VANCE, Circuit Judge:
In 1977 and 1978 the boards of registrars for Montgomery and Jefferson Counties in Alabama barred Carmen Edwards and Victor Underwood, respectively, from representation on the election rolls. They were denied voting privileges under section 182 of the Alabama Constitution, adopted in 1901, which disfranchises those convicted of crimes punishable by imprisonment in the penitentiary, crimes of moral turpitude and other enumerated misdemeanors and felonies.
Edwards and Underwood filed suit against the boards of registrars of Montgomery and Jefferson Counties under 42 U.S.C. §§ 1981 and 1983 challenging section 182 as it applies to those convicted of crimes not punishable by imprisonment in the penitentiary (nonprison offenses). They alleged five causes of action, one of which is dispositive. Plaintiffs alleged that the nonprison offenses warranting disfranchisement under section 182 were specifically adopted with the intent to disfranchise blacks on account of their race and that the provision has had exactly its intended effect.
The district court found that plaintiffs failed to show evidence of discriminatory purpose in the adoption of section 182. It next concluded that even if a racial animus was demonstrated, the state's purported interest in denying criminals the franchise is a permissible one.
We cannot agree with the district court. Our review of the record reveals that the district court erred both in its factual findings and in its legal analysis.
Blacks first received the right to vote in Alabama under the Constitution of 1867, which created universal suffrage for males over the age of twenty-one with certain exceptions not relevant here. Ala. Const. of 1867, art. VII. With the end of Reconstruction, the white citizens of Alabama moved to reassert their once unquestioned political supremacy. The 1890's ushered in an era of disfranchisement not only in Alabama but throughout the South. In 1890 Mississippi adopted a new state constitution embodying the suffrage restrictions proposed in the "Second Mississippi Plan." By 1908 eleven other states, including Alabama, had followed suit through various statutory and constitutional devices. S. Hackney, Populism to Progressivism in Alabama 147 (1969); C. Woodward, Origins of the New South 1877-1913 321 (1971).
In the judgment of modern scholars, the organizers of the 1901 Alabama convention sought to disfranchise poor dissident whites as well as blacks. M. McMillan, Constitutional Development in Alabama, 1798-1901: A Study in Politics, the Negro, and Sectionalism 249, 269 (1955) (Def.Exh. 14). With the ascendency of the Populists a decade earlier, the black vote had acquired added leverage. Whites, Democrats and Populists alike, vied for black ballots in any way they could, with favors, pardons of convictions, outright vote purchase and massive electoral fraud. United States v. State of Alabama, 252 F.Supp. 95, 98 (M.D.Ala.1966) (three-judge court); S. Hackney, supra, 36-37, 89, 176-77. As the court below noted, resort to such methods had become increasingly precarious in light of renewed Northern moves to extend the federal election supervisory act of 1870. In 1890 the Senate had narrowly defeated the Lodge force bill, which called for tighter federal control of all phases of voting, from voter registration to ballot tabulation. J. Kousser, The Shaping of Southern Politics 29-30 (1974); C. Woodward, supra, at 254-55. The most effective way to ward off federal intervention as well as fraud, according to the reformers, was to eliminate the Negro vote. S. Hackney, supra, at 146, 175-77; M. McMillan, supra, at 269; C. Woodward, supra, at 326-27. In the words of one delegate to the 1901 convention, "Now we are not begging for `ballot reform' or anything of that sort, but we want to be relieved of purchasing the Negroes to carry elections. I want cheaper votes." Speech of Delegate William A. Handley, III Official Proceedings of the Constitutional Convention of the State of Alabama, May
When the Alabama constitutional convention assembled in May 1901, the question was not whether to disfranchise the Negro but rather how to do so constitutionally. In his opening address John B. Knox, the president of the convention, declared:
I Official Proceedings at 8; see also Journal of the Proceedings of the Constitutional Convention of the State of Alabama 1776 (1901). In Knox' words, "if we would have white supremacy, we must establish it by law — not by force or fraud." I Official Proceedings at 9. Borrowing from the successful methods of the Second Mississippi Plan and those of other states,
While there is scant record of the debates over section 182, the sources of the crimes selected for inclusion in and exclusion from section 182 shed light on the motives of its drafters. In enumerating the crimes that would trigger disfranchisement, the suffrage committee chose offenses that were "peculiar to the Negro's low economic and social status," such as petty property offenses, wife-beating and sex-related crimes. P. Lewinson, Race, Class & Party 81 & n. 7 (1963) (cited in Pl.Exh. 9); M. McMillan, supra, at 275 (Pl.Exh. 12). The crimes selected by the suffrage committee had their origin in an ordinance drafted and submitted by John Fielding Burns, a Black Belt planter. See I Official Proceedings at 511. According to Dr. McMillan:
M. McMillan, supra, at 275 n. 76. In newspaper accounts, "Burns estimated the crime of wife-beating alone would disqualify sixty percent of the Negroes." J. Gross, Alabama Politics and the Negro, 1874-1901 244 (1969) (cited in Pl.Exh. 9).
