, Fifth, 
T hirteenth , Fourteenth and Fifteenth Amendments of the 
Constitution of the U nited States, and 42 U.S.C. §§1981 and 
1983.



A-5

RELIEF

W H ER EFO RE, Plaintiffs respectfully pray that this Court 
will take jurisdiction of this cause and do the following:

A. Find that the named plaintiffs and defendants are ade­
quate representatives of their respective classes and allow this 
cause to proceed as a class action;

B. G rant the plaintiffs a prelim inary injunction, to be made 
perm anent later, requiring that they and the class they repre­
sent be restored to the rolls of those registered to vote or be 
allowed to register without regard to Ala. Const., Art. VIII, 
§182 (1901);

C. Declare Ala. Const., Art. VIII, §182 (1901), to be un ­
constitutional insofar as it applies to offenses carrying a penalty 
of one year or less, and enjoin its further application;

D. G rant the plaintiffs their costs and reasonable attorneys’ 
fees and expenses.

Subm itted by,

/ s /  E dward St il l

Edward Still 
601 T itle  Building 
Birmingham, AL 35203 
205/322-1694

Of Counsel 
Laughlin McDonald 
Neil Bradley 
Christopher Coates 
52 Fairlie Street, NW  
Atlanta, GA 30303



A-6

IN T H E  U N IT E D  STATES D IS T R IC T  C O U R T  
FO R  T H E  N O R T H E R N  D IST R IC T  OF ALABAMA 

SO U TH ER N  DIVISION

V IC T O R  U N DERW OO D and )
CARMEN EDWARDS, for them- ) 
selves and all others similarly )
situated )

>
Plaintiffs )

)
v ) CASE NO.

) CA 78 MO 704S 
N ELL H U N T E R , JOSEPH J. )
TRUCKS, individually and as )
members of the Board of Registrars ) 
of Jefferson Co., and TH O M A S A. )
JERN IG A N , CLARICE B. )
ALLEN, CLEO F. CHAMBERS, ) 
individually and as members of the )
Board of Registrars of Montgomery )
Co., on behalf of all other members ) 
of Board of Registrars in the State ) 
of Alabama )

)
Defendants )

ANSWER.

Come now the Defendants in the above captioned case and 
for answer to Fourth Cause of Action in the Com plaint say as 
follows:

F O U R T H  CAUSE OF A CTION
1. Defendants deny all the averments and allegations con­

tained in paragraph 13 of the Fourth Cause of Action.
2. Defendants deny all the averments and allegations con­

tained in paragraph 14 of the Fourth Cause of Action.



A-7

3. Defendants deny that the Plaintiffs are entitled to any 
relief.

AFFIRM A TIV E DEFENSES

1. For that the Fourth Cause of Action fails to state a claim 
or cause of action against the Defendants upon which relief 
can be granted.

2. For that the State of Alabama may constitutionally ex­
clude from the franchise felons or individuals who have com­
m itted crimes involving moral turpitude.

3. For that the State of Alabama has a compelling state in­
terest in excluding from the franchise felons or those indi­
viduals who have been convicted of crimes involving moral 
turpitude.

4. For that the disinfranchisement of those convicted of fel­
onies or crimes involving moral turpitude bears a rational re­
lationship to the achieving of a legitimate state interest.

5. Based on an opinion rendered by the Attorney General 
of the State of Alabama which holds that conviction of a m u­
nicipal ordinance will not disqualify a person from voting even 
if such conviction would constitute a crime involving moral 
tu rp itude if prosecuted under state law, the Plaintiffs have no 
standing to bring this action or to serve as class representatives.

Respectfully submitted 

/s/ J am es S. W ard 

James S. W ard
Special Assistant Attorney General 

for Defendants 
1933 Montgomery Highway 
Birmingham, Alabama 35209 
939-0275

C E R TIFIC A T E OF SERVICE

I certify that I have served a copy of the above and fore­
going Answer upon the Honorable Edward Still, Commerce



A-8

Center, Suite 400, 2027 1st Avenue North, Birmingham, Ala­
bama 35203, by placing a copy of same in the U nited States 
mail, postage prepaid and properly addressed on the 6 day of 
May, 1981.

,/s/ J am es S. W ard 

Of Counsel



A-9

IN T H E  U N IT E D  STATES D IS T R IC T  C O U R T  
FO R T H E  N O R T H E R N  D IST R IC T  OF ALABAMA 

SO U TH ER N  DIVISION

V IC T O R  UN DERW OO D and )
CARM EN EDWARDS, for them- )
selves, et al )

)
Plaintiffs )

)
v ) CA 78-M-0704

)
NELL H U N T E R , et al )

)
Defendants )

M O TIO N  T O  AMEND ANSW ER

Come now the Defendants in the above styled cause, by and 
through their attorney of record, and respectfully move this 
Court for an O rder allowing Defendants to amend the answer 
previously filed by them to Plaintiffs’ Fourth Cause of Action 
by adding the following affirmative defenses:

1. For that the Plaintiffs have failed to exhaust available 
and existing state or city administrative remedies which would 
restore to them the right to vote.

Respectfully submitted

Stuart & W ard

/s/ J am es S. W ard

Special Assistant Attorney General 
for Defendants 

1933 Montgomery Highway 
Birmingham, Alabama 35209 
939-0276



A-10

C E R T IFIC A T E  OF SERVICE

I certify that I have served a copy of the above and fore­
going M otion to Amend Answer upon the Honorable Edward 
Still, by hand delivering a copy of same to him  in open Court 
on this the 21 day of July, 1981.

