Green v. New York City Board of Elections Petitioner's Reply Brief

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O ctober Term , 1967

No. 710

GILBERT GREEN, 

against
Petitioner,

BOARD OF ELECTIONS OF THE CITY OF NEW 
YORK, LOUIS LEFKOWITZ, Attorney General of the 
State of New York, and FRANK S. HOGAN, District 
Attorney of the County of New York,

jRespondents.

PETITIONER’S REPLY BRIEF

L eonard B . B o udin ,
V ictor R a binow itz ,

Attorneys for Petitioner,
30 East 42nd Street,

New York, N. Y. 10017.



I N D E X

PAGE

A r g u m e n t ........................................................ .............................. 1

Conclusion  ..................................................................................  8

Appendix A ..................................................................  9
A ppen dix  B ....................................................    U

C ases :

Carrington v. Rash, 380 U.S. 8 9 .............................  4
Cummings v. Missouri, 71 U.S. (4 Wall.) 272 . . . . .  7
Davis v. Beason, 133 U.S. 333 ........................... 4
Dennis v. United States, 341 U.S. 494 ....................  7
DeVeau v. Braistel, 363 U.S. 144.....................   5
Estep v. United States, 327 U.S. 114......................  4
Gray v. Sanders, 372 U.S. 368 .................................  4
Harper v. Virginia Board of Education, 383 U.S.

663 .........................................................................  5
Lassiter v. Northhampton County Board of Elec­

tion, 360 U.S. 4 5 ...................................................  4
Missouri v. Garesche, 36 Mo. 256 (1865) ............... 3
Morrison v. State of California, 238 F. Supp. 22

(S.D. Cal. 1965).........   5
Otsuka v. Hite, 51 Cal. Rptr. 284, 414 P. 2d 412 

(1966) .....................    4,5
Reynolds v. Sims, 377 U.S. 533 ...............................  4
Saunders v. Wilkins, 152 F. 2d 235 (4th Cir. 1945)

cert denied 328 U.S. 870 ......................................  2
Schware v. Bd. of Bar Examiners, 353 U.S. 232. . . .  6
Sherbert v. Verner, 374 U.S. 398 ...........................  6
Staub v. City of Baxley, 355 U.S. 313....................  7
Trop v. Dulles, 356 U.S. 8 6 ...................................  4, 6



PAGE
C o n stitutional  P rovision :

Fourteenth Amendment, Sect. 2 .............................  1-4

S tatutory P rovision :

28 U.S.C. § 2284 (2) ................................................ 7

M iscellaneous :

Civil Rights of Convicts Act, 1828, 9 Geo. 4, C. 32, 
p. 3 .......................................................................  5

Cong. Globe, 39th Cong., 1st Sess............................  4
Criminal Law Act, 1827, C. 28, § 1 3 ........................ 5
Flack, The Adoption of the Fourteenth Amend­

ment (1908) .......................   2
Forfeiture Act, 1870, 33-34 Viet. C. 23 § 2 ............. 5
10 Halsbury’s Laws of England (3d ed. 1955) . . . .  5
2 Hyde, International Law, Chiefly as Interpreted 

and Applied by the United States (2d ed. 1951) 7
Hyman, To Try Men’s Souls (1960)......................  3
James, The Framing of the Fourteenth Amend­

ment (1956) ......................................................... 2
Note, 66 Col. L. Rev. 1357 (1966) ......................... . 5
Parrish, Missouri Under Radical Rule (1965) . . . .  3
Report of the Joint Committee on Reconstruction,

39th Cong., 1st Sess. (1866).................................  2, 3, 4
2 Stephens, Commentaries (1843) .........................  5

11



iutyrrntf ( ta r t iif %  Hmtpli §>tatTB
O ctober Term , 1967 

No. 710

---------0----------
G ilbert  G r eek ,

against
Petitioner,

B oard of E lections of t h e  C ity  of N ew  Y ork , L ouis 
L e fk o w itz , Attorney General of the State of New York, 
a n d  F rank  S. H ogan, District Attorney of the County of 
New York,

Respondents.
— ----------------o------ —---- -—-—-

PETITIONERS REPLY BRIEF

Respondent, offers this Court no more than it offered 
the courts below—(1) unsupported assurances that Sec­
tion 2 of the Fourteenth Amendment is clear on its face 
and that its history is unambiguous, and (2) only periph­
erally relevant dicta as precedent. We believe that the 
important constitutional-historical questions raised for the 
first time in this or any other court deserve more than 
Respondent’s simple answers.

