# Amicus Curiae Brief — Hunter v. Underwood > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0333%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1985 - **Citation:** 471 U.S. 222 ## Text | eeficg Supreme Court, U.S. No, 84-76 | | iitice-Sup me CO Ix toe : fii) $a =F 1985 Papen Gant of Bye | AS, —— | Octoper TERM, 1984 — woe Newt Hunter, ef al. individually, and on behalf of all other members of Board of Registrars in the State of Alabama, Appellants, Vv. Victor UnpERWoop and CarMEN Epwarps, for themselves and all others similarly situated, Appellees. APPEAL FROM THE UNITED STATES COURT OF AFPEALS FOR THE ELEVENTH CIRCUIT —_—_ ee BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. IN SUPPORT OF APPELLEES od — JULIUS CHAMBERS Lanr GuINIER* Penpa Har 99 Hudson Street New York, New York 10013 Ricuarp BrRIFFAULT Columbia University School of Law 435 West 116th Street New York, New York 10027 Attorneys for the NAACP Legal Defense and Educational Fund, Inc. *Counsel of Record Dated: January 7, 1985 BEST AVAILABLE COPY "7 TABLE OF CONTENTS Table of AuthoritieS ...cccscceccece Statement of Interest of Amicus Curiae @eeeeeeaes1,_ee@eees so as to eliminate Negro voters." United States v. State of Alabama, 252 F. Supp. 95, 98 (M.D. Ala. 1966) (three-judge court). "'What they want is a scheme pure and simple which will let every white man vote and prevent any Negro from voting,' reported the Birmingham Age-Herald about the delegates at the Alabama Constitu- tional Convention of 1901." Schmidt, Principle and _ Prejudice: The Supreme Court and Race in the Progressive Era. Part 3: Black Disfranchisement from the KKK to the Grandfather Clause, 82 Colum. L. Rev. 835, 846 (1982). The legislative history is also clear. "Delegate after delegate took the floor eager to be put on record as fororing ‘the absolute disfranchisement of the Negro as a Negro'.... The Journals of the Convention leave absolutely no doubt as to what the delegates of the white = 29 = citizens of Alabama wished the Convention to accomplish: ... ‘it is our intention, and here is our registered vow to dis- franchise every Negro in the state...'” United States v. Alabama, supra, 252 F. Supp. at 98, quoting comments by conven- tion delegate reported in the Official Proceedings. In developing their program of disenfranchisement, the delegates took care to avoid the strictures of the Fourteenth - and Fifteenth Amendments. Instead of directly curtailing the franchise on grounds of race, the suffrage committee “made resort to facially neutral ‘tests that took advantage of differing social conditions. Disenfranchisement for commission of specified misdemeanors is in pari materia with the "grandfather clause," the poll tax, and the literacy test -- a clear pattern of measures oo neutral on the surface but adopted for the purpose and having the effect of disen- franchising blacks, and which were subseguently declared invalid for that reason. See, e€.9., Guinn v. United States, 238 U.S. 347 (1915) (grandfather clause), South Carolina v. Katzembach, supra, 383 U.S. at 312, 333-34 (literacy test), United States v. State of Alabama, supra, (poll tax). Although the clause at issue purports to utilize a racialiy neutral criterion -- misdemeanors involving moral turpitude -- moral turpitude was intentionally defined to bring about the disenfranchisement of blacks. The suffraae committee of the Constitutional Convention chose offenses that were believed to be peculiar to blacks' low income and social status, such as petty property offenses, and minor sex-related crimes. (J. S. at A-10, - 24 - citing P. Lewison, Race, Class and Party 81 (1963).) Appellants’ own expert, Dr. Thornton, acknowledges that the disquali- fying crimes were those “associated in the public mind with the behavior of blacks." Joint App. at A-23. The brunt of the non-penitentiary offenses clause was, and still is, borne by blacks. Joint App. at A-26; J.S. at A-11. Thus, the elements of proving racally invidious discrimination identi- fied in Arlington Heights -- historical background, legislative history, pattern of discriminatory enactments, and dis- parate racial impact -- are all present 3 here. Taken together they prove the Therefore, this case differs significantly from the veteran's preference upheld in Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979). Unlike Feeney, in which the worthy and legitimate goals behind the veteran's preference were stipulated, the classification here is neither rationally based, traditionally justified nor beneficent. Indeed, a SSS ..S.SaaQaQ o Sn ""'insidious and pervasive evil’ of racial discrimination in voting." City of Rome ve. United States, 446 U.S. 156, 174 (1980). A state restriction on the right to vote adopted for racially invidious reasons violates the Equal Protection Clause of the Fourteenth