Underwood v. Hunter

¶4VANCE, Circuit Judge:

¶5In 1977 and 1978 the boards of registrars for Montgomery and Jefferson Counties in Alabama barred Carmen Edwards and Victor Underwood, respectively, from representation on the election rolls. They were denied voting privileges under section 182 of the Alabama Constitution, adopted in 1901, which disfranchises those convicted of crimes punishable by imprisonment in the penitentiary, crimes of moral turpitude and other enumerated misdemeanors and felonies.1 Edwards and Underwood were disfranchised for presenting worthless *616checks, a misdemeanor which the registrars classify as a crime of moral turpitude.2

¶6Edwards and Underwood filed suit against the boards of registrars of Montgomery and Jefferson Counties under 42 U.S.C. §§ 1981 and 1983 challenging section 182 as it applies to those convicted of crimes not punishable by imprisonment in the penitentiary (nonprison offenses). They alleged five causes of action, one of which is dispositive. Plaintiffs alleged that the nonprison offenses warranting disfranchisement under section 182 were specifically adopted with the intent to disfranchise blacks on account of their race and that the provision has had exactly its intended effect.3 They requested a declaration invalidating section 182 and sought to enjoin its future application. With respect to the two claims proceeding to trial, the district court certified a plaintiff class of those disfranchised for nonprison offenses, represented by Underwood and Edwards,4 and a defendant class of all Alabama county boards of registrars. Following trial in 1981, the district court issued a memorandum opinion ruling for defendants on these two causes of action. Plaintiffs filed this appeal challenging the disposition of all five claims. We hold that section 182 violates the fourteenth amendment because it denies plaintiffs the right to vote on the basis of race.5

¶7*617A successful fourteenth amendment claim of race discrimination in matters affecting voting requires that plaintiffs establish an intent to abridge the franchise on account of race. City of Mobile v. Bolden, 446 U.S. 55, 66-67, 100 S.Ct. 1490, 1499-1500, 64 L.Ed.2d 47 (1980) (plurality opinion); Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). To establish a violation of the fourteenth amendment in the face of mixed motives, plaintiffs must prove by a preponderance of the evidence that racial discrimination was a substantial or motivating factor in the adoption of section 182. They shall then prevail unless the registrars prove by a preponderance of the evidence that the same decision would have resulted had the impermissible purpose not been considered. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 270 & n. 21, 97 S.Ct. 555, 566 & n. 21, 50 L.Ed.2d 450 (1977); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 5. Ct. 568, 576, 50 L.Ed.2d 471 (1977). In a case alleging discrimination on the basis of race, the permissible motivating interest articulated by the state must be compelling, Crawford v. Board of Education, 458 U.S. 527, 536, 102 S.Ct. 3211, 3217, 73 L.Ed.2d 948 (1982), and the means employed must be precisely drawn to accomplish exactly the objective that the state purports to further. Kramer v. Union Free School District, 395 U.S. 621, 632, 89 S.Ct. 1886, 1892, 23 L.Ed.2d 583 (1969).

¶8The district court found that plaintiffs failed to show evidence of discriminatory purpose in the adoption of section 182. It next concluded that even if a racial animus was demonstrated, the state’s purported interest in denying criminals the franchise is a permissible one.

¶9We cannot agree with the district court. Our review of the record reveals that the district court erred both in its factual findings and in its legal analysis6 We conclude that the district court’s finding of lack of discriminatory intent in the adoption of section 182 is clearly erroneous. In addition, the district court failed to require the state to show that section 182 would have been enacted in the same form in the absence of racial animus, as Arlington Heights requires. By allowing the state to prevail on what the district court concluded was a showing of permissible intent, the court brought its inquiry to a premature end.7

¶10*618Applying the Arlington Heights test to the case at hand, the first step is to inquire whether intent to deny the franchise on the basis of race was a substantial or motivating factor in the enactment of section 182. In conducting this inquiry we are mindful of the testimony by expert witnesses for both sides that the purpose of section 182 must be considered in light of the overall purpose of the 1901 constitutional convention and the suffrage article, taken as a whole.

¶11Blacks first received the right to vote in Alabama under the Constitution of 1867, which created universal suffrage for males over the age of twenty-one with certain exceptions not relevant here. Ala. Const, of 1867, art. VII. With the end of Reconstruction, the white citizens of Alabama moved to reassert their once unquestioned political supremacy. The 1890’s ushered in an era of disfranchisement not only in Alabama but throughout the South. In 1890 Mississippi adopted a new state constitution embodying the suffrage restrictions proposed in the “Second Mississippi Plan.” By 1908 eleven other states, including Alabama, had followed suit through various statutory and constitutional devices. S. Hackney, Populism to Progressivism in Alabama 147 (1969); C. Woodward, Origins of the New South 1877-1913 321 (1971).

