HUNTER ET AL. v. UNDERWOOD ET AL.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Argued February 26, 1985
Decided April 16, 1985
Article VIII, 182, of the Alabama Constitution of 1901 provides for the disenfranchisement of persons convicted of certain enumerated felonies and misdemeanors, including "any . . . crime involving moral turpitude." Appellees, one of whom is black and the other white, were disenfranchised by County Registrars under 182 because each had been convicted of the misdemeanor of presenting a worthless check, determined by the Registrars to be a crime involving moral turpitude. Appellees brought an action in Federal District Court for declaratory and injunctive relief. The case was tried on a claim, inter alia, that the misdemeanors encompassed within 182 were intentionally adopted to disenfranchise blacks on account of race and that their inclusion in 182 has had the intended effect. The District Court found that disenfranchisement of blacks was a major purpose for the Convention at which the Alabama Constitution of 1901 was adopted, but that there was no showing that 182 was based upon racism, and that proof of an impermissible motive for 182 would not warrant its invalidation in face of the permissible motive of disenfranchising those convicted of crimes. The Court of Appeals reversed, holding that under the evidence discriminatory intent was a motivating factor in adopting 182, that there could be no finding of a permissible intent, that accordingly it would not have been adopted in the absence of the racially discriminatory motivation, and that the section as applied to misdemeanants violated the Fourteenth Amendment. The court also implicitly found the evidence of discriminatory impact indisputable.
Section 182 violates the Equal Protection Clause of the Fourteenth Amendment. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 . That 182 may have been adopted to discriminate against poor whites as well as against blacks would not render nugatory the purpose to discriminate against blacks, it being clear that the latter was a "but-for" motivation for adopting 182. There is no evidence that the disenfranchisement of those convicted of crimes involving moral turpitude was a motivating purpose of the 1901 Convention. Events occurring since 182 was adopted cannot validate the section. Nor can the Tenth Amendment save legislation prohibited by the Fourteenth Amendment. And the implicit authorization in 2 of [471 U.S. 222, 223] the Fourteenth Amendment to deny the vote to citizens "for participation in rebellion, or other crime," does not except 182 from the operation of the Equal Protection Clause. Pp. 227-233.
730 F.2d 614, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the consideration or decision of the case.
James S. Ward, Special Assistant Attorney of Alabama, argued the cause and filed a brief for appellants.
Edward Still argued the cause for appellees. With him on the brief were Neil Bradley, Laughlin McDonald, and Christopher Coates.Fn
Fn [471 U.S. 222, 223] Briefs of amici curiae urging affirmance were filed for the National Association for the Advancement of Colored People et al. by Samuel Rabinove and Richard T. Foltin; and for NAACP Legal Defense and Educational Fund, Inc. by Julius Chambers and Lani Guinier.
JUSTICE REHNQUIST delivered the opinion of the Court.
We are required in this case to decide the constitutionality of Art. VIII, 182, of the Alabama Constitution of 1901, which provides for the disenfranchisement of persons convicted of, among other offenses, "any crime . . . involving moral turpitude." * Appellees Carmen Edwards, a black, [471 U.S. 222, 224] and Victor Underwood, a white, have been blocked from the voter rolls pursuant to 182 by the Boards of Registrars for Montgomery and Jefferson Counties, respectively, because they each have been convicted of presenting a worthless check. In determining that the misdemeanor of presenting a worthless check is a crime involving moral turpitude, the Registrars relied on opinions of the Alabama Attorney General.
Edwards and Underwood sued the Montgomery and Jefferson Boards of Registrars under 42 U.S.C. 1981 and 1983 for a declaration invalidating 182 as applied to persons convicted of crimes not punishable by imprisonment in the state penitentiary (misdemeanors) and an injunction against its future application to such persons. After extensive proceedings not relevant here, the District Court certified a plaintiff class of persons who have been purged from the voting rolls or barred from registering to vote in Alabama solely because of a misdemeanor conviction and a defendant class of all members of the 67 Alabama County Boards of Registrars. The case proceeded to trial on two causes of action, including a claim that the misdemeanors encompassed within 182 were intentionally adopted to disenfranchise blacks on account of their race and that their inclusion in 182 has had the intended effect. For the purposes of this claim, the District Court treated appellee Edwards as the representative of a subclass of black members of the plaintiff class.
In a memorandum opinion, the District Court found that disenfranchisement of blacks was a major purpose for the convention at which the Alabama Constitution of 1901 was adopted, but that there had not been a showing that "the provisions disenfranchising those convicted of crimes [were] based upon the racism present at the constitutional convention." The court also reasoned that under this Court's decision [471 U.S. 222, 225] in Palmer v. Thompson, 403 U.S. 217 (1971), proof of an impermissible motive for the provision would not warrant its invalidation in face of the permissible motive of "governing exercise of the franchise by those convicted of crimes," which the court apparently found evident on the face of 182. App. E to Juris. Statement E-5 - E-7.
