Hawkins v. Town of Shaw, MS Appellants' Supplemental Brief on Rehearing En Banc

    t

!

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 82-7011

VICTOR UNDERWOOD ANd CARI,IEN
EDWARDS for themselves and al-l-
others similarly situated,

P laint i f f -Appe i. l-ants

vs

NELL HUNTER, etc et aL on behalf
of all other members of Boards
of Registrars in the State of Alabama,

Def endant-Appel- lees

On Appeal from the United States District Court
for the Northern District of Alabama

Appellants I Brief

Neil Bradley
Laughl in l'lcDonaId
Christopher Coates
52 Fairlie St. NW

Atlanta, Ga. 30303

Edward Sti11
Suite 400 Com;nerce Center
2027 lst Avenue fiorth
Birmingham, ALabama 35203
205/322-66 31 '



I

Certificate of Interested Parties

Underwood v Hunter

No. 82-7011

The undersigned counsel of record certifies that the

following listed persons have an interest in the outcome of

this case. These rePresentatives are made in order that the

Judges of this Court may evaluate possibl":Ui=nralification

or recusal.

Victor Underwood, Cqrnnen Edwards, and any other Person

disfranchised for a crime in Atabama not punishable by im-

prisonment in the penitentiary;

Nell- Hunter, Joseph J. Trucks, Thomas A. Jernigan,

Clarice B. Al1en, Cleo F. Chambers, and a1.1 other members of

Boards of Registrars in Alabama;

Edward Sti1l, Laughlin llcDonald, Neil Bradley, and

Christopher Coates, attorneys for plaintiffs;

Charles Graddick, Sarah M. Greenhaw, James S. Ward,

William J. Baxley, and George Jonesr past and present attorneys

for defendants.



STATEMENT REGARDTNG PRETERENCE.

This case is not entitled to a Preference in handling.

STATEMENT REGARDTNG ORAT, ARGUMENT

Five theories of action are presented by this casei

plaintiffs can prevail completely by prevailing on any one

of the theories. The District Court has dismissed three of

them without trial and received evidence at trial on th..

other two. One of the theories (the Readmission Act) presents

a question of first impression. The other theories present

a question not reached in Shepherd v trevino , 575 F2d 1110

(5tfr Cir 1978) , and Richardson' v narni'rez, 418 US 24 (1974) :

the applicabitity of Section 2 of the Fourteenth Amendment

to misdemeanors. For these reasons the plaintiff-appellants

believe that the Court woul-d be well served by oral argument.

l_ l-



TABLE OT' CONTENTS

Certificate of Interested Parties..

Statement Regarding Preference .....

Statement Regarding OraI Argument ....

Table of Contents... ..,..

Table of Citations..

Questions Presented..

Statement of the Case.

Argument

SummarY

Jurisdiction....,...

I. Section 182 violates the "fundamental
condition" of the Act readmitting
Alabama to the Union and is therefore
void

If. Section 182 was adopted with the intent
and has had the effect, of disenfranchising
proportionately more to blacks than whites

III. Section 2 of the Fourteenth Amendment iloes
not al1ow disenfranchisement of some but
not all misdemeanants

IV. The phrase "moral turpitude[ is too vague
and indefinite to reguLate'a fundamental
right

V. The State of Alabama'has riot Proven a
compelling state interest or rational
reLationship supporting its decision
to disenfranchise only some misdemeanants

Conclusion.

a

ii

ii

aaa

iv-vii

I

2-7

8-r0

10

1 1-15

l6-28

29-33

34-39

40-48

49

Certificate of Service.

Appendix

49

l- l- l-



TABLE OF CITATTONS

Cases

Baker v Carr, 369 US 186 (L962) .. . . . . .. . .14

Beachum v Braterman, 300 F Supp L82 (Sp fla
L969 ) (3-judge court) .....32
Burns v F'ortson, 410 US 585 (L973)... ..i.. ....43
Carrington v Rash, 380 US 89 (1965)... ...45

City of Petersburg v United States , 
'.

442 uS 358 (1975) . .. . . . .. ..... .23

Coates v Cincinnati , 402 US 61I (197L) .. . .. . . .38

Corporation of Haverford College v Reeher,
329 F Supp 1196 (EDPa 1971) (3-judge court),.... ...10,35

CoyJ-e v Smith, 22L US 559, 31 SCt 688
(191L)... ....13,14

Damico v California, 389 US 416 (]-967) c

(per curiam) ....44

Diamond v State, 49 ALa App 58, 268 So2d
8so (L972) .. . . ..3s

Dothard v Rawlinson, 433 US 321
(t977)... ..28

Dunn v B]-umstein, 405 US 32L (l-g72) ... ...23,43
Fincher v Scott , 352 f' Supp l-17 (t'lO
NC 1972) (3-judge court).,.. ....32
Georgia v Stanton, 5 lr'al1 . (73 US)
s0 (1867).. ......14

Green v Board of Elections of City
of New York, 380 F Supp 445 (2nd
Cir 1967 ) ... .....32

Hobson v Pow, 434 F Supp 362 (ND
A1a L977 ) .., ..... .....47

Houghton v Shafer, 392 US 639 (1968)
(per curiam) ....44

av



Jenness v Fortson, 403 US 43L (L97L) . . . ..41

Jordan v De George, 341 US 223 (1951)........ .35,36

Karr v Schmidt, 460 f'2d 509 (5th Cir)
(en banc), cert. denied 409 US 989
(Le72) .. .

Kemp v Board of uedicaL Supervisors, 46
App DC L973....

Kronlund v Honstein, 327 F Supp 7L (ND
Ga 19.71) (3-judge court)

Luther v Borden, 7 How (49 US) L (1849)...

Menna v Menna , 702 F2d 617 (DC Cir 1939)...

l'lichaeI I\,1. v Sonoma County suierior
Court, _ US ,101 SCt L200 , 67
LEd2d 437 (1981) ...
Mt Healthy v Doy1e, 429 US 274 (1977 )....
Palmer v Thompson, 403 US 2L7 (1970) ....
PersonneL Administrator v Feeney,
442 uS 256 (L97 9)..

Pippen v State, 192 e1a 513, 73 So
340 (1916) ...
Primus, Ir F€, 436 US 412.

Richardson v Ramirez, 418 US 24
(L974), after remand Ramirez v Brown,
12 CaI 3d 9L2, LL7 Cal Rptr 562,
s28 P2d 37ti (t974) ......:

Riley v Howes , L7 Fza 647 (o tqe :-927 ) . . .

Roe v Wade, 410 US 113 (1973) .. ..
Shepherd v Trevino, 575 F2d 1110 (5th
Cir 7978) , cert. denied 99 S. Ct. 1047
(].g7g).. .....

Sherbert v Verner, gZ4 US 398 (1963) ....
Sims v Callahan, 259 AIa 215, J-12 So2d
776 (19s9)..

v

42

35

32

14

36

20,24

2L

25

22

34

24 ,42

ii,6 ,9 ,21,
29

3L ,37

35

ii, g ,29 ,33

24 ,42

35



u. s.

Texas Department of Community Affairs v
Burdiner _ uS _, 67 LEa2d 207 (1981).... .. - -. 20,22

ThornhiLl v Alabama, 3l.O US 88 (1940).... ......38

Underwood v Hunter, 604 F2d 357 (5th Cir
LgTg) , 622 E'2d l-O42 (5th cir L98O).... -. -2

United States v Alabama, 252 f' SUPP 95
(MD ALa L966) (3-judge court) .. o -.. -.. - . - -. - -.I7 ,45

Socialist Workers Party v March Fong Eu,
59L f2d L252 (9th Cir L978), cert. denied

United States v OtBrien, 39L US 357 (1968).. -.. -.. '.....
United States ex rel Maxillo v Day, L5
F2d 391 (SD NY L926) ... ..... .. o....... - - o.....

Vitlage of Arlington Heights v Metropol-itan
Housing Development Corp., 429 U.S. 252 (L977 ).. - -

Washington v Davis , 426 Us 229, 243 (1976) . - - .....

washington v state, 75 Ala 582 (1884)

Western Union Telegraph Co. y Kansas,

Inlood.s v HoI-y Cross Hospital, 591 r'2d

24,26

35

2L,27

25

;;; ;; ;,;;;;; : :::'^^

116 4
(5th Cir (1979). 42

43

Statutes and Constitutions

Al-a Code s12-14-Is (t975) ....

vl



s17-7-12 (1975).... ..... .. o....... ..48

Act of United States
Act of 25 June L868,
73..

ch, 70, L5 Stat.
,......11

Constitution of Alabama (L868), Art VII, S3,
cl. 3... ....11

Constitution of Alabama (1901), SI82.......... passim

itution of the United States, Art

Constitution of the United States
Amendment L4.. ..... ..... ...29

Miscellaneous

Cong. Gl-obe, 40th Cong. 2d Sess. 2600-09,
2747-8 (1868) . .. o.. ...L2

Const
4, 54

Hackney, Topulism to Progressivism in
Alabama, m
Harris,' Political Power in_ gii11inglam,
1871-l_92ffi ..... .....L7
Hearings on Federal El-ection Reform
Proposals of L977 before Senate Comm. on
Rules and Administration, 95th Cong., lst

McMillan, Constitutional Devetoprnent in
Al-abama l7Alabama 1798-190I, a St"dy i" Po1

t7

16

Note, "The Need'for Reform of Ex-Fel-on
Disenfranchisment l_.aws, " 83 yale L.J.
s8o (1974).. ..- ....47
Rabinowi-tz, Race
South, 1865-1E9-0-

Refations in the Urban
(1e78) l7

Senate Comm. on Rules and Administration,
"Universal Voter Registration Act of 197'l ,"
S. Rep. 95-17L, 95th Cong., 1st Sess. (f977) . . .. ...45

vL1



QUESTIONS PRESENTED

The Constitution of the State of Alabama disfranchises

those convicted of (1) crimes punishable by imPrisonment in

the penitentiary (that is, felonies), Q) certain enumerated

felonies and misdemeanors, and (3) .felonies and misdemeanors

involving moral turPitude.

1. Does this provision violate the condition imposed

on Alabama by the Act readmitting it to the Union in 1868:

that the State could not adopt a suffrage plan disfranchising

more misdemeanants that the 1868 Constitution?

