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

    BOZE.lAi.i V. WALLACE:

AN ANALYSIS OF SELECTIVE PROSECUTION AND THE VOTTNG RIGHTS ACT

Submitted to Professor Elizabeth Bartholet in the
Seminar on Public fnterest Litigation: Race and Poverty
in Satisfaction of the Written Work Requirement

Lawrence S. Lustberg

May 2, 1983



7--

TABLE OF CONTENTS

I. INTRODUCTION ....1

II. SELECTIVE PROSECUTION ....7

III. VAGUENESS.... .....I7

rV. CONSTTTUTIONALLY PROTECTED RIGHTS ......22

The right to vote .......22
The right to vote absentee ...23
The right to assistance . .....24
The. right to organi-ze and assist voters ... . .25

V. TNTENT. . ..28

VT. VOTING RIGHTS ACT. ......38

vrr. coNcLUSIoN.. ......44
The partj-es .......44

Plaintiffs... ......44

Defendants.. .......45
Injunctive Relief ......48

vrrr. NoTES .......52
Notes to Introduction ......52
Notes to Section fI... .....54
Notes to Section III.. .....51
Notes to Section IV... .....65
Notes to Secti-on V... ......59
Notes to Section VI.. ......75
Notes to Conclusion . . .80



LIST OP APPENDICES

APPENDIX A--Indictment of Maggie Bozeman

APPENDIX B--Draft of Petition for Writ of Habeas Corpus

APPENDIX C--Draft of Complaint for Declaratory and Injunctive
Relief

APPENDIX D--Letter from Professor Peyton McCrary to Lani Guinier
(February 7, 1983)

Please note that Appendices B and C were first drafts. They have
already undergone iignificant alteration. However, as of the
date of submission, second drafts had not yet been completed.



INTRODUCTION

During the last week of September, 1978, llaggie S. Bozeman,

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

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

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

Bozeman and Wilder had long been politically active in Pickens

County. This week their work consisted mainly of assisting elderly

and illiterate blacks to vote absentee. Ms. Bozeman and Ms. Wilder

picked up a number of absentee ballot applications at the circuit

clerkrs office. By themselves or through other workers they distri-

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

po1ls. The ballots were sent to either the voters'homes or to one

of the workersi in either case, Bozeman, Wilder or one of their

co-workers visited the absentee voter to discuss their choice with

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

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

As a result of these activj-ties, Bozeman and Wilder were indicted

on three counts of violating Alabama Code 517-23-1, "Il1ega1 voting

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

reads:

Any person who votes more than once at any election
held in this stater ot deposits more than one ballot
for the same office as his vote at such electionr oE
knowingly attempts to vote when he is not entitled to
do sor or is guilty of any kind of iI1ega1 or fraudu-
lent voting, mustr or conviction, be imprisoned in the
penitentiary for not less than two no5 more than five
years, at the discretion of the jury.-

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

on circumstantial evidence. The defendants picked up a large number

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

ballots mailed to their homes. The ballots, which were examined by



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investigators for the stater3 were all voted the same. Many of

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

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

elderly voters and after the voters had symbolically touched

their hands to the pens. Further, most, if not aII, of the voters

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

I,lany of the elderly, illiterate blacks testified for the state.4

Their testj-mony is confusing, as one would expect from a group ranging

in age from 72 to 93 years old. I'lany did not know what they were

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

thej-r names, but most apparently authorized Bozeman, Wilder or one

of their co-workers to vote for them, and remember being visited by

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

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

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

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

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

Based upon this evidencer5 
"or.*an 

and Wilder were convicted

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

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

release program much of the time. During their period of imprison-

ment, they became a national cause .6flur": in February, 1982, a 13-

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

Later, a demonstration of support for them in Washington coincided

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

of, the extension and liberalization of the 1965 Voting Rights Act.

Finally, in November, 1982, the two women were released on parole.

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



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

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

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

habeas corpus petition is about to be filed attacking the sufficiency

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

and making constitutional claims based upon the protected nature of

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

and the selectj-vity of the investigation and prosecution of Bozeman

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

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

used agai-nst either blacks or whites assisting blacks to vote, LDF

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

Professor Peyton McCrary of the Department of History, University of

South A1abama, has been examining the history of the statute. His

research shows the follow5,ng:

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

provides strong circumstantial evidence of discriminatory intent
behind the statute. The statute was enacted in 1875 by a "redeemer

legislature"--the first white, Democratic legislature elected after
Reconstruction, and a legislature preoccupied with the re-establish-

mentbf white supremacy j.n A1abama. The Alabama redeemer legislature
I

enacted numerous discriminatory statutes, several of which aimed at

black disenfranchisement under the guise of election regulation and

reform.

Second, SL7-23-L itself was an object of partisan manipulation:

label1ed a new statute by the redemption legislature that enacted it,

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

enacted by the Republican controlled legislature in l-868, and altered



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and re-altered by successive DemocraticT and Republican legislatures

in 1871 and 1873 before being embodied in SL7-23-L as we now know it,

in 1875. This partisan manipulation provides strong evidence that

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

tical goal of white supremacy.

Third, thj-s was a period in which racial hatred appeared daily

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

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

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

and instituted at-large voting in Mobile in order to dilute the

black vote.

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

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

January 9, 1875 Mobile Reqrister reported that, ult is undoubtedly the

purpose of the Alabama legislature to enact an Election Law which

will prevent hereafter the great frauds which have been committed

with the negro vote."8 And, on March 31 1875, shortly after the bill

was passed, a Democratic legislator defended it in the Montgomery

Daily Advertiser in these terms:

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

Two days later, the Daj-lv Advertiser reported that "Governor Houston

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

repeating and packing of negroes around the courthouse on election

day. " 10

Finally, the statute was discriminatorily enforced from the

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



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1901 is commonly thought to be the highest period of voter fraud
j-n Alabama's history. Most such fraud was directed to preventing
blacks from voting. Rarely punished, even as a misdemeanor under,
for example, Alabama Code 517-23-7,11 even if it wasrthe punish-
ment was far more lenient than that to which blacks were subjected
under 517-23-1.12 -, is LDF's theory that the selective enforcement
of these statutes has continued to this day, and that Bozeman and

Wilder are only the most recent victims of it.
Gj-ven this historyl3 and my research, I have drafted a Complaint

for Declaratory and rnjunctive ReIief.14 This Complaint requests,
inter alia, an injunction agai-nst the enforcement of S17-23-1 based
primarily upon the voting Rights Act, 42 u.s.c. s1971, et ses. The

case presents several novel and interesting 1egaI issues, which are
addressed in the six sections that follow. Secti-on Ir summarizes

the doctrj.ne of selective prosecution and applies it to the facts of
this case. Section fIf mounts an attack against 517-23-1 as vague,
particularly in light of the selective prosecution that we al1ege.
Section IV sorts out the constitutional or statutory rights here
at j-ssue and argues that there is not only a right to vote, but also
rights to vote absentee, to be assisted in voting and to lend voter
assistance. Section V argrues that a case can be made for invalidating
517-23-1 solely on the basis of the discriminatory intent with which
it was enacted t ot t in the alternative, that such j-ntent must be

considered important evidence of present intent to dj-scriminate in
enforcement of the statute. Section VI discusses the applicability
of the Voting Rights Act to this case in particular and to enjoining
enforcement of a criminal statute in general. And Section VII con-
cludes by addressing several procedural problems and summari.zing by



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way of reflections on the practice of public interest litigation.

As often in this area of public interest litigatj.on, we begin

with an injustice. The question then becomes one of the appropriate

Iegal vehicle to redress it. This memorandum explores several

avenues for the vindication of' Ms. Bozeman I s and I'ls. $lilder's con-

stitutionaL rights and with them the voting rights of black voters

throughout Alabama.



IT. SELECTIVE PROSECUTION1

LDF has sought to employ a theory of selective Prosecution

to attack Bozeman and Wilderrs convictions on habeas review and

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

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

tion, demonstrating how diffj-cult it is to make out a successful

selective prosecution claim and surveying the cases in which such

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

of this case and to the relief we request.

The doctrine of selective prosecution is a corollary of the

Equat Protection Clause. Currently in vogue due to the controversy

surrounding prosecutions of non-registrants for the draftr2 tbe

selectj-ve prosecution defense is often raised by criminal defendants.

Herer w€ employ it in a novel manner: an affirmative effort to enjoin

the enforcement of a statute.3

The Equal Protection Clause4 is violated not only when a statute

makes arbitrary and invidious classifications unreasonable in light

of the statute's purpose, E99r 9-g,_, McLauqhlin v. Elorida,379 U.S.

184, 190-193 (1954), but also when a statute is apPlied unequally

so as to discriminate against similarly situated persons based upon

impermissible crj-teria. The seminal case on selective prosecution

is Yick Wo v. Hopkins, 118 U.S. 356 (1886). There, the city of

San Francisco prohibited the operation of a laundry facility without

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

in a brick or stone building. Id. at 357. Though a lawfu1 exercise

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

such that Chinese laundry operators $/ere alone denied permission to

operate wooden faciliti.".5 The Court wrote:

...the facts shown establish an administration directed



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so exclusively against a particular class of persons
as to warrant and require the conclusion that, what-
ever may have been the intent of the ordinances as
adopted, they are applied by the public authorities
charged with their administration...with a mind so
unequal and oppressive as to amount to a practical
denial by the State of that equal protection of the
laws which is secured...by the broad and benign pro-
visions of the Fourteenth Amendment to the Constitu-
tion of the United States. Though the law itself be
faj-r on its face and impartial in appearance, yet, if
it is applied and administered by public authority
with an evil eye and an unequal hand, so as practically
to make unjust and illega1 discriminations between
persons in similar cj-rcumstances, material to their
rights, the denial of equal rights is still within the
prehibition of tbe Constitution.

118 U.S. at 373-374.6

Since Yick Wo, the elements of a selective prosecution claim

have been clarified by the lower courts. Indeed, the Circuits
appear to be unanimous that in order to establish a prima facie

case of selective prosecution, one must satisfy two requirements:

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

out for prosecution while others similarly situated have

not been prosecuted for simj-lar behavior; and

(21 there must also be a showing that the discriminatory selec-

tion of a g5-ven defendant was intentionally based upon an

impermissible ground, such as race or religion, or exercj.se

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

The burden on a defendant alleging selective prosecution is a

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

of Appeals holding that impermissible selective prosecution oc.urred.S

In part, this is because prosecutors are deemed to have broad, almost

unbounded discretion.9 Thus, substantiating a claim of selective

prosecution implicitly entails rebutting a strong presumption that

a given prosecution for violation of a criminal law is in good faitfr.lo



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Furthermore, even "the conscious exercise of some selectivity in
enforcement is not in itself a federal constitutional violation. "

Oyler v. Boles, 358 U.S. 448, 456 (L962) (prosecution under habitual

crj-minal statute).11 Thus, it is permissible for the government to

prosecute only flagrant or particularly vocal violators of a given

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

governmen!'s interest in effective deterrence is said to outweigh

the individual's interest in exercising her constitutional rights
in this context.l2 Nor is the fact that enforcement has been or is
lax alone proof of the selectivity required to make out a selective

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

has occurred which is beyond that permitted the prosecutor in the

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

cution must sti1l show that such selection was an act of intentional
dj-scrimination based upon an impermissible criterion, such as race,

or the exercise of a constitutional rigtrt.14
The result of this doctrinal development is that, though selective

prosecution is pled as boilerplate by many criminal defendants, it is
rarely a successful defense. Seemingly outrageous instances of

infringements of, for example, First Amendment rights are tolerated

in order to enhance enforcement of the income tax 1.r= r 
15 while

examples of dissimilar treatment of similarly situated persons abound.15

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

v. FaIkr -gg., the defendant was prosecuted for refusing to submit

to induction into the armed forces and for failure to possess a draft
card. His prima facie showing of selective prosecution included the

following:



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--a published government policy not to prosecute violators
of the card possession regulations, along with the defen-
dantrs statement that over 251000 such violators were not
being prosecuted;

--the defendantrs status as an anti-war activist and draft
resistance counsellor ;

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

--the lengthy delay in seeking an j-ndictment;

--the stated government policy of prosecuting only those
who refuse j-nduction, where defendant's refusal was based
on legitimate conscientious,objector status.

479 F.2d at 623, In light of this evidence, the Seventh Circuit,
sitting en banc, reversed the District Court and remanded the case

for a hearing on the selective prosecution i="rr.. 17

In United States v. Steele, .gpIB, the defendant was prosecuted

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

form. He $ras an anti-census activist who, for example, distributed
a pamphlet entitled "Big Brother is Snooping." 461 F.2d at 1151.

The defendant presented minimal evidence in support of his selective
prosecution claj-m: he knew of "six other persons who had completely

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

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

for prosecution." Ig. at 1151. The court, concerned about the failure
of the census information gathering system to apprehend even those

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

ground reports on members of the census resistance movement, reversed

the conviction. The court held:

An enforcement procedure that focuses upon the vocal
/ offended is inherently suspect, since it is vulnerable

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

of defendants, other than prosecutorial discretion. That



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

Id. at LL52.

Final1y, United States v. Crowthers, SE, involved the

prosecution for disorderly conduct of a number of participants

in six "Masses for Peace" held on the Pentagon Concourse in 1.970.

Based so1ely on the fact that these demonstrations, involving from

five to 185 people, gave rise to prosecutions, but 15 other approved

poritical or religious ceremonies involving, for example, the west

Point Cadet Choir and up to 450 people did not, the Fourth Circuit
reversed defendantrs convictions. The court wrote:

We do not hold that the government may not lawfuI1y
close Ef,E concourse of the Pentagon to public access.
We do not hold that it may not forbid all meetings
of any-Erfrd every sort whalsoever within the concourse.
We do not hold that it may not reasonabl-y control
public-Ineetings in the concourse by tfre ippficati-on of
objective standards fair to all. AI1 that we hold is
that it may not permit public meetings in support of
governmental policy and at the same time forbid public
meetings that are opposed to that policy...
What the government has done here is to undertake to

suppress a viewpoint it does not wish to hear under the
guise of enforcing a general regulation prohibiting
dj-sturbances on government property. In choosing whom
to prosecute, it is plain that the selection is made not
by measuring the amount ot obstruction or noise but
because of general di-sagreement with ideas expressd by
the accused.

456 F.2d. at 1079.18

Though the generative power of these cases must be regarded as

weak in 1ight. of the difficulty of drawing generalizations from them,

as well as the many cases citedr -1g3li, they do provide a list of

factors to be gathered in discor..y,19 or otherwise developed in the

course of the formulatj-on of this case. Thus, for example, the fact
that the officials who enacted S17-23-L knew of the impact that it
would have on protected constitutional rightsr20 indeed, intended it,



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might weII create a compelling case for a finding of selective
21prosecution.-^ The activities of other groups that engage in absentee

voting assistance should be discovered, in an effort to discern

dissimilar treatment of those similarly engage d,.22 And the fact that

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

the light of these cases, takes on increased signific"rr.".23

Though the cases discussed, -93p., are federal cases, the federal

courts have imposed a selective prosecution doctrine upon the states

as well. See, *_, Yick Wo v. Hopkins, ElrPm.i Cox v. Louisiana, 379

U.S. 536, 556-558 (1965). In Cox, the Supreme Court reversed the

conviction of a civil rights demonstrator for obstructing public

passages where other meetings or parades that had obstructed traffic

had been permitted. The Court, per Justice Goldberg, wrote:

It is clearly unconstitutional to enable a public offi-
cial to determine which expressions of view will be
permitted and which will not or to engage in invidious
dj,scrimination among Persons or grouPs either by use of
a statute providing a system of broad discretionary licen-
sing power or, as in this case, the equivalent of such a
system by selective enforcement of an extremely broad
prohibitory statute.