Amendment, Rogers City of Mobile v. Bolden, 446 U.S. 55, 66-67 (1980) (plurality opinion), as well as the Fifteenth Amendment. City of Mobile, supra, Gomillion v. Lightfoot, 364 U.S. 339 (1960), Guinn v. United States, supra. appellants concede racial antipathy behind the misdemeanant exclusion clause, and proof of its discriminatory purpose, contrary to the plaintiff's case against the Massachusetts veteran's preference, is not solely based on inferences from its disproportionate impact. — 2 III. DISENFRANCHISEMENT OF POOR WHITES BECAUSE OF THEIR POLITICAL BELIEFS OR LACK OF WEALTH VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS Appellants contend that the misde- meanants exclusion clause of section 182 was not adopted solely because of anti- black racial animus, but rather was adopted for “political reasons," to disenfranchise as well “poor whites" or "populists." (Brief for Appellants at 9-10, 12). Appellants’ theory is prob- lematic as an interpretation of the 1901 Alabama Constitutional Convention, but even if appellants’ theory were true it could not save the disenfranchisement clause. Appellants’ theory assumes that the "racial" and “political” purposes of the Alabama Constitutional Convention were distinct... To the contrary, in turn-of- the-century Alabama and throughout the ——EE = 2 « Deep South at that time politics and race were largely intertwined. See Schmidt, Principles and Prejudices, supra, 682 Colum. L. Rev. at 842-47. Even appel- lants' expert Dr. Thornton, acknowledges that the Constitutional] Convention delegates sought to achieve their “politi- cal,” anti-Populist, goal by "eliminating the black vote that had -- the courting of which had represented the principal threat from the point of view of conservative white democrats." (Joint App. at A-19.) Moreover, in order to find that section 182 was “political” and not "racial", the court must ignore most of the historical record. Appellants urge the Court “not to be misled by reading or analyzing the proceedings of the Conven- tion." (Brief for Appellants at 18.) The speeches and debates of the delegates, the anti-black statements, and the avowal of a» 26 « anti-black purposes were all a “public relations gesture." (Joint App. at A-23, A-27). Appellants’ expert acknowledges that "“[i]f£ you read the four volumes of the official proceedings -- a fate I wouldn't wish on anyone --but if you happen to, you will come away with the sense that race simply dominates’ the proceedings of the Convention." (Id. at A-27). His solution is. to ignore the statements and actions of the delegates and rely solely on their unstated inten- tions, as he divines them. Thus would appellants have the Court ignore the approach for identifying intent set forth in Arlington Heights and pursued by the Eleventh Circuit. Most importantly, however, appel- lants' version of history cannot Save the misdemeanants disenfranchisement clause from invalidation. On appellants’ theory « 26 « “\ <.the clause is constitutional because it was adopted with the intent to discrimi- nate against “poor whites” or "Populists." Such a contention would be iaughable if it were not so offensive. The franchise may ro more be denied on grounds of political belief or lack of wealth than it may be for racial animus. ""Pencing out' from the franchise a section of the population because of the way they may vote is constitutionally impermissible. ‘'[T]he exercise of rights so vital to the maintenance of democratic institutions," ... canndt be obliterated because of a fear of the political views of a particular group of bona fide resi dents." Carrington v. Rash, 380 U.S. 89, 94 (1965) "'[D)ifferences of opinion’ may i eenanes ites Ate maa ene ne not be the basis for excluding any group or person from the franchise." Dunn v. Blumstein, supra, 405 U.S. at 355, quoting o = Cipriano v. City of Houma, Supra, 395 U.S. at 705-06. Accord, Evans v. Cornman, 398 U. . 419, 422 (1970). As this Court observed in another context, "Congress may not ‘enact a regulation providing that no Republican, Jew or Negro shall be ap- pointed to federal office.'" United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947). These cases clearly establish that where the right to vote is at stake, political minorities as well as racial minorities -- "“pepulists" as well as blacks -- are protected by the Equal Protection Clause. The desire to vanquish one's political opponents or "fence out" citizens holding unorthodox beliefs has never withstood strict scrutiny or been found to serve a compelling state interest to justify the denial of the franchise to the disfavored group. Indeed, a finding that section 182 was adopted out of an- « 3%. = tipopulist or anti-poor white animus would compel the determination that it violates the Fourteenth Amendment. "Wealth, like race, creed, or