2. Was the constitutional provision passed with the

purpose of disfranchising proportionately more blacks than

whites and has it had the desired effect?

3. May a State thus disfranchise some, but not all,

misdemeanants without showing a compelling State interest?

4. Does such a scheme deny equal protection of the

l-aws to disfranchised misdemeanants?

5. Is the phrase t'moral turpitudet' so vague and

indefinite as to deny due Process o! the 1aw?

1



STATEMENT OT'THE CASE

This is the third appeal in this case challenging

ALabamats disfranchising laws. The prior appeals invoLved

procedural questions. In the first (No. 79-1573) , this

Court reversed (under fifth Circuit Rule 18) the dismissal

of the complaint, 604 F2d 367. The second interlocutory

appeal (No. 8O-7084) sought "l injunction to alIow plaintiffs

and the class they rePresent !o vote in elections that were

to be held in September and November, 1980. The Fifth

Circuit held that no irreparable interlocutory harm had been

shown, 622 F2d l-042.

Proceedings below:

The plaintiffs filed this suit seeking declaratory and

injunctive relief against their disfranchisement under S1B2

of the Al-abama constitution (R 1-5). The complaint alleged

four theories of relief:

First, that s182 of the A1abama constitution of 19ot

denied the franchise to Persons convicted Of misdemeanors

without a compelling state interest.

second, s182 denied equal protection by disfranchising

those convicted of certain crirnes, while a11ow'i,ng Persons

convicted of more serious crimes to vote.

Third, the.term "moral turpitude" used in Sl-.82 was

vague and indefinite.

Fourth, S182 was adopted for the Purpose of distranchising

blacks and has had that effect



The plaintiffs simultaneously filed a motion for

preliminary injunction, stating that their right to vote in

the Lgl8 primaries and general election were being denied

and that immediate action to protect these rights was necessary

(R6-7). The District Court denied tf,e pre)-iminary injunction

and dismissed the first three causes of action (the only

ones on which the preliminary injunction had been sought)

and reguested briefs on the fourth cause of action (n Za-

34'). After receiving those briefs, the Court dismissed the

fourth cause of action on the grounds that the Court is

prohibited from inquiring into legislative intent (R 43).

An appeal was taken from those rulings (No. 79-1573).

The Fifth Circuit reversed summarily, 604 f'2d 367 (5th Cir

L979).

Upon remand., the District Court dissolved its previous

stay of discovery. Pl-aintif fs, after additional discovery,

moved for a preliminary injunctlon to allow the plaintiffs

to vote in the March 19BO presidential primaries, the September

party primaries, the November general election. The second

appeal (_No. 8O-7084) rel-aled to the denial of this preliminary

injunction. The Flfth Circuit held that the p)-aintiffs had

not demonstrated any irreparable harm would befall them in

the interim.

The plaintiffs amended their'complaint to add a fifth

theory (n 140-l-): that the 1901 Constitutionts suffrage

provisions were stricter than those of the 1868 Constitution



and therefore violated the "fundamental condition" imposed

by the Act of Readmissionr Act of 25 June 1858, ch.70, 15

Stat . 73, that Al-abama could not amend its constitution to

deprive additional classes of citizens (except fel-ons) of

the right to vote. The defendants attacked the fifth theory

on the grounds that the Readmission Act condition was uncon-

stitutional (n 142-3). The District court gave natice to

the Attorney General that the constitutionality of the

statute was in question (n 167), but the AttorneY General

never filed an appearance in the case.

The plaintiffs were certified by the Court to represent

atl persons disfranchised .for Commission of misdemeanors;

and the defendants were certified as the representatives of

all Boards of registrars in the state (n 65-5).

Trial of this action was held on 2L July 19BI before

Judge Frank McFadden. Five months 1ater, the Court entered

its final Judgment for the defendant holding that Alabama had

not violated the "fundamental condition" of the 1868 Readmission

Act because its 1901 sutfrage provisions were not stricter

than those of the 1868 Constitution; and that the 190I Consti-

tution Convention had possessed both permissable and imper-

missable motives in adopting 5182 (n 168-73).

Facts: Section 182 of the Alabar,ra Constitution disfranchises

those convicted of the following:
(a) crimes punishable by imprisorrrnent in the penitentiary

(that is, felonies) ;



(b) crimes of "moral turpitude"; and

(c) ceptqin enumerated crimes-

(See Appendix B for the text of 5182). These grouPs overlap

and a specific crime could be in one, two, or three grouPs.

The plaintiffs attacked 5182 only to the extent it disfran-

chised those convicted of misdemeanors in grouPs (b) or (c).

Both plaintiffs had been affected by the operation of.

5182. Victor Underwopd had been purged from the ro11 of

qualified electors by th.e Jefferson County Board of RegiS-

trars. Carmen Edwards was not allowed to register by the

Montgomery County Board of Registrars. The disfranchising

offense of which each was convicted was of uttering a worthless

chebh (1978 T 39-40, 48). It'J,978 T'r is the transcript of the

preliminary injunction hearitg; "1981 T" is the trial trane

script. J

The complaint al]'eged that the Elrst pglendment right to

vote was being denied without a compelling state interest,

that the disfranchisement provision was a denial of equal

protection, and that lhe trmor'al turpitude" requirement was

Vague and indefinite. The first three causes of action were

applicable to both plaintiffs and were the basis of the

motion for preliminary injunction.

Testimony at the hearing on preliminary injunction

established that each plaintiff had been affected as stated

in the complaint and the Court made findings to this effect



(R 26-7) , Testimony also estabLished that the Registrars
depend upon oral or written advice supplied them by the

district attorney or attorney general to determine whether a

crime is one of moral turpitude (1978 T 27-29i 56-59).

The Court denied the injunction and dismissed these

causes of action. The Court analyzed Richardson v,Ramirez,

418 US 24 (J g74) , and held that all crimes could be disfrane

chising offenses under Section 2 of the Pourteenth Amendment,

so long as the rational relationship test was met (n 30).

The Court did not discuss the question of the vagueness of
the phrase t'moral turpitude.r' After the first remand, the

District Court reaffirmed its ruling on the first three

theories (R65-5).

IUs, Edwards, who is black, complains that the purpose

and effect of S182 is to disfranchise blacks disproportionately
(n 4). The District Court initaIIy held that it could not

inquire into legislative motive and dismissed this cause of
action (n 4O-2). This ruling was reversed in the first
appeal, and on remand the District Court allowed this theory

to go to trial.

At the trial on the merits, the plaintiffs introduceo

a1l- of their exhibits previously introduced at the preliminary
hearing plus additional- exhibits, including analyses of the

Montgomery and Jef(erson Courrty registrars I records of
person purged from the rolI of, voters becquse of conviction



the racial composition of the population

is shown in the tables below:

White
Bl-ack
other/unknown

Montgomery CountY

purged for misdemeanor

208 (49r)
206 (488)
14 (3r)

and of those purged

population 1970

L05,670 (53.5t)
60,771 (35,8t)

349 (0.7r)

population 1970

437 ,433 (67.8t)
206,454 (32.0t)

1,094 ( 0.2t)

.lefferson County

purged for miidemeanor

White
BIack

82 (46r)
96 (s4r)

Other/unknown 0

(P.Ex.7r10). Thus in these two counties, which defendantsr

class representatives conceded are typical of a1I Alabama

counti.es, blacks are roughly half of the Persons purged while

only one-third of the population),

With regard to the fifth theory (the Readmission Act) r

the parties stipulated that rrsection 1.82 of the !901 Con-

stitution disfranchises for more crimes than the corresPonding

provision of the Constitution of 1858" (SuPp. Rec.).



SUM],IARY OF ARGUMENT

1. The Act readmitting Alabama to the Union after the

Civil- War included a "fundamental conditionl that Alabama

could not amend its 1868 Constitution I s provision on suffrage

to exclude any additional class of, citizens except for

felons. The plaintiffs raised this fundamental condition as

a bar to the enforcement of the 1901 Constitutionrs dis-
s-anchisement of misdemeanants, who had not been barred by

the 1868 Constitution. The District Court f,ailed to deal

with this issue because it used the wrong Alabama Constitution

as a comparison. If the Readmission Act is yalid and enforceable,

then the constitutional provision in question is invalid and

unenforceable. The defedants have alleged that the Readmission

Act is unconstitutional, but this Court should hold it to be

a valid enactment under either the Guaranty Clause or the

Enforcement Clause of the Fourteenth Amendment. A favorable

ruling on this issue will obviate the necessity of deciding

the federal constitutional claims.

2. The plaintiffs alleged that $ectien 182 of the 1901

Alabama Constitution was adopted with the intent, and has had

the effect, of disfranchising proportionately more blacks

than whites. The expert witness for both parties agreed.

However, the District Court held that the presence of the

legitimate motive (i.q, the purifying of the electorate)

saved Section 182. There is no evidence in the record to

support this finding by the District Court. Even if the



Court was correct about the existence of q legitima,te motive,

the defendants have not demonstrated that the Constitutional

Convention would have adopted Section 182 in its present form

if it had not served their racist motives. The evidence

showed that Section 182 has recently been fulfilling its

racially disparate purpose. An analysis of the registrarsr
records shows that blacks are di.sfranchised by the op-eration

of, Section 182 from L.74 to 2.5 times as often as whites.

3. The District Court interpreted Richardson 'v Rarnirez ,

418 US 24 (1974) , and Shepherd v Trevino, 575 f"2d 1110 (5th

Cir L9781, as holding that Section Z of the Fourteenth

Amendment a11ows the disenfranchisement of both felons and

misdemeanants, This interpretation stretches the legislative

history of, the FourteenlS qrnendment, and the case law inter--

-retation of it, too far. No previous case has held this

provision applicable to misdemeanor convi.ctions.