According to experts for both sides, the evident racial animus of section 182 was used to induce delegates representing poor whites to vote for other provisions in the suffrage article, such as the poll tax, that were contrary to their interests. Whatever the folly of their vote, their perceptions of the disparate impact of section 182 turned out to be correct. The registrars' expert estimated that by January 1903 section 182 had disfranchised approximately ten times as many blacks as whites. This disparate effect persists today. In Jefferson and Montgomery Counties blacks are by even the most modest estimates at least 1.7 times as likely as whites to suffer disfranchisement under section 182 for the commission of nonprison offenses.
In reviewing this record we are left with a firm and definite impression of error by the court below with respect to the issue of intent. Plaintiffs have more than shouldered their burden of showing that discriminatory intent was a motivating factor in the adoption of section 182; they have presented evidence from which the district court was required to find as a matter of law that discriminatory intent motivated section 182.
The registrars rely on a purported state interest in denying the franchise to those convicted of violating its laws. Assuming without deciding that this asserted state interest would pass constitutional muster, we are unable to discern any evidence that the rule was actually intended to serve that interest. Scheinberg v. Smith, 659 F.2d 476, 483 n. 2 (5th Cir. Unit B 1981).
In the first place, we note several glaring omissions from the nonprison offenses resulting in disfranchisement under section 182.
We recognize the registrars' good faith in administering the statute without reference to race. Neither their impartiality nor the passage of time, however, can render immune a purposefully discriminatory scheme whose invidious effects still reverberate today.
We hold that section 182 of the Alabama Constitution of 1901 violates on account of race the fourteenth amendment with respect to those convicted of crimes not punishable by imprisonment in the penitentiary. Since those provisions of section 182 that disfranchise nonprison offenders lack legal effect, Dorchy v. Kansas, 264 U.S. 286, 289-90, 44 S.Ct. 323, 324, 68 L.Ed. 686 (1924); see INS v. Chadha, ___ U.S. ___, 103 S.Ct. 2764, 2775, 77 L.Ed.2d 317 (1983) (citing Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 564-65, 76 L.Ed. 1062 (1932)), we do not reach the additional claims that plaintiffs press. The district court shall issue an injunction ordering voter registration upon request by members of plaintiff class who qualify in all other respects for registration on the electoral rolls.
REVERSED and REMANDED with instructions.
Before plaintiffs amended their complaint to add the Readmission Act claim, the district court granted summary judgment for the registrars on the first three causes and dismissed the race discrimination claim for failure to state a claim upon which relief could be granted. We reversed and remanded for further proceedings. Underwood v. Hunter, 604 F.2d 367 (5th Cir.1979). During subsequent discovery plaintiffs moved for a preliminary injunction premised on the first three theories so that they could vote in the 1980 primaries and general election. We affirmed the order of the district court denying relief because we concluded that plaintiffs had not shown any prospect of irreparable harm. Underwood v. Hunter, 622 F.2d 1042 (5th Cir.1980). After the first three claims were again dismissed by the trial court, the Readmission Act claim proceeded to trial with the race discrimination claim.
The lower court's reliance on Michael M. is misplaced. In Michael M., Justice Rehnquist, writing for a plurality of the Court, quoted United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), to the effect that the existence of an illicit legislative motive does not automatically result in a conclusion of unconstitutionality. 450 U.S. at 472 n. 7, 101 S.Ct. at 1205-06 n. 7. The plurality proceeded to cite the burden-shifting test announced in note 21 of Arlington Heights, signifying that discriminatory intent will defeat a statute where the state is unable to demonstrate that the same result would have occurred solely in light of a permissible motive.
We do not read Palmer to the contrary. In Arlington Heights the Court cited Palmer as support for the proposition that a plaintiff need not necessarily prove that racial discrimination was the sole motivating factor in order to prevail:
429 U.S. at 265 & n. 11, 97 S.Ct. at 563 & n. 11. In light of this passage, we conclude that Arlington Heights supercedes any dicta which Palmer might contain to the effect that a permissible purpose will always defeat an impermissible motive. See also Washington v. Davis, 426 U.S. at 242-43, 96 S.Ct. at 2048-49 (Palmer "did not involve, much less invalidate, a statute or ordinance having neutral purposes but disproportionate racial consequences"); Note, Making the Violation Fit the Remedy: The Intent Standard and Equal Protection Law, 92 Yale L.J. 328, 330 (1982).
As the district court noted, the Alabama proposal that the delegates feared was most vulnerable to constitutional attack was the temporary fighting grandfather clause, section 180. Under that clause veterans and their descendants automatically qualified to register until January 1, 1903, when a permanent provision imposing literacy and property restrictions, section 181, took effect. The Supreme Court later confirmed the delegates' fears when it invalidated a similar Oklahoma grandfather clause. Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915). Adoption of facially neutral and severable measures such as section 182 was a critical line of defense in case other parts of the suffrage plan did not withstand attack. Deposition of J. Morgan Kousser.