Gantlin v. West Virginia Pulp and Paper Company Brief for Appellants

    No. 84-76

In the

Bupxmt Court of %  Hutted
October Teem, 1984

N ell H unter, et al. individually, and on behalf of all other 
members of Board of Registrars in the State of Alabama,

Appellants,

Victor U nderwood and Carmen E dwards, fo r themselves 
and all others similarly situated,

Appellees.

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

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF APPELLEES

J ulius Chambers 
L ani Guinier*
P enda H air

99 Hudson Street
New York, New York 10013

R ichard Brippault
Columbia University 

Sehool of Law 
435 West 116th Street 
New York, New York 10027

Attorneys for the NAACP 
Legal Defense and 
Educational Fund, Inc.

*Counsel of Record

Dated: January 7, 1985



TABLE OP CONTENTS
Page

Table of Authorities .............  iii
Statement of Interest of Amicus

Curiae ..............   1
SUMMARY OF ARGUMENT... ..........  4

I. VOTING IS A FUNDAMENTAL 
RIGHT WHICH MAY NOT BE 
DENIED UNLESS NECESSARY TO 
PROMOTE A COMPELLING STATE
PURPOSE ................ . 8
II. THE MISDEMEANANTS
DISENFRANCHISEMENT CLAUSE 
WAS ADOPTED FOR INVIDIOUS 
RACIALLY DISCRIMINATORY 
REASONS IN VIOLATION OF THE 
FOURTEENTH AMENDMENT ........ 18
III. DISENFRANCHISEMENT OF 
POOR WHITES BECAUSE OF 
THEIR POLITICAL BELIEFS OR 
LACK OF WEALTH VIOLATES THE 
FIRST AND FOURTEENTH
AMENDMENTS ...........    26
IV. RICHARDSON v. RAMIREZ,
DOES NOT INSULATE THE MIS- 
DEMEANANTS' DISENFRANCHISEMENT 
CLAUSE FROM STRICT
SCRUTINY ................  32

i



V. THE TENTH AMENDMENT 
PROVIDES NO PROTECTION FOR A 
STATE DISENFRANCHISEMENT 
MEASURE WHICH VIOLATES THE

Page

FOURTEENTH AMENDMENT ........  39

VI. THE MISDEMEANANTS 
DISENFRANCHISEMENT CLAUSE 
VIOLATES THE VOTING RIGHTS 
ACT ........................ 40

CONCLUSION ............     42

ii



TABLE OP AUTHORITIES
Page

Cases;
Allen v. State Board of Elections,

393 U.S. 544 ( 1969) .... . 2
Anderson v. Celebrezze, 460 U.S.

780 (1983) .................. 10
Anderson v. Martin, 365 U.S. 399

( 1 964) ... ............... . 2
Arlington Heights v. Metropolitan 

Housing Dev. Corp., 429 U.S.
252 ( 1977) ..........  1 8, 19,24,28,36

Bullock v. Carter, 405 U.S. 134
( 1 972) .......................  31

Carrington v. Rash, 380 U.S. 89
(1 965) ....................... 29

Cipriano v. City of Houma, 395 U.S.
at 701 ( 1 969) ................ 30,32

City of Mobile v. Bolden, 446
U.S. 55 (1980) .......  2,25,36,37

City of Rome v. United States, 446
U.S. 156 (1 980) .......... 25,39,40

Clements v. Fashing, 457 U.S. 957
( 1 982) ..........    10

iii



Connecticut Citizen Action Group
v . Pugliese, No. 84-431 (WWF)
(D. Conn. Sept. 25, 1984), 
stay den'd, F.2d
(2d Cir. OctTT, 1984) ...... 12

Dunn v. Blumstein, 405 U.S. 330
(1972) ...................... 11,29

East Carroll Parish School Bd. v.
Marshall, 424 U.S. 636 
( 1976) ................... 2

Evans v. Cornman, 398 U.S. 419
( 1 970) ...........------....... 9,30

Fitzpatrick v. Bitzer, 427 U.S.
445 ( 1 976) .......______....... 40

Gomillion v. Lightfoot, 364 U.S.
339 ( 1 960) ..................  25

Guinn v. United States, 238 U.S.
347 (1 91 5) ... ........... . 23,25

Harris v. Graddick, 593 F.Supp.
128 (M.D. Ala. 1984) ........ 41

Harper v. Virginia Board of 
Elections, 383 U.S. 663 
( 1966) ....................... 9,31

Illinois State Board of Elections 
v. Socialist Workers Party,
440 U.S. 173 ( 1979) ......... 1 0

Page

iv



Page
Kramer v. Union Free School Diet.

No. 15, 395 U.S. 621
( 1969) .......................  5,1 0

Lassiter v. Northampton County Board 
of Elections, 360 U.S. 45 
( 1959) ................... . 37

Luhin v. Panish, 415 U.S. 709
(1974) ..................... 31

NAACP v. Button, 371 U.S. 415
(1963) ....................... 2

Personnel Administrator of Mass, 
v. Feeney, 442 U.S. 256 
(1979) .......    24

Phoenix v. Kolodziejski, 399 U.S.
204 ( 1970) ..................  3 1

Project Votel v. Ohio Bureau of 
Employment Services, 578 
F. Supp. 7 (S.D. Ohio 
1982) ......       13