4. $ection 182 of the 1901 Alabama Constitution dis-

franchises those convicted of, inter a1ia, crimes involving

"moral turpitude." Appellants assert that this phrase is t.oo

vague and inCefinite to be used in regulating such a funda-

nrental right as voting. /ittempts to define "mora1 turpitude"

are usually reduced to citing an unwritten rnoral or religious

code, There is no universal agreement on how this definition

should be applied to particular cases. Certain crimes may-or

may not involve "moral turpitude" depending on the juris-



diction; the definition also changes as the public's mores

change. For example abortions are now lega1 but were only a

short time ago held to be crimes of moral turpitude. If the

state is going to legislate morality, the Court should insist

that the moral code be spelled out so that all who have eye

may See, See, Corporation of Haverford College -v Reeher, 329

f' Supp 1196 (EO pa 1971) (3-judge court). The record shows

that those who administer the definition were unsure of what

offenses are emcomPassed and had to resort to their lawyers

for instruction,

5. Whether one utilizes the rational relationship or

compelling state interest test, there is no justification for

picking out certain misdemeanants for disfranchisement.

There is no evidence that persons committing these crimes are

more like1y to comrnit election offenses. The available

evidence shows that election offenses are more J-ike1y to be

committed by election officials or those highly interested in

elections (a group that is significantly different from the

group 1j-ke1y to be arrested and convicted for nonelection

offenses).

STATE]"1E}i-T REGARDTNG JURISDICTION

This is an appeal from, a final judgment and is therefor-e

appealable under 28 USC 51291. The Supreme Court does not

have direct review authority: the case was heard by a sing1e

judge and the United States v,'as not a party.

IO



Section l-82 violates the "fundamental condition" of

the Act readmittin ALabama :to the Union and is therefore

void.

The Act of 25 June 1868, ch. 70, 15 Stat. 73, readmitted

Alabama and several- other states as members of the Union,

upon the following fundamental conditions: 'That
tte constitutions of neither of said States sha11
never be so amended or changed as to deprive any
citizen or class of citizens of the United'States
of the right to vote in said State, who are entitled
to vote by the Constitution thereof herein recognized
except as punishment for such crimes as are noh,
felonies at common law, whereof they sha1l have
been duJ-y convicted under laws equally applicable
to all i-nhabitants of said State ****,

At the time of its readmission to the Union, the Alabama

Constitution of 1868 disfranchised certain war criminals,

certain Confederate officials, and

Those who sha j-I have been convicted of treason,
embezzlement of public funds, malfeasance in
office, crime punishable by Iaw with imprisonment
in the penitentiaryr or bribery.

A1a. Const. (1868), Art. VII, S3, c1. 3.

As part of the pretrial procedures, the parties

a statement of agreed and d.rsputed facts (Supp. Rec.)

Paragraph 3 of the agreed facts stated, "Section 182

1901 Constitution disfranchises for nore crimes than

prepared

of the

the

corresponding provision of the Constitution of 1868.

The District Court disposed of this theory with a

convoluted holding that the term "high crimes and misdemJanors"

in the suffrage provision of 1868 Constitution included

11



crimes involving moral turpitude, and therefore uttering a

worthless check had actual-Iy been a disenfranchising crime

in 1858 (R 169). Fortunately, we do not have to attempt to

parse the Courtrs reasoning: the whole conclusion is inapposite

because it is based on a the wrong constitution. The

District Court quoted the 1865 Constitution, but labelled it

as the 1867 Constitution. (The Constitution at issue here

has been caLled the 1867 or 1868 Constitution because it was

drafted in 1867 but became effective in 1868.) The 1855

Constitution is an entirely different docu,'nent, adopted by

the so-calIed Presidential Reconstruction government of

Alabama. The District Judge simply cited the wrong constitution,

so his entire reasoning and conclusion fall when this keystone

is removed.. The 1868 Constitution makes no reference to

"high crimes and misdemeanors" (see Appendix B).

The issue becomes whether or not the Readmission Act is

vatid and enforceable. If it is and the 1901 Constitution

added new misdemeanors not found in the suffrage provision

of the l-868 Constitution, the 1901 Constitution violates

the Act. In this dispute-,, the plaintif fs have the advantage

of the presumptive val-idity of Acts of Congress and of the

Supremacy Clause. It is the State of Alabama which contends

that this federal. statute is unconstitutional.

The "fundamental conditions" proposed for the readmission

of the rebel states evoked a long debate in Congress. See

9qry-r--S]g!e, 40th Cong . 2d. Sess, 2600-09 , 27 47 -8 (1868) '

I2



The idea of imposing conditions or provisions on the admission

or readmission of states did not begin or end with Recon-

struction, Several such provisons have been given plenary

consideration by the Supreme Court. The leading case concerns

the condition attached to the admission of Oklahoma. Oklahoma

was admitted on the condition that it not change the state

capital- from Guthrie for at least seven years. Property

owners in Guthrie attacked a l-aw removing the capitai- to

Oklahoma City before the expiration of seven years. The

U.S. Supreme Court discussed three types of conditions that

might be imposed when admitting a new state

[we] must distinquish, first, between provisions
which are fu1fi1led by the admission of the State;
second, between compacts or affirmative legislation

' intended to operate in futuro, which are within
the scope of tfre concEded- powers of Congress over
the subject; and third, compacts or affirmative
legislation which operate to restrict the Powers
of such new States in respect of matters which
woul-d otherwise be exclusively within the sphere
of state power.

Coyle v Smith, 22L US 559, 31 SCt 688, 690 (1911). The

state capital site proviso was invalid aS being the third

type of proviso, but the Court made clear that Congress may

adopt the second type of provJ-so:

But in every such case such legislation could
derive its force not from any agreement or compact
with the proposed new state, nor by reason.of its
acceptance of such enactment as a term of admission,
but so1ely because the power of Congress extended
to the subject, and therefore would not operate to
restrict the state I s legislative Power in respect
of any matter which was not plainly within the
regulating power of congress.

13



covle v Smith, 3I SCt at 693.

The t'fundamental condition" in the Readmission Acts is

"within the scope of the condeded Powers of Congress over the

subject" and therefore va1id. There are two protected

sources of Congressional Power to enact such a clause: the

Guaranty Clause and the Equal Protection Clause.

The Guaranty Clause provides, "The United States shall

guarantee to every State in this Union a Republican Form of

Government ***.t' U.S. Const., Art. 4, 54. The nature of a

republican form of government is a political question and has

been deemed a non-justiciable issue. Baker V Carr, 359 US

l-86, 2L7-225 (1962). A case is which a party asks a court to

rul-e that a particular practice or form is or is not a

republican form of government is therefore usually declined

by the court. If one of the "political branches" has made a

decision about the validity vel non of a state government,

the courts are likewise loath to intervene in that decision.

Georgia v Stanton, 6InIalI (73 US) 50 (1867) (Congress had

refriseC to recognize the validity of rebel state governments);

Luther v Borden, T How (49 US) 1 (1849) (the President calIed

out the militia to support the "charter" government of Rhode

Island). In this case the courts should recognize the Congressional

decision that one appropriate test for a republican form of

government is continued adherance, at the least, to the

enfranchisement policy adopted in 1868.

The Readmission Act "fundamental conditions" may also be

T4



upheld under the Equal Protection cLause and the power granted

congress by section 5 of, the Fourteenth Arnendment

This Court may rule on this theory without remand. The

essential facts are not in dispute; the only question is one

of law that this court may decide. In, addition, deciding

this case on this statutory issue wiLl'comport wi.th the usual

rule of deciding cases on statutory grounds where possible'

15



and has hadII.

the

Section 182 was adopted with the intent,

effect' of disfranchisin r rtionatel 'more blacks

than whites '
A. The Historv Lesson

TheFourthCauseofActioninthecomplaintallegedthat

Section 1.82 of the 1.901 Constitution was adopted as a method

of disfranchising large numbers of blacks and that the pro-

vision had that effect. It cannot seriouslY be denied that

the purpose of the 1.901 Convention was the disfranchisement of

blacks.AppendixBcontainsthetextsofthesuffragepro.

visions of the Alabama constitutions of 1868 , L875, and 1901'

The 1901 Constitution was a dramatic change from the 1875

constitution and from the earlier tradition of democracy in

Alabama.

The Constitution of 1819 contained no.property'
educational, militia, taxpayitg, or-gimi1ar
qualifications for voting- and provided for uni-
iersal white manhood sufirage. Ln its suffrage
and other general divisions it was noted al-ong
with the constitution of KentuckY for +t= demo-
cracy. The Constitution of 1901 contained property'
liteiacyr good character, understanding' vagrancy'
f"tty "ii*5=, and poll tax clauses, which limited
lr," iuffrage and mide it the rnost complicated

=.-.iti.g" .iti.t" in any of the state constitutions.
It t"pi"=.nted a crastic break with the past as no
previLus constitution of Alabama had contained any
of these provisions- Universal white manhood
suffrage irad existed since 1819 and universal
manhood s"ftrif- since 1868. The Constitution of
igor effected ; revolution in state politics ***
[y aisfranchising the negro and m4ny whites as

well-.

McI.{i11an , Constitutional DeveloPment iIin Alabama, 1798-190I:

in Politics, the Negro, andA Stud

15

Sectionalism 363-4



(1955). The totaL effect of the suf frage

po}I tax

v Al-abama

clear

the

,99

provisions was

provisions of

, 252 FSupp 95

to the court which invaLiated the

1901 Constitution, United States

(uo ala 1966) (3-judge.court) -

The complaint alleges that the "petty crimes" provision

was added to the I90I Constitution for the purpose of disfran-

chising blacks and not whites. Historical evidence produced

in this action supports this. The 1898 Democratic Convention

had pledged "that no white man would be disfranchised, Do

matter how illiterater" Hackney, Populism to Progressivism

in Alabama 165 (1965), It is reasonable tO assume that this

constitutional provision came close to comporting with this

pledge, in light of the high proportion of blacks who were

brought before the municipal courts (which at that time, &s

now, had only, misdemeanor jurisdiction) in the post-wa.r

period. Rabinowitz, Race,Relations in the lJrban south

I865-1890 44 , 49 (l-978) ; Harris, PoIitical Power in Birmingham'

1871 -:-g2:- 202 .:-g77) . The author of the petty crimes Pro-

vision had chosen the specific crimes listed because Of their

disparate impact on blacks.