On appeal, the Court of Appeals for the Eleventh Circuit reversed. 730 F.2d 614 (1984). It held that the proper approach to the Fourteenth Amendment discrimination claim was established in Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 270 , and n. 21 (1977), and Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287 (1977):
The predecessor to 182 was Art. VIII, 3, of the Alabama Constitution of 1875, which denied persons "convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery, or other crime punishable by imprisonment in the penitentiary" the right to register, vote or hold public office. These offenses were largely, if not entirely, felonies. The drafters of 182, which was adopted by the 1901 convention, expanded the list of enumerated crimes substantially to include the following:
The enumerated crimes contain within them many misdemeanors. If a specific crime does not fall within one of the enumerated offenses, the Alabama Boards of Registrars consult Alabama case law or, in absence of a court precedent, opinions of the Alabama Attorney General to determine whether it is covered by 182. 730 F.2d, at 616, n. 2. Various minor nonfelony offenses such as presenting a worthless check and petty larceny fall within the sweep of 182, while [471 U.S. 222, 227] more serious nonfelony offenses such as second-degree manslaughter, assault on a police officer, mailing pornography, and aiding the escape of a misdemeanant do not because they are neither enumerated in 182 nor considered crimes involving moral turpitude. Id., at 620, n. 13. It is alleged, and the Court of Appeals found, that the crimes selected for inclusion in 182 were believed by the delegates to be more frequently committed by blacks.
Section 182 on its face is racially neutral, applying equally to anyone convicted of one of the enumerated crimes or a crime falling within one of the catchall provisions. Appellee Edwards nonetheless claims that the provision has had a racially discriminatory impact. The District Court made no finding on this claim, but the Court of Appeals implicitly found the evidence of discriminatory impact indisputable:
Presented with a neutral state law that produces disproportionate effects along racial lines, the Court of Appeals was correct in applying the approach of Arlington Heights to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment:
Proving the motivation behind official action is often a problematic undertaking. See Rogers v. Lodge, 458 U.S. 613 (1982). When we move from an examination of a board of county commissioners such as was involved in Rogers to a body the size of the Alabama Constitutional Convention of 1901, the difficulties in determining the actual motivations of the various legislators that produced a given decision increase. With respect to Congress, the Court said in United States v. O'Brien, 391 U.S. 367, 383 -384 (1968) (footnote omitted):
As already noted, the District Court nonetheless found that the crimes provision in 182 was not enacted out of racial animus, only to have the Court of Appeals set aside this finding. In doing so, the Court of Appeals applied the clearly-erroneous standard of review required by Federal Rule of Civil Procedure 52(a), see Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982), but was "left with a firm and definite impression of error . . . with respect to the issue of intent." 730 F.2d, at 620. The evidence of legislative intent available to the courts below consisted of the proceedings of the convention, several historical studies, and the testimony of two expert historians. Having reviewed this evidence, we are persuaded that the Court of Appeals was correct in its assessment. That court's opinion presents a thorough analysis of the evidence and demonstrates conclusively that 182 was enacted with the intent of disenfranchising blacks. We see little purpose in repeating that factual [471 U.S. 222, 230] analysis here. At oral argument in this Court appellants' counsel essentially conceded this point, stating: "I would be very blind and naive [to] try to come up and stand before this Court and say that race was not a factor in the enactment of Section 182; that race did not play a part in the decisions of those people who were at the constitutional convention of 1901 and I won't do that." Tr. of Oral Arg. 6.
In their brief to this Court, appellants maintain on the basis of their expert's testimony that the real purpose behind 182 was to disenfranchise poor whites as well as blacks. The Southern Democrats, in their view, sought in this way to stem the resurgence of Populism which threatened their power:
Citing Palmer v. Thompson, 403 U.S., at 224 , and Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 472 , n. 7 (1981) (plurality opinion), appellants make the further argument that the existence of a permissible motive for 182, namely, the disenfranchisement of poor [471 U.S. 222, 232] whites, trumps any proof of a parallel impermissible motive. Whether or not intentional disenfranchisement of poor whites would qualify as a "permissible motive" within the meaning of Palmer and Michael M., it is clear that where both impermissible racial motivation and racially discriminatory impact are demonstrated, Arlington Heights and Mt. Healthy supply the proper analysis. Under the view that the Court of Appeals could properly take of the evidence, an additional purpose to discriminate against poor whites would not render nugatory the purpose to discriminate against all blacks, and it is beyond peradventure that the latter was a "but-for" motivation for the enactment of 182.
Appellants contend that the State has a legitimate interest in denying the franchise to those convicted of crimes involving moral turpitude, and that 182 should be sustained on that ground. The Court of Appeals convincingly demonstrated that such a purpose simply was not a motivating factor of the 1901 convention. In addition to the general catchall phrase "crimes involving moral turpitude" the suffrage committee selected such crimes as vagrancy, living in adultery, and wife beating that were thought to be more commonly committed by blacks:
Finally, appellants contend that the State is authorized by the Tenth Amendment and 2 of the Fourteenth Amendment to deny the franchise to persons who commit misdemeanors involving moral turpitude. For the reasons we have stated, the enactment of 182 violated the Fourteenth Amendment, and the Tenth Amendment cannot save legislation prohibited by the subsequently enacted Fourteenth Amendment. The single remaining question is whether 182 is excepted from the operation of the Equal Protection Clause of 1 of the Fourteenth Amendment by the "other crime" provision of 2 of that Amendment. Without again considering the implicit authorization of 2 to deny the vote to citizens "for participation in rebellion, or other crime," see Richardson v. Ramirez, 418 U.S. 24 (1974), we are confident that 2 was not designed to permit the purposeful racial discrimination attending the enactment and operation of 182 which otherwise violates 1 of the Fourteenth Amendment. Nothing in our opinion in Richardson v. Ramirez, supra, suggests the contrary.
The judgment of the Court of Appeals is
[ Footnote * ] Section 182 of the Alabama Constitution of 1901 provides: