United States v. State of Alabama, Civ. A. No. 2255-N.

• Court: United States District Courts. 11th Circuit. Middle District of Alabama
• Writing for the Court: RIVES and GEWIN, Circuit , and JOHNSON
• Citation: 252 F. Supp. 95
• Parties: UNITED STATES of America, Plaintiff, v. The STATE OF ALABAMA and Perry O. Hooper, Judge of Probate of Montgomery County, Alabama, Defendants.
• Docket Number: Civ. A. No. 2255-N.
• Decision Date: 03 March 1966

252 F. Supp. 95

UNITED STATES of America, Plaintiff,
v.
The STATE OF ALABAMA and Perry O. Hooper, Judge of Probate of Montgomery County, Alabama, Defendants.

Civ. A. No. 2255-N.

United States District Court M. D. Alabama, N. D.

March 3, 1966.

252 F. Supp. 96

Ben Hardeman, U. S. Atty., Montgomery, Ala., Stephen J. Pollak, Brian K. Landsberg, John M. Rosenberg and Charles R. Nesson, Attys., U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Gordon Madison, Asst. Atty. Gen., of Alabama, Montgomery, Ala., James Garrett (of Rushton, Stakely & Johnston), and John P. Kohn, Montgomery, Ala., for the State of Alabama.

Jack Crenshaw and Maultsby Waller (of Crenshaw & Waller), Montgomery, Ala., for defendant Perry O. Hooper.

Before RIVES and GEWIN, Circuit Judges, and JOHNSON, District Judge.

RIVES, Circuit Judge:

Congress in enacting the Voting Rights Act of 1965 "directed" the Attorney General to institute suits "against the enforcement of any requirement of the payment of a poll tax as a precondition to voting."¹ The Voting Rights Act of 1965 included Congress' specific findings that the poll tax violates the Fourteenth and Fifteenth Amendments.² Pursuant to the direction of Congress, the Attorney General on behalf of the United States here seeks a judgment declaring unconstitutional and enjoining the enforcement of Sections 178 and 194 of the Alabama Constitution and the statutes implementing those sections of the Constitution which precondition the right to vote in State, local, general, special and primary elections on payment of a poll tax for each of two years next preceding the election. We hold that the Alabama poll tax violates the Fifteenth Amendment to the United States Constitution, and Judge Johnson, as indicated by his concurring opinion, would also hold that it violates the due process clause of the Fourteenth Amendment. The poll tax is therefore invalid.

The Constitution and statutes of Alabama³ require that, in order to vote in any election, a person must (1) be a citizen of the United States and 21 years of age or older; (2) have resided in the State one year, in the county six months, and in his voting precinct three months prior to any election in which he seeks to vote; (3) be able to read and write any article of the United States Constitution,⁴

252 F. Supp. 97

not be an idiot or insane person or have been convicted of any of certain enumerated crimes; and (4) have paid the poll taxes for which he is liable.⁵

A poll tax in the amount of $1.50 is imposed annually on every non-exempt resident of the State between the ages of 21 and 45.⁶ The Constitution and statutes exempt from the payment of the tax all persons over 45; veterans of World War I, World War II, and the Korean War; presently serving members of the Alabama Naval or National Guard, or those who were members for 21 years.⁷ The poll tax can be paid only between October 1 and February 1.⁸ During this period the prospective voter must have paid the poll taxes due for the previous two years in order to vote in an election in the ensuing year.⁹ Collection of the poll tax by enforcement of legal process is prohibited.¹⁰ The funds collected are used for the support of public schools.¹¹ Poll taxes are paid to the County Tax Collector.¹² On or before March 15 of each year the collector is required to furnish the Judge of Probate in his county with a list, by name, sex and race, of those persons who have paid the poll tax.¹³ The Probate Judge compiles the list of qualified voters by comparing the list of registered electors with the poll tax lists furnished to him by the tax collectors,¹⁴ and furnishes the list of qualified electors to the appropriate election officials.¹⁵

Under Article I, Sec. 2, Clause 1 of the United States Constitution and under the Seventeenth Amendment, the States are empowered to set reasonable qualifications for voters in elections of members of Congress. As to State and local elections, that right is reserved to the States by the Tenth Amendment. The power of the States over suffrage is recognized by the Fifteenth Amendment, but that coordinate amendment restricts the States' power to regulate suffrage under certain circumstances. The Fifteenth Amendment provides that: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Therefore, any requirement that "abridges" the right to vote "on account of race, color, or previous condition of servitude" is invalid.