/s/ J am es S. W ard 

Of Counsel



A -ll

U N IT E D  STATES C O U R T  OF APPEALS 
FO R T H E  F IF T H  C IR C U IT

October Term , 19

No. 80-7084

D. C. Docket No. CA 78-M-704-S

V IC T O R  UNDERW OO D, and CARMEN EDWARDS, 
for themselves and all others similarly situated,

Plaintiffs-Appellants,

versus

N ELL H U N T E R , JOSEPH J. TRUCKS, Individually 
and as members of the Board of Registrars 

of Jefferson County, E T  AL.,
Defendants-Appellees.

Appeal from the U nited States District Court for the 
N orthern District of Alabama

Before KRAV ITCH, HENDERSON and REAVLEY, Circuit 
Judges.

JU D G M EN T

This cause came on to be heard on the transcript of the rec­
ord from the U nited States District Court for the Northern- 
District of Alabama, and was argued by counsel;

ON CO N SID ERA TIO N W HEREOF, It is now here o r­
dered and adjudged by this Court that the order of the District 
Court appealed from, in this cause be, and the same is hereby, 
affirmed;

IT  IS FU R T H E R  ORDERED that plaintiffs-appellants pay 
to defendants-appellees, the costs on appeal to be taxed by the 
Clerk of this Court.

JULY 15, 1980

ISSUED AS M ANDATE: SEP 11 1980



A-12

IN T H E  U N IT E D  STATES C O U R T  OF APPEALS 
FO R T H E  F IF T H  C IR C U IT

No, 80-7084

V IC T O R  UN DERW OOD, and CARMEN EDWARDS, 
for themselves and all others similarly situated,

Plaintiffs-Appellants,

versus

N ELL H U N T E R , JOSEPH J. TRUCKS, individually 
and as members of the Board of Registrars of 

Jefferson County, Et Al.,
Defendants-Appellees.

Appeal from the U nited States District Court for 
the N orthern District of Alabama

(JULY 15, 1980)

Before KRAV ITCH, HENDERSON and REAVLEY, Circuit 
Judges.

PER  CURIAM :
Plaintiffs appeal the denial of their preliminary injunction 

attacking the constitutionality of the Alabama Constitution, 
Art. V III, § 182 (1901), as it operates to disenfranchise them. 
We affirm.

Procedural History

T he confusing route through which this case reached this 
court for the second time requires a brief digression. On June 
21, 1978, plaintiffs filed a complaint seeking a declaratory judg­
m ent that § 182 is unconstitutional. Plaintiffs asserted four 
grounds for relief: (1) that the misdemeanors and m inor fel­
onies listed in § 182 as disenfranchising offenses unconstitu­
tionally impinge upon the franchise because they deny the 
franchise without a compelling state interest in violation of the 
First, Fifth, and Fourteenth Amendments; (2) that the disen­
franchising offenses deny plaintiffs the equal protection of the



A-13

laws because more serious offenses are not disabling; (3) that 
disenfranchisement for conviction of a “crime involving moral 
tu rp itude” is based on a definition that is unconstitutionally 
vague; and (4) that the list of offenses was specifically adopted 
with the intent to disenfranchise blacks and, in fact, abridges 
the right to vote on the basis of race. Defendants moved to 
dismiss the complaint for failure to state a claim upon which 
relief could be granted.

Plaintiffs also sought a preliminary injunction restoring 
them to the voting rolls which was premised on the first three 
causes of action, bu t not the fourth. On July 19, 1978 the court 
conducted a hearing on the preliminary injunction, bu t subse­
quently expanded it to include arguments on the m otion to 
dismiss and was presented with evidence outside the pleadings. 
T he court denied the preliminary injunction and granted the 
m otion to dismiss on August 11, 1978 with respect to the first 
three causes of action, stating that “if the motion to dismiss is 
treated as motion for summary judgm ent under Rule 56, it is 
due to be granted with respect to the first three causes of ac­
tion.” This court reversed because the district court failed to 
comply with F.R.Civ.P. 56 by providing a 10-day notice period 
required when a motion to dismiss is treated as a m otion for 
summary judgm ent. Underwood v. H unter, 604 F.2d 307 (5th 
Cir. 1979).

T he district court had also denied the fourth cause of action 
as failing to state a claim upon which relief could be granted. 
This court reversed, stating that plaintiffs’ allegations, if sup­
ported by facts developed in a later proceeding, did state a 
claim. Id.

On remand, plaintiffs again moved for a preliminary injunc­
tion in the district court, which was denied in a memorandum 
opinion on February' 14, 1980.1 T he present case is plaintiffs’ 
appeal from that order.

iO n  A pril 18, 1980, the tria l court again reviewed p lain tiffs’ first three 
causes of action, and  again dismissed on the basis of its August 11, 1978 
m em orandum  opinion. W ith  respect to count four, the court gran ted  
p lain tiffs’ m otion for class certification w ith regard to both  p la in tiff and 
defendant classes.



