Allen v. Ellisor

• Decision Date: 11 November 1980
• Docket Number: No. 79-1539,79-1539
• Parties: Gary ALLEN, individually and on behalf of all others similarly situated, Appellee, v. James B. ELLISOR, individually and as Executive Director of the South CarolinaElection Commission, Appellant, and Joan B. Blackwell, Norma D. Myers, Marie H. Walker, Jane Crayton Davis, individually and as members of the Board of Registration of Aiken County, SouthCarolina and on behalf of all others similarly situated, Defendants. . Heard En Banc
• Court: U.S. Court of Appeals — Fourth Circuit

Page 391

664 F.2d 391

Gary ALLEN, individually and on behalf of all others similarly situated, Appellee, v. James B. ELLISOR, individually and as Executive Director of the South CarolinaElection Commission, Appellant and Joan B. Blackwell, Norma D. Myers, Marie H. Walker, Jane Crayton Davis, individually and as members of the Board of Registration of Aiken County, SouthCarolina and on behalf of all others similarly situated, Defendants.

No. 79-1539.

United States Court of Appeals Fourth Circuit.

Heard En Banc Nov. 11, 1980.

Decided Jan. 6, 1981.

Treva G. Ashworth, Senior Asst. Atty. Gen., Columbia, S. C. (Daniel R. McLeod, Atty. Gen., C. Tolbert Goolsby, Jr., Deputy Atty. Gen., James M. Holly, State Atty., Columbia, S. C., on brief), for appellant.

Armand Derfner, Charleston, S. C. (Epstein, McClain & Derfner, Charleston, S. C., Laughlin McDonald, Neil Bradley, H. Christopher Coates, Atlanta, Ga., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, WINTER, BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE and ERVIN, Circuit Judges, sitting en banc.

DONALD RUSSELL, Circuit Judge:

The plaintiff, a convicted forger, sues individually and as representative of others similarly situated, asserting the unconstitutionality of the South Carolina statute disqualifying persons for conviction of crime. He bases his claim of unconstitutionality on two grounds: the first is the alleged invalidity of the statute under the equal protection clause in its designation of disqualifying offenses; the second is the alleged intentional discrimination on the basis of race in the enactment of the statute. The first raises a question of law resolvable on the face of the statute itself; the second presents a factual issue to be resolved on the proper record. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). After answer by the defendants, the plaintiff sought and was granted, without objection, class certification. At this point the defendants, who are the South Carolina Election Commission and the Board of Registration of Aiken County, moved for summary judgment. The plaintiff responded by seeking summary judgment. The District Judge, after argument, filed his opinion, 477 F.Supp. 321, finding the statute facially invalid under the equal protection clause of the fourteenth amendment, and granting judgment in favor of the plaintiff accordingly. Having held the statute invalid on that ground, he found no occasion to consider the plaintiff's claim of racial discrimination. From that judgment entered in favor of plaintiff on his claim of facial invalidity of the statute the defendants have appealed. We reverse and remand for further proceedings.

The statute under attack provides:

Persons convicted of burglary, arson, obtaining goods or money under false pretenses, perjury, forgery, robbery, bribery, adultery, bigamy, wife-beating, housebreaking, receiving stolen goods, breach of trust with fraudulent intent, fornication, sodomy, incest, assault with intent to ravish, larceny, murder, rape or crimes against the election laws shall be disqualified from being registered or voting, unless such disqualification shall have been removed by pardon. ¹

The alleged rationalization for the plaintiff's claim of facial invalidity of the statute, the only issue resolved by the District Judge and the one on which his judgment was based, was what the plaintiff asserted to be the lack of uniformity in the statute's designation of disqualifying offenses. In reaching this conclusion the District Judge applied the standard equal protection test in voting rights cases without considering the critical threshold question whether statutes disqualifying for crime such as the one under attack, which are expressly authorized under § 2 of the fourteenth amendment, were reviewable for compliance with the equal protection mandate imposed by § 1 of the same amendment on the basis of the lack of uniformity of offenses. In Green v. Board of Elections of City of New York, 380 F.2d 445 (2d Cir. 1967), cert. denied, 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968), however, the Court had confronted this threshold question of the applicability of the equal protection clause to a state statute disqualifying for crime enacted under the authority of § 2 of the fourteenth amendment and had found that review of such statutes under the equal protection clause was not required.