Reynolds v. Sims, 377 U.S. 533
( 1 964) ..........    9

Richardson v. Ramirez, 418 U.S. 24
( 1 974) .................. 7,32-36,38

Rhode Island Minority Caucus,
Inc. v. Baronian, 590 F .2d 372 
( 1st Cir. 1979) ............ . 1 2,1 3

v



Page
Rogers v. Lodge, 458 U.S. 613

(1982) ................... 2,25,37
Smith v. Allwright, 321 U.S. 649

(1944) ...................... 2
South Carolina v. Katzenbach, 383

U.S. 301 (1966)...... 20,23,38,40

United Jewish Organizations v.
Carey, 430 U.S. 144 (1977) .. 2

United Public Workers v. Mitchell,
330 U.S. 75 ( 1 947) .......... 30

United States v. Marengo Co.
Comm'n , 731 P.2d 1546 (11th 
Cir. 1984), appeal dismissed, 83 
L .Ed.2d 311 (Nov. 5, 1984)(No.
84-243 ) .................. . 1 1,41

United States v. State of Alabama,
252 F. Supp. 95 (M.D. Ala.
1966) (three judge court) ... 21,23

Voter Education Project v .
Cleland, No. 84-1181A
(N.D. Ga.) .............    14

Washington v. Davis, 426 U.S.
229 ( 1 976) .......... . ...... . 20,36

Wesberrv v. Sanders, 376 U.S. 1
( 1 964) ...............   9

- vi



Page
White v. Regester, 412 U.S. 755

( 1 973) ............. ...... . 37
Williams v. Rhodes,, 393 U.S. 23

( 1 968) ................... . 10,39
Yick Wo v. Hopkins, 118 U.S. 356

( 1 886) ..................___  4

Constitutional and Statutory Provisions 
U.S. Const. First, Fourteenth and

Fifteenth Amendments ........ Passim
U.S. Const. Tenth Amendment ...... 7,39,40
Voting Rights Act of 1965, 42

U.S.C. § 1973(a) Section 2 
as amended in 1982 .....   7,40

Ala. Const, of 1901, Section 182 Passim
Ga. Const. Art. 2 Sec. 1,

para. 3(a) ..................  35

Other Authorities
After the Voting Rights Act:

Registration Barriers, Report of 
the Subcommittee on Civil and 
Constitutional Rights of the House 
Committee on the Judiciary,
98th Cong., 1st Sess.
(October 1984) ..............  14,16

- vii



Page
Note, Restoring the Ex-Offender's 

Right to Votes Background 
and Development, 11 AM,
Grim. L. Rev. 721 (1973) .... 34,35

P. Lewison, Race, Class and
Party B1 ( 1 963) .......... . 24

Schmidt, Principle and Prejudice:
The Supreme Court and Race in 
the Progressive Era. Part 3:
Black Disfranchisement from the 
KKK to the Grandfather Clause,
82 Colum. L. Rev. 835 
( 1 982) .......--- ........... 21,27

Special Project, The Collateral 
Consequences of a Criminal 
Conviction, 23 Vand. L. Rev.
929 (1 970) ........ .......... 34-35

- viii



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984

NELL HUNTER, et al. INDIVIDUALLY,
AND ON BEHALF OF ALL OTHER MEMBERS 

OF BOARD OF REGISTRARS 
IN THE STATE OF ALABAMA,

Appellants,
VICTOR UNDERWOOD AND CARMEN EDWARDS, 

FOR THEMSELVES AND ALL OTHERS SIMILARLY 
SITUATED,

Appellees.

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

BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE
AND EDUCATIONAL FUND, INC.

STATEMENT OF INTEREST OF AMICUS CURIAE

The NAACP Legal Defense and Educa­
tional Fund, Inc. is a non-profit corpora­
tion which was established for the purpose



2

of assisting black citizens in securing 
their civil rights. It has been cited by 
this Court as having "a corporate reputa­
tion for expertness in presenting and 
arguing the difficult questions of law 
that frequently arise in civil rights 
litigation." NAACP v» Button, 371 0.S.
415, 422 (1963). The Legal Defense Fund 
has appeared before this Court on numerous 
occasions representing parties or as 
amicus curiae in cases raising constitu­
tional and statutory issues concerning the 

1
right to vote.

See e.g., Rogers v . Lodge, 458 U.S. 613 
(1982) (amicus curiae); City of Mobile v. 
Bolden, "446 U.S. 55 ( 1980); United JewlsTT 
Organizations v. Carey, 3T0 U.S. TUT 
(1877); East Carroll Parish School Bd. v. 
Marshall"7~424 U.S. 626 ( 1976); Allen v. 
State Board of Elections, 393 U.S. 5T3 
n9<59); Anderson v. Martin, 375 U.S. 399 
(1964); Smith v."Allwright, 321 U.S, 649 
( 1944) .



3

This case presents intertwined 
questions involving the grounds for 
disenfranchisement of voters and the proof 
and significance of racially invidious 
intent. The Legal Defense Fund is
actively involved in challenging State 
standards, practices and procedures which 
abridge the right to vote. These State 
restrictions fall with greatest weight on 
blacks, other minorities, and the poor. 
The Court's resolution of the issues 
presented by this case may materially 
affect the ability of amicus to advance 
its program of vindicating the right to 
vote.

Letters consenting to the filing of 
this brief by both parties are being 
lodged with the Clerk of Court.



4

SUMMARY OF ARGUMENT 
The issues raised by this case go to 

the heart of American democracy —  the 
right to vote, and the right to be free 
from invidious racial discrimination.