37g U.S. at 557-558.24 Similarly, a doctrine of selective prosecu-

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

is illustrative of one in which that doctrinal development is akin

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

Court of Criminal Appeals of Alabama wrote that:

...to j-Ilustrate discriminatory enforcement of a statute
or a municipal ordinance, three elements must generally
be proved: selectivity in enforcement; selectivity that
is intentional; and selectivity based upon some invidj.ous
or unjustifiable standard such as race, religion or other
arbitrary classification. It is insufficient merely to
show that other violators have not been prosecuted, that
there has been laxity in enforcement, or that there has
been conscious exercise of some selectivity in enfor.e*"tt.26

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



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slandard has consistently resulted in the denial of motions to

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

courts and in several other jurisdictj-ons, there exist a few A1a-

bama cases in which selective prosecution has resulted in the

reversal of convictions. In Simonetti v. City of Birmingham, 3L4

So.2d 83, 92-94 (Ala.Crim.App. L9751 , the conviction of one of only

four persons arrested for violation of Sunday closing laws was

reversed where, as in Stee1e, .ggpg, the process culmJ-nating in

defendantrs prosecution was seen as investigatively incomplet".28

And, in Associated Industries of Alabama v. State, 3L4 So.2d 879

(A1a.Crim.App. L9751, the court found that several organizational

defendants were impermissibly discriminated against in being

prosecuted for technical violations of the state Corrupt.Practices

Act, where similar activities had gone unpuni-shed. earli"=.29 ,h"="

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

which selective prosecution claims succeed, provide little guidance

for generalization. One strains to create a definitive line from

so few points; here, the line that can be drawn dictates strict

scrutiny of prosecutorial selectj-ons where First Amendment rights,

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

case here.

The allegations in the Bozeman complaint adequately state a

prima facie case of selective Prosecution. Prosecutions are

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

brought based upon race or upon the exercise of protected political

activity.30 Intent is either present or inferred from the legislative

history of SL7-23-1.31 Accordingiry, a violation of the equal protec-

tion clause is alleged. Depending upon the factsr Ets they are



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revealed by historical research and discovery, a compelling case

for selective prosecution may be made out. However, several problems

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

selective prosecution claim in an atypical setting: normally raised

as a defense to a criminal prosecution, or on habeas eorpus, here it

comprises a count in an affirmative suit seeking injunctive relief.

Both the possibility and the difficulty of obtai-ning such injunc-

tive relief are established propositions of 1aw. In Two Guys from

Harrison-Allentown, Inc. v. McGinlev, 366 U.S. 582 (L961) , the Supreme

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

discriminatory enforcement of Pennsylvanj-ars Sunday Closing Law. The

Court wrote:

Recognizing that a mootness problem exists because
Lehigh County now has a new District Attorney, appel-
lant contends that there are stilI pending Prosecu-
tions against its employees initiated as a result of
the alleged discriminatdry action. Sj-nce appellant's
employees may defend against any such proceeding that
is actually prosecuted on the ground of unconstitutional
discrimination, we do not believe that the court below
was incorrect in refusing to exercj.se its injunctive
powers at that time

366 U.S. at 582.32 Though denying such relief here, the Two Guvs

Court made it clear that, in the appropriate circumstances, equitable

relief against discri.minatory proseeution was a proper t"*edy.33

Here, the circumstances are far more appropriate for injunctive

relief. There has not been a relevant change in 1aw enforcement

personnel, as there was in l\ro Guys, and the practice at issue here

regards over one hundred years of enforcement of SL7-23-1. I"loreover,

no prosecutions are currently pending against members of the plaintiff

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

However, in O'Shea v. Littleton, 414 U.S. 488 (19741, the Supreme

Court denied injunctive relief against a number of black plaintiffs



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35
alleging discriminatory enforcement of the laws. The Court held

that plaintiffs did not have standing to attack a pattern and

practice of which they themselves had not yet been victimized,
4L4 U.S. at 493-499, and so could not demonstrate the irreparable

harm necessary for injunctive relief. 4L4 U.S. at 499-504.36 However,

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

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

as appliedr" id. at 500, let alone a statute enacted with clear

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

btoad, and created a general federal superintendancy of the state

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

enforcement of the statute, and would not even require the contJ,nuing

jurisdiction of the court. There, the harm complained of was a

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

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

and continuing harm to voting strength and the particularized chllling
of voting-related activities.

The particularity of the harm complained of and the relief prayed

for makes this case more appropriate for injunctive relief than was

OrShea and minimizes the court's intrusion into local admi-nistration

of the 1"*=.37 It becomes a compelling case given the vagueness of

517-23-1,38 the prot,ected nature of the rights at i==r.,39 the

discriminatory intent behind the statuter40 and the jurisprudence

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

Finally, the application of a theory of selective prosecution

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

spective plaintiffs have been investigated or harassed, but not

prosecuted,.42 others have been indicted but not tried.43 Do these



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parties come within the traditional scope of

doctrine? Insofar as pre-prosecution choj-ces

aspect of the application and administration

selective prosecution

can be considered an

of the law, see Yick Wo

v. Hopkins, ggpg, 118 U.S. at 373-3?4, the answer must be in the

affirmatir".44
Generally, then, a theory of selectj-ve prosecution is tenable

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

on such a claim j.ncreases where it is brought in the voting rights
context, and in conjunction with the theories enumerated, infra.



III. VAGUENESS

On appeal in the Alabama Court of Crj-minal Appeals, defendants

Bozeman and Wilder challenged 517-23-1 .= ,"grr*.1 In this section,

I examine the merits of that claim, arguj-ng first that the

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

it comports with the constitutional definition of vagueness pro-

pounded by the Supreme Court.

The vagueness of 517-23-1 is apParent: it proscribes "vottingl
more than once," "knowingly attempt[ing] to vote when...not entitled

to do so," and "any kind of il}egaI or fraudulent voting." The

court rejected Wilderrs vagueness claim by construing the last clause

of S17-23-L as exactly equivalent in meaning to either or both of

the first two clauses. The court wrote:

Clearly, the language of the statute reflects a
common understanding that "il1egal or fraudulent
voting" is voting more than one balIot for the
same officer of, attempting to vote when one is not
entj.tled to do so. The statute thus gives due
notice of the criminal conseguences of such action.

40L So.2d at 160.

The court further argues that no intent or scienter requirement

can be read into 517-23-1. It is true that in l{ilson v. State,

52 Ala. 299 (1875), cited by the court, the Supreme Court of

ALabama held that "[t]he offence denounced by the statute...is voting

more than oncer" 52 AIa. at 302, and no intent requj-rement is men-

tioned as a requirement of either proof or pleaditg.2 However, in

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

scienter requirement into the statute: "tAlI crime exists, primarily

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

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



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conviction of a defendant who voted when not entitled
because his parents told him that he had attained the

when he had not done =o.3

do so

of 2l

Wilson and Gordon, though seemingly inconsistent, are actually
faithful to the language of S17-23-1.4 The statute distinguishes

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

scienter requirement, and votj-ng when not entitled to do sor for
which there is one. Only with respect to the latter violation is
the word "knowingly" used in the statute. Nonetheless, the court

insists that "iIlega1 or fraudulent voting" may mean either voting
more than once or voting when not entitled to do so. Whether there

is a scienter requirement for iI1ega1 or fraudulent voting is left
uncertain; the courds dictum that "even if the phrase 'i1legal or

fraudulent votj-ng' is subject to differing interpretations, we may

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

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

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

of illegal or fraudulent voting" clause is not entirely superfluous.

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

phrase "any kind of illegal or fraudulent voting." But, additionally,
it fails to clarify the most basic elements of "illegal or fraudulent

voting"--the necessity of proving intent or sci-enter.5 The statute

is therefore void for vagueness.

I'It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly defined. "
Gravned v. Citv of Rockford, 408 U.S. 104, 108 (L9721. A statute

is impermissibly vague if the person of common intelligence cannot

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

to

a9e



-19-

with the statute. The doctrine therefore simply incorporates notions

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

must be considered i-n light of interpretations of it by state courts

or other interpreting agerrcie"rS the interpretation of S17-23-1

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

fndeed, the confusion of the Court indicates that 517-23-1. remains

a mystery to judges, Iet alone to persons of ordinary intelligence.

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

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

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

facts of this case, of "voting more than once" as wel1.9

The case for invalidatingr or enjoining the enforcement of

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

Firstr my argumentr.W., if accepted., leaves much of the statute,

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

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

Court has consistently hetd, renders a vague statute "little more

than a trap for those who act in good faith. "10 Indeed, as a general

matter, "the constitutionality of a vague statutory standard is

closely related to whether that standard incorporates a requirement

of re Ig."11 There was no showing of intent or knowledge in

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

defendant Wj-lder's assertion that she committed only "some technical

imperfectionsr"12 basing its affirmance of the jury verdict on

circumstantial evidence giving rise to "a reasonable j-nference incon-

sistent with the appellant's innocencer'13 bra never explicitly

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

appellate decision that defendant Wilder, ot 1east, Iacked criminal



-20-

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

presented by the state did not 'reveal a single instance of unauthorized
1Avoting. t rrr' In arguing that there was no unauthorized voting, I{ilder

appears to refer to the "voting when not entitled to do so" clause

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

Wilder was not, therefore, a$rare of which clause of Sl.7-23-1 she was

being prosecuted under--strong evidence that she did not know that

she had commj-tted any illega1 u"t=.16 ,

In addition to being vague on its face, then, 517-23-1 was here

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

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

dants did not know prec5-sely with what they had been charged, or

what elements they needed to prove in defense. However, drlY reference

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

a vagueness challenge for a second set of reasons. Since "the

uncertainty induced by the statute threatens to inhibit the exercise

of constitutionally protected rightsr"lT greater specificity in the

statute is required.lS The reason underlying this is clear: "vaglueness

may in itself deter constitutionally protected and socially desirable
10

conductr"^' because "[u]ncertain meanings inevitably lead citizens to

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

forbidden areas were clearly marked.'"20

Were constitutional riglhts not involved in this case, courts

would apply less stringent requir"*"tt";21 rather than examining

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

the lawfu1 exercise of constitutional rights, "vagueness challenges

to statutes which do not involve First Amendment freedoms lwould be]

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



_21_

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

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

a more exacting test is used, one which necessarily invalidates

S17-23-1 as vague.

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

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

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

therefore discriminatory, enforcement of the lur=.25 Therefore,

the allegations as to the vagueness of SL7-23-1 bolster our arguments

as to the selective enforcement of the statute, and vice-ver=..26

At least under federal L^rr27 then, vagueness is a claim worth
.28pursuing--, not merely because it may be used to invalidate 517-23-1,

but also because it strengthens our claims under the Voting Rights

Act.



IV. CONSTITUTIONALLY PROTECTED ACTIVITIES

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

selective prosecution, or unconstitutional on its face, the result

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

scope of the statute affects or may affect the exercise of protected

constitutional rights. The complaint alleges an infringement, or

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

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

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

assist othersr or otherwise to advocate for political activity. This

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

constitutj-ona1 rightr. .

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

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

as the discriminatory enforcement and vagueness of 517-23-1 may re-
sult in the outright denj-aI of the right to vote for those convicted

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

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

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

Reynolds v. Sims, .qgPIB, 377 U.S. at 555. Though it is true

that a convicted crimj-nal may constitutionally be stripped of her

right to voter3 a deprivation of rights may not occur if based upon

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



-23-

In general, the right to vote j-s an important and uncontrovertible

onei that it is at stake here requires that strict scrutiny5 b.

applied in testing the clarity of the statute and the selectivity

of its enforcement.6

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

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

the issue of absentee voting can also be raised to a constitutional

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

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

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

may not invidiously discriminate against certain citizens in viola-

tionoftheEquaIProtectionc1ause.9Thus,in@,
4L4 U.S. 524, 529 lL974l, the Supreme Court held that New Yorkrs

absentee voting provision was invalid insofar as it allowed some

prisoners to vote by absentee bal1ot and others not to, based upon

county of residence. Implicitly applying an equal protection ana-

1ysis, the Court found that this distinction bore no rational

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

voting provisioDsrll and our argument j.s that, t,hough such provisions

are apparently constitutional on their face, their aPPlication

abridges equal protection because of the selective enforcement and

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

$re argue simply thatr ES applied, Sl.7-23-1 denies blacks in Alabama

an equal right to vote absenteer or chills the exercise of that

right, just as if the statute were discriminatory on its face.L2

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

against blacksr or against citizens engaging in protected activity,



-24-

but it is also unconstitutional as a complete and total deprivation

of the right to vote, for those unable to get to the poIIs. The

Supreme Court has distinguished between a total denial of the right
to vote and a mere burden upon that right. In a series of deci-

sions involving prisonersr right to vote absentee, where they were

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

to order states to provide absentee ballots to inmates where alter-
native methods of providing the vote were avaj-labl..13 on the

other hand, where failure to provide absentee ballots resulted in
an absolute bar to voting, the Court has struck down the state

statutes at i=rr".14 Here, the discriminatory enforcement of

517-23-L so chills the exercise of the vote by absentee ballot--or
completely deni-es it for the convicted violator of its vague termslS--

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

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

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

of proof, not of legal argument.

The riqht to assistance. Assistance is now a statutory right
pursuant to Section 208 of the Voting Rights Ac|--, 42 U.S.C. S1973aa-6,

which reads

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

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

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

Act as it existed previorr"lyr16 or as a constitutional prerequisite

to effective enjoyment of the right to.rot".17 As the court wrote

in United States v. State of Louisiana, 265 F.Supp. 703, 708 (8.D.



-25-

La. 19661 , af f 'd, 385 U.S. 270 (1970) :

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

265 F.Supp. at 708.18

These arguments are compelling. The Supreme Courtrs pro-

nouncements on the right to vote have always been worded in

terms not merely of a right to vote, but of an effective right
10to vote.^' Here, too, the legaI issue is c1ear, and what remains

is the empirical question of whether black voters I statutory and

constitutional rights to voter assistance are abridged or chilled

by the selective enforcement of 517-23-1.

Right to organize and assist voters. In addition to denying

and/or chilling the right to vote, we a1lege that the selective

enforcement of S17-23-1 denies and/or chills the rights of members

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

.rot..20 The right to organize and assist voters couId, of course,

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

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

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

also independent constitutional grounds underlying this right,

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

tion.21 As in Kusper v. pontikesr22 the right to assist voters,

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

with others for the common advancement of political beliefs and

ideas -[which] is a form of 'orderly grouP activityr protected by

the First and Fourteenth Amendments."



-26-

The existence of the right to assist voters is bolstered by

other cases involving the right to political association. In NAACP

v. Buttonr.9gg, the Court struck down provisions of Chapter 33 of

the Code of Virginia, which prohibited and made criminal the soli-

citation of clients for litigation. Holding such provisions viola-

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

that for blacks in states like Virginia "association for litigation

may be the most effective form of political associationr"23 since

" [g] roups which find themselves unable to achieve their objectives

through the ballot frequently turn to the courts."24 The NAACP's

modus operandi, which the Court described in great detailr25 *.y not

conform to a strict construction of the First Amendment, but

I{e need not, in order to find constitutional protec-
tion for the kind of cooperative, organizational acti-
vity disclosed by this record, whereby Negroes seek
through lawful means to achieve legitimate political
ends, subsume such activity under a narrow, literal
conception of freedom of speech, petition or assembly.
Eor there is no longer any doubt that the First and
Fourteenth Amendments protect certain forms of orderly
group activity.

371 U.S. at 430.

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

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

the rights of parties attempting to assist indigent blacks, the

assistance of voters fa1ls within the electoral arena--a more

tradj-tional sphere of political activity beyond which the NAACP

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

assistance is not prohibited, as solicitation was, but rather

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

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

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



-27-

an organization disclose its membership rolIs.25 Thus, whi-le

there are no cases directly proclaiming the right to assist

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

association, create a right that the enforcement of 517-23-1

infringes, just as it infringes the right to vote, the right to

vote absentee, and the right to assistance when voting.



V. INTENT

Assuming that the historical evidence vindicates our claim

that S17-23-1 was enacted with discriminatory intent, t'he signi-

ficance of such intent nevertheless remains at issue. Such dis-

criminatory ineent in the passage of the statute may be legaIly

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

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

neutral on its face. And second, I will argue that proof of

discrj-minatory intent in the enactment of 517-23-1. provides the

requisj-te intent for equal protectj-on, and therefore selective

prosecutionr-purpo"""r1 as well as for Fifteent.h Amendment

prrrpo="=.2 In essence, the question becomes how to use discrimina-

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

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

The effect of discriminatory intent in the passage of a

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

be limited by the Supreme Court's decision j.n Palmer v. Thompson,

403U.S.217(1971).There,theCourtrefusedtoprohibitthe
closing of a municipal swimming pool by t'he ci-ty of Jackson,

i'{ississippi, even though that closing was clearly motivated by

raci-al animus.3 Justice BLack wrote that "no case in this Court

has held that a legislative act may violate equal protection

sole1y because of the motivations of the men who voted for it' "

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

this holdj-ng:

First, it is extremely difficult for a court to
ascertain the motivation t ot collection of different
motivations, that lie behind a legislative enactment...
Eurthermore, there is an element of futility in a



-29-

judicial attempt to invalidate a law because of
the bad motives of its supporters- If the law
is struck down for this reason, rather t'han be-
cause of its facial content or effect, it would
presumably be valid as soon as the legislature
or relevant governing body repassed it for
different reasons.

