Group of Alabama voters challenges state Constitution

New vote or document wanted
The Birmingham News
Friday, February 13, 2009
ERIN STOCK
News staff writer

A group of Alabama voters who say the state's constitution was never legally ratified by the people are asking for a new vote on it or on a new constitution.

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.

Flynt quoted The Choctaw Advocate's sentiments before the referendum: "This is the time when all white men should stand together. The new Constitution was made by white men, for white men."

The plaintiffs are asking that their suit be certified as a class action on behalf of all registered voters in the state. The lawsuit names as defendants Alabama's attorney general, lieutenant governor, secretary of state, Senate president pro tempore and the speaker of the House.

Gentle said the defendants failed to ensure a fair election and have not investigated whether the constitution passed or attempted to hold another election. As a result, he says, they violated the constitutional rights of Alabama voters, who are due relief under federal law.

He is seeking another vote or a constitutional convention.

'Far, far out':

Ken Wallis, Gov. Bob Riley's chief legal adviser, said he doubted a court would accept a challenge to a constitution operating for more than 100 years. He called the legal theory "far, far out."

"The remedy for people who don't like the 1901 constitution at this stage is to go through the legislative process and get it changed," said Wallis, who also questioned the ramifications of a court upholding the argument.

However, Gentle said the constitution would be overturned in the future, not immediately. That would give the state time to hold another vote, and previous decisions under the constitution of 1901 would be ratified, he said.

Additionally, he said no statute of limitations exists under the federal law he is citing, which provides remedies for people whose constitutional rights are violated. Gentle argues that there is legal precedent under a state court ruling on a personal injury case, known as the Griffith case, which held that people exposed to toxins have two years to file suit from the time they realize their injuries. In the lawsuit Gentle filed, one of the plaintiffs is 18 and a new voter.

"Under the principal of the Griffith case, he would have two years from when he encountered this toxic constitution to do something about it," Gentle said.

Voter fraud alleged:

Tommie Houston, a former Jefferson County state legislator who is a plaintiff in the suit, said the constitution is outdated. It was written by white men, and blacks were not at the table, he said.

"Laws in the constitution should be brought up to date and all citizens should be involved in the constitution," Houston said.

Flynt, the historian, said in his affidavit that the constitution did not receive support from black voters in counties across the state.

"It appears beyond dispute that where the vote was not repressed or fraudulent, blacks voted overwhelmingly against ratification of the Constitution," he wrote.

The statewide ratification vote was recorded as 108,613 for and 81,734 against. Seventeen counties cast more votes for ratification than there were registered white voters, indicating rampant fraud, Flynt wrote. All but one of the 17 was in the Black Belt, a region named for its dark soil and where 36 percent of Alabama's black residents lived in 1900.

E-mail: estock@bhamnews.com.

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