¶12In the judgment of modern scholars, the organizers of the 1901 Alabama convention sought to disfranchise poor dissident whites as well as blacks. M. McMillan, Constitutional Development in Alabama, 1798-1901: A Study in Politics, the Negro, and Sectionalism 249, 269 (1955) (Def.Exh. 14). With the ascendency of the Populists a decade earlier, the black vote had acquired added leverage. Whites, Democrats and Populists alike, vied for black ballots in any way they could, with favors, pardons of convictions, outright vote purchase and massive electoral fraud. United States v. State of Alabama, 252 F.Supp. 95, 98 (M.D.Ala.1966) (three-judge court); S. Hackney, supra, 36-37, 89, 176-77. As the court below noted, resort to such methods had become increasingly precarious in light of renewed Northern moves to extend the federal election supervisory act of 1870. In 1890 the Senate had narrowly defeated the Lodge force bill, which called for tighter federal control of all phases of voting, from voter registration to ballot tabulation. J. Kousser, The Shaping of Southern Politics 29-30 (1974); C. Woodward, supra, at 254-55. The most effective way to ward off federal intervention as well as fraud, according to the reformers, was to eliminate the Negro vote. S. Hackney, supra, at 146, 175-77; M. McMillan, supra, at 269; C. Woodward, supra, at 326-27. In the words of one delegate to the 1901 convention, “Now we are not begging for ‘ballot reform’ or anything of that sort, but we want to be relieved of purchasing the Negroes to carry elections. I want cheaper votes.” Speech of Delegate William A. Handley, III Official Proceedings of the Constitutional Convention of the State of Alabama, May *61921st, 1901 to September 3rd, 1901 2276-77 (1940) [hereinafter cited as Official Proceedings ].

¶13When the Alabama constitutional convention assembled in May 1901, the question was not whether to disfranchise the Negro but rather how to do so constitutionally. In his opening address John B. Knox, the president of the convention, declared:

And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.

¶14I Official Proceedings at 8; see also Journal of the Proceedings of the Constitutional Convention of the State of Alabama 1776 (1901). In Knox’ words, “if we would have white supremacy, we must establish it by law — not by force or fraud.” I Official Proceedings at 9. Borrowing from the successful methods of the Second Mississippi Plan and those of other states,8 the suffrage committee set about to achieve this objective by settling on devices that would subvert the guarantees of the fourteenth and fifteenth amendments without directly provoking a legal challenge. In hopes of success, the committee made resort to facially neutral “tests that took advantage of differing social conditions. Property tests, literacy tests, residence requirements, the poll tax, and disqualification for conviction of certain crimes all fell into this category.” S. Hackney, supra, at 192; see also Deposition of J. Morgan Kousser (Pl.Exh. 9).9 The result was an exceptionally byzantine suffrage scheme. S. Hackney, supra, at 193; M. McMillan, supra, at 359.10

¶15While there is scant record of the debates over section 182, the sources of the crimes selected for inclusion in and exclusion from section 182 shed light on the motives of its drafters. In enumerating the crimes that would trigger disfranchisement, the suffrage committee chose offenses that were “peculiar to the Negro’s low economic and social status,” such as petty property offenses, wife-beating and sex-related crimes. P. Lewinson, Race, Class & Party 81 & n. 7 (1963) (cited in Pl.Exh. 9); M. McMillan, supra, at 275 (Pl.Exh. 12). The crimes selected by the suffrage committee had their origin in an ordinance drafted and submitted by John Fielding Burns, a Black Belt planter. See I Official Proceedings at 511. According to Dr. McMillan:

[t]he crimes [Burns] listed were those he had taken cognizance of for years in his justice of the peace court in the Burns-ville district, where nearly all his cases involved Negroes. For example, among those [Burns would have] disfranchised were persons guilty of larceny, bigamy, seduction, incest, rape, or attempt to rape, burglary, or attempt to burglarize, *620vagrancy, wife beating, forgery and “those who are bastards or loafers or who may be infected with any loathsome or contagious disease.”