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

dissented. In his eloquent dissent, Justice White argued that

courts att.empt to discern legislative purpose all the time.

That purpose was relevant here becauser BS Justice White Con-

cluded,

The city has only opposition to desegregation to
offer as a justificat,ion for closing the poo1s,
and this opposition oPerates both to demean the
Negroes of Jackson and to deter them from exer-
cising their constitutional and statutory rights'
The ricord is clear that, these public facilities
had been maint,ained and would have been maintained
but for one event: a court order to open them to
all citizens without regard to race.

Id. at 271.

Palmer v. Thompson represents a potentially significant

hurdle to invalidating 51?-23-1 soleIy on grounds of t'he intent

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

First, the decision is not authoritative: four justices dis-

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

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

and White and intimating that Justice Black's emphasis upon

"the difficulty and undesirability of resting any constitutional

decision upon what is claimed to be legislative motivation" is

mere dictum. Id. at 229.4

Additionally, Palmer v. Thompson is distinguishable from

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

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



-30-

to prove that the detrimental effects of 517-23-1 disproportion-

ately devolve upon the black voters of Alabama.

l4oreover, a strongf argument can be made that Palmer v.

Thompson either never was, or no longer is, good law. In the

first p1ace, Justice White seems to get the better of his argu-

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

compelli-ng; the cases do indeed hold that inquiries into motiva-

tion are necessary and significant.5 Justice Blackr oll the

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

States v. O'Brien, 39L U.S. 357 (1958). There the Court held

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

violation of the First Amendment, even if j.t was enacted with the

intent to infringe the constitutional right to freedom of

speech.6 But o'Brien is not disposiuive of our case. The

Court held in OrBrien that the statute there at issue did not

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

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

precisely such an effect. More fundamentally,S the o'Brien

Court failed to confront the express language of Gomillion v.

Lightfoot, 364 U.S. 339 (1950).9 In Gomillion, a vote dilu-
10Er-on case, Ehe Court treats intent "" aa" *nchpin of a

Fourteenth and Fifteenth Amendment ."=".11 Effect is merely

evj-dence of such intent, but "[a]cts generally lawful may be

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

rather than the achievement of an unlawful end, is dispositi.re.l3

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

cases like Gomillion, Wright and City of Richmond argue that

discriminatory intent in the legislation of a provision may alone



- 31-

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

Palmer and O'Brien" *", be cited for the contrary proposition--

that. legislative purpose is wholIy irrelevant to the constitu-

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

dated if it has a proven unconstitutional effect. AdditionalIy,

numerous cases assume an intermediate position, holding that

either unconstitutional purpose or impermissible effect may inva-
15Iidate a Iaw.'

The cases do not therefore resolve the issue of whether there

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

invalidates that statute. Compelling arguments exist on both si-des

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

had for breakfast. Purther, the importance of the issue dimj-nishes

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

of the discriminatory enforcement of 517-23-1 is both a denial

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

chilling of the exercise of constitutionally protected rights.

However, proof of these effects may be elusive. Statistics

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

effects are notoriously difficult to measure. Therefore, an

argument that 517-23-1 is invalid in 1i9ht of its legislative

purpose retains Potential utility. Purthermore, such an argu-

ment appears partj.cularly persuasive when viewed through the

lense of recent, analogous Supreme Court opinions.

Generally, two types of recent cases support an argfument

that legislative intent ought to be dispositive of a statute's

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

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



-32-

the Title VII.r."r17 the Supreme Court has clung to the not.ion

that intent is the gravamen of a finding of employment discri-

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

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

for discriminatory intent, where that intent is difficult of

proof because facially neutral employment tests are in use, which

nevertheless have a discriminatory result. Thus, for example,

there is no Title VII di-sparate impact violation where an employer

proves the business necessity of her employment test, thereby

proving that her actions were not motivated by (for example) racial
10animus.'- Similarly, under the "disparate treatment" method of

proving employment discrimination under Title YlrT,20 "It]he ultimate

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

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

racially premised."2l Further explaining, the Court in International

Brotherhood of Teamsters v. United States wrote:

"Disparate treatment" such as is alleged in the
present case is the most easily understood tyPe
of dj-scrimination. The employer simply treats
some people less favorably than others because
of their race, color, religion, sex or national
origin. Proof of discriminatory motive is criti-
cal, although it can in some situations be inferred ))from the mere fact of differences in treatment.

Here, too, intent remains the crux of the matter; statistics are

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

That Titte VII cases have retained intent as the foundation

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

In Pullman-Standard v. Swint, L02 S.Ct. 1781, L784 (1982), the

Court held that under 42 U.S.C. S2000e-2(h), "absent a discrimina-

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



-3 3-

unlawful employment practice even if the system has some discri-
minatory consequence". "24 And, in Texas Department of Community

Affairs v. Burdine, 450 U.S. 248,253 (L981), the Court, in laying

out the nature of the evidentiary burdens placed on the parties in
a Title VII action, held that "the ultimate burden of persuading

the trier of fact that the defendant intentionally discriminated

against the plaintiff remains at all times with the plaintiff. "

Iemphasis added] Thus, if the defendant rebuts plaintiff's prima
2sfacie caser-- the plaintiff may nonetheless succeed in proving

that she was the victi-m of intentional discrirnination "by persuading

the court that a discriminatory reason more likely motivated the

employer ...u26 Intent thus remains the focus of the Title VIf
inquiry. More important, effects seem to have taken on Ciminished

importance. In Connecticut v. Teal , L02 S.Ct. 2525 (19821 , the

Supreme Court held that, notwithstanding a promotion process

ultimat,ely more favorable to blacks than to white . r27 such a process

was a violation of ?itle VII if it utilized at some prelimj-nary

point the results of a discriminat,ory test. Rejecting the

so-called "bottom line" defense, Justice Brennan wrote:

The Court has stated that a nondiscrj-minatory
"bottom line" and an employer's good faith efforts
to achieve a nondiscriminatory work force, might,
in some cases assist an employer in rebutting the
inference that part,icular action had been inten-
tionally discriminatory...But resolution of the
factual question of intent is not what is at
issue in this case. Rather, petitioners seek
simply to justify discrimination against respon-
dentsr oD the basis of their favorable treatment
of other members of respondents' racial group.
Under Title VfI, "A racially balanced work force
cannot immunize an employer from liability for
specific acts of discrimination. "

L02 S.Ct. at 2535 lcitations omitted].



-34-

In direct contradi-stinction to cases like Palmer v.

Thompson, Teal strj-kes down a test neutral on its face and

ultimately neutral in operation, simply because it contains

a component that traditionally denotes discriminatory motive.

While at the opposite end of the ideological spectrum, TeaI

is therefore wholly consj-stent with the recent equal protection

cases decided by the Supreme Court, which also emphasize intent

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

Intent is gaining rather than losing momentum as a factor in

assessing equal protection claims. Ironically, that may help us

here, where intent is known but effect merely alleged.

A second line of cases supports the proposition that it is

appropriate to look to the legislative intent lying behind 517-23-1.

Though intent may be held dispositive, the issue remains of

whether legislative intent in enacting a statute j-s an appropriate

objec*- of judicial inquiry. The Palmer Court rejected the notion

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

that view. In Schweiker v. Wi1sonr29 the Supreme Court rejected

an equal protection challenge to the denial of Supplemental Security

Income benefits to patients in public mental institutions. The

Courtrs inquiry included an analysis of the intent of Congress.

Justice Blackmun wrote that "appellees have failed t.o produce any

evidence that the intent of Congress $ras to classify on the basis

of mental heaIth."30 The clear implicat,ion of Justice Blackmun's

statement is that such evidence of Congressional intent might weII

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

dated Freightways Corp., 31 the Court held that Iowa's truck-length

limitations unconstitutionally burden interstate commerce. In so



-35-

doing, both the plurality opinion by Justice Powell and, even

more forcefully, the concurring opinion by Justice Brennan,

probe the intent of the Iowa legislature and find an intention

to burden interstate .orn*"t.".32 Wilson and Kassel, then, to-

gether stand for the proposition that a federal or state

legislative provision may be invalidated on constitutional
grounds because it is enacted with i.mpermissible intent, though

they leave unresolved whether such intent is alone disposi-tive.

We might well argue that it i".33
Taken together, these very recent SuPreme Court cases hold

that legislative intent matters, and that results may not. So

viewed, they provide powerful ammunition for arguing that the

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

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

toward its invalidation, when combined with other grounds.

One way in which proof of the discriminatory intent behind

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

enjoining the enforcement of the statute is in providing the

j-ntent required to prove a case of selective prosecution.34

Under the formula developed in Arlington Heights, -9gg., " It]he

historical background of Ia] decision is one evidentiary source

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

official actions taken for invidious purPoses.,'35 Thus,

Arlington Heights stands both for the proposition that intent

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

by reference to the intent of the legislature in enacting the

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

Similarly, the recent school desegregation and Tj-tle VII cases



- 36-

hold that present neutral acts are iI1egaI if they do not serve

to eliminate the effects of past intentional discriminatj-on. Thus,

in Dayton Board of Education v. Brinkman (Dayton ff), 443 U.S. 526,

537 (L9791, the Supreme Court wrote:

Given intentionally segregated schools in L954,
however, the Court of Appeals was quj-te right in
holding that the Board was thereafter under a con-
tinuing duty to eradicate the effects of that
system, and that the systemwide nature of the
violation furnished prima facie proof that cur-
rent segregation in the Dayton schools was caused
at least in part by prior intentionally segrega-3G
tive official acts.

And in Griggs v. Duke Power Co.r EpI3, the Court wrote that,
under Title VII, "practices, procedures, or tests neutral on

their face, cannot be maintained if they operate to rfreezel

the status quo of prior discrirninatory employment practices."37

These cases stand for the proposition that present j-ntent may

be inferred from prior intentional discrimination in the formu-

lation and enforcemen! of policies, particularly where there is
a legal duty to remedy such past discriminatj-on.38 This is

true even if the present practic'es are neutral on their face.

However, in Cj-tv of Mobile v. Boloen, supra, the Court

seemed to disdain this method of proof:

...past discrimination cannot, in the manner of
original sin, condemn governmental action that
is not itself un1awful. The ultimate question
remains whether a discriminatory intent has been
proved in a given case.

446 U.S. at 74. Prior to Bo1den, inferences of present intent

from past discrimination had been a common technique in voting

rights cases, both in the Supreme Court, and in lower "orrtt=.39
Seen in this context, Bolden is aberrational. fndeed, in recent

cases, the courts have retreated from this Bo1den dictum. In



-37 -

Rogers v. Lodqe, L02 S.Ct. 3272,3276 (L9821, the Supreme Court

quoted Arlington Heiqhts and held that "determining the existence

of discriminatory purpose rdemands a sensitive inquiry into such

circumstantial and direct evidence of intent as may be available. I

The Court then affirmed the findings of the District Court that

discriminatory intent could be inferred from past intentional
discrimination. Justice White wrote:

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

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

tional discriminat,ion may suffice to prove present intent to

discrimirr.te.4l For us, this is crucial, as it is unlikely
that we could dispositively prove that any particular incidence

of selective prosecution was motivated by racial animus. The

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

statute intentionally racist in its intent, must serve to prove

intent where direct evidence of present intent is practically
42unaval-IaDIe.



VI. VOTING RIGHTS ACT

The Complaintr BS now drafted, alleges that the selective

enforcement of 517-23-1 is a violation of the Voting Rights Act,

42 U.S.C. 51971 et seq. (hereinafter, the "Act"). There are,

howeverr Do reported cases in which t,he Act has been used to

enjoin the enforcement of a criminal statute, outside of a

particular prosecution. In this section, I argue by analogy and

from legislat.ive history, that an injunction of S17-23-1 on

grounds of selective enforcement is within the scope of the

Act.

It is clear that, the Aet can be used to enjoin the operation

of statutes.l Under 42 U.S.C. S1973b, courts may enjoin the use

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

tests, morality tests or language requirementsr2 as well as tradi-

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

to enjoin discriminatory practices, even if done pursuant to

statutes neutral on their fa"e.4 Furthermore, it is important to

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

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

criminal prosecutions that were designed to intimidate, threaten

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

Though Paragraph L7 of the Complaint alleges that the selective

enforcement of SL7-23-1 intimidates, threatens and coerces plai-n-

tiffs in violatj.on of 42 U.S.C. S1973i(b), it is difficult to

see why this section should be applied any differently than is

S1.971(b).6 Indeed, SL973i(b) is braoder than its predecessor

statute: it is not limited to federal elections and, signj-fi-



-39-

cant,ly, it includes under its protective umbrella persons

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

Fifth Circuit has hinted that the burden placed upon a

S1973i (b) complainant might be lighter than that placed

upon a S1971(b) plaintiff.T

Additionally, the Complaint alleges that the selective

enforcement of SL7-23-1 constitutes a violation of section 2

of the Voting Right,s Act.8 That this practice fits within the

language of section 2 cannot be disputed: the enforcement of

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

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

account of race or colorr" though discriminatory i-mpact will

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

cases involve vote dilution by virtue of at-large electoral

systems, annexations, etc. does not exclude discriminatory

enforcement practices from the sectionts ""op".10 Furthermore,

it is clear from the debate surrounding the l.g82 extension of

the Voting Rights Act that a wide range of practices are

contemplated by section 2. According to the House Judiciary

Commit,tee:

These practj-ces include: inconvenient location
and hours of registration, dual regi.stration
for county and city elections, refusal to appoint
minority registration and election officials,
intimidation and harassment, frequent and unneces-
sary purgings and burdensome re-registration
requirements, and fai.lure to provide or abusive 11manipulation of assistance to illiterates.

Indeed, the House Report goes on to give an examPle of intimi-

dat,ion and harassment that sounds particularly familiar:
Evidence of intimidation and harassment was...
found in Phoenix, Alabama, where Arthur Sumbry



-40-

was convicted and sentenced !o four years for
unauthorized voter registration. Mr. Sumbray
was assisting his Pregnant wife, a deputy re-
gistrar. Similar evidence exists in Pickens
county.. . 

svrusrrvE e^4- 12

The clear implication is th.at the intent of Congress was, and is,

to proscribe such practice"r13 indeed, perhaps, to prevent

precisely what happened in this case, and to rectify the selec-

t,ive enf orcement of election laws to the detri-ment of black=.14

The remaining problems for us are only those of proof--proof of

discriminatory impact on blacks disenfranchised or unassisted

because of the direct or chilling effect of the enforcement of

s17-23-1.

There is one remaining legal argument against the proposi-

tion that. the Voting Rights Act can be used t.o enjoin the enforce-

ment of a criminal Statute. By analogy, the state may argue

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

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

j-nvestigated, indicted or prosecuted for the purpose of denying

rhem or orhers the right to vote, should apply here. qicy oI_

Greenwood v. Peacock, 384 U.S. 808 (1966) ' The argument will be

that to a11ow the federal courts to interfere in the enforcement

of a stat,e statute would be "to work a wholesale dislocation of

the historic relationship between the state and the federal courts

in the administrat.ion of the criminal Iaw-"15

This is not the place to debate the intricacies of the

federal removal statute, 28 U.S.C. 51443.16 Suffice it to

say that the Supreme Court has drawn guestionable distinctions

between, for example, Prosecutions based on the exercise of

oners rights to full and equal enjoltment' of public accomodations



-4 1-

under S2O1 (a) of the Civil Rights Act of L964,17 and prosecutions

based upon the assistance of others who r^rere exercising their

right to ,ot".18 The result of these thin distinctions has been

that Peacock has not been consistently followed, Ert least in the

voting rights context, in the lower corrt=.19

Even assuming that Voting Rights Act cases, similar to ours,

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

the Fifth and Eleventh Circuits, the applicability of that axiom

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

intrusion of the federal courts into a particular state criminal

proceeding. Like the injunctions proscribed in Younger v.

Harris, 401 u.S. 37 (L971l,20 removal of particular cases involves

the usurpat,ion by the federal courts of state power over a

specific controversy. Removal indicates a distrust of the

states I ability to fairly adjudi.cate matters involving federal

questions, and thereby undermines our federalist system and its
basis in comity. However, these principles are not i-mplicated

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

tory enforcement of a vague statute, has infringed and continues

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

federal courts are not asked to snatch a particular case or

controversy from state corrtrol, ds no prosecution is pending.