color, is not germane to one's”) ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race ... are traditionally disfavored" where the franchise is at stake. Harper v. Virginia Board of Elections, 383 U.S. 663, 668 (1966). This Court has consistently held unconstitutional under the Equal Protec- tion Clause wealth-based restrictions on the franchise, such as the poll tax, Harper, supra, excessive filing fees, Lubin v. Panish, 415 U.S. 709 (1974), Bullock v. Carter, 405 U.S. 134 (1972), and statutes restricting to taxpayers the right to vote on bond issues, Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Cipri- o 98 « ano v. City of Houma, 395 U.S. 701 (1969). The right of suffrage of “poor whites” like that of blacks is protected by the Constitution and may not be denied by measures aimed at them because of their lack of wealth. IV. RICHARDSON v. RAMIREZ DOES NOT INSULATE THE MISDEMEANANTS' DISEN- FRANCHISEMENT CLAUSE FROM STRICT SCRUTINY. Appellants contend that the misde- meanants disenfranchisement provision of section 182 is insulated from Equal Protection Clause review by virtue of this Court's decision in Richardson v. Ramirez, 418 U.S. 24 (1974). In Richardson, the Court considered that portion of section 2 of the Fourteenth Amendment which limited the penalty of reduced state representa- tion in Congress to denials of the franchise “except for participation in rebellion, or other crimes." The Court » = concluded that this provision gave "affirmative sanction" to "the exclusion of felons from the vote.” Té. at 54. The case sub judice differs from Richardson in two significant ways. First, the disenfranchising crimes in Richardson were felonies whereas the present case concerns an invidiously selected list of non-felonies. Richardson was predicated in part on an examination of the historical background of the Fourteenth Amendment. The Court noted that at the time of the Fourteenth Amendment's ratification most States had provisions in their constitu- tions which prohibited, or authorized their legislatures to prohibit, the exercise of the franchise by persons convicted of felonies. Congress, in readmitting the seceded states to the Union, authorized those states to deny the_ franchise for"'participation in ~ the ~ 24 rebellion or for felony at common law'." 418 U.S. at 48,49. There was, however, no similar finding that the “historical understanding of the Fourteenth Amendment" confirmed the disenfranchisement of misdemeanants. Richardson has never been applied to uphold a disenfranchisement of non-felons. Indeed, those states which disenfran- chise citizens for criminal convictions have generally limited that penalty to convictions of election-related offenses, some subset of serious felonies, or at most all felonies and “infamous crimes." See generally Note, Restoring the Ex- Offender's Right to Vote: Background and Developments, 11 AM. Crim. L. Rev. 721, 727-29, 758-70 (1973); Special Project, The Collatera} Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929, 975-77 (1970). According to these two surveys, =» 8 s published in the early 1970's, only two states, Alabama and Georgia disenfran- chised for specified non-felony offenses, defined as involving moral turpitude. Note, supra, 11 Am. Crim. L. Rev. at 758-61 and 766 n. 217; Special Project, supra., 23 Vand. L. Rev. at 976 n.251. The current Georgia Constitution disenfran- chises only persons convicted of "a felony involving moral turpitude." GA. Const. Art 2, sec. 1 para 3(a). (emphasis supplied). Consequently, Alabama may be the only state which today disenfranchises any category of non-felons. The Court, however, need not resolve the applicability of Richardson to the exclusion of misdemeanants because what clearly sets this case apart from Richard- son is not the felony/non-felony distinc- tion but the finding of invidious dis- '‘ criminatory intent. There was no conten- « SS aw tion in Richardson that the disenfran- chisement provision at issue was adopted for racially discriminatory purposes, or, for that matter, out of a political or wealth-based animus. Richardson con- sidered only the question whether the denial of the right to vote to felons was per se unconstitutional. The presence of discriminatory intent is central to this Court's interpretation of the Equal Protection Clause of the Fourteenth Amendment. See, e.g., City of Mobile v. Bolden, supra, Arlington Heights v. Metropolitan Housing Development Corp., Supra, Washington v. Davis, 426 U.S. 229 (1976). Particularly where the right to vote is at stake, state laws or practices which would be constitutional if they were adopted for a legitimate purpose have been held unconstitutional if they were adopted for a constitutionally proscribed reason. » 37 « Thus, in City of Mobile v. Bolden, supra, and White v. Regester, 412 U.S. 755 (1973) the Court held that multi-mem- ber or at-large election districts are a constitutional voting mechanism. When such a system, neutral on its face, “is subverted to invidious purposes," it violates the Fourteenth Amendment. Rogers v. Lodge, 458 U.S. 613, 621-22 (1982); White v. Regester, supra, 412 U.S. at 765-70. Similarly, in Lassiter Vv. Northampton County Bd. of El., 360 U.S. 45 (1959), this Court held that a State's use of a literacy test to qualify voters is consistent with the Fourteenth Amend- ment. Yet, in South Carolina v. Kat zen- bach, supra, the Court held that siete literacy tests "have been instituted with the purpose of disenfranchising Negroes, have been framed in such a way as to facilitate this aim, and have heen — oe administered in a discriminatory fashion," literacy tests violate the Constitution. In other words, even if Richardson v. Ramirez is interpreted to authorize the State of Alabama, for legitimate reasons, to disenfranchise persons convicted of non-felonies involving moral turpitude, the case does not support such action when taken for a constitutionally proscribed purpose. Appellees allege and the Court below found that the State acted out of racial animus, which the Fourteenth Amendment prohibits. Appellants contend that the State acted out of wealth-based or political animus, which are _ also constitutionally forbidden justifications. Appellants have alleged no constitution- ally permissible reason for the disen- franchisement of non-felons, let alone a compelling state purpose. Under these ° = 2 = circumstances, the Court must affirm the Court of Appeals" conclusion that the disenfranchisement clause violates the Fourteenth Amendment. V. THE TENTH AMENDMENT PROVIDES NO PROTECTION FOR A STATE DISENFRAN- CHISEMENT MEASURE WHICH VIOLATES THE FOURTEENTH AMENDMENT Appellants argue that the State of Alabama has broad power secured by the Tenth Amendment to grant or deny the suffrage. But "no State can pass a law regulating elections that violates the Fourteenth Amendment...." Williams v. Rhodes, 393 U.S. 23, 29 (1968). The Thirteenth, Fourteenth and Fifteenth Amendments “were specifically designed as an expansion of federal power and an intrusion on state sovereignty." City of Rome v. United States, 446 U.S. 156, 179 (1980). Particularly in the area of voting rights the Civil War Amendments « 46 « "supersede contrary exertions of state power." South Carolina v. Katzenbach, 383 U.S. at 325. The principles of Tenth Amendment federalism articulated in National League of Cities v. Usery, 426 U.S. 833 (1976), do nce* constrain the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 451-56 (1976). See also City of Rome v. United States, supra, 446 U.S. at 178-80 (National League of Cities does not limit the Fifteenth Amendment). In short, the Tenth Amendment provides no independent justification for a state disenfranchisement measure which violates the Fourteenth Amendment. \ VI. THE MISDEMEANANTS DISENFRAN- CHISEMENT CLAUSE VIOLATES THE VOTING RIGHTS ACT. As amended in 1982, section 2 of the Voting Rights Act, 42 U.S.C. § 1973(a) bars the use of any "voting qualification o 44 « Or prereguisite to voting or standard, practice, or procedure....which results in a denial or abridgement of the right to vote of any citizen of the United States on account of race or color." The section prohibits not only official action taken Or maintained for a racially discrimina- tory purpose, but also any official action that results in the impairment or denial of the right to vote of any citizen on account of race. United States v. Marengo County Commission, 731 F. 2d 1546 (llth Cir. 1984) appeal dismissed, 83 L.Ed.2d 311 (Nov. 5, 1984)(No. 84-243). Thus, “discriminatory intent need not be shown to establish a violation.” Id. at 1564. Section 2 plainly applies to State restrictions on the right to register, as well as to districting schemes that dilute minority voting strength. Harris v. Graddick, 593 F.\‘ Supp. 128, 132 (M.D. Ala. - 42 - 1984). As the court below found, the disenfranchisement of misdemeanants disproportionately affects blacks (J. S. at A-11). Consequently, a prima facie case of a “voting qualification" which results in a deniai of the right to vote on account of race is made out. CONCLUSION For the reasons stated, the decision of the United States Court of Appeals for the Eleventh Circuit should be affirmed. Respectfully submitted, JULIUS CHAMBERS LANI GUINIER * PENDA HAIR 99 Hudson Street New York, New York 10013 RICHARD BRIFFAULT Columbia University School of Law 435 West 116th Street New York, New York 10027 = 49 « Attorneys for the NAACP Legal Defense and Educa- tional Fund, Inc., Amicus Curiae *Counsel of Record Dated: January 7, 1985 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0333%3A8. Public record. Not legal advice.