¶16M. McMillan, supra, at 275 n. 76. In newspaper accounts, “Burns estimated the crime of wife-beating alone would disqualify sixty percent of the Negroes.” J. Gross, Alabama Politics and the Negro, 1874-1901 244 (1969) (cited in Pl.Exh. 9).

¶17According to experts for both sides, the evident racial animus of section 182 was used to induce delegates representing poor whites to vote for other provisions in the suffrage article, such as the poll tax, that were contrary to their interests. Whatever the folly of their vote, their perceptions of the disparate impact of section 182 turned out to be correct. The registrars’ expert estimated that by January 1903 section 182 had disfranchised approximately ten times as many blacks as whites. This disparate effect persists today. In Jefferson and Montgomery Counties blacks are by even the most modest estimates at least 1.7 times as likely as whites to suffer disfranchisement under section 182 for the commission of nonprison offenses.11

¶18In reviewing this record we are left with a firm and definite impression of error by the court below with respect to the issue of intent. Plaintiffs have more than shouldered their burden of showing that discriminatory intent was a motivating factor in the adoption of section 182; they have presented evidence from which the district court was required to find as a matter of law that discriminatory intent motivated section 182.12 We therefore turn to the state’s burden to demonstrate that the section would still have been adopted had a permissible state reason been the sole consideration.

¶19The registrars rely on a purported state interest in denying the franchise to those convicted of violating its laws. Assuming without deciding that this asserted state interest would pass constitutional muster, we are unable to discern any evidence that the rule was actually intended to serve that interest. Scheinberg v. Smith, 659 F.2d 476, 483 n. 2 (5th Cir. Unit B 1981).

¶20In the first place, we note several glaring omissions from the nonprison offenses resulting in disfranchisement under section 182.13 While underinclusiveness in and of itself does not establish a discriminatory intent, once such intent is shown, underinclusiveness is relevant to whether a second, permissible purpose also motivated the drafters. Had the convention truly wished to vindicate a “good government” purpose, it would have included all crimes not punishable by imprisonment in the penitentiary. Compare Trimble v. Gordon, 430 U.S. 762, 768 n. 13, 97 S.Ct. 1459, 1464 n. 13, 52 L.Ed.2d 31 (1977); O’Brien v. Skinner, 414 U.S. 524, 530, 94 S.Ct. 740, 743, 38 L.Ed.2d *621702 (1974). Nothing in the convention proceedings or the constitution itself suggests a good government purpose. See Trimble, 430 U.S. at 768 & n. 13, 97 S.Ct. at 1464 n. 13; Cleveland Board of Education v. LaFleur, 414 U.S. 632, 641 n. 9, 94 S.Ct. 791, 797 n. 9, 39 L.Ed.2d 52 (1974); L. Tribe, American Constitutional Law § 12-8, at 602 & n. 1; id.§ 16-30, at 1085-88 (1978). Indeed, while it is true that the avowed objective of the suffrage committee was to deny the vote to the corrupt and the ignorant, see I Official Proceedings at 1257, defendants’ expert freely admitted under cross-examination that the phrase the “corrupt and the ignorant” referred specifically to blacks and lower-class whites. The same good government rationale, presented in defense of the Alabama poll tax, a sister provision to section 182, struck the late Judge Rives as nothing more than “ingenious afterthought.” United States v. Alabama, 252 F.Supp. at 101. We hasten to agree and conclude that the registrars as a matter of law failed to present any evidence whatsoever of permissible intent. There was no evidence from which the district court could have found that section 182 would have been adopted had a permissible reason been the sole consideration.14

¶21We recognize the registrars’ good faith in administering the statute without reference to race. Neither their impartiality nor the passage of time, however, can render immune a purposefully discriminatory scheme whose invidious effects still reverberate today.

¶22We hold that section 182 of the Alabama Constitution of 1901 violates on account of race the fourteenth amendment with respect to those convicted of crimes not punishable by imprisonment in the penitentiary. Since those provisions of section 182 that disfranchise nonprison offenders lack legal effect, Dorchy v. Kansas, 264 U.S. 286, 289-90, 44 S.Ct. 323, 324, 68 L.Ed. 686 (1924); see INS v. Chadha, — U.S.—, 103 S.Ct. 2764, 2775, 77 L.Ed.2d 317 (1983) (citing Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 564-65, 76 L.Ed. 1062 (1932)), we do not reach the additional claims that plaintiffs press. The district court shall issue an injunction ordering voter registration upon request by members of plaintiff class who qualify in all other respects for registration on the electoral rolls.

¶23REVERSED and REMANDED with instructions.