1 .
Respondent’s argument that Section 2 was intended to 

validate state laws disfranchising convicted felons is based 
upon nothing more than the coincidence of such laws and 
the appearance in Section 2 of the unusual phrase “ par­
ticipation in rebellion, or other crime” . An interpretation 
of Section 2 different from Respondent’s is required not 
only by the peculiar language of the phrase but by the 
Section’s legislative history.

A. Respondent’s first reliance is upon what it terms 
“ the unequivocal language of Section 2” (Br. p. 6). But



2

the language of Section 2 is most striking because of its 
dissimilarity to the language of state law disqualifications, 
which disfranchise for conviction of a crime. On its face 
“ participation in . . . other crime” has a different sound­
ing.

Nor does Section 2 in terms validate disqualification 
for crime, resulting from conviction or otherwise; it merely 
indicates the circumstances under which loss of represen­
tation may not be imposed by Congress. This peculiarly 
political sanction can no more be transformed into sub­
stantive judicial terms to enforce the qualification provi­
sion, Saunders v. Wilkins, 152 F. 2d 235 (4th Cir. 1945) 
cert, denied 328 U.S. 870, than, as here, to enforce the dis­
qualification provisions.

Furthermore, it is extremely doubtful that the word 
“ crime” in Section 2 can be interpreted as an unlimited, 
generic term. Certainly, Respondent would not argue that 
disfranchisement for conviction of misdemeanors and other 
minor crimes was constitutionally validated by Section 2.

R. In the light of what is at best an ambiguous phrase 
in Section 2, it is significant that the Respondent has failed 
to recite any legislative history to support his reading of 
the phrase. But this failure has a ready explanation: the 
legislative history indicates that Respondent’s interpre­
tation is inconsistent with the general purpose of Section 2.

The purpose of Section 2, as the Report of the Joint 
Committee on Reconstruction, 39th Cong., 1st Sess. (1866) 
(herein called the Report), the Congressional debate and 
the commentators 1 recognize and as we pointed out in the 
Petition (Pet. p. 9), was to insure a perpetual Republican 
majority in Congress. This was to be accomplished by 
denying to the Southern states proportionate representa­
tion for the freed slaves unless they enfranchised them.

1 See James, The Framing of the Fourteenth Amendment 
(1956) ; Flack, The Adoption of the Fourteenth Amendment (1908).



3

The Congressional representation of loyal states, which 
had high percentages of disfranchised persons, was pro­
tected by the Section’s specific wording. Thus the North­
eastern states which had large non-voting groups of women 
and aliens were excepted by the Section’s limited appli­
cation to disfranchisement of male citizens of the United 
States. The boarder states of Tennessee, Maryland, West 
Virginia and Missouri had disfranchised large groups of 
southern sympathizers. But these states remained un­
affected by the Section under the “ rebellion, or other 
crime” exception (see Pet. pp. 8-10).2 3

This view brings the nature of Section 2 into sharp 
focus. It is apparent that Section 2 was the result of spe­
cific political accommodations and not of Congress’ con­
cern with the validity of general limitations upon the 
right of suffrage.

C. Considerable historical evidence as to the meaning 
of the phrase “ participation in rebellion or other crime” 
was overlooked by the Respondent’s rather offhand analysis 
(Br. p. 7). The Report2 and the Congressional debates,4 
reveal that the word “ crime” was used by the radical 
Republicans who drafted Section 2 to refer to the rebellion 
and other hostile acts connected with it. In their view 
a wide range of Southern activities—from outright rebel­
lion to disloyalty and Southern sympathy—were criminal. 
Thus the Report refers to “ rebellion and crime” (Report 
p. XVIII), and to the “ criminal purposes of destroying

2 The Congressional concern with Missouri is well documented, 
see Petition, pp. 8-9. See also Hyman, To Try Men’s Souls, 260, 
263-64 (1960) ; Parrish, Missouri Under Radical Rule, 27, 29, 
70-75, 236 (1965); Missouri v. Caresche, 36 Mo. 256 (18965).