Most of the proposals Ifor suffrage articles in
the I9O1 conveniionl disqualified persons commit-
ing any one of a long list of petty as weII as

="iio,ri crimes which-the Negro, and to a lesser
extent the poor whites, most often committed'
Most of the crimes contained in the report of the

Convenf.ionl came from an ordinance by John Fielding

T7



Burns, a B1ack BeIt planter. The crimes he listed
were those he had taken cognizance of for years ln
his justice of the peace court in the Burnsville
distiict when near)-y all his cases involved
Negroes. ***

Mcl'ti11ian at 275 (text and accomPanying footnote).

The defendants presented the testimony of Dr. J. Mi1ls

Thornton to demonstrate that the provision had a dual

discriminatory PurPose to disfranchise all blacks and

many poor whites. Dr. Thornton estimated that 178r355

blacks and 35 t2g4 whites were disfranchised by the 1901

Constitutionts suffrage provisions in the first 13 months of

registration (December l-9O1-December 1902) ' Dr' Thornton

did not testify as to the reason for each denial of registration;

some persons could have been excludable for several reasons.

But he examined the racial. statistics for the jails and

prisons and estimated that the "petty crimes" provision

(5182) could have been used to bar about 7t of the disfranchised

blacks and about 3g of the whites. Because 5 times aS many

blacks as whites were disfranchised through sQme method, it

appears that S1B2 had a ten-fold impact on blacks (1981 T

79) .

Dr. Kousser also concluded that the framers of the 1901

Constitution intended to disfranchise blacks through S182'

He notes that there was some residual doubt among the 1901

drafters that the "grandfather clauset' (designed to register

most whites under an easy provision and exclude most blacks)

would withstand constitutional scrutiny. The discretion

18



given to registrars to decide if an applicant was of good

character was an additional safeguard if the grandfather

clause was invalidated. Finallyr S182 was another provision

that would have a disparate impact even if all others failed
(Kousser depo, VoI. I, ,18-24). Thus the white supremacists

provided themselves with multiple lines all others failed
(Kousser depo, VoI. Irjl8-24). Thus the white supremacists

provided themselves with multipte lines of defense.

B. The District Courtts'Opinion

The District Court held that there was no evidence that

5182 was "based upon the racism present at the Constitutional
convention" (n 191). This holding is clearly erroneous in
that it flies in the face of the testimony of both the

defense and plaintiff experts. Dr. Thornton testified as

follows:

a. And I will ask you Dr. Thornton, in your opinion, is
it necessary in talking about the 1901 Convention to
examine it and look at it as a whole as opposed to any
pieces?

A. Yes, absolutely.

a. And is it necessary then, in order to determine what
the intent of the drafters of Section 182 might have
been, to examine the Convention as a whole and the
suffrage article which was passed as a who1e.

A. Yes.

(1981 T 50-1). Dr. Thornton pointed to 5182 as an example of

a "public relations" tool .r""U to convince whites that the

suffrage article of the 1901 Constitution would affect blacks

I9



and not themselves: "these crimes are put in precisely

because they are associated in the public mind with the

behavior of blacksu (198L T 69-70). Dr. Kousserts opinion,

based on this same historical evidence, was that 5182 h'as

sPecificallydesignedtodisfranchiseadisproPortionate

number of blacks (Kousser depor VoI I, 5-18) ' 
:

The District court then held that there was arso a

permissable reason for 5182: "The State has a valid interest

in denying the franchise to those convicted of violating its

laws" (R l-71). Since there! was both a permissable and a

forbidden reason, the Court held, "an impermissable legis-

lative motive standing alone will not invalidate permissable

legislation' (R l7L-2). There are two flaws in this holding:

it is without foundation in the recordr and, it incorrectJ-y

states the Iaw.

There is no evidence in the record that the Convention

intended any "good government" reasons for the expansion Of

the list of disfranchising crimes (see Appendix B). The

defendant failed to introduce any "admissable evidence" which

would rebut the plaintiffs t prima facie case of discrimina-

tory motive, Texas Department of Comrnunity Affairs v Burdine,

US , 67 LEd2d 2O7 , 2L6 (1981).

The District Court based its holding on a fqotnote in

the plural.ity opinion in Michael M, v Sonoma County SuPerior

Court'r " " US , 101 SCt 12OO , 57 LEd2d 437, 444 n-7

that a constitutionally permissible motive(1981) and held

20



will always override an impermissible one.

that Alabama had a valid interest in denying

those convicted of violating its laws, such

based not on evidence but upon its citation

Ramirez , 4]-8 US 24 (L97 4l .

It then concluded

the franchise to

conclusion being

of nichardson v

Reliance upon plurality footnotes for the final view of

the 1aw is always dangerous. Here it 1ed the District Court

to err. The Michael M. footnote may not be inaccurate in

what it says; but what it omits is more relevant than what it

says. Contrary to the District Courtrs views, if there exist
permissible and impermissible motives where there also exists

discriminatory impact, the proper avenue is to advance to the

next issue rather than ending the inquiry.

We believe that the proper inquiry, once discriminatory

motive and impact have been shown, is stated by Village of

Arlington Heights v Metropolitan Housing Development Corp.,

429 US 252, 27]- n.21 (1977 )
I

Proof that the decision by the Village was motivated in
part by a racially discriminatory purpose would not
neces.sarily have required invalidation of the challenged
decision. Such proof would, however, have shifted ta
the Village the burden of estabLishing that the same
decision would have resulted even had the impermissible
purpose not been considered

Clearly the inquiry is not "was there a permissible motive";

rather it is, given the permissible and impermissible motives,

whether the state authorities can prove that their permissible

motive would have Ied to the same result. This proof must be

by a preponderance of the evidence. In Mt. Healthy v Doy1e,

2L



A29 US 2'74, 287 (L977) , decided the same day as Arlington

Heights, the Court held that a school board in dismissing a

teacher for valid and invalid reasons must show as follows:

tTl he District court should have gone on to determine
whether the Board had shown by a PrePonderance of the
evi-dence that it would have reached the same decision
as to respondentts employment even in the absence of
the protected conduct. U

Personnel Ad.ministrator of Massachusetts v Feene , 442

us 256 (1979), certainly follows this process. The Court

first found that the legislative choice to give a competitive

head start to veterans, perceived to be a particularly

deserving group, was a legitimate legislative judgment so

found the the District Court and not even disputed by the

Plaintiff. Feenevr 442 US at 277. If the Michael M' foot-

note correctly stated all of the Iaw, Feeney woul-d have ended

the inquiry right there. Of course, it did not. It examined

the claim of an impermissible motive, articulated the "in

part because of, not merely in spite of" test for examining

the existence of impermissible motive, and thbn concluded

l/ Ii.I cases of statutory violations based on a prima
facie=.u.=" of effect without proof of inLent, a defendantsr
burden of rebuttal is based on texas oep!' .?!=9?r'urrulity
Affairs v Burdine, US , 61-LEd2d 207 (I9BI); the
iffi="= a leE-ser burden than in constitutional
a"="=;" which fot. Uealthv requires proof of an intent to
discriminate.

22



that proof that an impermissible motive existed was lacking.

U Feeney, 44.2 US at 279.

To hold that the existence of a permissible motive ends

the inquiry would destroy several principles long embedded in

our 1aw; for example, that acts generally lawful may become

unlawful when done to accomplish an unlawful end, City of

Petersburg v United States, 422 US 358, 379 (1975), and a

constitutional po$Ier cannot be used to attain an unconsti-

tutional result. Western UniOn TelegraPh Co. v Kansas, 2LG

us 1 (1910).

once an impermissible motive and an injury have been

shown (injury such as restriction of speech or racially

discriminatory impact), the burden shifts to the state to

show (a) what its valid interest (motive) is and (b) that the

means the State has chosen to implement its interest is

necessary. Since we are dealing both with the elective

franchise and racialy discrimination, the former must be "a

compelling state interest" and the latter must be "the least

restrictive means necesSary." .Dunn v Blumstein, 405 US 330

2/ The Feeney opinion did not have to continue on as
erliniton geigEfland boy1e. indicate to determine if the
decision was iral-id forlErmissible reasons in spite of an
impermissible one, for the Supreme Court found that there
*ai a faiLure to establish an impermissible motive.

23



(t97 2) .

The existence of a compelling state interest, i.e., a

permissibLe motive, is not a matter for conjecture or theory

by the staters lawyers. It must be one actually held by the

state as evidenced by an authoritiative state body, either

the J-egislature or the state court. Michael M. V SuPeriOr

Court of Sonoma County, 'US , 101 SCt 1200 t 1205, 67

LEd2d 437, 443 (1981), In Sherbert v Verner, 374 US 398, 4O7

(1963) , the Supreme COurt refused to consider a rationale

suggested for the first time on appeal by the state's attor-

neys party because the state court had not expressed a view

of this asserted state interest. The state "must demonstrate

a subordinating interest which is compeI1iD9." tIn re Primus,

436 us 4L2, 43? (1978).

That this analysis is correct is suPPorted by the cases

cited in the Michael M, footnote. United States v OrBrien,

391 US 367 (1968) , decided the constitutionality of a criminal

statute forbidding the destruction of Selective Service

registration cards, The Court found the legitimate PurPoses

:t 
Congress and then concluded,

I{e perceive no al-ternative means that would more Precisely
and narrowly assure the continuing availability of
issued Selective Service certificates than a law which
prohibits their willful- mutilation or destruction.

391 US at 381. The Court was clearly not impressed with the

evidence of illicit motive, but there would have been no need

for the above quoted conclusion if a permissible motive ended

the inquiry.
24



The l'lichaeI !1. footnote is misleadingly applied by the

District Court here. That quote, "this Court will not strike

down an otherwise constitutional statute on the basis of an

al-Ieged ilLicit legisJ-ative motiv€, " does not mean that the

Court wilL sustain a statute that has a permissible motive

regardless of whether or not it is not the least restrictive

means necessary if a personts constitutional rights are to

some degree affected. O'Brients constitutionat right of free

speech was impinged uPon, but the statute was constitutional

because it was the least restrictive means necessary. If

the latter had not been found, overt proof of 1-egislative

motive would not have been necessary because discriminatory

impact or infringement of free speech was apparent in the

case. OtBrien did burn his card as an anti-war exPression,

not merely a criminal desire to destroy a government issued

card. OrBrien, dt 384, and later cases such as Feeney,

supra, at 2294, recognized that there are cases in which thq

inevitable i-mpact of a statute on its face may render it

uncon sti tut ional-

Michael 1,1.'s citation of Palmer v Thompson, 403_us 217

(1970) for the proposition that motive was not open to

impeachment by proof of illicit motive has no apPlication to

cases such as this where discriminatory impact is proved.

washington v Davis , 426 US 229, 243 (L976) c1ea51y demoD-

states the distinction:

Whatever dicta the opinion IPalmer v Thompson] may

25



contain, the decision did not involve, much less invalidate,
a statute or ordinance having neutral PurPoses but
disproportionate raciaL canlsggences. (Emphasis added).