A-14

Merits

A prelim inary injunction is an extraordinary remedy and its 
denial will be overturned only for an abuse of discretion. 
Compact Van Equipm ent Co. v. Leggett & Platt, Inc., 566 F.2d 
952 (5th Cir. 1978) . T o  be entitled to a preliminary injunc­
tion, a movant must establish each of four prerequisites: (1) a 
substantial likelihood of ultimately prevailing on the merits; 
(2) a showing of irreparable injury unless the injunction is­
sues; (3) proof that the threatened injury to the movant ou t­
weighs whatever damage the proposed injunction may cause 
the opposing party; and (4) a showing that the injunction, if 
issued, would not be adverse to the public interest. Id.; 
Comerisch v. University of Texas, 616 F.2d 127, 130 (5th Cir. 
1980).

Plaintiffs fail to meet the second element, a showing of ir­
reparable harm. Although each had been disenfranchised for 
conviction of a crime involving moral turpitude, an individual 
in Alabama can have his right to vote restored if pardoned. 
ALA. CODE § 12-14-15, see § 17-3-5. Victor Underwood was 
purged from the voting list in Jefferson County on April 30, 
1977 for conviction for issuing a worthless check 2.\/2 to 3 years 
prior to the July 19, 1978 hearing on the initial preliminary 
injunction. Although officials of the Jefferson County Board 
of Registrars informed Underwood of the procedure for having 
his voting rights restored, he has made no effort to comply, nor 
has he alleged any difficulty in complying with this procedure. 
Carmen Edwards was purged from the voting list of Montgom­
ery County pursuant to her conviction for the crime of issuing 
a worthless check in May 1978. Although she attem pted to re­
ceive a pardon, for purposes of restoration of her voting rights, 
from the Mayor of Montgomery, she was told that she must 
wait at least a year. She has not sought a pardon since the wait­
ing period has elapsed.

N either plaintiff, then, has presented any evidence which in­
dicates that a proper application for a pardon would not have 
been granted. Under these circumstances, we cannot find that



A-15

granting a m otion for a prelim inary injunction is either neces­
sary or appropriate. By affirm ing the district court’s denial of 
a prelim inary injunction, we intim ate no view as to the merits 
of plaintiffs’ allegation attacking the constitutionality of § 182 
of the Alabama Constitution.

AFFIRMED.



A-16

DR. J. MILLS T H O R N T O N ,
[49] having been first duly sworn, was examined and testified 
as follows:
Q. Dr. Thorn ton , what do you teach and where?
A. I teach the History of the South at the University of Mich­
igan in Ann Arbor, Michigan.
Q. In addition to the resume which has been received as De­
fendant’s Exhibit 16, have you conducted your own research 
into the history of the south around the period of time 1901?
[50] A. Yes, I have.
Q. And what has that research consisted of, please, sir?
A. Well, I have worked in the post-bellum period generally 
on a num ber of research projects, bu t in particular the Con­
stitutional Convention of 1901. I did a thesis as an undergrad­
uate centering on the origins of disfranchisement in Alabama. 
Q. And that was your Ph.D.?
A. No, that was not, that was a B.A. thesis.
Q. B.A.?
A. Yes.
Q. W here was that?
A. At Princeton University.
Q. Based on your reading and your research and your educa­
tion that you received, are you fam iliar with the period of time 
up to and including the Convention of 1901 in this State?
A. Yes, I am.
Q. And are you fam iliar with the Constitutional Convention 
of 1901?
A. Yes, I am.
Q. And I will ask you, Dr. T hornton, in your opinion, is 
it necessary in talking about the 1901 Convention to examine 
it and look at it as a whole as opposed to any pieces?
[51] A. Yes, absolutely.
Q. And is it necessary then, in order to determine what the 
in tent of the drafters of Section 182 might have been, to exam­
ine the Convention as a whole and the suffrage article which 
was passed as a whole?
A. Yes.



A-17

MR. STILL: Objection, leading.
T H E  C O U R T: Overruled.

Q. (By Mr. Ward) Doctor, what, in your opinion, is the pur­
pose or was the purpose of the Alabama Constitutional Con­
vention of 1901?
A. T he Alabama Constitutional Convention of 1901 was 
called to prevent a recrudescence of the Populist Revolt which 
had convulsed Alabama politics throughout the 1890’s, 
throughout the period of 1890 and the Spanish American War. 
It was intended to lim it the franchise in Alabama in such a way 
that it would be impossible for the rule of the Democratic 
Party, the hegemony of the Democratic Party in the State again 
to be effectively challenged.
Q. W hat are you saying then, Dr. T hornton, is there were 
political reasons for calling the Convention?
A. T h a t is correct.
Q. And was the eventual passage of 182 part of this purpose 
or this scheme, this political scheme?
A. Yes, it was.
[52] Q. Doctor, what if anything did the Convention do in 
order to accomplish this purpose? W hat did they pass, if any­
thing?
A. Well, there are two halves of the scheme, as you would call 
it. T he first is the Suffrage Article, and the second is the a rti­
cle apportioning the State Legislature. But the Suffrage Article 
is the primary element in the effort to structure Alabama poli­
tics the way they wished.
Q. Could you explain to the Court, please, sir, what even­
tually passed as you were calling the Suffrage Article? If I un­
derstand, there is a perm anent part and a temporary part. If 
you could explain that to the Court, please, sir.
A. All right. T he Suffrage Article as it finally comes from 
the Convention has several parts to it. T here is a set of re­
quirem ents that are applicable from the beginning on all 
voters. Those include residency requirements, two years in the 
State and one year in the county and six months in the pre­
cinct, a poll tax and the crimes section, which is at issue here.