The Report indicates a particular concern for Tennessee which 
had disfranchised a large group of southern sympathizers. Report 
pp. xx, Part 1, 102-128.

3 Pertinent excerpts of the Report are appended, infra, p. 9.

4 Pertinent excerpts of the Congressional debate are appended 
infra, p. 11.



4

the Federal Union” {Id. at p. xix). See also the Congres­
sional debate in Cong. Globe, 39th Cong., 1st Sess. 158- 
59.5 6

This brief sketch indicates the undesirability of Re­
spondent’s reliance upon the ambiguous words of Section 
2 without any consideration of the mass of historical 
materials which were the subject of this Court’s opinion, 
in such cases as Reynolds v. Sims, 377 U.S. 533 and 
Carrington v. Rash, 380 U.S. 89, which involved an in­
terpretation of a different clause. The words of Mr. 
Justice Harlan dissenting in the last case are apposite 
here: “ if that history does not prove what I think it does, 
we are at least entitled to be told why” . 380 U.S. 89, 97.

I I .

Dicta of this Court may appropriately be followed by 
the lower courtsi n deciding cases upon the merits. But 
such dicta cannot be treated as a reason for refusing to 
decide a case on the merits—the situation here. See Otsuka 
v. Hite, 51 Cal. Rptr. 284, 414 P.2d 412 (1966)

Moreover, the dicta cited by Respondent (Br., pp. 8-9) 
are in cases involving such very different issues as re­
apportionment, Gray v. Sanders, 372 U.S. 368, 380; literacy, 
Lassiter v. Northampton County Board of Election, 360 U.S. 
45, 51, expatriation, Trop v. Dulles, 356 U.S. 86, 96-97; and 
military service obligations Estep v. United States, 327 
U.S. 114, 122. In each of these cases the parties were either 
silent or acquiesced in the assumption that the dicta in 
Davis v. Beason, 133 U.S. 333, was settled law.8

5 It is important to note that the antecedent to the words “or 
other crime” were the proposals of Senator Grimes: “except for 
crime or disloyalty”, Cong. Globe, 39th Cong., 1st Sess. 1320 and 
of Senator Sumner: “except for participation in rebellion”, id. at 
1321.

6 In addition to dicta, Respondent in an attempt to prove the 
unsubstantiality of petitioner’s position, relies upon Congress’ recent



Nothing in Respondent’s Brief or in the opinion below 
establishes a nexis between the disqualification of persons 
who have served their sentences for crime and “ ones abil­
ity to participate intelligently in the electoral process” . 
Harper v. Virginia, Board of Elections, 383 U.S. 663, 666. 
Indeed, the unreasonableness is emphasized by the Eng­
lish practice recognized more than a century ago that 
if the convicted felon serves his punishment “ his com­
petency is restored” . 2 Stephens, Commentaries 389 
(1843). See also Civil Rights of Convicts Act, 1828, 9 
Geo. 4, c. 32, p. 3; Criminal Law Act, 1827, C. 28, 1-13; 
Forfeiture Act, 1870, 33-34 Viet. C. 23, §2; 10 Halsbury’s 
Laws of England 519 (3d ed. 1955).

Furthermore, Respondent’s reliance upon other types 
of disqualifications (Br,, p. 9) are inapposite. They pre­
sent such different problems as disqualification for public 
office, for jury service and for trade union office. What 
may be a “ reasonable means for achieving a legitimate 
state aim” (Mr. Justice Brennan, concurring in DeVeau v. 
Braistel, 363 U.S. 144, 158, 160-161) in the elimination 
of crime from the waterfront may be completely unrea­
sonable when it affects the “ touchstone” of our demo­
cratic institutions. Harper v. Virginia Board of Elections, 
383 U.S. 663. It was these considerations that lead to the 
California Supreme Court’s decision in Otsuka v. Hite, 
supra.