Negroes were first enfranchised in Alabama under the Constitution of 1867 which provided that every male person 21 years of age and over who satisfied the citizenship and residence requirements

252 F. Supp. 98

"shall be deemed an elector."¹⁶ With the end of reconstruction in Alabama came the mounting efforts of the white citizens to regain their former political supremacy. History records the sordid attempts to disfranchise the Negro voters through fraud and often outright intimidation. Those practices shocked the conscience and were not entirely effective. A demand grew for more sophisticated means of depriving Negroes of the vote

As shown by contemporaneous newspapers at the turn of the century attention was focused on amendments to the State Constitution setting suffrage requirements which would permit white persons to vote but effectively disfranchise Negroes.¹⁷ On May 21, 1901, a State Constitutional Convention assembled largely, if not principally, for the purpose of changing the 1875 Constitution so as to eliminate Negro voters.

Delegate after delegate took the floor eager to be put on record¹⁸ as favoring "the absolute disfranchisement of the Negro as a Negro."¹⁹ They did "not believe in disfranchising a single white vote."²⁰ Viewed in the context of today, these testimonials are fraught with discredited notions, such as: "I say here without fear of contradiction that if there is any good in the Negro race such as elevates a nation or elevates his race, I say that good comes from the Caucasian blood that runs in his veins."²¹ The Journals of the Convention leave absolutely no doubt as to what the delegates of the white citizens of Alabama wished the Convention to accomplish:

"* * * We want the white man who once voted in the state and controlled it to vote again. We want to see that old condition restored. Upon that theory we took the stump in Alabama having pledged ourselves to the white people upon the platform that we would not disfranchise a single white man if you trust us to frame an organic law for Alabama, but it is our purpose, it is our intention, and here is our registered vow to disfranchise every Negro in the state and not a single white man."²²

Although the delegates expressed the view "that the State of Alabama never adopted the 15th Amendment,"²³ or any of the other reconstruction amendments, they were anxious to provide devices that

252 F. Supp. 99

would avoid a legal attack based on the Fourteenth and Fifteenth Amendments but still successfully subvert the purpose of those amendments. One solution to the dilemma adopted by the delegates was the poll tax. Delegate Hood voiced his approval as follows

"Now in my judgment, this poll tax qualification is the most important provision in this entire article. We are told that in the Black Belt and that in many counties in the state, there is a large percentage of those young Negroes who are coming of age that will be able to read and write, therefore will be qualified under the provisions of this article. The only safety valve, Mr. President, that is contained in this article after 1903 for a large proportion of the Negroes in this State is this poll tax of $1.50.

* * * * * *

"Now the main purpose of this Committee in dispensing with the compulsory collection of the poll tax was to allow the poll tax to accumulate and to pile up on this class of voters that we want to get rid of—the vicious voter in Alabama. We want that poll tax in Alabama. We want that poll tax to pile up so high that he will never be able to vote again. If you provide a compulsory way of collecting the poll tax you destroy the objects and purposes of the committee in reporting the provision as it is reported."²⁴

The suffrage plan which finally emerged from the Convention with the overwhelming support of the delegates was a two-stage affair.²⁵ The temporary provisions, effective until January 1, 1903, included a grandfather clause for veterans and their descendants under which most white persons could register without meeting other new requirements, and a requirement that voters be of good character and understand the duties of citizenship. The permanent plan, effective on January 1, 1903, included a residence requirement, education, employment and property qualifications, a disqualifying crimes provision, and the non-compulsory cumulative poll tax requirement—cumulative from January 1, 1901.²⁶

The effect of the new suffrage provisions in the 1901 Constitution on the Negro voters was dramatic. Whereas in 1900, 100,000 Negroes had voted in Alabama, the number eligible to vote under the temporary plan in 1903 dropped to 2,980 while white registrants numbered 191,492. In 1904 the registration figures show a total of 3,654 Negroes and 205,278 whites registered. By 1908 there were only 3,742 Negroes registered, while white registration had risen to 250,381.²⁷

We hold that from its inception the Alabama poll tax was illegal and invalid as an attempt to subvert the Fifteenth Amendment to the United States Constitution. The necessary effect of the poll tax as adopted in 1901 was to disfranchise Negro voters. The history of the poll tax leaves no doubt that this was its sole purpose. Such clear and intentional attempt to deny or abridge the right to vote necessarily runs afoul of the Fifteenth Amendment.

Like the Fourteenth Amendment, the Fifteenth Amendment does not disable...