The right of suffrage, the right 
which is "preservative of all rights," 
Yick Wo v , Hopkins, 118 U. S. 356, 370
(1886), is the cornerstone of the American 
political system. A state's denial of the 
right to vote to any member of the 
community may be sustained as constitu­
tional only if it is narrowly tailored to 
promote a compelling state purpose.

The clause of Section 182 of the 
Alabama Constitution of 1901 which the 
court below declared violative of the 
United States Constitution is precisely 
the type of State restriction of the 
franchise which this Court has stated must 
receive "close and exacting examination."



5

Kramer v. Union Free School Dist. No. 15, 
395 U. S . 621 , 626 ( 1969). The clause
completely denies the right to vote to 
otherwise eligible citizens of Alabama 
convicted of crimes not punishable by 
imprisonment in the penitentiary — • e,g. , 
misdemeanors —  involving "moral turpi­
tude." Such a denial of the right to vote 
may be sustained only if it is necessary 
to promote a compelling State purpose.

It is at the point of inquiry into 
the State's purpose, however, that the 
denial of the right to vote becomes joined 
with an even uglier affront to American 
democracy -- invidious racial discrim­
ination. The United States Court of 
Appeals for the Eleventh Circuit found, 
and the historical record fully supports 
this finding, that the clause was adopted 
for racially invidious reasons, as part of 
a broad and thoroughgoing program of white



6

Alabamians to disenfranchise blacks.
Appellants, however, argue that the 

clause may be sustained because it was 
adopted as an element of a disfranchise­
ment scheme aimed as well at "populists" 
or "poor whites," not just blacks. This 
argument, even if it were a correct 
reading of the State's purpose, does not 
help their case. The denial of the right 
to vote on grounds of political belief or 
socio-economic status is as impermissible 
as disenfranchisement by reason of race. 
Like discrimination against blacks, 
discrimination against poor whites or 
Populists cannot be a compelling state 
interest.

Appellants remaining arguments are no 
more than makeweights. While this Court 
has held that the disenfranchisement of 
felons does not, in and of itself, violate 
the Equal Protection Clause of the



7

Fourteenth Amendment, Richardson v. 
Ramirez, 418 U.S. 24 ( 1974), this case
does not involve the disenfranchisement 
for commission of a crime simpliciter. 
Rather, this case turns on a disenfran­
chisement clause adopted for constitu­
tionally proscribed reasons —  either 
invidious racial animus as appellees 
allege and the Eleventh Circuit found, or 
political and wealth-based discrimination 
as appellants contend. Richardson v. 
Ramirez can provide no shelter for a 
measure wh ich was intended to deny the 
franchise to a group of voters because of 
the color of their skin, their lack of 
assets, or their political beliefs. Nor 
does the Tenth Amendment provide a shield 
for a denial of the franchise in violation 
of the Equal Protection Clause of the
Fourteenth Amendment.



8

Finally, the clause in question 
violates section 2 of the Voting Rights 
Act of 1965, 42 U.S.C. § 1973(a). As
amended in 1982, section 2 bars the use of 
voter qualifications which result in a 
denial of the right to vote on account of 
race or color. Even if the adoption of 
the clause is held not to have been the 
product of invidious racial intent in 
violation of the Fourteenth Amendment, it 
surely results in a denial of the right to 
vote on account of race or color.

I. VOTING IS A FUNDAMENTAL RIGHT 
WHICH MAY NOT BE DENIED UNLESS 
NECESSARY TO PROMOTE A COMPELLING 
STATE PURPOSE.
The Court has frequently emphasized 

the central role played by the right to 
vote in the American system of constitu­
tional government. The right to vote "is 
of the essence of a democratic society, 
and any restrictions on that right strike



9

at the heart of representative govern­
ment ." Reynolds v. Sims, 377 U.S. 533, 555 
(1964). "No right is more precious.,.. 
Other rights, even the most basic, are 
illusory if the right to vote is under­
mined." Wesberry v. Sanders, 376 U.S. 1, 
17 (1964). See also Evans v. Cornman, 398 
U.S. 41 9, 422 ( 1970).

In order to secure fully our system 
of democratic self-government, state 
restrictions on the right to vote have 
often been found constitutionally invalid 
upon close examination. The right to 
vote may not be taxed, Harper v. Virginia 
Board of Elections, 383 U.S. 663 (1966); 
one person's vote may not be given less 
weight than any other person's, e.g., 
Reynolds v. Sims; Wesberry v. Sanders; and 
the State may not unduly restrict the 
ability of new parties or independent 
candidates to obtain positions on the



10

ballot. See, e.g. Anderson v. Cele-
brezze, 460 U.S. 780 (1983)? Illinois
State Board of Elections v. Socialist 
Workers Party, 440 U.S. 173 ( 1979);
Williams v . Rhodes, 393 U.S. 23 ( 1968).
Cf. Clements v. Fashing,- 457 U.S. 95 7. 
964-65 (1982).

Burdens on the right to register and 
cast a ballot, the heart of the constitu­
tionally protected right to vote, are 
subject to strict scrutiny. ” [I]f a 
challenged state statute grants the right 
to vote to some bona fide residents of 
requisite age or citizenship and denies 
the franchise to others, the Court must 
determine whether the exclusions are 
necessary to promote a compelling state 
interest.” Kramer v. Union Free School 
Dist. , supra. , 395 U.S. at 626-27. In
such a case, "the general presumption of
constitutionality afforded state statutes



11

and the traditional approval given state 
classif icat ions if the Court can conceive 
of a 'rational basis5 for the distinctions 
made are not applicable.” Id. at 627-28. 
Rather, the state must show "substantial 
and compelling reason” for the denial of 
the franchise, Dunn v. Blumstein, 405 D.S. 
330, 335 ( 1972) and must utilize the
"least restrictive means” to achieve that 
goal. Id. at 353.