At the risk of frailing a dead horser w€ feel constrained

to point out that the District Court in quoting t'lichae1 M.

quoting United States v OrBrien failed to differentiate

between a statute which is t'otherwise constitutional" and a

statute which while having a permissible motive has not yet

been determined to be "otherwise constitutional." The reason

the District Court failed in this matter is undoubtedly

because in quoting Micha€I M., it substituted the words "a

statute" for the words "an otherwise constitutional statute"

(n l-73) .

The correct quotation found in orBrien and quoted in

l,lichaeL M, is as follows:

It is a familiar principl-e of constitutional law
that this Court will not strike down an otherwise
constitutional statute on the basis oE an-EITe-ged

ive.' (emPhasis added) .

United States v OrBrien, 391 US 367, 383 (1968). Por a

statute to be unconstituti_onaI the complaining party must

show an illicit motive and that the statute impinges uPon

some constitutionatly guaranteed right. To be otherwise

constitutional, the state must show that the statute has a

permissible motive and that either (a) it would have reached

the same result regardless of the illicit motive or (b) that

it impinges upon the constitutionally guaranteed right in the

26



least restrictive means possible. When these are shown, the

complaining party can no J-onger attribute the action of the

state to impermissible motive. Villagre of Arlington Heights

v Metropol-itan Housing Development Corp,, 429 US 252, 270

n.2L (L977) . That is what "otherwise constitutional statuterf

means, it does not, as the District Court ruledr rTl€&D a

statute that merely has a permissible purpose or motive,

C. Proof of DisparatE frnpact

Flaintiffs have established the disparate impact of the

disf::anchisement-for-crime clause in Jefferson and Montgomery

counties (which the District Court held to be typical of the

other counties when it certified their Boards as class

representatives. A,nalysis of the Jefferson County Registrarsr

records of, persons, some two hundred, purged during the 1974-

8 period (P,Ex. 7) reveals that 54t of those disfranchised

for commission of a misdemeanor were black. Jefferson Countyrs

voting age population is on1y.32t black according to the L97O

census. This demonstrates that blacks have over 2.5 times

the f-ikLihood of being disfranchised by 5182 as whites. The

analysis of misdemeanants purged in Montgonery County is

similar. While only 35.88 of the population is b1ack, 4BB of

those disfranchised for misdemeanors were black. BIacks in

Montgomery County have 1.74 times the chance of being disfran-

chised by S182 as whites. This sort of disparity requires

something more in rebuttal than the vague homilies defendants

have offered about disfranchising immoral people.

27



These results estabLish a prima facie case of effects.

Plaintiffs woul-d suggest this strongly butresses, if it is

not alone sufficient, proof of intent to discriminate on the

basis of race. See e.g., Dothard v Rawlinson, 433 US 3?t,

328-331 (L977) (40t disparity in impact of height and weight

restrictions established prima facie case).

28



III. Section 2 of the Pourteenth Amendment does not a11oW

disenfranchisement of .some but not all misdemeanants.

The complaint attacked S182 of the Alabama Constitution

on the grounds that it denied the right to vote without a

compelling state interest and denied equal protection of the

laws. The plaintiffs alleged that this violated their rights

under the First and Fourteenth Amendments to the United States

Constitution. The District Court dismigsed the first, second,

and third theoriejs (R 65-6) and stated it was f,oltowing the

interpretation of Section 2 of the Fourteenth Amendment found

in Richa,rdson v Rqmirez, 418 US 24 (\9741 , Kronlund v Ilonstein,

327 F.Supp. 7L (wp ca 1.971) (S-iudge court), and ShePherd v

Trevino, 575 F2d 1110 (5th Cir 1978), cert. den. 439 US ].L29

(1979). We submit that the Court clearly misinterpreted.

Richardson and XtonfrnJ and its opinion is inconsistent with

the holding in Shepherd.

In Richardson v Rqmirez, supra, the $upreme Court examined

the legislative history and the contemporary circumstances

29



surrounding the adoption of S2 of the Fourteenth \rnendment and

noted the fe|lowing:

Representative Echley of ohio made this observation:

,Under a congressional act persons convicted of a crime
against the i.rs of the uniled states, the penalty for
which is imprisonment in the penitentiary, ?r. now and

always have been disenfranchiied, and a pardon did not
restore them unless th;-warrant of pardon so-p::ovided.''
*1* lco"gl-"ci;;;;-391h cong. r lsr 5ess., 2s3s (1856) I

418 US'at 46. The Court aLso noted that, Bt the time of the

adoption of the Fourteenth Amendrnent,

29 states had Provisions
prohibited., or authorized
exercise of the franchise
or infamous crimes.

in their cons'titutions which.
the 1-egislature to Prohilit,
by perlons convicted of felonies

418 US at 48 (footnote omitted) ' Finallyr the Cour't cited

Section 5 of, the Reconstruction Act, Act of 2 March igOZ'

c. 153, 14 Stat' 428, which provided rebel states would be

readmitted uPon adoption of a constitution providing for

universal manhood sufferage "except such as may be disenfranchised

for participation in the rebellion or for felony

30



at conrmon law.rt 418 US at 49 (emphasis added).

The Richardson Courtrs discussion of the lack of pre-

cedent in this field shows the limits of the holding: "the
Court has never given plenary consideration to the precise

question of whether a state may exclude some or all con-

victed. felons from the franchiser" 418 US at 53 (emphasis

added). Since the California provision under attack ex-

cluded all convicted felons, the holding of the Court must

be limited to that situation. The Court did not rule
whether a state may pick and choose which fel-ons it will
disenfranchise. In fact, the Court remanded the case to the

Supreme Court of California for consideration of the ex-

felons' challenge.to the uniformity of the enforcement of

the .ex-felon disenfranchisement. (This issue became moot up-

on a change in the California Constitution. Ramirez v.
Brown, L2 Ca1.3d 9L2, 117 Cal.Rptr. 562, 528 P.zd 378

(le74 ) . )

From these portions of Richardson, it is clear that the

Supreme Courtrs ruling is limited to a situation in which

the state disenfranchises at1 felons and not a situation in
which some but not all felons are disenfranchised or one in
which some but not all misdemeanants are disenfranchised.

The present case attacks 5182 of the Alabama Constitution

only as it applies to persons convicted of crimes carrying a

31



maximum penalty of one year or 1ess. Within this grouP,

only those convicted of certain enumerated offenses or a

crime involving moral turpitude are disenfranchised. It is

this haphazard picking and choosing that plaintiffs attack

on due process and equal protection grounds.

Other cases which have considered similar disenfran-

chisement provisions are inapposite to the quest'ion of

whether a State may disenfranchise some misdemeanants and

some felons. Three of the five federal cases from lower

courts are limited by their terms to an across-the-board

attack on disenfranchising all felons. Pincher v. Scott,

352 F.Supp. 117, 118 (MD NC L972) (3-judge court) ("May one

of the States of the Union eonstitutionally deny the fran-

chise to convicted felons?t'); Beacham v. Braterman, 300

F. supp. L82, 183 (SD FLa. 1969) (3- judge court) (r'The

initial question before the Court is whether a state may

constitutionally exclude from Lhe franchise Persons other-

wise qualified to vote who have been convicted of a feIony.")

Kronlund v. Honstein , 327 ?.SupP. 7L, 73 (ND Ga. 1971) (3-

judge court) ("The initial question Presented is whether a

State may constitutionally disenfranchise otherwise qual-

ified voters because they have been convicted of a felo-

nY.")'

Green v. Board of Elections of Cit of New York, 380

F.Supp. 445 (2nd Cir. 1967), must also be l-imited to its

32



specific hording that felon disenfranchisement is consti-
tutional. The Court spoke of ,perpetrators of serious

crimesr" 380 F.2d at 451, and specifically reserved ruring
on less serious crimes (Green was convicted of conspiracy to
overthrow the federal government) :

There meyr of course, be crimes *** which are of such
minor significance that exclusion for their commission
might raise not only a question of wisdom *** but even
a substantiar constitutional question at least if we
looked at SI of the Fourteenth Amendment alone.

380 F.2d at 452. The court then discussed s2 of the Amend-

ment but that analysis has been supplanted by the Supreme Courtrs
analysis of 52 in Richardson.

In Shepherd v Trevino, this Court read Richardson as

applying to felons onIy, 575 F2d at 1113, and held that any

distinctions made between felons "must bear a rational
relationship to the achieving of a regitimate state inter-
est," 5'75 FZa, at 1115. The District Court in this case

glossed over the fact that Richardson and Shepherd had dealt
sorely with felons and decided that section 2 was equally
applicable to misdemeanants. As we have shown, supra, this
is not =rpport"i by the legisrative history or prior case

1aw.

33



IV. The phrase "moral- turpitude" is too vague and indef-

in.ite to regulate a fundarnental, right.
A. Th€ 'staters Moral Code

As already noted above, the three categories of of-

fenses mentioned in SL82 overlap. Because of this, the

definition of crimes of moral turpitude becomes important

only if the crime does not faII within one of the other

categories: the l-isted crimes or crimes punishabl-e by

imprisonment in the penitentiary. For these crimes which are

not included in those two categories, the Boards of Regis-

trars must judge whethe.r the crime is one of "moraI turpi-

tude. "
The Supreme Court of Al-abama has defined moral turpi-

tude as something immoral in itself, regardless of whether

it is punished by the law:

[T]he act itself must be inherently
immoral-. The doing of the act it-
se1f, and not its prohibition bY
statute, fixes the moral turpitude.

