Law & Courts

Taxes Cloud Vote in Ala. Over Race

By David J. Hoff — November 16, 2004 | Corrected: February 22, 2019 7 min read

Corrected: The story originally had some of the text at issue in Alabama’s Amendment 2 under the wrong headings. The items have been corrected.

State leaders in Alabama expected little resistance when they asked voters on Nov. 2 to strip language from the state constitution that required segregated schooling. But as the results rolled in, they got a surprise lesson in just how powerful the fear of tax hikes can be.

The proposed amendment to the Alabama Constitution appears to be headed for a recount, after it ended up just shy of a majority in preliminary vote counts.

If Amendment 2 fails, the constitution will retain its unenforceable requirement that black and white students attend separate schools.

In an unexpectedly successful campaign against the amendment, opponents did not object to the measure’s deletion of segregationist language. Instead, they targeted its removal of a provision declaring that the state doesn’t guarantee the right to an education at public expense.

Former Alabama Supreme Court Chief Justice Roy Moore

That change, they said, would leave the state vulnerable to lawsuits over school funding—and eventually to skyrocketing taxes.

“This good-intentioned effort was hijacked for a totally different purpose,” argued Michael A. Ciamarra, the vice president of the Alabama Policy Institute, a conservative think tank in Birmingham.

Supporters of the proposed amendment, who see it as a chance to bury a relic from the state’s racist past, deny such ulterior motives.

“This was a real stretch of the imagination to say your taxes will go up just because the constitution says you have the right to an education,” said Kimble Forrister, the state coordinator of Alabama Arise, a Montgomery-based coalition of social-service and religious groups.

Yet he acknowledged the potency of that argument at the ballot box. “It’s the kiss of death for any referendum to have the word ‘tax’ in it,” he said.Whatever the final outcome, supporters and opponents of Amendment 2 say they want the legislature to put a replacement on another state ballot. The earliest possible chance will be in the 2006 primary election.

To state Rep. Barbara Bigsby Boyd, a member of the Alabama Legislative Black Caucus, the debate over Amendment 2 shows that the state still bears the scars of the Jim Crow era and the civil rights movement that ushered in its end.

Taxes shouldn’t have been part of the debate, she said. “It should have been about removing the racist language,” she said. “It’s unfortunate. You would think we have overcome that period.”

Constitutional Cleaning

With some Alabamians voicing concern about a stain on the state’s image should the measure fail, even staunch conservatives say they want a new ballot question on whether to remove segregationist language from the constitution—and alter nothing else.

Constitutional Questions

Voters were asked Nov. 2 to approve Amendment 2, which would repeal the following sections of the Alabama Constitution dealing with school segregation and funding. Some clauses were original to the 1901 document, and others added in 1956.

From original constitution:

“Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.”

“All poll taxes collected in this state shall be applied to the support and furtherance of education in the respective counties where collected.” [Corrected.]

From 1956 changes:

” ... [B]ut nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense, nor as limiting the authority and duty of the legislature, in furthering or providing for education, to require or impose conditions or procedures deemed necessary to the preservation of peace and order.”

“To avoid confusion and disorder and to promote effective and economical planning for education, the legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end, such election to be effective for such period and to such extent as the legislature may provide.” [Corrected.]

“It would pass with 80 percent” of the vote, said John W. Giles, the president of the 30,000-member Christian Coalition of Alabama, which opposed Amendment 2. “We would be out there leading the parade to get it passed.”

The attempt to remove school segregation from the constitution grew out of a panel appointed by Gov. Bob Riley, a Republican.

As one of his first acts as governor in 2003, he asked the committee to recommend changes to the constitution, which is three times longer than any other state’s and includes more than 700 amendments.

The panel proposed deleting language from the 1901 document that says that “[s]eparate schools shall be provided for white and colored children.”

The panel also proposed deleting references to poll taxes, which the constitution earmarked for education. During the Jim Crow era, Southern states adopted poll taxes as a way to deprive African-Americans of eligibility to vote. The U.S. Supreme Court made the segregation and poll-tax clauses moot in the 1950s and 1960s when it struck down both practices.

When the Alabama legislature last year approved language to appear on the 2004 ballot, it proposed the deletion of other clauses as well. Those clauses were added in 1956, two years after the U.S. Supreme Court’s landmark decision in Brown v. Board of Education of Topeka and a time when many Alabamians were resistant to school desegregation.