Rather, the Complaint requests merely that the federal court

exercise its traditional, broad equity powers where it finds

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

Stat,es v. lrlcLeod, supra, in approving equitable relief in such

a situation:

The defendants urge that the Supreme Courtrs



-42-

decision in City of Greenwood v. Peacock,
limiting the removal of civil rights cases,
indicates a policy of general apPlicability
to restrict federal interference with state
criminal proceedings. To the cont,rary, the
Court in Peacock made clear that it was not
d.eciding a question of federalism, but had
limited its consideration to the construc-
tion of the statute there involved. Expli-
citly and emphat,ically it reaffirmed the power
of the federal courts to redress flagrant
denials of federally guaranteed rights,
whether by means of injunct.ion, habeas
corpus, direct Supreme Court review, crimi-
nal prosecution under 18 U.S.C. S24Lr or
civil liability under 42 U.S.C. S1983.

385 F.2d al 747 [citations and notes omitted]. What is at

issue here is an injunction against unconstitutional practices

and not interference with state Practices; this is standard

judicial activity and an entirely appropriate exercise of the

federal power.

St,i1l, it should be noted that cases like Thompson,

Whatlev and even Peacock are useful because they provide a vital

Iink in the syllogism that is at the core of the analysis in

this section. Each holdsr or assumes, that unjust prosecutions

infringing on voting rights violate either 51971 (b) , S1973i (b) ,

or both.21 We have seen that the Voting Rights Act can be

used to enjoin the enforcement of unconstitutional statutes.22

We have seen that the Act can be used to enjoin the unconsti-

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

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

prosecutions--those that comprise harassment or intimidation,

and hence deny or chill the right to vote.24 It is but a small

step further to hold that the Act may enjoin t,he enforcement of

statutes that inevi-tabIy and foreseeauty25 lead to selective

prosecution infringing the right to vote along racial lines.



-4 3-

On the other hand, it would be a large steo to exclude from

the Voting Rights Actrs purview a practice that so impinges

on the right to vote of blacks in Alabama.



VII. CONCLUSION

In the concluding section of this memorandum, I will

briefly address two procedural issues that might arise in

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

appropriateness of injunctive relief. I will then summarize

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

about the nature of public interest litigation.

The parties

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

as a class action pursuant to Rule 23 (b) (2) of the Federal Rules

of Civil Procedure.l The wisdom of such a request is not obvious.

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

a single party would be as effective as the equitable relief

obtained by a 23(b) (2) c1ass.2 on th. other hand,]"t"== action is

an attractive option in light of the particular named plaintiff

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

suit in which Bozeman is individual plaintiff will necessarily

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

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

Bozeman. This is the focus of the habeas petition that we are

filing. The affirmative Voting Rights claim is intended to focus

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

throughout Alabama, whose rights are chilled since they are

disproprqionately illiterate and unorganized. At least at a

symbolic Ieve1, then, Bozeman is somewhat inapposite as an

individual litigant.4



-45-

She may also be an imperfect plaintiff on a technical

Ieve1. As one who has been prosecuted once, Bozeman does not

necessarily have standing to request relief for future specu-

lative harm to herself. Tightened standards of "injury-1n-
fact" require that Bozeman show more than " [p] ast exposure

denotes the wider effect of S17-23-1 prosecutions; indeed,

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

itself, continues to affect blacks throughout Alabarn".5

Additionally, there are problems with the relief that Bozeman,

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

she might be unable to seek injunctive relief since she may

be deemed not to have "clean hands."7 And, insofar as the real

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

court could order a remedy involvj-ng an alteration of that

statute, rather than an injunction concerning S17-23-L, whj-ch

we seek.

These problems would not present insuperable barrj.ers

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

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

class member both because she has been disenfranchised as a

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

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

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

black absentee voting, assistance to black voters and political

organizatj-on of black voters.9 Of course, it might be argued

that Bozeman's claims lack commonalityrl0 ot typicalityrll ot

that she is not an adequate class representativer12 since her



-46-

interests conflict with members of the class who, as average

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

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

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

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

habeas petition. Rather, this action seeks to prevent Alabama

from discriminatorily enforcing its law, for to do so chills

the exercise of all black voters' constitutional rights and

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

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

insofar as the Complaint is based upon a First Amendment right

to freedom of association, such a right extends to both organizers

and organi=""=.14 Thus, the conflict between Bozeman and the

class who are simply black voters is illusory. fn the context

of the enforcement of 5L7-23-1, they have identical go.1".15

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

of Alabama and the State Attorney General. These are proPer

defendants:evenbeforetheVotingRightsAct,@,

E1g., involved a suit against the Alabama Attorney General, and

Wesberrv v. Sanders, 376 U.S. 1 (19541 , involved a suit against

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

the appropriateness of these defendant".16 Indeed, it may even

be proper to sue state legislatot=.17

The questions of whether the state of Alabama itself should

be sued remain. While many suits have been brought against

states under the Voting Rights Actr18 these have all been brought

by the United States pursuant to the exPress authorization of

42 U.S.C. SS1971(c) and 1973j(d), which permit suit against states. 19



-47 -

Note, however, that the Eleventh Amendment2O clenies the federal

courts jurisdiction over suits brought by individuals against

statesr2l but not to suits brought by the United States against

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

however. State officials can certainly be enjoined to obey the

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

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

clude the state as a Party

Fina1ly, there is a question as to whether additional

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

State has constitutional and statutory duties with regard to

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

tant, the Attorney Generalts power over law enforcement in the

state is less than complete: under Alabama Code 536-15-1, €t -S.. ,

he/she has discretion to prosecute IegaI proceedings in the name

)q-26of the state ro' gy_ direct the prosecution of criminal casesr--

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

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

Supreme Court or Court of Criminal Appeul".28 In light of this

very precatory description o:f responsibilities, I have recommended

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

dants. However, Alabama has numerous district attorneys; joining

them all would be unwieldy and would create-po1itica1"prbbl=*=.29

Choosing a few particularly bad DAs might create the impression

of a suit to remedy past harms rather than attain prospective

relief. Certifying a class of defendantsr oD the other hand,

can itself be a problematic and complex procedur".30 Therefore,

in the interest of simplicity, and recognizing the reality that



-48-

a given district attorney is unlikely to contravene an injunc-

tion against the state Attorney General, the option of not

joining the district attorneys as defendants becomes an attrac-

tive one.

Injunctive ReIief

The appropriateness of injunctive relief has been a theme

throughout this memorandum. We have seen that injunctive relief

is a potential remedy for impermissible selective prosecution,

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

case was distinguishable from O'Shea v. Littleton, -ggpg., in

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

narrower, Iess intrusj-ve re.edy.32 we have also seen that

the injunction is an appropriate remedy where a statute abutting

on constitutional rights and lacking a scienter requirement is

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

appropriate where a statute $ras enacted with discriminatory

intent.34 And, I have shown that the Voting Rights Act can

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

cutions that infringe the right to vote.35

Throughout, I have avoided the issue of the propriety of

enjoiningstatecourtprosecuti.onsingenera1.In@.
Harris, .93g., and its prog"rryr36 the Supreme court has created

a doctrine based upon a strict construction of the requirement

that "irreparable harm" be shown and grounded in consideratj-ons

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

prosecution does not in and of itself constitute irreparable harm,

and as federal courts should generally not intrude on the business

of the states, neither injunctive nor declaratory relj-ef is an



-49-

appropriate remedy to a pending state criminal prosecution.

However, our case is distinguishable from ygunger and its
progeny. Younqer concerned a situation in which a criminal
proceeding was already pending, against a defendant who was

unable to make any clai-ms of bad faith prosecutj-on or continuing

harassmerrt.3T Here, the federal intrusion is of a lesser degree,

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

complaint is a pattern of discriminatory prosecutions against

members of the plaintiff class or those assisting them. Although

the Younger Court wrote that I'the existence of a ,chiIling

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

of itself, for prohibiting state action,"38 this language

becomes mere dictum where the state interest is slight, the

state action unconstitutional and the statute being enforced

vague on its face.

The cases following Younqrer extend its holding in many

directions, but do not change the basic requirements that either
a claim be pending or bad faith not be alleged. Thus, Samuels

v. Mackell, Elp5g, extends Youngerrs principles to the declara-

tory judgment action. Perez v. Ledesme, 401 U.S. 82 (1971),

decided the same day as Younger and Samuels,39 prevents federal

courts from enjoining the admission of evidence in an ongoing

state proceeding. Huf fman, .W,3 and Trainor, EI1SE, extend

Younger to certain civil proceeding=.40 Hicks, supra, extends

Younger to the situation in which state proceedings commence

after the federal complaint is filed, but before any proceeding

of substance on the merits have taken place. And Rizzo, supra,

extends the principles of Younqer to the actj-ons of executive



-50-

agencies, such as police departments. However, none of these

cases can be construed to apply to the situation existing here.

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

has been held not to apply.4l on balance, thenr dD injunction

seems an appropriate remedy, as the principles of Younqer do

not apply to the problem presented here.

***

Addressing procedural issues such as the appropriateness

of the class action and the barriers that notions of federalism

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

public interest litigator. Indeed, the issues that arise in

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

litigation addressing issues of race and poverty. Though the

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

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

interest litigator attempts to achieve success by essentially

constitutionalizing the problem. Reference to the most

general expression of justice and equality that our society's
jurisprudence has to offer best fiIls in the gaPs left by

statutes.

Constitutionalizing an issue is the most effective way

to achieve results that are substantively just. But with

constitutionalization comes the host of issues that this paper

has explored. The constitutional rights at stake must be

establisnea.42 Constitutional grounds, such as vaguerr.==r43

or selective prosecuts.onr44 must be explored. Intent must be



-51-

proved.45 Throughout, the appropriateness of the relief prayed

for must be considered. And, in the end, Humpty Dumpty must be

put together again by fitting all of this within the applicable

statutory framework. 45

Proceeding by analogy ,47 on" manipulates legal doctrine

to extend a statute beyond its normal confines. In so doing,

one is confronted with historical irony: using the Voting Rights

Act to address problems of selective prosecution echoes of the

voting rights cases of the early 1960s, litigated by teams

consisting of people like John Doar, Burke Marsha11, Harold

Greene, Thomas Flannery and even Robert Kennedy. In extending

the Voting Rights Act beyond j-ts current usage, one conjures

up the glory days of the past. And one comes to the realization

that public interest litigation j-s a continuing struggle.

Therein lies at least part of the excitement of a case like

this one. This case is but one battle in a long war against

injustice of the most reprehensible and immoral sort. If this

excitement is sometimes tempered by the practical politics of

today--for example, in the choice of parti""48--then that is

only because the war is in fact a political one. For beneath

the technical legaI issues that are part of any lawsuit, public

interest litigation concerning race and poverty always involves

an exercise of one's own morality and political values.



fntroduction

This description
from the sunmary
summary appears

NOTES

and Wilder's activities derives
testimony at her triaI, as that
State, 40L So.2d 151, 153-159

of Bozeman
of Wilder's

in Wilder v.
(AIa.Cr.App. ), writ denieq, 401- So.2d L67 (I981) .

The indictment against Bozeman, which is confused and multi-
plicative, is attached as Appendix A.

The already questionable technique of breaching the secrecy
of the ballot box by examining absentee ballots and correla-
ting signatures with votes is made more reprehensible by the
fact that the only ballots actually examined vrere 39 ballots
notarized by PauI Rollins, a black notary public from Tusca-
1oosa. With respect to the secrecy of the ballot box, see,
€.g., United Stales v. State of Louisiana, 265 F.Supp. ffi,
715 (E.D.La. 1966) , aff 'd, 386 U.S. 270 (l967) ; N.L.R.B. v.
Groendyke Transport,-EE, 372 F.2d L37, 141 (IoEE-ffi

2 (t967)

At least one, Lou Somerville , 93, now claims that the District
Attorney, Pep Johnston, told her that she would lose her food-
stamps if she did not testify on behalf of the state, and in
support of the state's case.

Bozeman and Wilderfs convictions were also based on a series of
irregularities at trial and the incompetence of defense counsel.
The irregularities included the all-white juri-es, raclst state-
ments by the prosecution in closing argument, and the admission
of out-of-court statements of witnesses from the prosecutor's
notes, in contravention of the witnessesr testimony. Additionally,
there has been some discussion of the incompetence of Bozeman
and Wilder's defense counsel who, for example, did not realize
that he could interview the prosecution's witnesses before trial
and who himself injected significant racial innuendo in the
trial. However, for political reasons, LDF has refused to
raise the competence of counseL as a basis for habeas relief.

A copy of a draft of the Petition for Writ of Habeas Corpus is
attached as Appendix B. As this memorandum "goes to press"
that petition is undergoing significant modifications, some
of which f have suggested or been consulted on.



-53-

In 1970, the Democrats captured one house of the Alabama state
legislature. It was not until L874 that they regained complete
control from the Republican "Carpetbaggers," making the latter
the year of the redeemer election.

Mobile Register, January 9, 1875, Ett 2.

9
Montgomery Daily Advertiser, March 3, 1875, dt 2.

10
Montgomery Daily Advertiser, March 5, 1875, dt 3.

11
Section L7-23-7 is entitled "A1tering or changing vote of
elector. " ft was enacted at the same time as 517-23-1 and
reads' t

Any person who fraudulently alters or changes the
vote of any elector, by which such elector is preven-
ted from voting as he intended, mustr on convictj-on,
be fined not less that $100.00 nor more than $1000.00,
and imprisoned in the county jail for not less than
30 days nor more than six months.

See also SI7-23-3, Bribing or attempting to influence voter
lflncffiiTng hindering her in the free exercise of the vote);
517-23-8, Disturbing elector on election day (including
preventing one from freely casting her ballot). Both of
these statutes were enacted in 1875; both are misdemeanors.

l2
For example, one who is convicted of violating 517-23-1 loses
her right to vote pursuant to 517-3-3 (3) . However, convic-
tions for violations of the statutes described in note 11,
supra, do not result in disfranchisement.

13
This history is based upon a lengthy telephone conversation
I had with Professor Peyton McCrary on April 22, 1983.

L4
Attached as Appendix C.



-54-

II. Selecti-ve Prosecution

This section discusses the doctrine of selective Prosecution.
ft does not deal with the related area of vindictive Prosecu-
tion, except tangentially. See inf a, at 8, note 9. On the
topic of vindictive prosecutf3;, S." g.""t"Uy Blackledge v.
Perry, 417 U.S. 2L (L974) i North Carolina v. Pearce, 395 U.S-
711 (re69).

Compare United States v. Wayte, 549 F.Supp. 1376, l-379-1385
Iffi-a dismissed on selective prose-
cution grounds) gld United States v. EkIqnlL, 551 F.Supp. 954,
965-969 (S.D. fowa f d despite allega-
tion of selective prosecution).

The selective prosecution allegation
into Bozeman's petition for Writ of
dix B, at 32-36.

has also been incorporated
Habeas Corpus, infra, APPen-

U.S. CONST., amend. XIv, 51 ("nor [sha1]- any statel deny to
any person within its jurisdiction the equal protection of
the laws. ")

In Yick Wo, .ggp5g., 240 out of 320 laundries in San Francisco
werfrG-ed bffinese persons. A11 but ten were constructed
of wood. A11 80 non-Chinese laundry operators were granted
permits, but more than 200 Chinese operators r^rere denied
licenses. 118 U.S. at 358-359.

See also Sund ,
Z4T ffi protec-
tion clause of the Fourteenth Amendment is to secure every
person within the Statets jurisdiction against intentional
and arbitrary discrimination, whether occasioned by express
terms of a statute or by its j-mproper execution through duly
constj-tuted agents.") (referring to disoimination in property
valuation); Iurner v. Fouche, 396 U.S. 346 (1970) (system
for selectinffinconstitutional where, though
neutral on ils-face, it resulted in a great disparity between
the number of blacks in the county and the number on the
grand jury list, and where 171 of the 178 people eliminated
for reasons of "uprightness" and "intelligence" rdere black).

See, e .g. r

TDTc.G.
United States v. D s, 613.-F.2d 988, 1003-1004

Ea5 u.s . 982 1l980) ; united
states v. Boursue,A rffio, 293 (Ist cir. 1976); unftea

,A--i 
^:-- 

lAtl\ - rr-iLffi, sor 8.2d, L207, 1211 (2nd cir. Lg74l ,-@4
ffi, 602 F.2d 564, 568-570 (3rd cir.), ggft:
@41 (1979); United States v. Duncan, 598 F.