A-18

T hen  in addition to those requirem ents which take effect from 
the ratification and proclamation of the Constitution, there 
are two separate suffrage plans known as the temporary plan 
and the perm anent plan. U nder the temporary plan which was 
in effect un til January 1st of 1903, that is for a year and one 
m onth because the Constitution was proclaimed in effect at the 
end of November [53] of 1901, so for the m onth of December of 
1901 and then the calendar year 1902, the temporary plan is in 
effect. U nder the temporary plan, all persons, all adult males 
who can meet the residency requirem ent and the crimes dis­
franchisement requirem ent may register, if they have served 
honorably in the armed forces, in the armed forces in any 
war — I started to say the armed forces of the U nited States, 
bu t it is not just the armed forces of the U nited States, because 
it includes the Confederate Army as well. So the armed forces 
in any of the wars of the U nited States, or if they are direct 
descendants of any person who did so, or if they are of good 
character and understand the obligation and duties of a citizen. 
T h a t temporary plan goes out of effect on January 1st, 1903, 
and the perm anent plan comes into operation. U nder the per­
m anent plan, any person may register who is an adult male 
meeting the other requirem ents, and who either can read and 
write the English language and has been employed for 12 
months preceding the time he offers to register, or who owns 
40 acres of land on which he resides, or owns an am ount of 
either real estate or personal property assessed for taxes at $300 
on which the taxes have been paid.
Q. Dr. T hornton, was the poll tax part of the suffrage plan 
that was passed?
A. T he poll tax is a part of the suffrage plan that is enacted. 
On the other hand, the poll tax is not an element in registra­
tion. T he poll tax is an element in voting.

# # # #

[54] Q. Did Section 182, which is the crime provision, apply 
to those people who were to be registered under the temporary 
plan?



A-19

A. Yes, it did, just as does residency.
Q. Any others?
A. It would be residency and crimes, and then that you be 
over the age of 21 and a male.

# # # #
[56] Q. Dr. Thorn ton , based on your study and your research 
and your reading, in your opinion, I will ask you whether [57] 
or not disfranchisement of poor whites was an im portant — as 
im portant intention and motive of the delegates to the Conven­
tion of 1901 as was the disfranchisement of blacks?
A. Absolutely. T he two halves of the threat that Populism 
has posed during the 1890’s are that poor whites have left the 
Democratic Party and thus have made general elections m atter 
in the State politics, and that they are appealing to black voters 
and turning black voters into the balance of power. Conse­
quently, the way to prevent a recrudescence of Populism must 
involve dealing with the threat on both levels. Both in elim i­
nating the black vote that had — the courting of which had 
represented the principal threat from the point of view of con­
servative white democrats, and the elim ination of poor white 
voters who had been the backbone of the Populist Party, the 
members of the Farm er’s Alliance and the people who had 
bolted the Democratic Party in the first place.
Q. W ould it be fair to say, in your opinion, that Section 182 
was part of the plan to prevent and disfranchise the poor whites 
as well as any blacks?
A. Yes, that’s right. T he entire Suffrage Article has that aim 
in Section 182, as much as other sections.
Q. Doctor, can we then look at some things that you have 
brought in support of that opinion? Can you tell the Court 
who John Knox was, very briefly?
[58] A. John Knox was the President of the 1901 Convention, 
a lawyer from Anniston.
Q. Did he make any statement a few years after the Conven­
tion of 1901 concerning what the motives of the people there 
were?



A-20

A. Yes. In 1905, he wrote an article for Outlook Magazine. 
Outlook  was a national magazine comparable to T im e  or News­
week today, describing the motives of the delegates to the Con­
vention of 1901.

# # # #
[59] Q. (By Mr. W ard) I will ask you, Dr. Thorn ton , in read­
ing that article, what, if anything, John Knox said concerning 
the intention of the delegates of the 1901 Convention.
A. Well, he makes the point that whereas he concedes that 
the temporary plan has on its face the in tention of enfranchis­
ing whites and not blacks, he makes the point that that is the 
only possible way that the Constitution could have been rati­
fied. They had to get it past the voters. But he says the p rin ­
cipal goal of the delegates was to place the Suffrage, as he says, 
on a high plane, and that they lim ited the time of the applica­
tion of the temporary plan quite severely to one year, 13 
months, and that as soon as the perm anent plan went into 
effect, that it would apply across the board to the standard 
phrase from the Convention, from the delegates as to all the 
ignorant and the vicious.
Q. And that was referring to the whites?
[60] A. T h a t refers to blacks and whites.
Q. In speaking of the efforts to extend the temporary plan, 
what, in your studies, does the leadership of the Democratic 
Convention — what was their intention along those lines, along 
the extension of the temporary plan beyond January 1, 1903? 
A. W ell, there are repeated — let me say this. T here are es­
sentially three points of view among the delegates about Suff­
rage, or three blocs. This is excluding Republican and Popu­
list delegates who are opposed to disfranchisement of any kind. 
But among the democratic delegates, there are those who favor 
an immediate conversion to a plan which would disfranchise 
poor whites and blacks equally and confine the electorate at 
once to literate whites. This is a small m inority among the 
delegates. T h e ir amendment, in fact, when the test vote comes, 
their am endm ent is rejected 109 to 24, I believe is the vote.