Pippen v Sta.te , I-g7 AIa 513, 73 .So. 340 (1916). The Alabama

courts have excluded the follovring crimes from the defi-

nition of moral turpitude: assiult and battery, bootleg-

ging, selling cocaine, violating the prohibition laws by

distilling whiskey, doing business without a license, tres-

pass to land, using abusive and gbscene language, public

drunkeness, violation of the Harmon Narcotic Act, mailing

34



obscene, lewd, lasciviousr OE filthy pictures (see list in

Sims v Ca11ahan , 269 ALa 2L6, L]-2 So2d 776 [1959] ) , or

driving while intoxicated (Diamond v. state , 49 ALa App 68,

268 So2d 850 lJ,g721t. In contrast to Alabamars permissive

attitude, the Supreme Court of the United States found that

Mr. De George had committed a crime of moral turpitude by

bootlegging. Jordan v DeGeorge, 341 US 223 (195I). Of

course, D€ George was accused of defrauding the government

by failing to pay liquor taxes. Perhaps the difference was

that the Alabamians were making and selling liquor when the

state did not collect taxes but had complete prohibition in

effect, while DeGeorge sold a 1e9aJ- substance i11e9a1ly.

Similarly, changes in public attitudes make changes in

moral turpitude. While mailing materiat explaining how to

get an abortion was considered a crime of moral turpitude in

Kemp v Board of Medical Supervisors, 46 App-D.C. ]-73, L81,

the Supreme Court now tells us that an abortion during the

first trimester of pregnancy is protected by the motherrs

right of privacy. Roe v I{ade, 4Lo us I13 (1973) . A large

segment -of society no longer beLieves lf,ut abortion is

an immoral act.

All of this uncertainty stems frcrn the religious over-

tones of the term t'moral- turpitude.t' As Justice Jackson

(joined by Justices Bl-ack and Frankfurter) said of moral

35



turpitude:
Irrationality is inherent in the task
of translating the religious and ethical
connotations of the phrase into Iega1
decisions.

Jordan v De George, 341 US at 239 (Jackson, J., dissentit'g) '

Acknowledging this vagueness, a three-judge district
I

court held a regulation prohibiting financial- aid to stu-

dents convicted of "misdemeanors involving moral turpitude"

was unconstitutionally vague. CorPoration of Haverford

college v Reeher, 329 FSupp 1196 (ED PA 1971) (3 judge

court).The Haverford Court held that

If the State insists on legislating
morality, we will insist at least that
it spel1 out its moral code ***.

329 F.Supp. at 1206.

The moral code of the state of Alabama is apparently

based upon some shibboleth inherited from the common 1aw.

As Justice Jackson noted, "ThiS is a large country and acts

that are regarded as criminal in some states are lawful in

others." Jordan, 34I US at 237-8. Likewise, the term moral

turpitude has b_een interpreted differently in different

parts of the country: For instance, while assault, nar-

cotics violations, and prohibition violations are not crimes

of moral turpitude in Alabama, they are in other states.

.us 
ex re1 Mazillo _v Day, 15 ?2d 391, 392 (SD NY L926) (as-

sault); Menna v Menna,LOz r2d 6]-7, 618 (DC Cir 1939) (nar-

35



cotics); Riley v. Howes , 17 F2d 647 , 649 (DMe L927 ) (pro-

hibition).

Like the defense attorney in llaverford who "admitted he

did not know what a tmisdemeanor invoLving moral- turpituder

was, but said the courts didtr (329 FSupp at 1206l , the

registrars in the present case acknowledged that they relied

upon the advice of the Local district attorney to filL in

the blanks r^rttere case 1aw had not yet determined whether a

crime did or did not involve moral turpitude (f 29, 58-9).

Al-a code s17-4-15 4 LLg78 Supp) provides that registrars

are judicial officials when they perform their registration

function. Yet these judicial- officials do not understand the

law they are asked to enforce. In such a situation, how can

the ordinary Person be expected to understand this arcane

law?

B. l'lorral Wrongs and Fundamental Rights

The tlaverford Court distinquished Jordan on three

ground.s: first, that the phrase "moraI turpitudet' had been

used in the immigratior laws for more than 60 years while

the regul-ation under attack was relativeLy new; second, that

the specific conduct of De George was plaini-y a crime of

moral turpitude but the students had not yet ccrnmitted any

of these offensesi and third, that the Haverford case in-

voLved an infringement on freedom of speech while Jordan did

37



not. 329 F Supp at L2O5-6. It is uPon this thj,rd dis-

tinction that the present case also parts cAmPany Wlth

Jordan.

In llaverford, none of the individual plaintiffs were

yet disadvantaged by the rule, but claimed a chilling effect

of their freedom of speech. In the present case, the

plaintiffs have al-ready committed their offenses and are now

subject to.this additional punishment -- the loss of the

right to vote. However, those whose conduct is clearly

proscribed by e. statute may attack it for vagueness if their

First Amendment rights (such as the right to vote) are

involved. Coates v Cincinnati, 402 U-S'- 611 (1971);

Thornhill v Alabama, 310 U.S. 88 (1940).

Other cases involving the term "mora} turpitude" have

usually dealt with deportation or impeachment of witnesses.

Neither of these involves a fundamental right; in the im-

peachment situation, the Person being labeled is not even a

party to the action.

One of the functions of the void-for-vagueness doctrine

is to give the public notice of prohibj.ted conduct. Just as

the State "o,rta not enforce a law which prohibited "any crime

of moral turpitude" and gave no other definition, neither may

it take away a fundamental right on the basis of such a

38



vague phrase. The criminal law punishes particular acts

and not immorality Per se. Whether an act is immoral vel

non is not an element of the crime which the prosecutor must

prove.

Thus, t'mora1 turpitudett may be an adequate and con-

stitutionaL test when applied Lo witness impeachment, but is

is not when applied to the franchise.

39



V. The State of Alabama has not proven a ccrnpelling state

interest or rational- relationship supporting its decision to

disenfranchise only some misdemeanants.

, Insofar as it applies to crimes, 5182 of the Alabama

Constitution has three overlapping provisions: first, there

is a specified list of crimes; second, there is the rubric

"crimes of moral turpitude;t' and third, there are crimes

punishable by imprisonment in the penitentiary. A crime

could be within one, two, or three of these categories. For

instance, some of the enumerated offenses are not punishable

by imprisonment in the penitentiary: petit larceny (theft of

$25.00 or less) carries a I2-rnonth sentence (aIa. Code, S13-

3-51); and embezzlement (S13-3-20) , receiving stolen property

(S13-3-55), and obtaining money under false pretenses (S13-

3-90) are each punished by reference to the amount embez-

zled., received, or obtained and may thus be punished as
tpetitf larceny. Third degree forgery is a felony but is not

punishable by imprisonment in th.e penitentiary (SS13l 4..66

and 70). Bribery to commit a misdemeanor is punished in the

same way as the misdemeanor that was to have been committed

(s13-s-39).

Thus -it appears that the State has two bases for disen-

franchising persons the seriousness of the crime as

40



measured by the maximum punishment imposed by the Legis-

lature and the "moraI baseness or depravity" (as moral tur-

pitude is usually defined) of the crime. we do not attack

the decision of the framers of the constitution of ALabama

to base disenfranchise.ment upon the maximum punishment. y

We do attack, however, the pick-and-choose method of disen-

franchising others.

The District court held that onl-y the rationa1 rel-a-

tionship test need be met. Generally, cases involving

voting rights are subject to the cqnpelling state interest

test. 'To decide which is applicabte to this situation, the

Court must first determine whether the right impinged uPon

by the state constitution is fundamental or not. voting

rights are usually considered fundamental, but

a statute must impose more than insubstantial
burdens on constilutionally protected voting
rights before a close scrutiny standard is re-
ouired. See Cf. Jenness v- Fortson, 403 US 43L,
g'r s.cr. T970,--79ffi.

socialist workers Party v March Fong Eu, 591 Fzd 1252 (9th

Cir 1978), cert- denied US , 47 USLW 3743 (14 MaY

l97.gl . Lf the case involves a non-fundamental right or a

not substantial impairment of a fundamental right, the

rational relationship test is utilized, in which "the burden

is not upon the state to establish the rationality of its

3.t Indeed, this inquiry is foreclosed by Richardson v-
Rami76z.

4t



restriction, but is uPon the chaLlenger to show that the

restriction is wholly arbitrary." Karr v Schmidt, 460 F2d

5Og, 6L7 (5th Cir) (en banc) (footnote omitted), cert.

denied 4Og US 989 (1972); Woods v Holy Cross HosPital' 591

F2d 1164 , L]-74 (5th Cir 1979). On the other hand, Lf the

Court determines that a fundamental right is impinged in a

substantial way, then the burden is uPon the state to Pro-

duce such evidence, 4 / but the rational must be one actually

held by the state (as evidenced by an authoritative statement

of an aPPropriate body) and not supplied by inventive assistant

attorneys general after the fact, 5 /

The defendants argued to the District court and to

this Court in the earlier appeal that Alabama had articulated

an interest in its policy of disenfranchisement when the

Alabama supreme court, in washington v state, 75 Ala. 582

(1884), upheld the disenfranchisement of those convicted of

crimes of moral turpitude- washir,,i{.on v state predated the

constitutional provision we are attacking by 17 years. The

_t/interest
u.s. 412,

This state "must demonstrate
which is comPeIJ-ingt *** - "-t!

432 (1978).

:/ sherbert v-Verner, 17-4 u.s. :?8, !o7 I1?!l)' rhe
Supreme Coffinsider a rational-e suggested for
th; first time on appeal by the State's attorneys partly
because the Supreme- Lourt of SOuth Carol-ina had not expressed
a view on this asserted state PurPose'

,a

re
subordinating
Primus, 435

42



the 1901 Constitution--and, more specifically, did not

disenfranchise all those committing crimes of moral turpi-

tude. See Appendix B of this Brief for the texts of the

suffrage provisions of the 1875 and 1901 Constitutions.

It cannot be gainsaid that Underwood and Edwards are

denied the right to vote for an, indefinite period. Both

were convicted in city courtst .in such situations the mayor

has the authority to grant pardons. AIa. Code S12-14-15

(1975). In each city involved in the case, the mayor (or

other pardoning authority) has established a policy of

waiting one year before granting a pardon (t 39-40; PI. Ex.