One clause says that children should “attend schools provided for their own race” if their parents choose that option. The other, the source of much of the controversy over Amendment 2, declares that “nothing in this constitution shall be construed as creating or recognizing any right to education or training at public expense.”

Lawsuits Ahead

In a pre-election blitz, the Christian Coalition of Alabama and other conservative groups launched a campaign against the measure. They argued that Amendment 2 would give school finance lawyers ammunition to sue the state for alleged failure to provide adequate or equitable funding for public education.

In 2002, the state supreme court dismissed a school finance case on the grounds that the state constitution gave the authority over school funding to the legislature. (“Alabama Court Refrains From Ordering Equity Remedy,” June 12, 2002.)

“They’re removing a barrier to equity funding, which we overturned at the Alabama Supreme Court,” Roy S. Moore, who was the court’s chief justice in 2002, said in an interview last week, referring to backers of the proposed amendment. Mr. Moore was forced to step down last year as the state’s top jurist for refusing to remove a monument to the Ten Commandments from the court’s building.

Mr. Moore’s opposition to Amendment 2 helped sway voters against it, political observers say.

“There were enough legitimate questions, ambiguities, and concerns,” said Mr. Ciamarra, who chaired the subcommittee that proposed removing the school segregation language from the constitution. If Amendment 2 passes, he said, plaintiffs’ lawyers will file “a series of lawsuits … within a year.”

Mr. Ciamarra opposed passage of Amendment 2 and supports efforts to put his subcommittee’s original proposal on the ballot.

Liberal Agenda?

The campaign against the amendment appealed directly to the state’s anti-tax sentiments.

“The liberals are at it again with Amendment 2,” Tom Parker, who was elected to the state supreme court on Nov. 2, said in a radio ad promoting his candidacy. “Amendment 2 uses slick and deceptive wording to authorize the courts to raise our taxes.”

In an interview last week, Mr. Parker acknowledged that the courts themselves would not raise taxes. “Courts can put pressure on the legislature to do that,” he said.

Other prominent groups did not buy the argument that the amendment would yield tax increases. The Business Council of Alabama—one of the most powerful groups in the state—supported the measure as it appeared on the ballot, said Marty Sullivan, a spokeswoman for the group.

Lenora W. Pate, a Birmingham lawyer and the vice chair of the commission Mr. Riley appointed, said she supported the final version of Amendment 2 because other sections of the state constitution and the 2002 supreme court decision would make it impossible for a judge to order tax increases or set funding levels.

Judges in school finance cases throughout the country are reluctant to prescribe resolutions to cases, said Molly Hunter, the legal research director for the Access Network, a New York City-based clearinghouse for school finance plaintiffs.

A judge has never imposed a tax increase, she said, and others have specified how much states needed to spend only after policymakers failed to act on their orders to fix unconstitutional finance systems.

But in political campaigns, such nuances may get lost. “The moment the language was linked in any way to a property-tax increase, it pretty much started to spell trouble for it,” said Jesse C. Brown, a professor of political science and justice studies at Athens State University in Athens, Ala.

Alabama voters last year resoundingly rejected a tax plan proposed by Gov. Riley. The plan would have raised taxes by $1.2 billion a year. (“Alabama Voters Reject Gov. Riley’s Tax Plan,” Sept. 17, 2003.)

The fate of Amendment 2 remained unclear last week. If the margin remained less than half of 1 percent of the 1.4 million votes cast, state law would trigger an automatic recount on Nov. 24.

Gov. Riley is scheduled to certify all election results that day.

Even the measure’s supporters, however, aren’t optimistic that a recount would change the outcome.

In the meantime, some Alabamians fear that their reputation will be tarnished if Amendment 2 ultimately fails.

“It doesn’t do the state’s image any good, because it could be interpreted to endorse the return of segregated schools,” said Mr. Brown, the political scientist.

Opponents of Amendment 2 are saying they would endorse a new amendment that would simply strip away phrases rendered inoperable under federal law.

When the legislature convened a special session last week to revise the state employee health system, the Christian Coalition and other groups lobbied it to pass a stripped-down version of Amendment 2 to be placed on the ballot in 2006.

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A version of this article appeared in the November 17, 2004 edition of Education Week as Taxes Cloud Vote in Ala. Over Race

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