The lower federal courts have 
recently decided or are currently con­
sidering dozens of cases challenging
state-imposed barriers to voting under the

2
First and Fourteenth Amendments. The

The courts have recognized that 
state administrative practices, such as 
limitations on voter registration to 
inconvenient times and locations, or dis­
crimination in the appointment of voter 
registrars on grounds of race or political 
affiliation, can effectively abridge the 
ability of citizens to register, and 
therefore implicate the right to vote. 
See. e.q., United States v. Marengo Co.
Comm'n, F7“5'a 1546, 1f>S$-70 (llt'h’ CirT



12

ramifications of the arguments made in
this case go well beyond the narrow issue 
of denying the franchise to certain mis- 
demeanants.

For example, in Connecticut Citizen 
Action Group v. Pugliese, No. 84-431 (WWF) 
(D. C onn . Sept. 25, 1984), stay den'd, _____
F. 2d ______ (2d Cir. Oct. 2, 1984), the Court
ordered the appointment of thirty special 
assistant registrars to conduct registra­
tion door-to-door and at various sites in 
the community. That case involves the 
claim that holding registration at only 
one location in the city of Waterbury, 
Connecticut violates the First and 
Fourteenth Amendments.

1984)? Rhode Island Minority Caucus, Inc. 
v . Baron i an, 596 FI 53 372 (1st Cir.
T5T577



13

In Rhode Island Minority Caucus, Inc, 
v. Baronian, 590 F.2d 372 (1st Cir. 
1979), the Court held that allowing 
registration drives to be conducted only 
by members of the League of Women Voters 
is unconstitu tional if racial animus 
played a part in the decision. Several 
courts have enjoined state and local 
refusals to permit registration forms to 
be distributed in public agency waiting 
rooms. E,g. , Project Votel v. Ohio Bureau 
of Employment Services, 57 8 F. Supp, 7 
(S.D. Ohio 1982).

Other cases challenging barriers to 
voting are pending. In Georgia, for 
example, citizens in many counties must 
travel distances of 60 miles or more in 
order to register at county courthouses 
which are open only during normal business 
hours -- when most citizens are at work. 
The difficulty in registering is com­



14

pounded by the fact that the state has no 
rural public transportation. The failure 
to permit registration at satellite 
locations and during evening and weekend 
hours is currently being challenged in the 
case of Voter Education Project v. Cle- 
1 and, No. 8 4 - 1 1 8 1 A (N.D. Ga.). Similar 
registration barriers are at issue in 
cases in Louisiana, Michigan, Arkansas, 
Missouri, and Mississippi.

The devastating effect of such 
barriers to registration was recently 
documented by a congressional subcommit­
tee. After the Voting Rights Act; 
Registration Barriers, Report of the 
Subcommittee on Civil and Constitutional 
Rights of the House Committee on the 
Judiciary, 98th Cong., 1st Sess. (October 
1984). The subcommittee concluded:



15

A number of states limit regis­
tration to a single central location 
in a county, usually the county 
courthouse. ...

Many registration offices are 
open only on weekdays and during 
normal business hours. Many offices 
are closed during lunch hours. In 
Virginia, most registration offices 
only have regularly scheduled office 
hours between 8 am-5 pm. Over half 
are not open 5 days a week, and one 
quarter are only open one or two days 
a week. These limited hours conflict 
with the working hours of most 
people. Thus, working people must 
take time off from work in order to 
register.

... Courthouses are rarely 
located in the minority community, so 
minority citizens are required to go 
to an unfamiliar part of town to
register.__ [I]n rural areas, the
long distances to the courthouse 
coupled with the lack of public 
transportation turns getting to the 
courthouse into a Herculean effort.

Third is the problem of intimi- 
dat ion . In Johnson County, Georgia, 
the wh ite sheriff makes a point of 
stationing h imself outside of the 
door of the voter registration office 
in the courthouse when blacks come to 
register. ...

... In Shenandoah County, 
Virginia, the registrar's office is 
located in the basement of the county 
jail.



16

In Waterbury, Connecticut ... 
the registrar refuses to deputize any 
volunteers. In other places, 
deputization is done selectively. In 
Worcester, Massachusetts, the 
registrar does not deputize volun­
teers from the poor side of town ....

The technicalities of the form 
also raise barriers. In New York, 
signatures are required on both sides 
of the form, otherwise the registra­
tion is invalid. Other states 
require the form to be notarized. 
This requires the registrant to find 
a notary public, and usually involves 
a fee for the service. In effect, 
this may work as an illegal poll tax.

Dual registration is yet another 
barrier to full electoral participa­
tion. This requires citizens to 
register separately for both city and 
county elections....

Purge laws, while not facially 
objectionable, may operate unfairly. 
Seven states purge voters without 
individual notice. In Alabama, 
selected counties with a higher 
percentage of black voters have been 
purged. Subcommittee Report at 
4-10.