A-21

T hen  there are delegates chiefly from rural N orth Alabama 
counties who are in favor of enfranchising all whites and dis­
franchising all blacks, and then there are the delegates who 
are actually the majority of the Democratic Party and who con­
stitute the leadership of the Convention, who favor the dis­
franchisement of poor whites, bu t believe that they cannot get 
the Constitution ratified unless they have in something like 
the temporary plan, which [61] will leave white voters in the 
N orth Alabama counties to vote in favor of ratification. Now 
these, this group is defined as a majority of the Convention by 
a series of efforts on the part of this group that likes the tempo­
rary plan and doesn’t like the perm anent plan, because the per­
m anent plan would disfranchise poor whites who want to ex­
tend the time of operation of the temporary plan. T here are 
no less than three efforts made during the course of the Con­
vention to extend the time of the temporary plan. First to Jan­
uary 1st, 1906, which is beaten back; then to January 1st, 1905, 
which is beaten back, and then to allow persons who might be­
come 21 by January 1st, 1905 to register under the temporary' 
plan before January 1st, 1903, even though they were not yet 
21, bu t to begin voting when they did become 21. All three of 
those efforts are beaten back, and those roll call votes define 
who in the Convention is in favor of the temporary plan as an 
expedient to get the Constitution ratified and who are much 
more committed to black disfranchisement and the enfran­
chisement of all whites.
Q. T hen  I will ask you whether or not the efforts to defeat 
the extension of the temporary plan is a factor, in your opin­
ion, that the delegates of the Convention were just as con­
cerned about disfranchising poor whites as they were blacks?

A. Yes, that’s correct.

* # # #
[62] Q. And if I may, to read you this and to state if that is 
your understanding according to McMillan, “In 1905 Francis 
G. Caffee, a lawyer who was practicing in Montgomery at the 
time of the Alabama Convention, wrote concerning its motives:



A-22

‘It was generally wished by leaders in Alabama to disfranchise 
many unworthy white men, to rid  the State eventually, so far 
as could possibly be done by law, of the corrupt and ignorant 
among its electorate, white as well as blacks. T he  poll tax and 
vagrancy clauses were pu t into the Constitution.’ ” Is that the 
reference and quotation to which you refer?
A, Yes.

# *  *  #

[63] Q. (By Mr. W ard) Dr. T hornton, I believe before you 
testified, did you not, that Section 182 of the Constitution, the 
crimes provision and the property qualifications and the poll 
tax, applied as well to those who registered under the tempo­
rary plan?
A. T h a t’s right, both temporary and permanent.
Q. I will ask you whether or not, in your opinion, that would 
be another factor in your statement that the intention of the 
framers and the people at the Convention of 1901 was to dis­
franchise poor whites as well as blacks?
A. Yes. In  fact, in the debates at the Convention when there 
are allegations that all whites, including as they say, “vicious 
whites” will be perm itted to register under the temporary plan, 
since it would be essentially impossible for any white man not 
to be able to register under the temporary plan, the principal 
reliance that the delegates in the majority on the Suffrage Com­
m ittee who were defending the Suffrage Committee plan, the 
principal reliance that they have in defense of themselves is the 
crimes provision. They say, “No, it is not true that the really 
vicious whites will be perm itted to register under the tempo­
rary plan because they will, if they had been convicted of 
crime, they will go out under Section 182.”

# # #

[68] Q. Was 182 discussed very much, Section 182?
A. No.

## # #



A-23

[69] Q. T he Constitution of 1875, Dr. T hornton, already pro­
vided that those who were convicted of a crime which resulted 
in imprisonm ent in the penitentiary would be disfranchised? 
A. T h a t’s correct.
Q. And do you know of the crimes added to Section 182, if 
those, what the majority of those crimes were?
A. Well, the Crimes Article is another example of the way in 
which public relations is being used to convince the electorate, 
the white electorate that it is not voting to disfranchise itself 
bu t is voting for a constitution directed explicitly at blacks. 
Because as you say, the Constitution of 1875 already disfran­
chises anyone who is convicted of a crime for which you might 
be sentenced to the penitentiary. W hat the Constitution of 
1901 does is repeats that same phrase, bu t before it gets to that 
phrase, [70] it goes through a long list of crimes for which you 
can be sentenced to the penitentiary. Now all of those are in­
cluded in the general phrase, and you could simply have re­
peated the general phrase, bu t these crimes are pu t in precisely 
because they are associated in the public m ind with the be­
havior of blacks. They are drawn by the Suffrage Committee 
from a report by a delegate from Dallas County who is named 
John Fielding Burns, who had drawn them up precisely be­
cause they were crimes which, in his practice as a Justice of the 
Peace, he had found to be — he had found blacks to be, as he 
thought, peculiarly subject to. But the Suffrage Committee 
takes them  and puts them into the Article not with any real 
effect as it were, because the general clause incorporates them, 
but rather as a public relations gesture so that the white elec­
torate, as they read this list, will have their m ind focused on 
this as an anti-Negro measure.
Q. W hen in fact, if I understand you, the Constitution of 
1875, in effect, already had provided the same thing?
A. T h a t’s correct.
Q. Doctor, have you researched between the time of the Con­
stitution of 1901, which became effective —
A. W hich was in December of 1-901, that’s right, end of No­
vember.



A-24

Q. — until the end of the temporary plan, which was [71] De­
cember 31st, 1902?
A. Correct.
Q. W hat percentage of whites were disfranchised with Sec­
tion 182 and what percentage of blacks were disfranchised?
A. W ell, give me two seconds and I can give you the figures 
on that.

