Hunter v. Underwood

• Decision Date: 16 April 1985
• Docket Number: No. 84-76,84-76
• Citation: 471 U.S. 222,85 L.Ed.2d 222,105 S.Ct. 1916
• Parties: Nell HUNTER, et al., etc., Appellants, v. Victor UNDERWOOD and Carmen Edwards etc
• Court: U.S. Supreme Court

471 U.S. 222

105 S.Ct. 1916

85 L.Ed.2d 222

Nell HUNTER, et al., etc., Appellants,

v Victor UNDERWOOD and Carmen Edwards etc.

No. 84-76.

Argued Feb. 26, 1985.

Decided April 16, 1985.

Syllabus

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.

Held: Section 182 violates the Equal Protection Clause of the Fourteenth Amendment. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450. 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 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 (CA11 1984), affirmed.

James S. Ward, Birmingham, Ala., for appellants.

Wilson Edward Still, Jr., for appellees.

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 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 deci- sion in Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (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, 97 S.Ct. 555, 566, and n. 21 (1977), and Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977):

"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." 730 F.2d, at 617.

Following this approach, the court first determined that the District Court's finding of a lack of discriminatory intent in the adoption of § 182 was clearly erroneous. After thoroughly reviewing the evidence, the court found that discriminatory intent was a motivating factor. It next determined from the evidence that there could be no finding that there was a competing permissible intent for the enactment of § 182. Accordingly, it concluded that § 182 would not have been enacted in absence of the racially discriminatory motivation, and it held that the section as applied to misdemeanants violated the Fourteenth Amendment. It directed the District Court to issue an injunction ordering appellants to register on the voter rolls members of the plaintiff class who so request and who otherwise qualify. We noted probable jurisdiction, 469 U.S. 878, 105 S.Ct. 241, 83 L.Ed.2d 180 (1984), and we affirm.

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:

"treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, [and] crime against nature."

The drafters retained the general felony provision—"any crime punishable by imprisonment in the penitentiary"—but also added a new catchall provision covering "any . . . crime involving moral turpitude." This latter phrase is not defined, but it was subsequently interpreted by the Alabama Supreme Court to mean an act that is " 'immoral in itself, regardless of the fact whether it is punishable by law. The doing of the act itself, and not its prohibition by statute fixes, the moral turpitude.' " Pippin v. State, 197 Ala. 613, 616, 73 So. 340, 342 (1916) (quoting Fort v. Brinkley, 87 Ark. 400, 112 S.W. 1084 (1908)).

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 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...