Acceptance of appellant's argument 
that the states have absolute, unreview- 
able control over voting requirements and



17

qualifications would permit the continued 
existence of several barriers and ob­
stacles to voting, such as those described 
above. Yet, these modern-day versions of 
the poll tax are no more constitutionally 
acceptable than their historic predeces­
sors. Preservation of the precious right 
to vote requires that all barriers to 
voting be subjected to strict constitu­
tional scrutiny and permitted only when 
justified by compelling governmental 
interests.

In this case, appellants have failed 
to offer any compelling state interest 
which could justify the denial of the 
franchise effected by the challenged 
clause of Section 182. On either appel­
lants' or appellees' theory of the
purposes of the framers of the Alabama
Constitution of 1901, the clause was



18

adopted for a constitutionally proscribed
reason and not to serve a compelling state
interest.

II. THE MISDEMEANANTS DISENFRAN­
CHISEMENT CLAUSE WAS ADOPTED FOR 
INVIDIOUS RACIALLY DISCRIMINATORY 
REASONS IN VIOLATION OF THE
FOURTEENTH AMENDMENT
The Court of Appeals found that the 

misdemeanants disenfranchisement clause of 
Section 182 of the Alabama Constitution 
was adopted with the intent, and has had 
the effect, of disenfranchising blacks. 
(J. S. at A-6 through A-141.) The court 
properly applied the test for determining 
discriminatory intent set forth by this 
Court in Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252
( 1 9 7 7 ), and its conclusion is amply 
supported by the legal and historical
record.



19

In Arlington Heights,, the Court 
identified the factors which may be used 
to prove that a law, while fair on its 
face, was adopted for an invidiously 
discriminatory purposes "The historical 
background of the decision is one eviden­
tiary source, particularly if it reveals a 
series of official actions taken for 
invidious purposes." 429 U.S. at 267. 
"The legislative or administrative history 
may be highly relevant, especially where 
there are contemporary statements by 
members of the decisionmaking body, 
minutes of its meetings, or reports." Id. 
at 268. "The impact of the official 
action -- whether it ’bears more heavily 
on one race than another,'... -- may 
provide an important starting point. 
Sometimes a clear pattern, unexplainable 
on grounds other than race, emerges from 
the effect of the state action even when



20 -

the governing legislation appears neutral
on its face,'1 IdL at 266, quoting 
Washington v. Davis, 426 (J.S. 229, 242
( 1976) .

The Eleventh Circuit properly relied 
on each of these factors in reaching its 
determination that the disenfranchisement 

clause in this case was adopted for 
racially discriminatory purposes.

The "historical background" to 
Section 182 is clear; " [B]eginning in 
1890, the States of Alabama, Georgia, 
Louisiana, Mississippi, North Carolina, 
South Carolina, and Virginia enacted tests 
still in use which were specifically 
designed to prevent Negroes from voting." 
South Carolina v. Katzenbach, 383 U.S. 
301, 310 (1966). The Alabama Consti­
tutional Convention of 1901 "assembled 
largely, if not principally, for the 
purpose of changing the 1875 Constitution



21

so as to eliminate Negro voters." United 
States v. State of Alabama, 252 F. Supp. 
9 5, 98 (M.D. Ala. 1966) (three-judge
court). "'What they want is a scheme pure
and simple which will let every white man 
vote and prevent any Negro from voting,' 
reported the Birmingham Age-Herald about 
the delegates at the Alabama Constitu­
tional Convention of 1901." Schmidt, 
Principle and Prejudice; The Supreme 
Court and Race in the Progressive Era. 
Part 3: Black Disfranchisement from the
KKK to the Grandfather Clause, 82 Colurn. 
L. Rev. 835, 846 (1982).

The legislative history is also 
clear. "Delegate after delegate took the 
floor eager to be put on record as 
favoring 'the absolute disfranchisement of 
the Negro as a Negro'.... The Journals of 
the Convention leave absolutely no doubt 
as to what the delegates of the white



22

citizens of Alabama wished the Convention
to accomplish; __ 'it is our intention,
and here is our registered vow to dis­
franchise every Negro in the state...'" 
United States v. Alabama, supra, 252 F. 
Supp. at 98, quoting comments by conven­
tion delegate reported in the Official 
Proceedings.

In developing their program of 
disenfranchisement, the delegates took 
care to avoid the strictures of the 
Fourteenth and Fifteenth Amendments. 
Instead of directly curtailing the 
franchise on grounds of race, the suffrage 
committee "made resort to facially neutral 
'tests that took advantage of differing 
social conditions. Disenfranchisement for 
commission of specified misdemeanors is in 
pari materia with the "grandfather 
clause," the poll tax, and the literacy 
test -- a clear pattern of measures



23

neutral on the surface but adopted for the 
purpose and having the effect of disen­
franchising blacks, and which were 
subsequently declared invalid for that 
reason. See, e,g . , Guinn v. United 
States, 238 U.S. 347 ( 1915) (grandfather 
clause) , South Carolina v. Katzenbach, 
supra, 383 U. S. at 31 2, 33 3-34 (literacy 
test) , United States v. State of Alabama, 
supra, (poll tax).