On the census of 1900, there are 229,766 adult white males 
in the State, and 181,345 adult black males. We know the 
num ber of persons who were registered as a January 1st, 1903, 
which —
Q. By looking at the census figures and all the information, 
did you arrive at a percentage of whites and blacks disfran­
chised between December 1901 and December of 1902?
A. Well, it would appear that 178,365 blacks and 35,294 
whites were disfranchised by the operation of the temporary 
plan.
Q. W hat percentage of those, then, white to black, were be­
cause of Section 182? I believe you told me some percentages 
before.
A. Yes. It would appear that possibly — these are extrapolat­
ing from figures as to those who have committed crimes taken 
from the biannual reports taken from the Board of Convict 
Inspectors. It would appear that about 3 percent of whites who 
were disfranchised because [72] of the operation of the crimes 
clause, and about seven and a half percent of blacks who were 
disfranchised were disfranchised because of the operation of the 
crimes clause.

*  *  *  *

Q. (By Mr. W ard) Dr. T hornton, one or two last quick ques­
tions. In your opinion, I will ask you whether or not the poll 
tax, which was passed in the 1901 Convention, had the effect 
of disfranchising more whites than blacks?
A. Absolutely, because disfranchisement by the poll tax has 
to take place after you are registered. And since so few blacks 
were registered and since you have to be a registered voter be­



A-25

cause you can be disfranchised would have operated almost ex­
clusively on the whites.
Q. And that was part of the scheme, to disfranchise poor 
whites as well as blacks?
A. T h a t’s right, it was so understood at the time. On this, I 
m ight say, as far as I know, there are no scholars who disagree.

# # # #

[73] Q. T he  aim of the 1901 Constitution Convention was to 
prevent the resurgence of Populism by disenfranchising prac­
tically all of the blacks and a large num ber of whites; is that 
not correct?
A. Yes, sir.
Q. T he idea was to prevent blacks from becoming a swing 
vote and thereby powerful and useful to some group of whites 
such as Republicans?
A. Yes, sir, that’s correct.
Q. T he phrase that is quite often used in the Convention is 
to, on the one hand lim it the franchise to intelligent and vir­
tuous, and on the other hand to disenfranchise those that 
Francis Caffee refers to as “corrupt and ignorant,” or some­
times referred to as the ignorant and vicious?
A. T h a t’s right.
Q. Was that not interpreted by the people at that Constitu­
tional Convention to mean that they wanted to disenfranchise 
practically all of the blacks and disenfranchise those people 
who were lower class whites?
A. T h a t’s correct.

# *  *  #

[74] Q. Have you done any research into the relative convic­
tion rates of blacks and whites for all crimes?
A. Yes, sir. As of September 1st, 1902, 87 percent of persons, 
males who were in State custody were black, and 13 percent 
were white. 94 percent of persons who were in county custody 
were black, and 6 percent were white.
Q. And the population of the State of Alabama was approxi­
mately 40 percent black at that time; is that correct?



A-26

A. Actually, 45. It was 55 percent white, 45 percent black.
Q. And about 45 percent of the male adult population was 
also black; is that not correct?
A. Yes, sir, that is correct.

#  #  #  #

[79] Q. And what we come out with is about a ten or eleven 
times as many blacks who were disenfranchised by the crimes 
provision as whites were; is that correct?
A. Well, that follows statistically from the evidentiary base. 
T h a t is to say, the evidentiary base I am using, 1902, shows 
80 something percent of blacks in State custody, prisoners in 
State custody, and 94 percent of blacks in county custody were 
prisoners in county custody were black, and consequently, since 
I am extrapolating from those figures, therefore the extrapola­
tion is going to show the same relationships, necessarily. T hat 
would be about 90 percent.
Q. So all of the evidence that you have found shows that 
about ten times as many blacks were disenfranchised by the 
crimes provision as whites? We are talking about in raw num ­
bers.
[80] A. Yes, sir, I do understand exactly what you are saying. 
And that is exactly correct, except that I worry slightly about 
the way in which you have phrased it. If you will perm it me, 
w ithin the perimeters of the prison population as it stands, 
the crimes clause, it appears to me, is operating essentially 
across the board of the prison population and it is drawing 
blacks and whites to disfranchisement in about the same per­
centage as the prison population at large. T he crimes clause 
would disfranchise all of the persons in State custody and about 
two-thirds of the persons in county custody, and it draws from 
across the board. But w ithin that lim itation, if you accept that 
lim itation, then the answer to your statement is yes.
Q. Near the end of the Convention, John Knox did make a 
speech to the Convention in which he summarized the work of 
the Convention, and in that speech is it not correct that he said 
that the provisions of the Suffrage Article would have a dispro­



A-27

portionate impact on blacks, bu t he disputed that that would 
be violation of the Fifteenth Amendment?
A. Yes, sir, that is true. Repeatedly through the debates, the 
delegates say that they are interested in disfranchising blacks 
and not interested in disfranchising whites. And in fact, they go 
out of their way to make that point, and it is so startling and 
offensive to m odern [81] sensibilities, that we tend to be — that 
tends to overwhelm us. If you read the four volumes of the 
official proceedings — a fate I wouldn’t wish on anyone — but 
if you happen to, you will come away with the sense that race 
simply dominates the proceedings of the Convention. But the 
point that I am trying to make is that this is really speaking to 
the galleries, that it is attem pting to say to the white electorate 
that must ratify this constitution what it is necessary for that 
white electorate to be convinced of in order to get them to vote 
for it, and not merely echoing what a great many delegates say. 
Now, I would point out to you that there are occasions in the 
debates, particularly in the debate over the motions to extend 
the time of the temporary plan, that the desire to disfranchise 
poor whites pops out in the words of the majority of the Suff­
rage Committee. But in general, the delegates aggressively say 
that they are not interested in disfranchising any whites. I 
think falsely, bu t that’s what they say.
Q. So they were simply trying to overplay the extent to which 
they wanted to disenfranchise blacks, bu t that they did desire 
to disenfranchise practically all of the blacks?
A. Oh, absolutely, certainly.