5

I II .

action in disfranchising persons in the District of Columbia for 
felony conviction (Br., p. 9). But this hardly establishes a support 
for the Constitutional principle Respondent asserts. Nor is support 
established by a pro se decision in the lower courts, Morrison v. 
State of California, 238 F. Supp. 22 (S.D. Cal. 1965) or by a law 
review article which seeks to balance the arguments on each side 
in a manner not attempted by the court below, Note, 66 Cal. L. 
Rev. 1357 (1966). (See Br. p. 10.)



6

The exclusion of convicted felons from the right to vote 
has no reasonable relation to the state’s power to regulate 
the franchise and must be deemed a punishment in viola­
tion of the Constitution’s prohibition against bills of at­
tainder. Dictum to the contrary, in Trop v. Dulles, 356 
U.S. 86, 95-97, is inappropriately cited by Respondent (Br., 
p. 10) since the case involved expatriation not the right 
to vote and none of briefs tiled for either side, challenged 
the point.

It remains tor Respondent to establish what neither it 
nor the courts below have done, namely that the regula­
tion of the franchise was “ the evident purpose of this 
legislature”. Trop v. Dulles, supra. Petitioner’s explana­
tion that such legislation is intended to cast the felon 
outside the pale of society (Pet. p. 11), supported by so­
ciological and legal history is, we believe, far more per­
suasive.

IV.

V.

Independently of the principal attack upon the state 
disqualification of felons, Petitioner relied upon the state’s 
incorporation into its election and penal laws of federal 
pardon procedures, clearly unconstitutional under this 
Court’s recent decisions (see Pet. p. 13).7 Respondent 
argues that this claim “ must be presented to the appro­
priate federal authorities” because “ the state has no power 
over federal pardon procedures” (Br., p. 11). But the 
state has incorporated these procedures into its law and 
if the procedures are invalid, the state law is invalid to 
the same extent.

7 There is no question that even if a pardon were a matter of 
grace it could not be conditioned or denied on an unconstitutional 
basis. Cf. Sherbert v.Verner, 374 U.S. 398, 404 and note 6; 
Schware v. Ed. of Bar Examiners, 353 U.S. 232, 238-39.



One need not exhaust illegal administrative procedures 
in order to attack their validity, Staub v. City of Baxley, 
355 U.S. 313. The federal government need not be a party 
litigant in every case where the validity of federal law is 
involved. Nevertheless the interests of the United States 
will be amply protected by the intervention of the Attor­
ney General under 28 U.S.C. §2284(2) if a three-judge 
court hearing is authorized in this ease.

Furthermore, Respondent is in error in suggesting that 
the invalidity of the pardon procedures would merely en­
title the Petitioner to a pardon, not the right to vote (Br., 
p. 12). Exactly the contrary was established by this court’s 
decision in Cummings v. Missouri, 71 U.S. (4 Wall) 272, 
where the invalidity of the oath provisions gave Cum­
mings the right to officiate as a priest,

V I .

Petitioner does not seek to review here the propriety 
of his Smith Act conviction (Br., p. 12). Instead he argues 
that a crime of that political character is not a rational 
basis for disfranchising the citizen and that the state’s 
sanction is directed here against the exercise of First 
Amendment rights. Notwithstanding the District Court’s 
incorrect formulation of the basis for Petitioner’s convic­
tion, the fact is that he was convicted only for conspiracy 
to advocate and teach the duty of overthrowing the gov­
ernment by force and violence, Dennis v. United States, 
341 U.S. 494, 497 (Pet., p. 3).

Further, to describe the conviction for contempt in 
failing to surrender as a “ disregard for the process of law 
and order” (Br., p. 13) does not withdraw it from the 
area of political crime and is no more appropriate than 
to apply it to political refugees whose immunity from ex­
tradition is traditionally recognized. 2 Hyde, Interna­
tional Law, Chiefly as Interpreted and Applied by the 
United States, 1019-1027 (2d ed. 1951).