Although the clause at issue purports 
to utilize a racially neutral criterion -- 
misdemeanors involving moral turpitude -- 
moral turpitude was intentionally defined 
to bring about the disenfranchisement of 
blacks. The suffrage committee of the 
Constitutional Convention chose offenses 
that were believed to be peculiar to 
blacks' low income and social status, such 
as petty property offenses, and minor 
sex-related crimes. (J. S. at A-10,



24

citing P. Lewison, Race, Class and Party 
81 (1963).) Appellants' own expert, Dr.
Thornton, acknowledges that the disquali­
fying crimes were those "associated in the 
public mind with the behavior of blacks." 
Joint App. at A-23,

The brunt of the non-penitentiary 
offenses clause was, and still is, borne 
by blacks. Joint App. at A-26; J.S. at 
A — 11 . Thus, the elements of proving 
racally invidious discrimination identi­
fied in Arlington Heights —  historical 
background, legislative history, pattern 
of discriminatory enactments, and dis­
parate racial impact —  are all present 

3here. Taken together they prove the

3 Therefore, this case differs significantly 
from the veteran's preference upheld in 
Personnel Administrator of Mass, v. 
Feeney, 442 U.S. 256 ( 1 979). Unlike
Feeney, in which the worthy and legitimate 
"goals behind the veteran’s preference were 
stipulated, the classification here is 
neither rationally based, traditionally 
justified nor beneficent. Indeed,



25

" 8 insidious and pervasive evil' of racial 
discrimination in voting." City of Rome 
v. United States, 446 U.S. 156, 174
( 1 9 8 0 ) .  A state restriction on the right 
to vote adopted for racially invidious 
reasons violates the Equal Protection 
Clause of the Fourteenth Amendment, Rogers 
v. Lodge, 458 U.S. 613, 621-22 (1982),
City of Mobile v, Bolden, 446 U.S. 55, 
66-67 ( 1 9 8 0 )  (plurality opinion), as well 
as the Fifteenth Amendment. City of 
Mobile, supra, Gomillion v. Lightfoot, 364 
U.S. 339 (1960), Guinn v. United States, 
supra.

appellants concede racial antipathy behind 
the misdemeanant exclusion clause, and 
proof of its discriminatory purpose, 
contrary to the plaintiff's case against 
the Massachusetts veteran's preference, is 
not solely based on inferences from its 
disproportionate impact.



26

III. DISENFRANCHISEMENT OF POOR
WHITES BECAUSE OF ■ THEIR POLITICAL 
BELIEFS OR LACK OF WEALTH VIOLATES 
THE FIRST AND FOURTEENTH AMENDMENTS
Appellants contend that the misde­

meanants exclusion clause of section 182 
was not adopted solely because of anti-
black racial animus, but rather was
adopted for "political reasons," to
disenfranchise as well "poor whites" or
"populists." (Brief for Appellants at
9-10, 12). Appellants' theory is prob­
lematic as an interpretation of the 1901 
Alabama Constitutional Convention, but 
even if appellants' theory were true it 
could not save the disenfranchisement 
clause.

Appellants' theory assumes that the 
"racial" and "political" purposes of the 
Alabama Constitutional Convention were 
distinct. To the contrary, in turn-of- 
the-century Alabama and throughout the



27

Deep South at that time politics and race 
were largely intertwined. See Schmidt, 
Principles and Prejudices, supra, 82 
Colum. L. Rev. at 842-47. Even appel­
lants' expert Dr. Thornton, acknowledges 
that the Constitutional Convention 
delegates sought to achieve their "politi­
cal," ant i-Populist, goal by "eliminating 
the black vote that had -- the courting of 
which had represented the principal threat 
from the point of view of conservative 
white democrats." (Joint App. at A-19.)

Moreover, in order to find that 
section 182 was "political" and not 
"racial", the court must ignore most of 
the historical record. Appellants urge the 
Court "not to be misled by reading or 
analyzing the proceedings of the Conven­
tion." (Brief for Appellants at 18.) The 
speeches and debates of the delegates, the 
anti-black statements, and the avowal of



28

anti-black purposes were all a "public 
relations gesture." (Joint App, at A-23, 
A-27). Appellants’ expert acknowledges 
that " [ i ] f 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." (Id. at 
A-27). His solution is to ignore the 
statements and actions of the delegates 
and rely solely on their unstated inten- 
t ions, as he divines them. Thus would 
appellants have the Court ignore the 
approach for identifying intent set forth 
in Arlington Heights and pursued by the 
Eleventh Circuit.

Most importantly, however, appel­
lants ' version of history cannot save the 
misdemeanants d isenfranchisement clause 
from invalidation. On appellants' theory



29

the clause is constitutional because it
was adopted with the intent to discrimi­
nate against "poor whites'® or "Populists." 
Such a contention would be laughable if it 
were not so offensive. The franchise may 
no more be denied on grounds of political 
belief or lack of wealth than it may be 
for racial animus.

"'Fencing out' from the franchise a 
section of the population because of the 
way they may vote is constitutionally 
impermissible. ' [T]he exercise of rights 
so vital to the maintenance of democratic 
institutions, ' ... cannot be obliterated 
because of a fear of the political views 
of a particular group of bona fide resi 
dents." Carrington v. Rash, 380 U.S. 89, 
94 ( 1965) " ' [D]ifferences of opinion' may 
not be the basis for excluding any group 
or person from the franchise." Dunn v .
Blumstein, supra, 405 U.S. at 355, quoting



30

Cipriano v. City of Houma, supra, 395 
O.S. at 705-06. Accord, Evans v. Cornman, 
398 O.S. 419, 422 (1970). As this Court 
observed in another context, "Congress may 
not 'enact a regulation providing that no 
Republican, Jew or Negro shall be ap­
pointed to federal office."' United 
Public Workers v. Mitchell, 330 U.S. 75, 
100 (1947). These cases clearly establish 
that where the right to vote is at stake, 
political minorities as well as racial 
minorities -- "populists" as well as 
blacks -- are protected by the Equal 
Protection Clause. The desire to vanquish 
one's political opponents or "fence out" 
citizens holding unorthodox beliefs has 
never withstood strict scrutiny or been 
found to serve a compelling state interest 
to justify the denial of the franchise to 
the disfavored group. Indeed, a finding 
that section 182 was adopted out of an­