A-28

J. Morgan Kousser, PhD,

called as a witness, having been first duly sworn, was examined 
and testified as follows:

Exam ination

[3] By the reporter:

Q. Please state your full name.
A. By name is J. Morgan Kousser, k-o-u-s-s-e-r. My address is 
1818 N orth Craig Avenue, Altadena, California.
Q. Please state your educational background beginning with 
college. Please include the subjects of your masters thesis and 
doctoral dissertation, if any.
A. I received an A.B. at Princeton University in 1965, a M. 
Phil, p-h-i-1, at Yale in 1968, and a P.h.D. from Yale in 1971 
where I studied under Professor C. Vann W oodward, v-a-n-n.

T he topic of my dissertation was, “T he shaping of southern 
politics, suffrage restriction and the establishment of the one 
party south, 1880 to 1910.”

*  *  *  *

[5] Q. According to your research, was there much discussion 
at the 1901 Alabama Constitutional Convention regarding the 
desirability of the disenfranchising blacks?
A. T he Alabama Constitutional Convention of 1901 was 
called for the prim e purpose of disfranchising blacks. All 
scholars agree upon the subject. T here was considerable dis­
cussion on and frank discussion of the subject by delegates to 
the convention as well as by newspapers, executive committees 
of the political parties and contemporaries in general in the 
period leading up to the Constitutional Convention.
Q. W hat was the tenor of the discussions?
A. T h e  general tenor of the discussion was that virtually all 
Democrats wanted to eliminate virtually all blacks from the 
electorate and that white populace of Republicans as well as 
blacks, most of whom were Republican, wished to keep free 
and im partial suffrage for blacks.



A-29

Q. W hat was the specific source of the crime provision which 
was eventually adopted as Section 182 of the Constitution?
[6] A. Let me turn  now to the question of the intentions of 
the framers of the Section 182 of the Alabama Constitution of 
1901. T here is very little direct evidence on the intention of 
all of the delegates who voted for Section 182, or even on the 
intentions of the Suffrage Committee of the Constitutional 
Convention. T he committee did not keep any m inutes or other 
records of internal debate, nor did any of its m ajor figures 
leave paper collections relevant to this issue.

Newspapers carried a great deal of information and opinion 
on suffrage plans and strategies at the time of the 1901 conven­
tion, bu t no newspaper reporter seems to have had access to 
the committee debates.

T here was almost no debate on the floor of the convention 
on Section 182. T h is m ight be taken to imply that the dele­
gates did not think the section im portant. I believe that this 
would be a m isinterpretation although 1 would not contend 
that the delegates thought the section as im portant as Sections 
180 and 181.

T he real reason that Sections 180 to 181 were subject to 
more debate is that they were more controversial, that the 
fighting grandfather clause was more clearly unconstitutional 
and unfair, and the poll tax and literacy and property tests 
were likely to disfranchise more whites than was Section 182.

A section such as 182, which was, as [7] everyone apparently 
knew, aimed chiefly at blacks and which seemed sufficiently 
neutral on its face to pass muster before the racist courts of the 
day was certain to be less controversial in this all-white con­
vention, which was overwhelmingly committed to the disfran­
chisement of blacks.

Since direct evidence of the intentions of the delegates on 
this section is not available, we must rely on indirect and some­
what fragmentary evidence. Fortunately, all the indirect evi­
dence points in the same direction.

T he intentions of the delegates on Section 182 must be 
viewed in the context of the whole convention. There is no



A-30

question that the overriding issue in calling the convention 
was black disfranchisement. T he proponents and delegates ad­
m itted this openly and repeatedly, and all scholars agree on 
this fact.

See, for example, Alabama Constitutional Convention Jour­
nal 1901, pages 1755, et seq, and pages 1776, et seq, and Kous- 
ser, The Shaping of Southern Politics, pages 165 to 171 and 
250 to 251.

T he fact that the delegates wanted and expected to disfran­
chise some whites as well, despite their guarantees to the con­
trary before, during and after the convention, does not under­
mine an equal protection challenge, even under the doctrines 
common in 1901, for they framed the suffrage restrictions to 
have a vastly disproportionate [8] effect on blacks.

Many of the delegates were lawyers, and they were familiar 
with the reigning, relevant case then; the Chinese laundryman 
case, Yick, y-i-c-k, Wo, w-o, versus Hopkins, 181 U.S. 356, 1886; 
and knew that barring a few whites would not be a constitu­
tional saving grace.

In any event, their intention that the new suffrage regula­
tions, as a whole, would have a disproportionate impact on 
blacks is very clear.

Another indirect piece of evidence of their intent is present 
on the face of the law in what crimes the conventioners defined 
as disfranchising, that they added to the 1875 Constitution’s 
list, crimes which they thought blacks would be disproportion­
ately likely to be convicted of, is especially apparent in their 
inclusion of sex-related crimes, living in adultery, assault and 
battery on the wife, rape and miscegenation.