-55-

2d 839, 869 (4th Cir.), cert denied, 444 U.S. 94L (1979);
united states v. Lichenstein, 610 F'2d L272 (5th cir'),

1980); qfqileq States v. Lesset &ffi;,=iEil' 542 F .2d, 6ss, da8 
- i6ir, ,

am-T g?'S 0977) t united states v. FaIk , 479 F.2d 516 (7th
Cir. Lg73) (en banc); lett, 584 F.2d 864
(8th Cir. L978) i unite .Za 1148 (9th
Cir. 1972) i unite OZ0 F.2d '?7 4 , 782 (10th
Cir. 1980), 2 (1981) . These cases
represent eiffi thffi6Et recent or the most prominent case
on selective prosecution in each circuit.

united States v. Falk, E-gpge, (active draft resister prosecuted
s EiErt card); United states v. Steele,

supra, (census resistance activist pro
e;Fer questions on a census form); united States v. crowthers,
456 F.2d ]-O74 (4th Cir Lg72) (partic "
arrested on Pentagon public concourse); City of Evansville, Ind.
v. Gaseteria, 51 F.2d, 232, 237 (7th Cir.
a@tationbecauseitwas1ega11ycuttingprices).See
also Glicker v. Michigan r,ieuor Contiol Qoruni?sio{r,.160 F -2d'B
lEf inatorY Sus-
pension of a liquor license, but no opinion on the merits of
the claim) .

See, €.9., United States v. Goodwin, L02 S.Ct. 2485, 2492, n.11
TTg-azj-GisffiI to 5e1ect charges); Bordenkircher v. Hayes,.434 U.S. 357, 364
gain and to select

(1978) (discretion to
charges).

10
United States v. Blit.steil, EIJPE, 626 F. 2d at 782i United

sgIlffia at 866; united staEffi
@ 4ffi (Iorh cir.), cert.@.
ffila) i united states v. Falk, glrPra, 479 F.2d at 620i
united state g FifEpp. at 1383.

11
See also United States v. Amon, 669 F.2d 1351, 1355 (10th Cir.
ISEZI; n in, s9Pre, 626 E.2d at 782i
united 3 F171-at 1003; united states
v oT,-og (7th cir. 1980); ffiEeffi
% ffiffi, supra, 589 F.2d at 866i Attorney General of the
EnTGi-ffiieffrrish Northern Aid

(2nd Cir. 1982);
United States v. Haggerty,..ffiP.SuPp. L286 | J-29i- (D.Co1o. 1981) .

t2
See, e.9., United States Y. ATgnr-iupf?, 659 P.2d at 1356-1357;

, 652 P.2d LL26, 1136, n.14 (Ist Cir-
. Tibbetts, 646 ?.2d 193, 195-196 (5th

Cir. 19 an, 638 r.2d 182, 183 (10th
Cir. 1980); 501 F.2d 325, 328 (7th Cir. ),



13
See, €.9. r United States v. Ca1dwe11 , 544 F.2d 691, 696 (4th
Cir. 1976)i Washingtojl v. United States, 401 F.2d 915, 925
(D . C. Cir. 1968 ) ; United States v, Ellliott , 266 F . Supp. 318 ,
324-325 (S.O.N.Y. see Buscfre v.
Burkee, 649 F.2d 509, 5L7 n.10 (7rh Cir.-T9'e]-) (n6=ffive
prosecutj.on absent actual governmental policy of non-prosecu-
tion); United States v. Wayte, supra (selective prosecution.
found w eEffiolicy of nonlenforcement,
except with respect to vocal protestors).

14
See, e.9., Snowden v. Hughes, 321 U.S. l, 8 (1944); Teague v.
EExaiE, ffi.c. cir. 1981) (proof of-;ffiEi6nal
lliElngement or chilling of First Amendment iigfrts requj-red) ;
LeClair v. Saunders, 627 P.2d 606,609 (2nd Cir. 1980) (intent
required); United States v. Torquato, ggpI3, 602 

".2d 
at 568-

559 (intent eifr-gI p.2d s72, 577
(8thCir.1980)(intent@eracia11ydiscrimina-
tory sentencing). The requirement that intent be shown reaffirms
the fact that selectj-ve prosecution is but a variant of equal
protection analysis. See infra, section V at 35-37. Note
also that in standard E@affitection analysis a classj-fication
is sustained only if it bears a substantial relationship to
an important government interest. If it does, then no imper-
missible classification is made and thus, Do selective prose-
cution claim can succeed. See, €.g., Hathewalz v. Secretary
of the Army, 641 F.2d L376 (9th Cir. I9gl) [couiE maftialing
homosexuals only for engaging in unnatural copulation suffi-
ciently related to governmental interest in a strong military);
United States v. Herman, 589 P.2d 1l-91 , 1203-L204 (3rd Cir.

ers as between judicial and executive
branches a significant government interest underlying the use
of prosecutorial discretion) .

See supra, secti-on fI, note L2.

United States v. Boss, F.2d 36 (10th Cir. 1981)
several participants inlpepermissible to pros-ecute only one

a single crime).

Falk

15

15

-55-

cert. denied, 444 U.S. 979 (L979)i
carb-on-ffiEr, utah , 566 F.2d 699,
Amon, Rice, Tibbetts, Rickman and
v6Ein!:Fnti-arx proteffi the
cases with particular antipathy.

ua1

Cook v. City of Price,
701 (I0th Cir. L977).

Stout are all cases in-
6ffis seem to treat these

652
of

has received mixed reviews from the commentators. See,
Comment, The Ramifications of United States v. rafJlon
Protecti-o .

approv al.K'S en:E5ifting

L7

approach); Note, Discriminatory Enffiement of Federal Denal
Laws, 34 OHIO ST.



18

-57 -

Falk holding)

I have not discussed the case of City of Evansville, fnd. v.
Gaseteria, supra. The case is of
it is dated, seldom-cited and apparently not based upon the
modern selective prosecution doctrine. Sti11, it can be cited
for the propositj-on that the Iaw cannot be selectively en-
forced as to a party soIe1y on the basis cif that partyrs
lawful activities. In Gaseteria, a gas station was denied
an operating permit appi6Tlffiased upon a 1ega1 pricing
policy, though other, neutral reasons were alleged by the
city. Today, those reasons might well suffice to defeat a
selective prosecutj.on claim. I have also not mentioned
several district court cases. See United States v. Wayte,
supra, 549 F. Supp. at 1379-13gili re
government failed to rebut defendant's showing that only the
most vocal draft resisters were prosecuted, that thj-s was
based on a policy developed by high government officials not-
withstanding First Amendment problems), United States v.
Robinson, 311 F.Supp. 1063, (W.D.Mo. 196ffir
violatj.on of wireyap statute overturned where similar behavior
by the government went unpunished); Zayre of Georgia v. City
of Atlanta, 275 

".Supp. 
892 (N.D.Ga. L967 ) (injunction issued

Effi,indiscriminatoryenforcementofSundiyc1osing1aw
where drug stores selling all kinds of goods were allowed
to stay open, while defendant variety store was not). For
a favorable appraisal of the result in Robinson, see Comment,
Intentional Discriminatory Enforcement oftffiInallStatute

See United States v. Cammi-sano, 413 F.Supp. 886 (W.D.Mo. L976)
lgov to court's order requiring
an in camera inspection of documents relevant to motion to
dismiss on grounds of selective prosecution); Note, Defense
Access to Evidence of Discriminatory Prosecution, fg?ffirill.'be filed
with the complaint, sometime during May.

See infra, section IV.

See United Stffi., supra, 549 F.Supp. at 1384. Note
Efat !6EEnment officials knew that
their enforcement policy would have a detrimental effect on
constitutional rights. There is no evidence in Wayte that
Congress knew that the Military Selective Service Act, 50
U.S.C.App. 5451, €t seq., would be enforced discriminatorily.
Herer w€ have no policy of selective enforcement or non-
prosecution, as existed in Wayte and Falk, !!pIA, 479 P.2d
at 62L. Ratherr w€ allege Elffscrimiffiry-iioEve on the
part of the Alabama legislature in 1875. See supra at 4-5;
infra, section v.

19

20

2l



22

23

24

26

27

-58-

See United States v. Steele, EgPIg, 46I F.2d at 1]51-1152;
Gnit supra, aS6 F.2d at 1077-1080;

5gPge, 311 F.SuPP- at 106'4-1066;
cffit attanta, ggPre., 376 F.supp.

at 893-894.

See Fa1k, !!pIE, 479 F.2d at 623i Steele, ?ypflr _461 F.2d at
[51rIT52;-@=, *pB, s49 F.supp.-t 138I-1385. As in
these casesl-FzemErn-E-n-a Wilder were political activists on
behalf of causes (for example, black voting) unpopular with
the authorities. We al-lege that Bozeman and Wilder are being
prosecuted for their race, as well as for their political
activities.

Cox is not, despite this language, considered to be a selec-
Efve prosecution case. It is, howeverr ctD oft-cited and
important Eirst Amendment case, dealing with freedom of assem-
b1v.

Protection and the Prosecutor's
an Ideal, 49 GEO.WASH.L. .559

,- a8
CONN.B.J. 425 (L974\i Givelber, Se lective Enforcement of the

See, e.g., Williams v. State, 393 So.2d. 492, 494 (A1a.Cr.App-

Criminal Law, L973 U.ILL.L.F. 88; Note, lrosecutorial Discre-
E[oE-ana-E Potential for Abuse, Zl oEp ;

Penal f,aw Dfscriminatory
Law-Eftroement and Egual Protection from the Law, 59 YALE L.J.

,
36 N. w.2d 308 (rrrich. 1959 ) ) .

DeShazo v. City of Huntsville, 416 So.2d 1100, 1103 (Ala.Cr.
4 (le 82) .

See generally Gifford, Eg
Charqinq Decision: Enforc

f9'6'rl-6iti@l ; coble v. gity-gf .BifTilgbam,
389 so.2d 521 ,E (Ala.mpp. ) ,w
(1980); starley v. iity of silminme;',ffio.2d, 1131 , lt32-
1133 (AI So.2d 1134 (1979). See
also Butler v. 

- -stai,e;-a'48.-2-'d 203, 205'207 (AIa. cr.Appl-
IFTf)ffiy intent required to show improper selec-
tive prosecution where defendant was prosecuted for more
serious charge than co-defendants); Johnson v. State, 335 So.
2d, 663, 676 lwla) (acceptable to pr@leader
of prj-son riot) .

In light of courts' hesitation to uphold selective prosecutj-on
claims, Simonettj- is an anornaly, as there appeareld to be no
showing ffi-TEe case of discriminatory intent or invidious

28



-59-

discrj-mination. This point was not lost on the dissenter.
314 So.2d at 97-98 (Cates{.I., dissenting).

29
In Associated Industries, too, the court fails to explain the
inv or intent underlying the selective
prosecution finding, provoking a dissent. 314 So.2d at 898-
901 (Moore, J., concurring in the result and dissenting in
part) .

30
infra, section fV.See

31

32
See also National Railroa , 490fraH,

33
See, e.q., Black Jack Dislriblrtgrs, Inc. v. Beame, 433 F.Supp.wi,ffia Lffi;e rhreatenea
discriminatory prosecution would chil1 constitutional rights) ;
Moss v. Horn;lgr 314 F.2d 89, 93 (2nd Cir. 1953) (discriminatory
@ found, but if it had been, injunctive relief -

would have been appropriate); Zayre of Georgia, Inc. v. City of
Atlanta, supra, 276 F.Supp at a-

See

See

infra, section V; supra, at 4-5.

infra, section VII-at48-50.

6ry pros66E,on under Sunday Closing Laws); Wade v. City and
CountyofSanFrancisco,l86P.2d181,183(cffiof

scrim:fnatory enforcement of statute prohibiting
solicitatj-on of magazine subscriptions enjoined); City of Coving-
tonv.Gausepoh1,62s.w.2d1040(Ky.ct.ofAppeaffi
@nforcementofordinanceprohibitingdisp1aying
of wares on sidewalk enjoined). See also Jones v. Wade, 479
F.zd 1176, L182, n. IL (5th Cir. ffr:)--lEtrong case 

"or 
i.njunc-

tive relief where facially neutral statute discriminatorily
enforced) (dictum). See generally Note, Selective Enforcement
of Criminal Laws, supra, 48 CONN.B.J. at 435-438; Comment. ?Ite
@ifrll-natory Enforcement of State Penal Laws,Epra,

34

35
Reversing the Seventh Circuit's decision in Littleton v. Berbling,
468 F.2d 389 (7th Cir. L972).

36
In light of the former
point dictum. 4L4 U.S.

37
This problem coul-d also
since, in OrShea, there

holding, the dissent labels the latter
at 511-512 (Douglas, J., dissenting) .

be analyzed as a question of mootness,
was no longer an active case or contro-



38

39

40

41

42

versy. But see Gray v. Sanders, 372 U:S. 358, 375-375 (1963)
("the voFlrtary abandonment of a practice does not relieve a
court of adjudicating its legality, particularly where the
practice is deeply rooted-?nd long standing). g!:,. ?pomer v.
iittl"ton, 414 u. S. 514 (L97 4) ; 'Miyor of phiIailgIphi3-v.

See infra, section III.

See infra, section IV.

See infra, section V.

-60-

infra, section Vf. See also infra, section VII at 48-50.See

One Albert Turner of Perry County, Alabama, is a potential
plaintiff of this kind.

43
Yolanda Cl-ark and Adeline Webster of Sumter County, Alabama,
are potential plaintiffs of this kind. Their indictments
were dismissed when the prosecutor realized that the staters
case lacked merit.

44
See also Vorenberg, Decent Restraint of Prosecutorial !9ye!,
WI-nEf. r.. REV . Ls>L,
power to initiate investigation in an analysis of methods of
restraining prosecutorial d.iscretion, including under the
equal protection clause); United States v. loqten, 662 P.2d
628, 634 (9th Cir. 1981) ('Ehe m,ere :fif ing offi-indictment
can support a charge of vindictive prosecution"); United States
v.nicel659F'.2ds24,526-527(5th-Cir.1981)(apFf}linil
Ffffive prosecution standard to selection for investigation);
United States v. Ness, 652 F.2d 890, 891 (9th Cir. 1981) ("to
m case of selective prosecution a defendant
must show evidence of impermissible motive at some crusiel_ *e9e
in the procedures leading up to the initiat

1152 (system of di ioi-ETnts prosecution);
Black Jack Distributors, Inc. v. Beame, supra, 433 F.Supp. at

aE@ citing Krahm v'
Graham,46Lr.zazoa(9thCir.L972)).ButseeUniteZ[ffiv.
Effiil575 F.2d 2L2, 2L6-2L7 (9rh Cir. l9TSr TffisffiTory
ffistigation does not taint otherwise nondiscriminatory prosecution) .



-61-

III. Vagueness

1
Wilder v. State, 40I So.2d 151, 159 (AIa.Cr.App.), writ denied,
ffi1981); Bozeman v. state, 401 so.2d r6Tr76-Era.
Cr.App. ), writ deniedrffi(Ig8l) . Hereinafter, I
will generally cite only to Wilder, supra, as that is the court's
only discussion of vagueness.

2
See Petition for Writ of Habeas Corpus, Appendix B, infra, para. 18.
EEE frabeas petition argues that Wilson requires prooFFfraud to
establish culpability under S17-2ff

See also Carter v. State, 55 A1a. 181, 183 (1875)

Wilson and Gordon were decided under the 1873 predecessor statute
ffi-23-11-iiiiiEh is cited by the court as Pamph.Act 1872-73, S40.
ft read: "That any person votj-ng more than once at any election
held in this State t ot depositing more than one baIlot for the
same office at such electionr or is guilty of any other kind
of i1Iega1 or fraudulent voting, shall be deemed guilty of a
feIony." See, *pI3, at 3-4.

401 So.2d at 150.

Nor is it clear from the language of the statute or its subse-
quent interpretations whether an intent or scienter requirement
exists for the crime of voting more than once. One could argue
either that the term "knowinglyr " which appears before the
"attempting to vote when not entitled to do so" clause, should
apply to the entire statute, or that the fact that "knowingly"
does not appear before the "voting more than once" clause
specifically exernpts; that crime from a scienter requirement.
Wilson accords with the latter interpretation of the statute.

See, e. g. , Smith v. Goguen , 4L5 U. S . 556 , 572 (197 4) i Gral'ned v.
ffiy offiock@8 u.s. at 108; citing eapachffi
@rllilE-os u.s. 1s6, t62 (Le72)i c@f
ffi368 U.S. 278,287 (1961); unffi
ffi6t2,6t7 (1954); Jordan v. D@.
ffio-232 (1951); Lanzetta v. ue@ 451, 453
(1939); Connally v. G ., 269 U.S. 385, 391
(1926)i 255 U.S. 81, 89 (L929);
Internat 34 U.S. 2L6, 223-224

, 442 U.S. 1OO, 112-113
(1979) t UnIteffia 335, 348 (197I) ; rttcBoyle
v. unite , 27 (1931).