31

tipopulist or anti-poor white animus would 
compel the determination that it violates 
the Fourteenth Amendment*

"Wealth, like race, creed, or color, 
is not germane to one's ability to 
participate intelligently in the electoral 
process. Lines drawn on the basis of 
wealth or property, like those of race ... 
are traditionally disfavored" where the 
franchise is at stake. Harper v. Virginia 
Board of Elections, 383 U. S. 663, 668 
(1966), This Court has consistently held 
unconstitutional under the Equal Protec­
tion Clause wealth-based restrictions on 
the franchise, such as the poll tax, 
Harper, supra, excessive filing fees, 
Lubin v. Panish, 415 U.S. 709 ( 1 9 7 4) , 

Bullock v. Carter, 405 U.S. 134 ( 1 9 7 2), 

and statutes restricting to taxpayers the 
right to vote on bond issues, Phoenix v.
Kolodziejski, 399 U.S. 204 (1970), Cipri-



32

ano v. City of Houma, 395 U.S, 701 (1969). 
The right of suffrage of "poor whites" 
like that of blacks is protected by the 
Constitution and may not be denied by 
measures aimed at them because of their 
lack of wealth.

IV. RICHARDSON v. RAMIREZ DOES NOT 
INSULATE THE MISDEMEANANTS' DISEN­
FRANCHISEMENT CLAUSE FROM STRICT 
SCRUTINY,
Appellants contend that the misde­

meanants disenfranchisement provision of 
section 182 is insulated from Equal 
Protection Clause review by virtue of this 
Court's decision in Richardson v, Ramirez, 
418 U.S. 24 ( 1974). In Richardson, the
Court considered that portion of section 2 
of the Fourteenth Amendment which limited 
the penalty of reduced state representa­
tion in Congress to denials of the 
franchise "except for participation in 
rebellion, or other crimes." The Court



33 -

concluded that this provision gave 
"affirmative sanction" to "the exclusion 
of felons from the vote." Id. at 54.

The case sub judice differs from 
Richardson in two significant ways. First, 
the disenfranchising crimes in Richardson 
were felonies whereas the present case 
concerns an invidiously selected list of 
non-felonies. Richardson was predicated in 
part on an examination of the historical 
background of the Fourteenth Amendment. 
The Court noted that at the time of the 
Fourteenth Amendment's ratification most 
States had provisions in their constitu­
tions which prohibited, or authorized 
their legislatures to prohibit, the 
exercise of the franchise by persons 
convicted of felonies. Congress, in 
readmitting the seceded states to the 
Union, authorized those states to deny the 
franchise for" 'participation in the



34

rebellion or for felony at common law'." 
418 U . S . at 4 8,49., There was, however, no 
similar finding that the "historical 
understanding of the Fourteenth Amendment" 
confirmed the disenfranchisement of 
misdemeanants, Richardson has never been 
applied to uphold a disenfranchisement of 
non-felons.

Indeed, those states which disenfran­
chise citizens for criminal convictions 
have generally limited that penalty to 
convictions of election-related offenses, 
some subset of serious felonies, or at 
most all felonies and "infamous crimes." 
See generally Note, Restoring the Ex- 
Offender's Right to Vote: Background and 
Developments, 11 AM. Crim. L. Rev. 721, 
727-29, 758-70 (1973); Special Project, 
The Collateral Consequences of a Criminal 
Conviction, 23 Vand. L. Rev. 929, 97 5-77
(1970). According to these two surveys,



35

published in the early 1970's, only two 
states, Alabama and Georgia disenfran­
chised for specified non-felony offenses, 
defined as involving moral turpitude* 
Note, supra, 11 Am, Grim, L. Rev, at 
758-6 1 and 766 n , 217; Special Project, 
supra., 23 Vand. L. Rev, at 976 n.251. The 
current Georgia Constitution disenfran­
chises only persons convicted of "a felony 
involving moral turpitude." GA. Const. 
Art 2, sec. 1 para 3(a). (emphasis 
supplied). Consequently, Alabama may be 
the only state which today disenfranchises 
any category of non-felons.

The Court, however, need not resolve 
the applicability of Richardson to the 
exclusion of misdemeanants because what 
clearly sets this case apart from Richard­
son is not the felony/non-felony distinc­
tion but the finding of invidious dis­
criminatory intent. There was no conten­



36

tion in Ri chard son that the disenfran­
chisement provision at issue was adopted 
for racially discriminatory purposes, or, 
for that matter, out of a political or 
wealth-based animus. Richardson con­
sidered only the question whether the 
denial of the right to vote to felons was 
per se unconstitutional.

The presence of discriminatory intent 
is central to this Court's interpretation 
of the Equal Protection Clause of the 
Fourteenth Amendment. See, e .g. , City of 
Mobile v. Bolden, supra, Arlington Heights 
v. Metropolitan Housing Development Corp., 
supra, Washington v. Davis, 426 U.S. 229  

( 1 9 7 6 ). Part icularly where the right to 
vote is at stake, state laws or practices 
which would be constitutional if they were 
adopted for a legitimate purpose have been 
held unconstitutional if they were adopted 
for a constitutionally proscribed reason.