In Green a New York statute which disqualified any person "convicted of a felony" was challenged under the equal protection clause. In sustaining the statute Judge Friendly, speaking for the Court, held the general language relating to equal protection in § 1 of the fourteenth amendment did not apply to or limit the power of the state under § 2 of the amendment to disqualify persons convicted of crime, saying:

Plaintiff places heaviest weight on the equal protection clause of the Fourteenth Amendment, relied upon in such landmark decisions as the apportionment cases, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); and the voter qualification cases, Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), and Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). But none of those decisions intimates that the states are without power to continue their historic exclusion from the franchise of persons convicted of all or certain types of felonies. Even though the precise issue has not arisen before the Supreme Court, the propriety of excluding felons from the franchise has been so frequently recognized-indeed put forward by the Justices to illustrate what the states may properly do-that such expressions cannot be dismissed as unconsidered dicta. Id. 451.

A short time later the district court of New Jersey in Stephens v. Yeomans, 327 F.Supp. 1182 (D.N.J.1970), though, reached a contrary conclusion to that expressed by Judge Friendly in Green. It said:

We conclude, therefore, that the New Jersey statute which disenfranchises plaintiff (for crime) must be judged by the exacting equal protection standards laid down by the Supreme Court in the voter disqualification cases referred to hereinabove. The disqualification must bear a rational relationship to the achievement of a discernable and permissible state goal. To the extent that Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1889), and Murphy v. Ramsey, 114 U.S. 15, 5 S.Ct. 747, 29 L.Ed. 47 (1885), indicate otherwise they must be considered as limited by the subsequent voting right cases discussed hereinabove.

How the purity of the electoral process is enhanced by the totally irrational and inconsistent classification set forth in N.J.S. 19:4-1 (2)-(5) is nowhere explained. We perceive no rational basis for the New Jersey classification. Certainly it cannot meet the exacting standard of precision required by the equal protection clause for a selective distribution of the franchise. We hold the classification set forth in N.J.S. 19:4-1 (2) through (5) to be invalid under that clause. Id. 1187-1188.

Two years later a three-judge court in this circuit, Fincher v. Scott, 352 F.Supp. 117 (3-judge ct. M.D.N.C.1972), was called upon to consider a like attack under the equal protection clause upon the North Carolina statute disqualifying from voting any person convicted of any "crime the punishment for which now or may hereafter be imprisonment in the State's prison, ...." ² After recognizing that Stephens v. Yeomans was "the only example" of a decision sustaining such a claim, the Court, speaking through Judge Craven, dismissed that case with the crisp comment that "(w)e admire the technique (of the opinion in Stephens ) and would be persuaded by it but for what seems to us the compelling argument of history." Id. 118. The opinion then turned for authority to Judge Friendly's decision in Green and to Beacham v. Braterman, 300 F.Supp. 182 (3-judge ct. S.D.Fla.1969), aff'd without opinion, 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 a decision in which a Florida statute disqualifying felons was held not to be subject to compliance with equal protection, and concluded by sustaining the North Carolina statute with this blunt and categorical ruling:

We think that a state may constitutionally continue the "historic exclusion" of felons from the franchise without regard to whether such exclusion can pass muster under the Equal Protection Clause. Supra 119.

Upon appeal Fincher, like Beacham, was affirmed by the Supreme Court without opinion, 411 U.S. 961, 93 S.Ct. 2151, 36 L.Ed.2d 681. ³

In 1974 the Supreme Court itself addressed the issue decided in Fincher in Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). This case came to the Supreme Court by way of review of the California decision in Ramirez v. Brown, 9 Cal.3d 199, 107 Cal.Rptr. 137, 507 P.2d 1345 (1973). As background for the Supreme Court decision, we begin by looking at the State decision which was under review. The "controlling issue" in the State case, as phrased by the California court, and as recognized by the Supreme Court in Richardson, was "whether the disfranchisement of all persons who have been convicted of crime violates the equal protection clause of the Fourteenth Amendment to the United States Constitution." 107 Cal.Rptr. at 141, 507 P.2d at 1348-9; 418 U.S. at 33, 94 S.Ct. at 2660. Relying primarily on Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), and Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), the State court had concluded that any statutory restriction by way of a disqualification on the right to vote was subject to review for compelling state interests under the equal protection...