-62-

Villase of Hoffman Esta!eS--v.-sfi.Eide, J-02 S.Ct. 1186, 1191, D.5
, 423 U.S. 48, 49-53 (1975); Grevng9, -$!8,408 U.S.6E-IfO. The trial courtrs interpretation of SI7-23-1 as

it appears in the jury instructions, Bozeman Transcript at 20L-202,
does not shed much light in the statute. The judge merely read
the Statute and defined the terms "ilIega1" and "fraudulent" for
the jury. The Bozeman trial transcript is the only such transcript
that has been made available to me.

It is not clear whether one must cast one's own ballot in order
to be guilty of voting more than once. If so, there was no proof
that Bozeman or Wilder themselves voted. See Petition for Writ
of Habeas Corpus, Appendix B, infra, para.A. Nor is the act
of "voting" ever deiined, eithffi the trial court or by any
of the appeals courts that have eonstrued SI7-23-1.

10

11

Colautti v. Frank1in, 439 U.S. 379, 395 (1979)
@u.s.5r3,524 (t942).

Wi.Ider, supra, 401 So.2d at 161.

Colautti v. Franklin, supra, 439 U.S. at 395. See also United
ffitefrypsum co., 438 u.s. 4zTaffia6-@a);

' EIPIS' 405 U'S' at 163;gZms. 337 , 342 (1952);
gt, 101-102 (L945).

, quoting United

also Bozeman, supra, 401 So.2d at L70-171.See

L2

13

l4

15

16

Id. at L62.

401 So.2d at 161.

See supra, section III, note 6.

To exacerbate the already considerable confusion, the judge
charged the jury predominantly under the "any kind of illegal
or fraudulent voting" clause of S17-23-1. See supra, section
III, note 8.

L7
Colautti v. Franklin, supra,

,

Village of Hoffman Estates v. F1ipsi4e,
Smith v. Goguen, supra, 415 U.S. at 573i
361 U.S. L47, r51 (1959).

439 U.S. at 391; Grayned, !!PI3, 408
E , 415 U.s. at 573.

supra,
Smith

102 S.ct. at 1193-LL94i
v. California,

18



-63-

19

20

2t

22

United States v. National Dairy Corp. , 372
e63 )

u.s. 29,36 (1963)
(citing cases).

Grayned,
377 U.S.
513, 526

?Eprar_10q_Y.-S.. at 109, quoting Baggett v. Bu11itt,
360, 372 (1964) and Speiser v. Rahffi
(1es8).

United States v. National Dairy Corp., supra, 372 U.S. at 36.

United States v. Mazurie, 419 U.S. 544, 550 (1975). This is
analysj-s, whi-ch overlaps to a great

extent with the vagueness inquiry when constitutional rights
are at issue.

23
See supra, section ffl, text accompanying notes 14-16.

24
See infra, section IV.

25
See, €.g.r Village of Hoffman Estates, supfa, 102 S.Ct.
ffiynffsu acEFtou, supra,
at L62, L70, citing Thornhill v. AlabanrE; 31fU.S:--Bg,
(1940).

26

1193;
405 u.s.
97 -98

See, e.9., United States v. fnsco, 496 F.zd 204 (5th Cir. 1974)'Ii-agudEs anonymous campaign materials,
in combination with the lack of reported prosecutions for this
type of violati.on of the statute, overrode prosecutorial discre-
tion, resulting in reversal of conviction). Insco does not
explicitly discuss selective prosecution, thou$-T similar ana-
lysis is employed. The case does however present the vagueness
problem in the context of a criminal prosecuti-on for the violation
of election Iaws. See also United States v. Crowthers, supra,
4s6 F.2d at 1o8o-1oEf (anEi- r--jEZT
of objective standards, in successful selective prosecution case).

27
State doctrine generally follows the federal in this area too. Thus,
for example, the Alabama doctrine, though rather undeveloped, also
includes an objective standard for vagueness, see, e.gr., Tyus v.
State, 347 So.2d L377, 1384 (Ala.Cr.App. ), qfiGrr!@ greZd
13Bf 0977). rn Alabama, too, one pursues iEcElilEnqui-ry as to
actual vagueness only where First Amendment rights are not at
issue, !E, e.9., Poe v. State, 389 So.2d L54, 156 (Ala.Cr.App.
1980). -Mr Effi tEffiEffiEEourts been oblivious to the connection
between vagueness and selective prosecution, Simonetti v. City of
Bj-rmingham, supra, 3L4 So.2d at 95 (difficult@
4laws in nondiscriminatory ways). This is a1I, however, irrelevant
wherer a's here, the vagueness challenge is based upon the U.S.
Constitution.



28

-64-

More relevant, perhaps, to a determination of whether
517-23-1 is vague is its similarity to other states I statutes
regarding voting fraud. Such statutes might indicate less
intrusive means of regulating voting and might demonstrate
the possibilities for achieving greater clarity. A brief
survey of such statutes has revealed that, with the possible
exception of Massachusetts, Mass. General Laws, ch. 56, 526,
no other state has a statute as vague as Alabamars. Most
statutes prohibit voting more than once, as well as unauthorized
voting, but do so in separate provisions. See, e.qrr 29A
California Code S29540 (separate subsections of the sarne
statute); Georgia Code SS21-2-571, 2L-2-572 (separate statutes).

Further research ought to be done comparing state statutes,
and their judicial interpretations, with 517-23-1, and ascer-
taining what weight the existence of such laws should have on
our challenge to 517-23-1 as vague.

That claim appears in the Complaint, infra, Appendix C, para.
10.



-65-

fV. Constitutionally Protected Activities

1
See, e.s., Ex parte Yarbroush, 110 U.S. 65I (1884); Guinn v.
ffifieffitat@r915 ) ; Reynolds v. simsl-Tffis .

5tI, 55a::5F(r964) (citing cases); ffi, 405 u.s.
33o,336(L972)lI11inoisStateBoarffiSocia1ist
Workers Partyr 44
consEiffi'l right to vote on a number of constitutional
provi-sions. fn addition to Amendments XV, xIX and XXVI, which
all assume a "right of the citizens...to voter" one also
flnds a right to vote implied in Art. I, SS2 and 4, Amendment
and Amendment XIV, SSI (the privileges and immunities clause)
2-

An assumption implicit in this argument is that blacks are
particularly 1ikely to be harmed by a chilling of the activities
in which Bozeman and Wilder engaged. They are, we assume, more
Iikely to be illiterate, j-n light of a century of educational
deprivation, !99, €.9., Gaston County, North Carolina v. United
stltes, 395 u:3; 2FF28
Effiuse of historical inequalities of educational opportunity) ,
as well as more in need of organization in light of a political
system historically stacked against them.

Richardson v. Ramirez, 418 U.S. 24 (L974).

See, ejg.:_, Waddy v. Davis, 445 F.2d 1 (5th Cir. 1971) ("plaintiffs
hav-ave no rigffige the legal results which flow from
convictions under constitutional state 1awr " where no allegations
of uneven ap

Standard egual protection analysis requi-res that strict scrutiny
be applied to testing the fit between statutory classification and
legislative purpose where there is ej-ther a suspect classification
at issue, ot wherer Ers here, fundamental rights or interests are
at stake. See_, €.g., G. Gunther, CONSTITUTIONAL LAW: CASES AND
MATERTALS (13Eh il1980) 908-971; L. Tri-be, ATVTERTCAN CONSTTTUTTOTIAL
LAw, 516-7, €t seq. For a case holding that voting rights are
fundamental righEs for equal protecti-on purposesr s€€-r e-g.,
Harper v. Virginia Board of Elections, 383 U.S. 663,670 (1965)

Shapiro v. Thompson,
394 U.S. 616- (i959) (invalidilins-ffieffis for
welfare benefits based on the fundamental right to interstate
travel).

r
and

See a1so, Yick lVo v. Hopkins, supra., 118 U.S. at 370 (voting "j-s
fegarded as a-fund.amental political right, because preservative
of all rights. " )



-66-

Most of the absentee voting provisions in the voting Rights Act
are merely expressed as reiommendations. See 42 U.S'C' 51973cc
et ses. However , 42 V.S.C. S1973aa-1 manffies that the states
pr-roiltse for abseniee voting in Presidential and Vice Presidential
Liections, for citizens nctin their states or political subdivi-
sions at the time of the election. An. Alabama statute that did
not confom to these dictates was invalidated in Prigmore v.
Renfro,356F.Supp.427(N.D.A1a.lg72),aff'd,4I3ffi9-(1973)

Clear}y, S1973aa-1 does not apply !o this case, for our Com-
plaint conlerrrs aIl elections and applies with particularity to
Litir.rr" voting because they are unable to get to tlre polIs,
though they ar6 not outside their state or political subdivision.
lloneihelesi, S1973aa-1 has been invoked in the Complaint, Appendix
c, infra, para. 18. Technically, this is incorrect and will be
moaiffiI. -Hor.rr.., there is a -trong argument that if a state
must provide absentee voting for somer -pursuant to the Voting
night';-A.t, it should have to provide it for all, especially in
fi6frt of the fundamental nature of the right to an effective
ex6rcise of the franchise- See infra, at 23-24'

8
See, e.q., McDonald v. Board of Election Commissioners of, Chi-cPgo,
F'4'uf8o

9
See, e.g., O'Brien v. Skinler, 4L4 U.S. 524, 529 0974); Dunn v.
EIumsEifr, @guirements); Evans v. Corman, 398
U.S-T9-(19761- (prohibition based upon res@al
fnstitutes of Health); Kramer v. Union Free Schoo1 District,
395 u.s. 62t (19691 1pr lgncv. City of Houma, 395 u.s. 7-01 (1969) (same); Carringtoi-:iF
ffi9 (19G5 ) ( striking down statut6-Ttr-atllpE-i6ited
Frvicemen from voting); Harper v. Virginia Board of Elections,
supra (pol1 taxes).

10
cf., McDonald v. Board of Elections, supra, 394 U.S. at 808-809
lprop t6l!f,-ysica11y disabled but
not to incarcerated).

11
Alabama Code 517-10-3 states, in relevant part:

(a) Any qualified elector of this state and any person
who, but for having moved from the state within the
30 days immediately preceding the election, is a qualified
elector of this state who will be unable to vote at his
regular polling ptace because of his absence from the county
of his residence on the day of any primdrY, general, special
municipal election, or who because of any physical illness
or infirmity which prevents his attendance at the po11s,
whether he is within or without the county on the day of
the election, Rdy vote an absentee bal1ot, provided he
makes application in writing therefor not more than 60
nor less than 5 days prior to the election in which he



-67 -

desires to vote as authorized in this chapter.

L2
See, e .9., United Stateg v. Penton, 2L2 F.Supp. 193 (14.D. AIa.
ffiz) -fJohn tice of discriminatory en-
forcement of state registratj-on provisions); Brown v. Post,
27g?.Supp.60,63-64(W.D.La.1968)(discriminTaffi
enforcement of absentee balIot provision enjoined). See also
United States v. Raines, 362 U.S. 17 (1960) (under Voting

nction against discriminatory enforce-
ment of registration provis5-ons is proper). Presumably, the
L982 amendments to the Voting Rights Act, see j-nfra, eit 39,
make it patently clear that discriminatory-afoffient of
voting provisions as well as the provisions themselves, see,
€.g.,- Oregon v. Mitchell, 4OO U.S. L]-2 (1970), are coveffi
6-trre@

13
McDonald v. Board of Election Commissioners, supra, 394 U.S.

L4

15

Osser, 409 U.S. 5L2, 52L-522
414 U.s. at 529-530.

(1973); O'Brien v.
supra,

supra, fntroduction, note L2.

I6
See, e.g., Hamer v. E1y, 410 F.2d 152, 155-156 (5th Cir.),
ffit.-Fn-ied-7393-ffi942 (1969) (citing cases) ; united
ffiTesffiate of Irtississippi , 256 F.supp. 344, 3al8 (S.D.

v. Greene CountY Democratic
Party ExecutivffioffifEt

s to take samPle ballots into booth
with them).

17
See Garza v. Smith, 320 F.Supp. 131, 133-139 (W.D.Tex. 1970)
l!?o@ce for disabled but not for illiterate
voters denies equal protection) , Morrl.s lr. Fortson , 267 F.
supp. 538, 540-541 (lr.p.ca. t9G6)@ting one
from assisting more than one illiterate person unconstitu-
tional).

18
See also
Rusper,

See

Puerto Rican Orqanization for Political Action v.
3

5fs l7th cir. 1973 ) .

See, €.9., Reynolds v. Sims, EllPIS, 377 U.s. at 554-555, fn. 29i
wesberrv v. sanAers;-76 U.s. 1, 17-18 (1964). These eases
hold that vrbting rights do not exist in the abstract; they are
only meaningful if they can be effectively exercised. Effec-
tive exercise does not include "a right to have members of a

19



20

2L

-68-

protected class elected in numbers equal to their proprtion
in the populationr " 42 V.S.C. S1973br Ets amended. It should
neverthelessr w€ argue, include the right to assistance where
necessary and the right to vote absentee.

It should, however, be noted that often the courts pro-
claim rights, and then refuse to alIow them to be effecti-vely
exercised. Cospare Roe v. Wade, 4L0 U.S. 113 (1973) (proclaiming
the right to-a-56EIoil-4Q,re.g. , Harris v. McRae , 448 u. S. 297
(1980) (states need not-!?oviFme@for medically
necesary abortions); H,!. v. {itleEg4, 101 S,Ct. 1164 (1981)
(parentl1notificatio@endentminorsuphe1d).

See Complaint, Appendlx C, infra, para. 11.

The First Amendment reads: "Congress sh.aI1 make no 1aw respecting
an establishment of religion or prohibiting the free exercise
thereofi or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petltion
the Government for a redress of grievances." It is generally
applied to voting rights issues._ _See, g:9.,_.H?rp?r v.=Jirginj,3^
Board of Elections, Elpre, 383 U.S. at 665i Wright v. Mahan, 478
ffi.ollFrgzgt, aff'd, 620 rffi.F . Supp 468 , 473 (8. D.Va. ), aff 'd, 620 F.2d, 295 (4th Cir.
1980) (no right to a referendurn)T-EEefgen_v._xiUE, 664 F.2d
600, 609 (6th cir, 1981) (right toffire desire to
vote for specific individuaL on petition).

22
414 U.S. 51, 56-57 (1973) (invalidating fllinois statute preventing
one from switching parties for primary elections within a 23-
month period).

23
371 U.S. at 431.

24
id. at 431.

25
id. at 420-422

26
See, €.9., NAACP v. Alabama, 357 U.S. 449, 460-463 (1958);
EFtes-if-cir@, 3Gr u.s. 516, 52L-524 (1960);

Za Campaign Commj-ttee, 103 S.Ct.
Socialist

Workers Party disclose the recipients of its campaign dis-
bursements) (citing cases) .



-69-

V. Intent

1
See supra, section If.

2
Although the Voting Rights Act has been amended so that a finding
of intent is no longer required, the Fifteenth Amendment stilI
demands such a finding. See, €.9., Cily of I'lobile v. Bolden,
446 U.S. 55, 62 (1980i. G-sofafs ion
under the Act, as amended, it is not necessary to prove intent.
However, insofar as the effect we aIlege is in terms of selec-
tive prosecution, which itself requires a showing of intent,
see supra, Ert 9, the j-ssue may become significant. Note also
that this action is being brought under the Fourteenth and
Fifteenth Amendments as well as the Voting Rights Act. Complaint,
Appendix C, infra, para. L9-20.

The pool was only closed after a federal
regated, 403 U.S. at 2L9. 9eq aIso, id.
dissenting) (including evid6?eE-at EEe
to keep the pools operatirg).

judge ordered it deseg-
at 249-254 (white , J. ,
city could have afforded

Justice Blackmun concurred in the result, based upon the facts of
the case. His opinion is not clear as to his vj-ew of the role
of legislative motivation.

See, €.9. r Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)
lEiadE t in restaurant because
of racial animus precludes summary judgment); Epperson v.
Arkansas, 393 U.S. 9'7, 107 (1968) (First amendnr:iEffiIlEEed
iftTffir the purpose or the effect of a statute is to advance
or inhibit a particular religion, quoting Abington School Dist-
rict v. Schempp, 374 U.S. 203, 222 (1963))@
ffi.s. 409,42L-422 (42 u.s.c. WTlel/ery racially motivated refusal to seIl or rent"); Griffin v.
County School- Board of Prince Edward Couryla, 377 U.S.-7[-.--.9-,-TI3F

oIs unconstitutj-ona1
where objective was to avoid desegregation). See also Evans v.
Abney, 396 U. S. 435 , 453 (1970 ) (Brennan, J . , ffis6:r ngl .

