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Alabama’s Constitution: A Result of Vote Fraud?

Constitution of the State of Alabama, 1901

Constitution of the State of Alabama, 1901


A group of voters in Alabama is suing to strike down Alabama’s 1901 constitution based on their claim that it was ratified fraudulently:

The voters this month sued several state officials in Jefferson County Circuit Court’s Bessemer division, claiming they violated voter rights by failing to ensure that Alabama’s 108-year-old constitution is valid. State historians say the 1901 referendum on the document was plagued with voter fraud.

The lawsuit is the latest approach at forcing reform of a lengthy state constitution that is riddled with racist language, offers little power to local governments and imposes a tax system that critics call immoral. Efforts to change it at the legislative level for years have been unsuccessful.

“All I’m asking is that the constitution of Alabama be the constitution of the people, which it is not right now, because they didn’t vote for it,” said Ed Gentle, the attorney for the plaintiffs.

Wayne Flynt, a retired Auburn University professor who has written extensively on Alabama history, said the constitution never passed. The official election results showed black voters supported it – but such support was unlikely, since a vote for the document was a vote to disenfranchise blacks, he wrote in an affidavit attached to the complaint.

While I’m highly sympathetic to arguments—made often by friend-of-OTB Steven Taylor—that Alabama’s lengthy, detail-oriented state constitution, which is still laced with (inoperative) racist provisions, is in need of reform to make it more streamlined and coherent (much as similar constitutions from the same era in southern states are in need of reform), I’m not sure that the plaintiffs have a very good chance of winning their case.

While there is compelling evidence presented of voter fraud in Flynt’s affidavit, primarily in the “black belt” counties where the level of support for the constitution strongly indicates ballot-stuffing took place, given that these facts have been been known for decades (the primary source Flynt relies on was published in 1955), it seems a little late to be raising this issue in court. Some of Flynt’s data in his affadavit seem to be inaccurate as well; while he claims that 5,326 votes in Lowndes County in the Black Belt were cast for ratification, these returns from the Alabama state archives only indicate 1,390 votes were in favor of the new constitution (and, indeed, a majority of votes were opposed in that county, consistent with a non-fraudulent outcome there at least).

Furthermore, even if they are successful in their challenge, presumably the 1875 Constitution — which was ratified by a quite “fraud-proof” margin and reflects a similar philosophy of centralized government with limited powers — is the legitimate constitution of Alabama. And, as a matter of general principle, at some point key provisions of laws, constitutions, and legal acts of dubious origins become accepted and essentially irrevocable, such as the disputed ratification of the federal constitution’s 16th Amendment, the annexation of Puerto Rico, or the severing of West Virginia from Virginia.

Via Rick Hasen’s Election Law blog and How Appealing.

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About Chris Lawrence
Chris teaches political science at Virginia Tech in Blacksburg, Virginia. He has a Ph.D. in political science (American politics and political methodology) from the University of Mississippi.

Comments

  1. I only get to play southern politics expert as a hobby these days…

    Over at OTB I tackle a new lawsuit seeking to strike down Alabama’s 108-year-old state constitution on the basis of vote fraud. As an aside, it’s only when I dragged out my copy of Key this afternoon that I remembered how much I missed teaching thi…

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  2. PD Shaw says:

    I think the sad reality is that nineteenth century voting standards are going to look pretty bad in retrospect in many elections. The secret ballot being an important development late in the game.

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  3. Texas likewise has a lengthy constitution where the dominant political philosophy was to have power in the hands of the voters as much as possible (this was prompted by the imposed governments of reconstruction). But that just means that changes can be effected at the ballot box and not by the political class. An issue has to be important enough that some group is willing to jump through the hoops to bring it to the ballot, but that isn’t a huge barrier in these days of special interest groups.

    A case in point, many moons ago I was surprised to find an amendment to the constitution that would eliminate a county office (for that county) where the sole purpose of the office was to pay a bounty for coyote hides. I voted for the elimination of the office. Of course now we are finding coyotes in the suburbs eating pets, so maybe I acted to hastily.

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  4. tom p says:

    While there is compelling evidence presented of voter fraud in Flynt’s affidavit, primarily in the “black belt” counties where the level of support for the constitution strongly indicates ballot-stuffing took place, given that these facts have been been known for decades (the primary source Flynt relies on was published in 1955), it seems a little late to be raising this issue in court.

    OK Chris, To take your point one step further, from “compelling evidence” to point of fact, at what point do we actually address a state constitution which is

    lengthy, detail-oriented state constitution, which is still laced with (inoperative) racist provisions, is in need of reform to make it more streamlined and coherent

    ????

    as you yourself say:

    While there is compelling evidence presented of voter fraud in Flynt’s affidavit, primarily in the “black belt” counties where the level of support for the constitution strongly indicates ballot-stuffing took place,

    and yet you assert that, (as quoted at the top of this post) the law is an ass, therefor we should continue with it…(or at least there is no hope of changing it, so give up)

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  5. Wayne says:

    It sounds like another example of using the courts to surpass the legislative process. If they want to change the constitution then do it through the proper legislative process instead of finding some sympathetic Judge to in effect legislate from the bench.

