[EL] criminal disfranchisement

[Morgan Kousser]

I'm sorry not to have contributed to this discussion earlier, but I'm in 
Hong Kong for the semester and I'm not operating in real (i.e., U.S.) time.
/Hunter v. Underwood/ was the first case I worked in as an expert 
witness.  Let me make several points about that case and the earlier 
discussion:
1.  Although there was "smoking gun" evidence available in the appeals 
court opinion and in the briefs, then-Justice Rehnquist didn't cite it 
in his opinion.  The evidence was the statement of the framer of the 
provision of the Alabama constitutional provision, Section 201 (as I 
remember) about the effect of the wife-beating provision on black 
disfranchisement.
2  That statement wasn't made during the debates, but appears in a 
newspaper article.  Although we have a transcript of the debates in the 
convention (an extremely unusual thing for the period), there was 
absolutely no discussion whatsoever of the criminal disfranchisement 
provision on the floor and none in any published or unpublished record 
from the constitutional convention's suffrage committee.  In nearly 
every case in which I've testified about the intent of a law or 
constitutional provision, lawyers for state or local jurisdictions have 
tried to exclude evidence drawn from newspapers as unreliable.  But it's 
often the best or only direct evidence of intent that we have.
3.  In many cases, the most informative evidence of the intent of a 
legislature or constitutional convention is indirect. (For a fuller 
discussion of how to determine the intent of a legislature, especially 
in voting rights cases, see chapter 7 of my /Colorblind Injustice/).  In 
/Underwood/, the indirect evidence was especially strong.  It was of two 
kinds:  What Justice Rehnquist relied on was the general purpose of the 
1901 Alabama constitutional convention, which was to disfranchise 
blacks.  It's easy to find statements that say so, even though they 
don't mention criminal disfranchisement per se.  The correct inference 
is that any action on suffrage in such a convention was deeply tainted 
by such statements or other actions, such as passing a poll tax and a 
literacy or property test requirement.  The second type of evidence was 
the text of the law.  In this case, the convention added two crimes that 
blacks were much more likely to be convicted of than whites were, 
miscegenation and wife beating.  Just making miscegenation a 
disfranchising crime should have been enough evidence, in my view, for a 
court to throw out the law as racially discriminatory.
4.  The example of the 1901 amendment of the Alabama criminal 
disfranchisement provision also points out that an otherwise neutral 
provision may be amended or operated to become racially discriminatory, 
so even if /Richardson v. Ramirez /correctly glosses the 14th amendment 
(and I think it doesn't), that should be the beginning, not the end of 
an inquiry into the intent and workings of a particular law or 
constitutional provision.  There were literacy tests and poll taxes and 
grandfather clauses passed in northern and southern states before the 
late-19th and early 20th century southern disfranchisers used such 
clauses for disfranchisement purposes.  As I've shown in various 
publications, the first poll taxes and the predecessors of the 
grandfather clauses _en_franchised people, rather than _dis_franchising 
people.  The same law can be used in different circumstances and by 
different regimes for different purposes, and it can be administered for 
still other purposes.  Context matters, and Justice White's "intensely 
local appraisal" must govern if we're to be honest about determining intent.
5.  On current criminal disfranchisement, it seems to me that if 
evidence is presented that particular criminal disfranchisement law 
provisions or administration have an overwhelmingly disparate racial 
impact and bills are presented to alleviate that impact by modifying or 
eliminating the laws, and if the legislature or governor rejects those 
bills, then there may be a strong case that the continuation of the law 
was motivated by racial purposes.  The particulars of the law and its 
legal and administrative history will be important in the assessment of 
the law.  Origins will play a role, but so will every part of its 
history.  The original intent of the 1901 Alabama criminal 
disfranchisement provision was only part the case that the ACLU made in 
/Underwood/.
Morgan

-- 
William R. Kenan, Jr. Prof. of History and Social Science
California Institute of Technology
Pasadena, CA 91125-0077
(on leave at Hong Kong University of Science and Technology,
Aug. 27 - Dec. 4, 2014)

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