391 U.S. at 382-385.

See supra, section IV; Complaint, Appendix C, infra.

Though we a11ege unconstitutional results, the intent inquiry
remains fundamental because we may not be able to prove either
dj-scriminatory prosecution based on race t ot the chilling effects
we allege. See infra, at 31.



L2

I3

The o,Brien court cites Mccray v. utite{ states, I95 U'S' 27

iiioiffii="ppo't ana a l€en v'
AmericanPressCo.,2g7v.s.233(1936),iswer@.
iffiiysis it' each of these cases for fear of
entering upon an iniinite historical regression of useless
;;;;-i"ifyii=,-.fi culminatitg, in any event, in the preci-se
p"i"t-i ii aUie io make without such analysis--that Pa1mer

i..rr.= the issue in doubt. Qee infra, at 30-31'

See, e.s., Abington School District v' SchempPf^?upf?l 374 U'S'
;f=i2 n6 '243 ( 1e68 )

ii"-ea;a _B".I,yi =9*1!E?- 
slutsii.

)AS U.S. 130, 148, n.4 O976) (Marsha1l, J., ctassenEang,; r ' r-Lv '

10
Gomillion involved a challenge to a 1957 Alabama statute that
aiffir.euoundariesofruike9€€,changin9itfromasquare
to an irregular 28-sid.ed figurel and in Lne-process, eliminating
aII but four or five of 400-black voters from the cityrs voter
ro11s.

11
364 U.S. at 34I.

Id. at 347, quoting united states v. Reading, 226 U.S. 324, 357

Eer2 ) .

see also Wright v. Rockefeller, 376 U.S. 52, 55'57, 73-74 (1964)
(whereeviaenffiainstthepropositionthatracia1
considerations motivated state apportionment, Supreme Court
would not overrule District Courtrs finding that there was no

=u.h motivation and thus no discriminatiot,l ; gity gI-,Ri.!*ot9,Y,:
United States, 422 U.S. 357, 378-379 (1975) ("An oftLclal acEaon'
ffiexationorotherwise,takenforthepurposeof
discrimj-nating against Negroes on account of their race has no

legitima"y ,tt6"i-o,rt Consiitution or under Ithe Voting Rights
Actl ...An """""itio. 

pto.r"d to be of this kind and not proved
Lo ir"rr" " 

jusii.iiable basis is forbidden by 55 t9f the Actl ,

whatever ils actual effect may have been or may be.")

I4
Gomj-l}ion, Wright and City of Richmond are aII cases involving

"ffighEffiA, tnuffiIy germane. . 
However,

one could argue that in each Lase, notwithstanding the strong
language cit6a supra, n. 13, discriminatory effects did exist'

1s
Pa1mer has itself been fotlowed in fairly recent Voting Rights
ffi="i-in tn" lower courts. see, e'9', @:
GO4 r.2d 875, 882, n. IO (5th Ci;;-19il(c[ETlenge of at-Iarge
electoral sYstem).

-70-

16

r=ilii".-1";';dmi;iti-' t: ' e Mot'vat' n 'n const'tut'ona1 Law'



-7 7-

79 YALE L.J. 1205 (1970) (motivation of legislators
government officials relevant in some cases); Note,

and other
Legislative
HARV. L. REV.Purpose and Federal Constitutional Adjudication, 83

t7
Title VII of the Civil Rights Act of 1964, 42 V.S.C. S2000e, et
seq.

18
See Griggs v. Duke Power Co., 401 U.S. 424 (1971).

19
401 U.S. at 431. See also McDonnell Douglas Corp. v. Green,
41I u.s. 792 trgzs)J-AEE*'.
405 (1975); Dothard v 977) .

20

2t

22

23

Disparate treatment analysis requires that the plaintiff
show (1) that she belongs to a raci-aI minorityi Q) that she
applied and was qualified for a job for which the employer was
seeking applicants; (3) that, despite her qualifications, she
was rejected; and (4) that after her rejection, the positi-on
remained open and the employer continued to seek applicants from
persons of her gualifications. ltcDonnell Douglas CorP-:__t/:_Green,
irpru, 411 U.S. at 802: S"S. glP".

, 438 u.s. 567, s75-T97il

International Brotherhood of Tearnsters v. United States, 43L U.S.

Id. Iemphasis added]

See also McDonnell Douglas Corp v. Green, Supra; Furnco Construg-
ffin-C"p s?fEo.@e

t with sti1l more sPecificitY:

A llcDonnell Douglas prima facj.e showing is not the
eqffitual finding of discrimination...
Rather it is simply proof of actions taken by the
employer from which we infer discriminatory animus
because experience has proved that in the absence of
any other explanation it is more likeIy than not that
these actions were bottomed on impermissible conside-
rations. When the prima facie showing is understood
in this manner, the employer must be allowed some
lattitude to introduce evidence which bears on his
moti-ve.

Swint was not a shocking holding. The Act explicitly provides
ffit-ai-fferent terms, conditions or privileges of employment

24



25

26

-72-

may be applied to different employees based upon a bona fide
se;iority- system unless Such differences are "the result of
an intenlion to discriminate because of race, color, religion,
sex, or national origin... ", 42 lJ.S.C. S2000e-2 (h). See also
Trans World Airlines, Inc. v. Hardison, 432 U.S. 1 (L977).

See supra, sectioD V, note 23.

Id. at 256. Burdine establishes the following allocatj-on of
E-urdens and order of presentation of proof in a Title VIf case.
"First, the plaintiff has the burden of proving by a preponderance
of the evidence a prima facie case of discrimination. Second,
if the plaintiff succeeds in proving the pri-ma facie case, the
burden lfritts to the defendant 'to articulate some legitimate
nondiscriminatory reason for the employee's rejectiol." Third,
should the defendant carry this burden, the plaintiff must then
have an opportunity to prove by a preponderance of the evidence
that the legitimate reasons offered by the defendant were not
its true reisons, but were a Pretext for discrimination. " Id.
at 252-253 [citations omitted].

27
This came about as a result of an affirmative action program
that occurred after the results of the test had provided an
initial rank-ordering of applicants. 102 S.Ct. at 2529-2530.

28
see, e.g., washington v. Davis, 426 U.S. 229 (L976) (citing
ilases)frirffi ight-s v. Metropolj-tan Housing
o.""i6p*
EffiiilIsEr€t-atrcofrfl.{assachusetts v. f'eeney , 442 U. S. 256 , 273'

6 U.S. 55, 67-75 (1980).
These cases holding in Palmer. For
example, the Court in Washingtot v,,Pavis discussed. Palmer "tsome length and concluffi change "the pre-
vailing iuler" 426 V.S. at 243. fn a footnote, the Court added:

To the extent that Palmer suggests a genera11y appli-
cable proposition thffiEislative purpose is irrelevant
in conititutional adjudication, our prior cases--as
indicated in the text--are to the contrary; and very
shortly after Palmer, all Members of the Court majority
in thal case joffi-the Court;s opinion in Lemon v.
Kurtzman, 403 U.S. 602 (1971), which dealt wEEEe issue
o" piifiEc financing for private schools and which
announced, as the court had several times before, that
the validity of public aid to church-related schools
includes cLose inquiry into the purpose of the chal-
lenged statute.

n.11. See also Arlington Heights, supra, 429 IJ'S'
( "when tf,EeEproofEEiE-AiffiiniErv Purpose

has been a motivating factor in the decision ,...)udicial
deference Ito legislative judgment] is no longer justif5.ed. ")

Id. at 244,
EE zss-zso



29

30

31

32

-7 3-

4s0 u.s. 22L (1981).

450 U.S. at 233-234. See also id. at 244, n.11. ("Ascertain-
ment of actual IlegislEEvETTuEose...remains an essential
step in egual protection.") (Powe11, J., dissenting).

4s0 u.s. 662 (198I).

450 U.S. at 677, 680-687. Writing for the plurality, Justice
Powel1 looks mainly to the burden actually placed on interstate
commerce by the Iowa statute, balanced against the reasonableness
of the statute in achieving the state's goals, Id. at 67L-675.
Justice Brennanrs concurrence, however, argues that the motives
of the legislature should be dispositive. Id. at 580-681. The
result is thatr Ers in Schwei.ker v. Wilson, iE are left not
knowing what role legi@ys. rn this caser w€
will be able to present enough evidence of effect to create
liability, in combination with our finding of j-ntent--even if
vre cannot present enough evidence of effect to alone carry the
day.

See also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,
m,-Ii.7 and upholding
constitutionality of act banning the sale of milk in plastic
containers). But see United States Bailroad Retirement Board
v. Fritz , 449 m.-Tde
6-n}ressr actual motives in enacting a statute, but rather
assuming that Congress intended what it enacted).

supra, section V, note 2.

33

See
34

35
429 U.S. at 267, citing Lane v. Wilson,307 U.S. 268 (1939)
(registrationprovisionffiva1idbecausebasedin
part on discriminatory grandfather clause earlier struck
down by Court as intentionally discriminatory in Guinn v.
United States, 238 U.S. 347 (1915) ); Griffj-n v. School Boar4,

, 81 F.Supp. 8
cuiEm,ffigag) (striking down Alabama liEeracy
ffiecause of discriminatory intent in its passdg€, as well
as dj-scriminatory effect). Davis v. Schnell is particularly
apposite. There, ttre court ffiist purpose of
the Alabama legislature in enacting a literacy test for voter
registration provided the requisite showing of intent to
discriminate, where the statute was facially constitutional
but was being selectively enforced. 81 F.Supp. at 878-881.



-7 4-

35
See also Columbus Board of Education v. Pennick, 443 U.S. 449,

u.s. 189, 2:-
Education, 402 U.S. L,W

37
401 U.S. at 430.

38
Both the school desegregation and the Title VII cases, while rele-
vant to the general problem of proof of present discrimination
by virtue of past intent, are idiosyncratic because they involve
a duty to act affj-rmatively to eradicate discrimination. This
duty was imposed by Brown v. Board of Educatj-on, 347 U.S. 483
(1954) for the deseg actment of Title
VfI for the employment discrimination cases. Of course, arguably
the same kind of duty was imposed in the instant case by the
enactment of the Voting Rights Act. r

39
See, e.9., Whi-te v. Regester, 412 U.S. 755, 766 (1973); Nevett
v. sid-es, sWzzz (5th cir. L97B) , cerr. deni-eC
4ZE--U:E; 951 (1980) ; xirksqv v. poard of , supervisFofffi
City, Miss. , 554 F.2d

40
102 S.Ct. at 3280.
542 E.Supp. I050,
remand, extensive
West Helena, Ark. , 675 r'.2d 201, 2L]- (8th Cir. f98ZI.

41
Here, too:, it is unclear how large a role such past intentional
discrimination plays. It may be but one factor in the analysis,
or it may be dispositive. See supra, section V, note 32.

42
Of course, past discriminatory intent may dissipate over time.
An argument can be made that the effect of the discriminatory
intent of the 1875 statute cannot possibly continue to be felt
over a century later. Our argument is that, pursuant to that
intent, a pattern of dicriminatory enforcement evolved which
continues to this day. See qenerally Bolden v. City of Mobile,
Ala., supra, 542 E.supp.E fOfmGE- om
the post-Civil War era with respect to existing electoral system)

See also Bo ,
loEa=lDUE;
historical discussion); Perkins v. City of



-75-

VI. Voting Rights Act

1
See, €.g., Rogers v. Lodge, supra, L02 S.Ct. at 3274; City of
Rome v. United States, 446 U.S. L56, 160 (1980); Mobile v. Bolden,
supra, 446 U.S. at 59; Unj-ted States v. Commissioners of Shef=:.r..:' - -lleld, 4Ja. , 435 U.S. 110, 115-116 (f978) [adopfed bT referenEum) ;
White v. Regester, supra, 412 U.S. at 756-759i A11en v. State
@,.--.3Fu.s. s44 (1969); searcy ffi56
F.2d 1003 (5th Cir. 1981).

Gaston County, North Carolina v. United States, 395 U.S. 285 (1969)
e of Louisiana v.

ffi.s. 145 (1965). stare
iffiEffiamp1e of a case brought ffi971:---This
was the Voting Rights Act of L957, a predecessor statute of the
Voting Rights Act of 1965. The earlier statute was designed,
and generally used, to remedy particular instances of the depri-
vation of voting rights, rather than larger systemic problems,
such as at-large voting, annexation, etc., which are addressed by
the Voting Rights Act of 1965r ds amended. The Voting Rights Act
of 1957 is less powerful than the Act of 1965 in many respects.
For example, the latter act absolutely prohibits tests (e.9.,
J-iteracy tests) that have had the purpose or effect of denying
or abridging the right to vote on account of race or coIor, see
42 U.S.C. S1973b, while the former statute allows the use of 

-literacy tests j.n certain circumstances, regardless of intent or
effect, 42 U.S.C. 51971(a) (2) (C). Similarly, under the latter
statute, there is clearly a private right of action, see, €.9.,
42 IJ.S.C. S 1973a(b) ("an aggrieved person" may sue tffinf6G
the voting guarantees of the fourteenth and fifteenth amendments),
while this is not clear under the former statute. Compare Good
v. Roy, 459 r'.Supp. 403, (D.Kan. 1978) (no private E!'h1El6f-
acTffi') and Brooks v. Nacrelli, 331 P.Supp. 1350, 1351-1352 (E.D.
Pa. 1971)7aW5 (3rd cir. L973) (private right of
action exisEil

Often a
S1973. See,
grounds,-ilE-8
fo-OTTSrh cir. legr).

plaintiff will join a 51971 action to her clairn under
€.9., Toney v. White, 476 F.2d 203, modified on other
F:Td 3ffi973)i searcy v. @Searcy v. Williams, 656 F.2d

These are the vote dilution cases, such as those listed, supra,
section VI, note 1.

See, €.9., Toney v. White, .ggg (enjoining future selective
application of law governing removal of registrants from voter
rolls), United States v. State of Mississippi, 359 F.Supp. 103
(5th Cir. 1966) (enjoining, pursuant to 42 U.S.C. S1971,
discriminatory voter registration practices); United States v.
State of Mississippi, 339 F.2d 679 ('5th Cir. f9.0ffi



42

-7 6-

See, €.9.r United States v. l,lcleod, 385 P.2d 734 (5th Cir. L967)i
UiiTtedEat (5th Cir. 1961). cf .,

s County, Mississippi, 385 F.2d W, L49
ent to interfere with

voting rights); United States v. LePlore County, 371 F.2d 368
(5th Cir. 1967 1 eod, supra, the
court enjoined arrests, 385 nilfry
investigations, id. at 750-752, Els well as the pendi-ng prosecu-
tions. A11 were-'iield to be for the purpose of harassS-ngr or
intimidating blacks in the exercise of the right to vote, in
vj-olation of 42 V.S.C. 51971(b). fn United States v. LeFIore
County, supra, the court did not hold ld
not issue for the harassment that occurred. It merely refused to
labe1 the district court's ruling that there was not intent to
inhibit blacks from voting clearly erroneous.

U.S.C. 51971(b) reads:

No person, whether acting under color of Iaw or otherwise,
shall intimidate, threaten, coerce or attempt to intj.midate,
threaten or coerce any other person for the purpose of inter-
fering with the right of such person to vote or vote as he
may choose, or of causj.ng such other person to vote for, or
not to vote for, any candidate for thd office of President,
Vice-President, presidential elector, Member of the Senate,
or Member of the House of Representatives, Delegates or
Commissioners from the Territories or possessions, at any
general, special or primary election held solely or in
part for the purpose of selecting or electing any such candj-date.

U.S.C S1973i (b) reads:

No person, whether acting under color of law or otherwise,
shall inti-midate, threaten or coerce, or attempt to intimi.date,
threaten or coerce any person for voting or attempting to
vote, ot intimidate, threaten or coerce, or attempt to intimi-
date, threaten or coerce any person for urging or aiding any
person to vote or attempt to vote, or intimidate, threaten or
coerce any person for exercising any powers or duties under...
this title.

United States v. LeFlore Countv, supra, 371 F.2d at 371, n.4.
The footnote states that the court expresses no view as to the
relationship between the two statutes, but does so in the context
of holding that there is a relatively heavy burden of having to
prove intent to coerce or intj-midate voters under 51971(b) . The
tone of the note is that the result might have been different
under S1973i (b) .