4). _6/ At a minimum, each woul-d have to wait one year--the

same amc.rrrrt of time I'[r. Blumstein would have waited under

Tennessee's law struck down in Dunn v. Blumstein, 405 US 31

(L972) , and substantially longer than the 5O-day closing of

registration books before elections in Burns v Fortson, AJ-O

US 585 (1973) (per curiam) ("peric.d approaches the outer

constitutional limits"). Thus it should be clear that a not

insubstantial burden is placed on a voter convicted of a

crime and the State should bear the burden of proving the

existence of a compelling state interest justifying this

infringement.

The defendants argue that Underwood was eligible for a

6 / The State Board of Pardons.-and Paroles may grant a
pardon-from a state court sentence when "the prisoner has
successfully completed at least three years of permanent
parole or IuponJ the expiration of his sentence if his
sentence was for less than three years***. tt

22-36 (1975) .

43

A1a. Code St5-



pardon over a year before he filed the lawsuit and therefore

he suffers no irreparable harm by the Court's refusal to

grant a preliminary injunction. It should be noted, however,

that underwood was only eligible to aPPly for a pardon--

there was no evidence that his pardon was automatic. The

Court should not countenance the defendants I attempt to

engraft a requirement of exhaustion of administrative rem-

edies on suits brought under 42 USC 51983. Damico v Cali-

fornia, 389 US 4L6 (1967) (per curiam); Houghton v Shafer,

392 US 639 (1968) (Per curiam).

with regard to 1"1s. Edwards, the staters argument is

that her one-year wait before being allowed to aPply for a

pardon and re-enfranchisement is not a substantial burden

because, after all, she was found guilty. The State con-

fuses proof of the crime with substantiality of the Pun-

ishment. (Because of the delays in this suit, it is now more

than one year since Ms. Edwards was convicted-)

Despite the lack of any evidence, the District Court

chose to assume that

The state has an interest in excluding Ifrom the fran-
chisel those who would have a greater tendency to
violate Alabama's criminal Iaws, particularly where
crimes which involve moral turpitude are concerned.

(n 30). The District Court makes the (unspoken) assumption

that persons who commit crimes of moral turpitude are more

likely to commit other crimes. _U Note that the Court

7 / Unfortunately
rationEle the state has
ton v. State, 75 A1a 582

for the State, this is not the
advanced by its reliance on Washing-

(1884).

44



is not saying that persons convicted of crimes are more

likely to violate election laws. Rather, the Court is

assuming that Alabama assumes that of all persons convicted

of crimes, some are rnore J-ike1y to ccrnmit another crime. The

Court then makes another leap in logic and assumes it is all
right for the State to punish. them in advance by disen-

franchising them. The Court does not exp}ain why the right
to vote is a proper thing of which to deprive those who

ccnnmit crimes predicated on a belief that they will ccrnmit

other crimes. In'United States v Al-abama, 252 FSupp 95 (I\tD

AIa 1966) (3-judge court), the court rejected the idea that
the State may encourage acceptable behavior by using the

franchise as a carrot on a stick. Likewise, the District

Courtr s rationale should be rejected because the State may

not condition the right to vote on its prediction of the

voter's future behavior. Cf., Carrington v Rash, 380 US 89

(1e6s ) .

If the Court was saying that those who commit crirnes

involving moral turpitude are more likeIy to ccrnmit election
offenses, this rationaLe would make raore sense, but is not

supported by the available evidence.

Historically, the most significant election
fraud cases have involved el-ection officials
and not fraudulent registration and subsequent
voting by individuals.

Senate Committee on Rules and Administration, "Universal

45



Voter Registration Act of L977 rt' S.Rep. 95-171, 95th Cong.,

1st Sess. 2 (L9771 . Accord, Hearings on Federal El_ection

Reform Proposals of L977 before senate committee on Rules

and Administration, 95th Cong., Lst Sess. 459-60 (testimony

of James R. Ki1leen, CJ-erk, wayne County, Mich.), 166 (tes-

timony of Frederick L. Voight, executive secretary, Com-

mittee of Seventy, Philadelphia, pa. ) (L977) .

Regarding the specific question of predicting
election criminaJ-ity based on oners past record

Noter "The

Laws, rt 83

comment is

Yale Note

there is absolutely no evidence to
either prove or disprove th.e basic
assumption which underlies the policy
of excluding ex-fel-ons to protect the' election system: that ex-felons are
more like1y than others to violate
election laws or otherwise abuse the
ballot. Sjnce election cri-mes are atyp- |

ical offenses, there is no logical
basis for connecting ordinary crimes
and election offenses. Most election
crimes (multiple voting, tampering with
ballots or voting machinery, bribery) .

require a high degree of interest and
involvement in political affairs, and
voting studies tend to suggest that
the poor and less educated groups,
those groups including, of course,
a disproportionate number of criminals,
are more like1y to be politically
apathetic Iciting A. CampbelI, The
Ar,rerican Voter 479-BI (1960) l. -TE
ffithen ex-felons might be
l-ess 1ike1y to ccsnmit election crimes
EI,an other people. (emphasis in original;
footnotes omitted)

Need for Reform of Ex-Fe1on Disenfranchi=ernent

YaIe 1,.J. 580, 590-1 t1974). We submit that this
just as true for misdemeanants as felons. The

also pointed out there is no significant differ-
46



ence in the rate of election fraud between states that

disenfranchise feLons and those that do not. 83 lele L.J.

at 590.

In Hobson v. Pow, 434 FSupp 362 (ND Al-a L9771 , the

District Court (Judge Guin) held that the disenfranchisement

of only one class of misdemeanants (those convicted of

assault and battery on the wife)' and not the like class of

the opposite sex was arbitrary. Despite this rul-ing (and

the favorabl-e comment on it in ShePherd), the District Court

in the present case did not discuss, and apparently did not

consider, the arbitrariness of the pick-and-choose method of

disenfranchisement. The Appendix to this brief contains a

List of all. misdemeanors and minor felonies contained in

Title 13 of the Al-abama Code (there are other crimes scat-

tered throughout the Code). A quick review of the Titl-e 13

crimes shows that there are many crimes which the Legis-

lature has decided are serious dnough to warrant large fines

or 12 months in jail but which are not disenfranchising

crimes because they are not punishable by imprisonment in

the penitentiary, crimes= of moral turpitude, or listed

offenses. In contrast, the offense ccrnmitted by each of the

plaintiffs (issuing a worthless check) carries only a fine

for the first offense.

47



It is interesting to note that the lists used by the

registrars (Def. Ex. I, 2, 3, 5; Pl. Ex. 2t 3) do not

contain any reference to election offenses as crimes

of moral turpitude. While four election-related offenses
(vote buying, vote selling, .making false returns of eiections,
or suborning a witness to secure registration) are mentioned

, in 5182, one who votes without registering is punished

: :, " six-month jail term and a $1,000 fine (AIa. Code SL7-7-L2I.
: UnLess some'registrar determines this to be a crime of moral

turpitude, such a person is not barred from subsequently

registering to vote.

48



CONCLUSION

For the reasons set out in this brief, the court should

reverse the decision of the District Court and remand this

case for entry an appropriate injunction (including the

award of attorneysr fees).
gubmitted by,

Of Counsel:
Laughlin McDonald
Neil Bradley
Christopher Coates
52 Fairlie Street
Atlanta, Georgia 30303

f,ttorneys for

Suite 400 Commerce Center
2027 lst Avenue North
Birmingham, Alabama 35203-4168
205/322-6631

Plaintiffs

I, the.
prior to or
the Court,

James
Birmingham,

CERTITICATE OF SERVT.CE

und.ersigned attorney, do hereby certify that,
immediately after filing the foregoing with

I mailed or delivered a coPy.to:

S, Ward, Stuart & Ward, 1933 Montgomery Highway,
Alabama 352O9

Date Abril L 1982

49



1a

APPENDIX A

LTST OT. OPFENSES NCII PUNISHABLE BY IMPRTSONI"IENT
rN THE PENITENTIARY

(note: all section references are to Title 13 of
Code of 1975; thus, I-I refers to S13-L-1.)

Offense lnax. f ine

the Alabama

1-1

1-3

1-9

1-40

1- 41

L- 42

1- 45

1-s0

l-92 '

1- 11r

1- 136

2-2

2-3

2- 4.

2-52

2-7,

snake handling

abusing or beating accused

putting poison on other's
property

assault or A&B

assault on police officer

use of whip

drawing dangerous weapon

prcvoking assault

manslaughter, 2nd degree

indecent exposure

attempt to have carnal
knoi+ledge by impersona-
tion of husband

injuring public utilities,
highways, etc.

injuring boat

removing boundary markers

injuring buildings

destroying fences . --

r50

s00

10 00

500

10 00

2000

50

50

s00

500

s00

500

500

500

100

500

max. jail
time (mo. )

l2

6

l2

l2

6

x

L2

12

t2

6

6

l2

3

5

6

l2



s

2-8

2-9

2-10

2-29

2- 45

2-63

2-BO--9

2- 100

2-101

2-103

2-to4'
2- 105

2-l.06

2- to7

2-108

2-to9

2- 110

2-L3o--9

2-2

3-23

3-51 -.

3-55 .' I

offense

removing lega1 notices

destroying ProPertY of
another

forcible entrY or detainer

taking material for fuel

possession of burglarY tools

possessing materials for
firebomb

theft of utilities

trespass after warning

placing garbage on land of
another

entering state lands

trespass to school lands

entering church after warning

allowing stock to run at
large

severing proPertY from
freehold

cutting timber of another

cutting shade trees

cutting Plne for turPentine

f ireworks-related vi olati ons

blackmai I

improper use of Pub1ic funds

petit larcenY ( $25.00 or less)

" j oyriding "

max. fine

2a

max. jail
term (rno. )

5

L2

6

5

3

6

6

3

6

t2

l2

5

l2

5

l_0

I0,000

1, 000

500

I0 0+

500

s00

100

s00

100

3 X damage

100 0

50

200

5000

200

500

I0oo

1000

2 x moneY

s00. .

10 0 ,'':.