Does anyone have to be rem inded about the contemporary 
Southern fixation on black men raping white women, or the 
fact that whites were never convicted of miscegenation, and 
small property crimes, vagrancy and petty theft? Even if we 
had no better evidence than this of the in tent of the framers, 
the manifestly disproportionate and racially discriminatory im­
pact which the enforcement of this extended list would be ex­
pected to have would have been sufficient to indicate to me,



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at least, that the [9] framers were aim ing to disfranchise blacks 
by this section.

# # # #

[16] T o  sum up this point, the Alabama disfranchises closely 
studied methods of disfranchisement elsewhere and in every 
state which had a petty crimes provision the intent was the 
same; to disfranchise blacks. Further, in their own state, they 
must have known that it was chiefly blacks who were convicted 
of such crimes, and thus could have understood the impact of 
the clause qu ite  easily.

But, we have more direct evidence of the in tent of the p rin ­
cipal author of Section 182, John F. Burns, b-u-r-n-s; in his 
original draft Burns included:

[17] “. . . all those who are bastards or loafers or who may 
be infected with any loathsome or contagious disease.”

I t was, of course, common at the time for whites to think 
that these traits were predom inant among blacks.

Burns also believed, in the summary of a recent scholar:

“T he crime of wife beating alone would disqualify 60 
percent of the Negroes.”

T he quotation is from Jimmie, j-i-m-m-i-e, Frank Gross, 
g-r-o-s-s, Alabama Politics and the Politics and the Negro, 1874 
to 1901, unpublished P.h.D. dissertation, University of Geor­
gia, 1969, page 244.

Similarly, see McMillan, Constitutional Development in Ala­
bama, page 275, footnote 76.

Burns says:

“Actions again demonstrate the connection between 
past impact and present in tention.”

For as a long-time justice of the peace in Black-Belt Burns­
ville, Burns knew very well what crimes black people were 
likely to be convicted of, and therefore was easily able to tailor 
Section 182 to cover crimes which [18] would have the maxi­



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mum racially discriminatory impact. His position as chief 
fram er of the section lends special importance to his clear and 
obvious intent.

*  *  *  #

[24] Let me summarize my argum ent as a whole. Most of the 
evidence as to the intentions of the framers of Section 182 is in­
direct, but all of it points in the same direction. T he section 
was designed to have a racially discriminatory disproportionate 
impact on blacks, drafted by ingenious lawyers who were try­
ing to circumvent the Fourteenth and Fifteenth Amendments 
while seeming not to violate their letter. Section 182 may be 
defended by similarly clever bu t obviously flawed arguments.

Looking at all the evidence, it is my view as a historian that 
the intention of the framers was clear.

Subm itted by

tes S. W ard 
Special Assistant Attorney General 
Attorney for Nell H unter, 

et al-Appellants

COUNSEL

C orley , M ongus, Bynum  & D e Buys, P .C . 
2100 16th Avenue South 
Birmingham, Alabama 35205 
(205) 939-0811



A-33

CERTIFICATE OF SERVICE

I, James S. W ard, a m em ber of the Bar of the Supreme Court 
of the U nited States and counsel of record of Nell H unter, 
et al, individually and on behalf of all other members of Board 
of Registrars in the State of Alabama, appellants herein, hereby 
certify that on November 21, 1984, pursuant to  Rule 33, 
Rules of the Supreme Court, I served three copies of the fore­
going Jo in t Appendix on each of the parties herein as follows:

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

On the Solicitor General, Departm ent of Justice, by deposit­
ing such copies in the U nited States Post Office, Birmingham, 
Alabama, with first class postage prepaid, properly addressed 
to the post office address of T he Solicitor General, Departm ent 
of Justice, W ashington, D.C. 20530.

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

All parties required to be served have been served.



A-34

Dated: November 21, 1984

lecial Assistant Attorney General 
Attorney for Appellants



A-35

AFFIDAVIT OF SERVICE

STA TE OF ALABAMA )

JEFFERSON CO UN TY )

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

On Victor Underwood and Carmen Edwards, for themselves 
and all others similarly situated, appellees herein,‘ by deposit­
ing such copies in the U nited States Post Office, B irm ingham ^ 
Alabama, with first class postage prepaid, properly - addjessecT 
to the post office address of Edward Still and N eil Bradley; the 
above named appellees counsel of record, at Edward Still, 
Suite 400, Commerce Center, 2027 First Avenue North, Bir­
mingham, Alabama 35203 and Neil Bradley, ACLU Founda­
tion, 52 Fairlie Street NW, Atlanta, Georgia 30303.

On the Solicitor General, Departm ent of Justice, by deposit­
ing such copies in the U nited States Post Office, Birmingham, 
Alabama, with first class postage prepaid, properly addressed 
to the post office address of T he Solicitor General, Departm ent 
of Justice, W ashington, D.C. 20530.

On W illiam Bradford Reynolds, Assistant Attorney General, 
Charles J. Cooper, Deputy Assistant Attorney General, and 
Brian K. Landsberg, Esquire, by depositing such copies in the 
U nited States Post Office, Birmingham, Alabama with first 
class postage prepaid, properly addressed to the post office ad­
dress of W illiam  Bradford Reynolds, Assistant Attorney Gen­
eral, Charles J. Cooper, Deputy Assistant Attorney General and 
Brian K. Landsberg, Esquire, U nited States Departm ent of 
Justice, W ashington, D.C. 20530.



A-36

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