Section 2, as amended, reads:

(a) No votj-ng gualification or prerequisite to voting or

42



-77 -

standard, praetice or procedure shal1 be imposed or
applied by any State or political subdivision j-n a
manner which results in a denial or abridgment of
the right to of any citizen of the United States to
vote on account of race or coIor...

(b) A violatj-on of subsection (a) is established if ,
based on the totality of the circumstances, it is shown
that the political processes leading to nomj-nation or
election on the State or political subdivision are not
equally open to participation by members of a class of
citizens protected by subsection (a) in that its mem-
bers have less opportunity than other members of the
electorate to participate in the political process and
to elect representatives of their choice. The extent
to which members of a protected class have been elec-
ted to office in the State or political subdivision
is one cj-rcumstance which may be considered: Provided,
That nothing in this section establishes a rififfi
have members of a protected class elected in numbers
egual to their proportlon in the population.

See Complaint, Appendix C, infra, para. 13-14.

See, a.9. t Tonev v. White, SEB, 476 F.2d at 207-208i Coalition
for Education in District One v. Board of Elections of the City

f-:ZilT0-m-[znd cir . L91 4) (various practices, inc1uffi'!-po11s
not opening on time, lack of bilingual materj-aIs, selective
enforcement of identification techniques, etc., violate sectj-on
2) . cf ., Gremillion v. Rinaudo, 325 F.Supp. 375 | 378 (E.D.La.
Lg7Ll-Ttn protected voters from an actual
or potential denial or abridgement of the right to vote only
where the basis for the infringement was racial discrimination.")

H.R. Rep. No. 227,97th Cong., 1st Sess. (September 15, 1981) at t4

Id. at 15.

The House Judiciary Committee Report relies to a great extent on
U.S. Commission on Civil Rights, The Voting Rights Act: Unfulfilled
Goals (1981). This report ls fulI of anecdotal evidence that
supports an argument that Congress intended that the Act apply
to situations si.mi-lar to this one.

See New York Times, November 2, 1982, Page unknown,' Boston Globe,
November 2, L982, page unknown. fn these two newspapers, articles
appeared concerning Bozeman and Wilder's release on parole.
They began, "Two black women whose vote fraud convictions became
a rallying cry for extension of the 1965 Voting Rights Act won
their freedom yesterday... "

10

11

L2

13

14



15

-7 8-

See also S. Rep. No. 417, 97th Cong., 2nd Sess. (May
25 , 19',',62) -;ESa-SS.

384 U.S. at 831. fn Peacock, the defendants, petitioning for
removal, were members-68-?ivi1 rights group engaged in
registering blacks to vote. They were arested and charged
with such diverse crimes as obstructing the public streets,
illegal operation of motor vehicles and inciting a rj-ot.
384 U.S. at 811, 835. See also Johnson v. ltississippi, 421u.s. 2L3 (197s) (no rem6iEt-T6E om
from picketing agai-nst race discrimination in hiring).

28 U.S.C. 51443 reads:

Any of the following civil actions or criminal prose-
cutlons, commenced in a State court may be removed by
the defendant to the district court of the United States
for the district and division embracing the place wherein
it is pending:
(I) Against any person who is denied or cannot enforce in

the courts of such State a right under any 1aw providing
for the equal civil rights if citj.zens of the United States,
or of all persons within the jurisdictj.on thereof;(2) For any act under color of authority derived from any
1aw providing for equal rights, oE for refusing to do any
act on the ground that it would be inconsistent with such
l-aw.

Georgia v. Rachel, 384 U.S. 780 (1965) (removal granted)

Greenwood v. Peacock, supra, 384 U.S. at 826-827 (removal denied).

See, €.-9., Whatley v. City of Vidalia, 399 F.zd 52L (5th Cir.
f96'g ) 

-Gmo s prosecuted f or activities
connected with voter registration, which prosecution was in
violation of S1973i(b)); Davis v. State of A1abama, 399 F.2d
527 (5th Cir. 1968) (remo ) explicirly
invoked, but not where activj-ties alleged did not fa1I under its
provj-sions). But see State of Louisiana v. Rouse1le, 418 F.
2d, 873 (5th ci-I9ffi') are of
9a1ifornia,413F.Supp.1039(N.D.Ca1if.ffiied).ffiTffihompson v. Brown , 434 F.2a LO92 (5th cir. 1970) (action
Eflunfficffidates against successful black candi-
dates removable under Voting Rights Act).

infra, at 48-50.

15

l7

18

19

20
See

2l
See also Mcleod, supra.



22
See

23
See

24

-7 9-

supra, sectj-on VI, note 1.

supra, section VI, notes 4, 10.

25

26

See supra, section VI, notes 5, L2, 19,

The inevitability or foreseeability of the adverse conseguences
of a neutral rule has further bearing on the question of intent
to discrimj-nate. See, Personnel Administrator of Massachusetts
v. Feeney, ggplS, :lE u

See Searcy v. Williams,
fatffi
applied)

supra, 655 F.2d at 1011 (enjoining
on iEd face because unconstiutionally



-80-

VII. Conclusion

RuIe 23(b)(2), Fed.R.Civ.P., 28 U.S.C.. reads:

An action may be maintained as a class action if the
prerequisj-tes of subdj-vision (a) are satisfied, and in
addition:

(2) the party opposing the class has acted or refused
to act on grounds generally applicable to the c1ass,
thereby making appropriate final injunctive relief
with respect to the class as a whole;

A. Mi11er, Lecture to Advanced Civil Procedure C1ass, Harvard
Law School, Cambridge, Massachusetts (November 8, 1982).

Though I have referred to Bozeman and Wilder throughout, Bozeman
is the named plaintiff in this action, the more politically
active of the two, and the client of LDF.

The slzmbolic leve1 is of great importance here. I have been
told many times of the necessity for maximizing favorable
publicity that will result from this action. This, for example,
is one reason that LDF has insisted that George Wallace be the
named defendant. Generally, insofar as LDF's goals are to make
states wary of actions such as these, and to combat a chilling
effect on black voters' exercise of their rights, such publicity
is crucial. Note also that LDf'needs publicity in order to
maintain their fund5-ng, whi-ch comes largely from individual
donors, solicited by mai1.

See, e.g. , OrShea v. Littleton, supra, 414 U.S. at 495-496;
fi;6 cFfr ;E?. v. Mccinley, !!E3,isFsippi,
supra, 385 f.2d a
iel-onger pending). with respect to the issue of mootness
in the class action context, see, e.9., Sosna v. Iowa, 4!9
U.S. 393, 397-403 (1975) (thou]6F ciFnoffi
plaintiff, class action would proceed where case or contro-
versy had initially existed as to her, where controversy is
ongoing for other class members, and where plaintiff is an
adequate class representative); United States Parole Commis-
sion v. Geraghty, 445 U.S. 388 (

ffiion has been denied, where such denial is
being appealed).



10

11

-8 1-

Bozeman's political rights have, of course, also been chilled
by the enforcement of 517-23-1. The chilling effect of a pro-
secution alone, does not however, mandate equitable relief, see
infra, dt 49, n.38. Further, the purpose of the petition for
habeas corpus is to redress the particular harm incurred by
Bozeman

lge gomment, The Rigttt to Nondiscriminatory Enforcement of State
Pena1 Laws, supra, 51 COLUII.L.REV. at 1139-114@
a-oc-ffi e-proElffiEt ic but not c onc lus ive )

See supra, Introduction, note 12.

The assumption is that blacks will express corlmon interests in
elections, interests opposed to those of whites. Therefore,
chilling the black vote by chilling organizing, absentee voting
and assistance to voters, see supra, section fV, note 2, renders
black interests less 1ikeIy to prevail and accorclingly demeans
every black vote cast.

Ped.R,Civ.P. 23(a) (2), 28 U.S.C.

Fed.R.Ci.v.P. 23(a) (3), 28 tJ.S.C.

Ped.R.Civ.P. 23 (a) (4), 28 U.S.c.

See, e.9., Hansberry v. Lee, 311 U.S. 32, 44-46 (1940) (cIass
ilouiili6c ffie there are "duai and potentiaiiy
conflicting interests)

See, €.9., NAACP v. Button, supra, 371 U.S. at 429-431.

15
fn order to maximize the moral impact of this litigation, I have
recommended to LDF that a rrariety of plaintiffs be woven into
a single plaintiff class: blacks who have been prosecuted and
convicted under 517-23-1, others who have been merely investi-
gated or otherwise harassed for violations of the statute, and
stiIl others who are average black voters, perhaps even voters
who have failed to vote for fear of legal reprisal under 517-23-1.
A class so constructed would make clear that the burden of the
enforcement of 517-23-1 has faIlen not only on those who have
been subjected to its sanctions, but also to the black popula-
tion of Alabama as a whole. Obviously far more research could
be done, and may have to be done on issues of the structure of
the plaintiff class. This, however, is a topic for another
memorandum, if necessary

L2

13

L4



.,, 
t

I -82-

(Ie73);
State of

42 u.S.C. 51971(c) reads, in pertinent part:

Whenever any person has engaged or there are reasonable
grounds to believe that any Person j-s about to engage in
any act or practice which would deprive any other person
of any right or privilege secured by...this section, the
Attorney General may institute for the United States, ot
in the name of the united states, a civil action or other
proper proceeding for preventive relief, including an appli-
Lation ior a permanent or temporary injunction, restraining
order, or other order.

42 U.S.c. S1973j (d) reads:

16
Thus, for example, Chapman v. Meier, 420 U.S. I (1975)
$/as a Voting nightsffi the North Dakota
Secretary of Stater EID official similar in stature to
a state Attorney General, and United Jewish Organizations
of Williamsburgh, Inc. v. Care

ich the Governor is a named
party. Currently, most suits are brought against localities,
but analogically, the same principles hold true. See_, €.9.,
wise v. r.ipscomu, 437 u.s. Egs (Igze) (suit againsilmayor
@ of Dal1as); Hathorn v. Lovorn, 102 s.ct.
2421 (r-gaz) (Iocal and countyffi

17
See, a.g., Morris v. Gressette , 425 F.|rpp. 331 (D.D.C. L976) ,
aEr'd,--Tlz 0-:191 (L977). The question of whether state
Gffifators may be sued is a difficult one. On the one hand,
it appears that the Speech and Debate C1ause of the U.S. Consti-
tutj-on, which shields members of the U.S. Congress from civil
and criminal suit, 999, g-:-L-, Eastlan4.v. IJnited.States Sgr-
vicemenrs Fund, 42L U.S.lg:f, 5oF5I1 (L975) (citing cases),
ffiend to state legislators, United States v.
Gillock, 445 U.S. 360 (1980). However, s@
are protected by common ]aw notions of legislative immunity,
see, a.g., Tenney v. Brandhove, 341 U,S. 367 (1951), and
som-onre a6TFtsm privilege to suits for injunc-
tions as well as those for damag€s, see Star Distributorsr Ltd.
v. Marino, 513 F. 2d 4 (2nd Cir. - 1980f .-
cons ions, including Alabamars, have speech and debate
clauses. See Alabama Constitution Art. IV, 556. Yet cases
like l4orriffi. Gressette belie this unanimity of doctrine;
indee@tive injunctive relief against state
legislators under 42 U.S.C. 51983 are common. See, €.9.,
Dombrowskj- v. Pfister, 380 U.S. 479 (1965) (def61?anffis

legislative committee) .

18
See, e.s., Georgia v. United States, 4I1 U-S. 526
ffiiledltstit .s. L28 (1e6s);

380 U.S. 14s (196s).

19



)t.

-83-

20

Whenever any person has engaged or there are reasonable
grounds to believe that any person is about to engage in
any act or practice prohibited by section L973 [et seq. ] ,
the attorney General may institute may institute-Eoilfre
United States, or in the name of the United States an
action for preventive relief, including an application
for temporary or pennanent injunction, restraining order,
or other order...

But see supra, secti-on Vf , note 2.

The Eleventh Amendment reads:

The Judicial power of the United States shall not be
construed to extend to any suit in 1aw or equityr corl-
menced or prosecuted against one of the United States
by citizens of another Stater or by Citizens or Subjects
of any Foreign State.

See, €.g.,Hans v. Louisiana, 134 U.S. 1 (1890) (Eleventh Amend-
ment does not bar citizens of a state from suing that state).
Note that the Eleventh Amendment does not act to bar suit, only
to bar sui-t in a federal court. The notion that because sui-t is
proper against the individual defendants, that the state can be
brought in as a pendent party is much disfavored of 1ate. See Aldiry
v.Howard, 427 U.s. 1 0916), owen Eguipment & Erection Co. v.
Rroger, 437 U.S. 365 (1978);
TIffis. 2eL (1e73).

See Edelman v. Jordan, 415 U.S. 651, 569 (L974) , citing Monaco
if-r{ffi srs (1e34).

Edelman v. Jordan, supra, 415 U.S. at 663-671.

A1a. Const. Art. VIII, S193; AIa. Code S36-14-1(B).

AIa. Code 536-15-12

A1a. Code 536-15-14

Ala. Code 536-15-15

A1a. Code 536-15-1(3)

LDF prefers not to prosecute, for example, the Distrj.ct Attorney
in Sumter County, who was prevailed upon to dismiss the indict-

2L

22

23

24

25

26

27

28

29



lrg

-84-

ment against prospective plaintiffs Clarke and webster.
supra, section II, note 43. District Attorney Johnston,
EEe-other hand, is a prime target for LDF. Note that the
considerations at hand are political, rather than legally
"pure" in some more academic sense.

30
See qenerally Note, Defendant Class Actions, 91 HARV.L.REV.

--
6--3T- 1f378-Ir Tucker v.-eluy of Montqomery Board of Commissioners,
4lO F.Supp.
of convincing the court that the named representatives of defen-
dant class satisfy Rule 23, Fed.R.Civ.P. ")

31
See supra, sectj-on II.

32
See supra, section II. Note that if, as occurred in, for examPle,
Zayre orf Georgia, g!pg, the court enjoined not the enforcement
of 517-23-1, but the discriminatory enforcement of the statute,
this would require a court superintendancy of all cases arising
under 517-23-1. Thus, in a sense, this is a more intrusive remedy
than simply enjoining the enforcement of the statute as a whoIe,
though not as intrusive as the relief prayed for in 9lShea v.
Littletonr Supra.

See supra, section III.

See
on

See

33

34

35

36

See supra, section V.

supra, section VI.

37

38

See, e .g. , Trainor v. Hernandez , 431 U.S. 434
66aerc3 s v. Miranda,
iiEFm'an v. Pursue, Ltd., aZOffi;

, 401 U.S. 66 (1971)

401 U.s. at 49.

id. at 51. fn this case, the chilling effect
Eason for relief . The harm under the Voting
as a result of discrimination on the basis of
more direct.

(L977) i Rizzo v.
422 U.S. 332 (1975);
o'Shea v. Littleton,

is not the sole
Rights Act, and
race, is much

AIso decided that day were Boyle v. Larrdry, 401 U.S. 77 (1971);
Dyson v. Stein, 401 U.S. 200 (1971) and Byrne v. Karalexis,
ML97L) , all following Younger.

39



1
l<

a

-85-

40

41

Huffman, EgpIE, further extended Younger to injunctions against
state appellate proceedings.

S9e, 9.9j, Wqq&y v. lqylrqr4, 430 U.S. 710-711 (1977 ) (injunction
miE] iffi wffiIIy prospective, where the risk of
prosecution is great, and where constj.tutional rights are at
stake); Allee v. Medrano, 416 U.S. 802, 814-815 (1974) (farm-
workersffiionize,butbeingterrorizedandintimi-
dated by locaI police entitled to an injunction where no prose-
cutions pending in state courts, and where a persistent pattern
of official misconduct existed, infringing constitutional rights);
Steffel v. Thompsgn, 4L5 U.S. 452 (1974) (injunction may issue
ffi of a statute constj-tutioial on its iace,
where prosecution i-s threatened and 1ike1y, but not pending);
Dombrowski v. Pfister, supra (injunction may issue where statute

42

is vague and overbroad and where chilling effect of threatened
prosecutions is alleged with offers of proof).

See supra, section IV.

43
See

44
See

45

See

See

supra, section fI.

supra, section II.

supra, section V.

supra, section VI.
46

47

48

Herer w€ have persuaded bot,h by analogy to other statutory areas,
such as Title VIf, see supra, section V, or by analogy within the
votj-ng rights field to, for example, removal doctrine, see supra,
section VI.

See supra, section VfI, note 29. Note also the problems that
arise because our plaintiff is Bozeman, whom we cannot, politi-
cally d,isplace as named plaintiff, though ideally we might want
to. See supra, dt 44-46.