37

Thus, in City of Mobile v. Bolden, 
supra, and White v„ Kegester, 412 O.S. 
755 ( 1973) the Court held that multi-mem- 
ber or at-large election districts are a 
constitutional voting mechanism. When 
such a system, neutral on its face* "is 
subverted to invidious purposes," it 
violates the Fourteenth Amendment. Rogers 
v. Lodge, 458 U.S. 613, 621-22 ( 1982);
White v. Regester, supra, 412 U.S. at 
765-70. Similarly, in Lassiter v. 
Northampton County Bd. of El., 360 U.S. 
45 ( 1959), this Court held that a State's 
use of a literacy test to qualify voters 
is consistent with the Fourteenth Amend­
ment. Yet, in South Carolina v. Katzen- 
bach, supra, the Court held that where 
literacy tests "have been instituted with 
the purpose of disenfranchising Negroes, 
have been framed in such a way as to 
facilitate this aim, and have been



38

administered in a discriminatory fashion," 
literacy tests violate the Constitution. 
383 U.S. at 333-34.

In other words, even if Richardson v. 
Ramirez is interpreted to authorize the 
State of Alabama, for legitimate reasons, 
to disenfranchise persons convicted of 
non-felonies involving moral turpitude, 
the case does not support such action when 
taken for a constitutionally proscribed 
purpose. Appellees allege and the Court 
below found that the State acted out of 
racial animus, which the Fourteenth 
Amendment prohibits. Appellants contend 
that the State acted out of wealth-based 
or political animus, which are also 
constitutionally forbidden justifications. 
Appellants have alleged no constitution­
ally permissible reason for the disen­
franchisement of non-felons, let alone a 
compelling state purpose. Under these



39

circumstances, the Court must affirm the 
Court of Appeals' conclusion that the 
disenfranchisement clause violates the 
Fourteenth Amendment.

V. THE TENTH AMENDMENT PROVIDES NO 
PROTECTION FOR A STATE DISENFRAN­
CHISEMENT MEASURE WHICH VIOLATES THE 
FOURTEENTH AMENDMENT
Appellants argue that the State of 

Alabama has broad power secured by the 
Tenth Amendment to grant or deny the 
suffrage. But "no State can pass a law 
regulating elections that violates the 
Fourteenth Amendment...." Williams v. 
Rhodes, 393 U.S. 23, 29 ( 1968). The
Thirteenth, Fourteenth and Fifteenth 
Amendments "were specifically designed as 
an expansion of federal power and an 
intrusion on state sovereignty." City of 
Rome v. United States, 446 U.S. 156, 179 
(1980). Particularly in the area of
voting rights the Civil War Amendments



40

81 supersede contrary exertions of state 
power." South Carolina v. Katzenbach, 383 
U. S. at 325. The principles of Tenth 
Amendment federalism articulated in 
National League of Cities v. Usery, 426 
U.S. 833 ( 1 976), do not constrain the 
Fourteenth Amendment. Fitzpatrick v . 
Bitzer, 427 D.S. 445, 451-56 ( 1976). See 
also City of Rome v. United States, supra, 
446 D.S. at 178-80 (National League of 
Cities does not limit the Fifteenth 
Amendment). In short, the Tenth Amendment 
provides no independent justification for 
a state disenfranchisement measure which 
violates the Fourteenth Amendment.

VI. THE MISDEMEANANTS DISENFRAN­
CHISEMENT CLAUSE VIOLATES THE VOTING 
RIGHTS ACT.

As amended in 1982, section 2 of the 
Voting Rights Act, 42 U.S.C. § 1973(a) 
bars the use of any "voting qualification



41

or prerequisite to voting or standard, 
practice, or procedure....which results in 
a denial or abridgement of the right to 
vote of any citizen of the United States 
on account of race or color." The section 
prohibits not only official action taken 
or maintained for a racially discrimina­
tory purpose, but also any official action 
that results in the impairment or denial 
of the right to vote of any citizen on 
account of race. United States v. Marengo 
County Commission, 731 F. 2d 1546 (11th 
Cir. 1 984) appeal dismissed, 83 L.Ed.2d 
311 (Nov. 5, 1984)(No. 84-243). Thus, 
"discr iminatory intent need not be shown 
to establish a violation." Id. at 1564.

Section 2 plainly applies to State 
restrictions on the right to register, as 
well as to districting schernes that dilute 
minority voting strength. Harris v.
Graddick, 593 F. Supp. 128, 132 (M.D. Ala



42

1984). As the court below found, the 
disenfranchisement of misdemeanants 
disproportionately affects blacks (J. S„ 

at A-11 ) . Consequently, a prima facie 
case of a ’"voting qualification" which 
results in a denial of the right to vote 
on account of race is made out.

CONCLUSION
For the reasons stated, the decision 

of the United States Court of Appeals for 
the Eleventh Circuit should be affirmed.

Respectfully submitted,

JULIUS CHAMBERS 
LANI GUINIER *
PENDA HAIR

99 Hudson Street
New York, New York 10013

RICHARD BRIFFAULT 
Columbia University 
School of Law 
435 West 116th Street 
New York, New York 10027



43

Attorneys for the NAACP 
Legal Defense and Educa­

tional Fund, Inc. , 
Amicus Curiae *

*Counsel of Record

Dated: J a n u a r y  7 ,  1985



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