    There are many laws and legislation I like to see change but I don’t want to see the spirit of our process trample in the process.

    As for citing that blacks voting for something that would disenfranchise blacks as proof that there was voter fraud is lame. Many people support bills that disenfranchise themselves today. Why, because most people don’t understand what they are voting for or are willing to give away their rights for other gains. Some bills are voted for before they are actually written like the stimulus package. There was an episode of The Man Show where they convince women to help them gather signature to overturn the women suffrage amendment. We are supposed to be a great deal better educated today than in 1901 and yet people fall for all sort of B.S.

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  6. John Burgess says:

    I’m not at all sure that there’s a statute of limitations on a state constitution, nor that an argument of laches failure to timely prosecute would pertain.

    It would be nice if the legislature got off its backside and fixed something that is egregiously wrong, but it does not seem to have the will to do so.

    I’m generally against legislatures relying on the courts to fix their sloppy law-writing. Nor do I favor using courts to do an end-around on the political process. But if the political process is broken–as is arguably the case here–I’m in favor of letting the courts take a look.

    The court may find that it does not have jurisdiction to accept the case or that the complaint is somehow defective: I don’t know Alabama law. I’m interested enough to keep watching the story, though…

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  7. yetanotherjohn: Actually I’d argue (at least in the case of Texas; I haven’t studied the Alabama constitutions in depth) that rather than giving power to voters the Redeemer constitutions were designed to dilute government power from being exercised by pretty much anyone; in Texas, for example, there is no initiative or recall power, otherwise I suspect that a constitutional convention might have been called sometime since 1876.

    tom p: I am confused as to your point. I agree that the Alabama constitution is outdated and outmoded, but the evidence of voter fraud probably isn’t enough to strike it down. There is a democratic process in place to replace Alabama’s constitution if the legislature decides it is necessary. I made largely the same point in regard to the US Constitution here a few weeks ago:

    [T]hroughout much of American history politically controversial amendments were proposed and ultimately adopted, including both the adoption and repeal of Prohibition, the extension of the right to vote to women, the abolition of the poll tax, the Civil War amendments (particularly the 14th and 15th amendments extending citizenship rights to ex-slaves), and the indirect taxation amendment that led to the federal income tax. Just because the Supreme Court in recent years has been willing to reinterpret the Constitution to better suit the often-evolving values of society (witness, for example, the magical constitutionalization of the Equal Rights Amendment absent its ratification) does not mean that the document is too hard to amend and thus the Nine must reinterpret it instead, merely that it is easier to file an amicus curiæ brief than to work through the amendment process in Article V.

    Wayne: I do think that there were some blacks who voted for the disenfranchising 1901 Constitution, but at least in some counties there is strong evidence pointing towards widespread voting fraud. That said I don’t think the plaintiffs’ expert Flynt made a good case in the affidavit, in part because of the error I noted above (I have no clue where he got the Lowndes County figures from; there isn’t a single entry in the table that I can find that corresponds to his account). And a result that lopsided would also have been mentioned in V.O. Key’s account of the 1901 referendum vote—which is part of the reason I cross-checked the figures when I found the results, because Key would have mentioned Lowndes County in the relevant table had the outcome been so lopsided, but didn’t.

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  8. I had noted this story, but hadn’t looked at it in detail yet, so I am glad to see this post–and I share its general conclusions. Indeed, part of why I hadn’t looked at the story in much detail as yet is because it represented an almost certainly futile lawsuit.

    I expect that the point of the suit isn’t actually to win, but to try and bring further attention to the 1901 Constitution itself. There has been growing interest in reform, although I don’t think it has reached critical mass yet, not by a longshot. However, the idea of reform is starting to affect some members of the
    legislature. There is a bill that is going to be introduced this session calling for a convention, although how far it will get is unclear (I expect not too far, but just the introduction of the bill is a step in the right direction).

    In re: Texas. Chris is right about ballot initiative, but I would say that at least vice the Alabama constitution, the Texas one at least allows for substantial home rule. There is practically no home rule in Alabama, and cities frequently have to go to the legislature just to get simple local governance attended to. And every two years we have to vote on amendments that affect only one county (or sometimes a specific city).

    The Alabama constitution also prohibits the state from promoting itself economically, so that, for example, when the state’s goat and sheep farmers wanted to assess a fee on themselves to pay for such promotion they had to get an amendment to the constitution to do so. The shrimpers had to do the same thing. There was another such plan to promote a specific city’s tourism/commerce (they wanted to tax themselves) they had to ask the state’s population for an amendment, and it was voted down state-wide, even though the measure passed locally in the same vote.

    Trivia: Alabama’s constitution is the longest in the US and Texas’ is the second longest.

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  9. Wayne says:

    Chris
    I’m not saying if there was or was not voter fraud just the so call proof in the article is no proof at all. Expecting a group to vote one way and they vote another is not proof of fraud. The way many ballet initiatives are worded often causes confusion even today and there are many other reasons that could explain it. The senate race in Minnesota with more vote than voters in some districts not to mention many other problems gives one pause in the voting process. How much is intentional and how much is human error, it hard to tell.

    It seems like you have dug into this a bit deeper than I have so I value your opinion but like anyone’s opinion I take it with a bucket of salt.

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