L2

6

1

t2



s

3-57

3- 58

3- 59

3- 60

3- 53

3-64

3- 65

3- 65

3-67

3-68

3-69

3- 91

3-92

3- 13 0-- 4

4-r
4-3

4-4

4-5

4-6 -:

4-7

4-8

offense

floating logs w/o Petmission

stealing floating logs

concealing proPertY taken
up adrift .

disposing of state militarY
property

larceny of vending machines

using slug in vending machine

manufacturing slugs

taking fish w/o permission

taking fish from Posted lake

taking oysters

driving animal into im-
pounded district

use of personal ProPertY
under false Pretenses

obtaining building materials
under false Pretenses

removing shopping carts

selling mortgaged ProPertY

selling proPertY subject to
executi on

selling proPertY bought on
sale

making false abstract of
title

emitting :change bil1s as
money--.

circulating change'bi11s

defacing serial. #.on heawY
farm machinerY

max. fine
3a

max. jail
term (mo. )

t2

L2

6

t2

6

6

l2

l2

6

200

200

10 0+

50

500

s00

500

50

s00

500

100

500

50+

s00

500

500

6

6

5

500

r0 00

500

100

500

5



s

4- 11

4-t2

4-32

4-35

4-37

4-7 0

4-80

4-81

4- 82

4-81

4-85

4-88

4-89

4- 90

4- 93

4-9 4

4-95

4-97

offense

unauthorized wearing of se-
cret order badges

unauthorized wearing of
American Legion badge

obtaining control of credit
card as securitY for debt

.possessing inccrnPlete credit
cards :

falsely rePorting credit cards
stolen

third degree forgerY

deceptive advertising

not marking "advertisrnent"

advertising aPPearing to
be check

use of false credit card
on telephone

fraudulentlY obtaining tele-
phone service

fraud by limited PartnershiP

defrauding insurer of vessel

false estimate of load of
vessel to iefraud insurer

failing to weigh coal for
sa Ie

employee or tenant entering
contract to defraud

fraudulent conveyance

changing name to defraud

max. fine

4a

max. jail
term (mo. )

I0 days

I

L2

t2

L2

t2

2

2

IO

50

t0 00

I 000

10 00

100 0

10 00

500

500

500

500

2000

2o0o

1000

300

1 000

500

t2

6

5

L2

5

6



s

4-98

4-99

4- 100

4-r22

5-I

5-3

5-4

5-5

5-6

5-8

5-9

5- 11

'-!,
5- 44

5- 45

offense

carrying on business under
assumed name

fraudlently impersonating
clergyman

prosecuting suit w/o
authority

worthless checks, less than
$100 first offense
worthless checks, less than
$100 -second offense
worthless checks less than
$100-3rd offense
worthless check $100-S500
lst offense
worthless check $100-$500
2nd offense

secret sessions of Public
bodies

public officer receiving fee
to lobby

resisting arrest

refusal to aid arrest for
breach of peace

refusal to aid in arrest for
executing process

disobeying subpoena

withholding school records
from official inspection

receiving unauthorized official
fees

demonstrating near courts
to influence judge

influencing juror

attempts to influence juror
or witness

max. fine
5a

max. jail
term (mo. )

6

t2

6

L2

500

500

10 0+

100

200

200+

200

400

500

500

100 0

300

300

500

500

500

s000

s00.

100 0

12

I

3

5



s

5-7 0

6-1

6-3

6-4

5-5

.6- 6

5-7

6-8

6-9

6- 10

5- t3

6- 14

6- 15

5- 16

6- t7

6- 18

5- 19

5- 50

5- 61

6-62-

6- 80

6-82

offense max. fine

aiding escape of misdemeanant

Sunday closing Iaw

holding marathons, etc.

soliciting ads for Peace officer
magazine without permit

selling cigarettes to minors

peeping toms

storing gunpcwder in citY

continuance of nuisance after
notice to abate

leaving abandoned icebox accessible
to chi ldren

affrays

keeping a cock pit

public drunkeness

public drunkeness along public road

wearing a mask in public

sending threatening letters

using obscene language in .the
presence of a woman

insulting a peace officer -

conspiracy to interfere with
business

using threats or force against
a. business

maintaining blacklist

removing, body from grave

buying dead body

1000

l-00

500

100 0

50

500

100

500

500

s00

50

100

10

500

500

6a

max. jail
term (mo. )

t2

3

3

L2

I
6

6

6

I
).2

5

200

I0+

6

3

1000

1000

100

500

500

6

6

6

6



s

6- 84

6- 85

6- 86

6-100

6- 101

6-ro2

6- 103

5- 104

6- t20

5- 723

6- 126

6- t28

6- ).29

6- 752

5-153

6- t57

6-1s8

5- 1s9

offense

'7a

max.
term

jail
(mo. )

max. fine

mutilating dead body

defacing tonbstone

removal of body without permit
first offense
second offense

disturbing the peace

riisturbing r+omen at -public place

disturbing religious worship

disturbing school

disturbing lawfu1 meetings

carrying concealed weapon

carrying brass knuckles or
slingshot

presenting firearms during fight

selling pist.ol or bowie knife to
minor

throwing or shooting nissles at
house

drug addict or drunkard in posses-
sion of pistol

carrying concealed pistol

delivering pistol wit-trfn 4B hours
of se 11i;rg

failure to have dealersr license
to se11 pistols

not displaying pistol dealersl
license'.

500

s00

50
100

s00

200

200

50

s00

s00

500

500

500

1000

500

s00

500

500

500. ..

t2

l2

2

T2

6

6

6

6

6

6

6

6

L2



8a

s

5- 160

5- 180

6-200

6- 203

6-204

6-220

6-223

5-225

6-226

6- 227

7-3

7 -20

7 -22

7 -24

7 -25

7 -26

7 -27

7 -28

7 -30

7 -32

offense

lending pistol in violation of

f).ag desecration

publishing libel tending to provoke
breach of. the Peace

criminal defamation

refusal of Printer to testifY
regarding libel

max. fine

act 500

1 000

max. jail
term (mo. )

6

6

t2

6

6

6

L2

5

L2

500 6

s00 6

300

unlawful assemblies unlimited

selling arms during riot 1000

remairring at assembly after warning 500

combj.nation to resist lega1 Process 500

violating order of Alabama )lational
Guard officer

parent consenting to prostitution
tf daughter 1000

playing cards or dice 6r Pub1ic
houses 50

keeping gaming tables, first offense 500

betting at cards 300

betting with minor 500

betting on election 500

allowing gaming on Premises 500

renting a room for gaming 500

refusal of witness to testifY
as to gaming - 300

lotterY-- first offense 500
second offense 500
third offense: - 1000 '

setting up wheel of' fortune, .etc. 50 "

t2

6

6

6

6

3
L2

7 -33



A^I'PEIiDIX B

OONETITUTIONS OT ALADAMA.

SuftroE6 anat Dloctlonr'

l001.-Scctlon 181

Scc. 182. Tbe follorritrg I)ersoDs

shall be disqualified both from regis-

tcring, antl from voting, namely:
All icliots antl insane Persons; -

tlrosc rrho sball by rcason of eonvic-

tion of crinre be disqualifcd from
toting at the time of tbe rati6ca-
tion of tbis constitution; tbose u'ho

shall be convicted of treason, tuur-
der, at'son, embezzlemcnt, rralfe as-

aDce in office, lal'cen5, receiving
stolen property, obtai:cing property
or rnoney urder false pretenses, per-
jury, subornation of perjury, rob-
bery, assau)t rrith intent to rob,
burglary, forgery, briberY, assault
and battery on tbe rsife, bigamy, Iiv-
ing in adulterl', sodoml', incest, rape,
rniscegenation, crin:e against nature,
r.,r an1: crime pur:ishab)e bf irnprison-
n:cut in the penilentiarl-, or of ary
jnfaa:ous criure or crime invo)'r'il:g
r.r,crral lurpitude; also, an-Y persoD

rr'ho shall be conr.icted as a larrant
or trarnp, or of selliug or offeriug to
sell bis lote or the rote of auot):er,
or of bu1-iDg or ofering to buY tbe
lote of anotber, or of making or of-
feri-ug to make a false return i:r auy
election b1' tlre peop)e or in an1' pri-
]uary eleclion to procure the nomi-
nation or election of an-r person to
any office, or of suboraing anY trit-
Dess or registrar to secure tle regis'
trition of any persoD as an elector.- '

. ,rrl.-Arttcle vrtl.

Sec. 3. Thc follos'iug classes slall

not be pcrmitted to rcgister, \'ote,

or bold olfice:
First.-Tbose .rvbo shall balc bccn

couvicted of trcason, embezz'lcnent

oi pub)ic fuuds, malf casance in
olfice, )arccuY, briberY, or other

crime punisbable Lrf imprisoument ia

tbe penitentiarY.
Sccond.-Thosc u'bo are idiots or

iusan e.



CONBTITUTION OT TEI STATE OT ALABAUA_I86E.

. ARTICITE VII.

. ELECTION.

s 3. It shall be the cluty of the general assembly to provide, from timc

tolime, for tbe registration of all electors; but the following classee.of

persoDs shall not be permitteil to register, vote, or hold o6ce: lst Those

lho, during the late rebellion, inflicteil, or caused to be iaflicteil, any cruel

or unusual pu-nishment upoD al)y soldier, sailor, mariae, employe or citizen

of the United Stales, or wbo, in.auy otherway, violatecl the rules of civilizetl 
.

warfare. 2cI. Those who may be clisqualifiecl from holctin-g offce by the

proposeil amendment of the-constitution of the Unitecl States, known ae

it

.,Article EV,', anil those who have been disqualified from registering to

"o,u 
fo" delegates to the convention to frame a constitution for the, state of .

.a.i"i"-", *d"" the act of congiress "to provide for the more eficient gov-

e.ament of the rebel statesr" passed by congress, March 2, 1867, and the

acts s"opplementary thereto, ercept such persong as aiclecl in the recon'

"tro"tioo 
proposed by congress, ancl accept the political equality of all

ren before tbe law ; Proui.d.ed, that the general assembly shall have power

to reEove the disabilities incurred uader this clause. 3d. Those who

slrall have been convictecl of treason, embezzlement of public fu:ccla, mal'

feasance in office, 
'crime punishable by law with imprisonment in the peni-

i"",;.;y, or. bribery. 4th. Those who are itliots or insane.