8

CONCLUSION

The petition for certiori should be granted.

November 28, 1967.

Respectfully submitted,

L eonard R . B o udin , 
V ictor R abinow itz , 

Attorneys for Petitioner.



9

APPENDIX A

Excerpts from the Report of the Joint Committee 
on Reconstruction

“ Unfortunately the general issue of pardons to per­
sons who had been prominent in the rebellion, and the 
feeling of kindness and conciliation manifested by the 
Executive, and very generally indicated through the north­
ern press, had the effect to render whole communities 
forgetful of the crime they had committed, defiant towards 
the Federal government and regardless of their duties as 
citizens.” Report, p. XVIII.

# # #
“ The crime we have punished is paraded as a virtue 

and the principles of republican government which we have 
vindicated at so terrible a cost are denounced as unjust 
and oppressive” . Ibid.

# # #
“ That Congress would not be justified in admitting 

such communities to a participation in the government of 
the country without first providing such constitutional or 
other guarantees as will tend to secure the civil rights of 
all citizens of the republic; a just equality of representa­
tion; protection against claims founded in rebellion and 
crime; a temporary restoration of the right of suffrage 
to those who have not actively participated in the efforts to 
destroy the Union and overthrow the Government, and the 
exclusion from positions of public trust of, at least, a por­
tion of those whose crimes have proved them to be enemies 
to the Union, and unworthy of public confidence. Ibid.

# * *
“ We now propose to restate, as briefly as possible, 

the general fact and principles applicable to all the States 
recently in rebellion:

* # #
“ First . . . From the time these Confederated States 

thus withdrew their representation in Congress and levied



10

Appendix A

war against the United States, the great mass of their peo­
ple became and were insurgents, rebels, traitors, and all of 
them assumed and occupied the political, legal and practi­
cal relation of enemies of the United States,” Id. at XIX.

# *  #

“ Third. Having voluntarily deprived themselves of 
representation in Congress for the criminal purpose of 
destroying the federal Union, and having reduced them­
selves, by the act of levying war, to the condition of public 
enemies, they have no right to complain of temporary ex­
clusion from Congress; but, on the contrary, having volun­
tarily renounced the right to representation, and dis­
qualified themselves by crime from participating in the 
government, the burden now rests upon them, before claim­
ant to be reinstated in their former condition to show that 
they are qualified to resume federal relations.” Ibid.

# # #

“ Fourth. Having, by this treasonable withdrawal from 
Congress, and by flagrant rebellion and war, forfeited 
all civil and political rights and privileges under the fed­
eral Constitution, they can only be restored thereto by the 
permission and authority of that constitutional power 
against which they rebelled and by which they were sub­
dued.” Id. at XX.



11

APPENDIX B

Excerpts from Congressional Debate

Bep. Bingham: ‘ ‘ Treason is a crime; South Carolina by 
her secession could not destroy the State and district of 
South Carolina even for the purpose of holding therein a 
Federal court and trying and condemning traitors for the 
treason and other crimes which they therein committed 
against the United States.” Cong. Globe, 39th Cong. 1st 
Sess. p. 158.

# # *
“ . . . yet, that very moment the American people might 
rightfully have there opened their Courts of justice under 
the protection of their guns, and proceeded to execute 
judgment according to law upon every criminal offender 
against the authority of the United States on whom they 
might lay their hands, and whose crime was committed 
within the State.” Id. at 158-59.

# # *
“ . . .  so that when the war ceased in those states the Gov­
ernment of the United States could administer justice in 
every one of those States and try therein all persons for 
crimes against the United States therein committed.” Id. 
at 159.

#
“ According to the Constitution and the laws of the 

United States Government, every man is responsible for 
his own crime, and not for the crimes of others. So that 
when the sovereignty of the country comes to be restored— 
in Virginia and the Carolinas, the judiciary of the United 
States are bound by their oaths to discriminate between 
those who contributed by the compulsion of the bayonet 
to the support of the rebellion, and those who originated 
it and are the guilty perpetrators of the great wrong.” Ibid.



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