This is Across the Aisle, a podcast about bipartisanship by the National Conference of State Legislatures. I’m Kelley Griffin.
Revising a state constitution is complicated, to say the least. Especially when that constitution is the longest such document in the world. That was the case in Alabama. And while it took years, the state made the changes with an astonishing level of bipartisan support: The Legislature voted unanimously in favor of sending the revision to voters last November, and 75 percent of voters said yes.
The goal was to finally rid the state’s 1901 constitution of racist language. There was no doubt of the racist intent back then. John Knox, who was president of that first constitutional convention, put it bluntly: The goal was to quote “establish white supremacy in this state.”
And that document created obstacles to voting for Black citizens. In fact, the numbers of Black voters went from 180,000 in 1900 to less than 3,000 in 1903. It disenfranchised poor whites, too, who couldn’t pay the poll tax or pass a literacy test to vote. It also allowed prisons to lease out Black inmates to do work, under language on indentured servitude. And it called for segregated schools.
That language today is inoperable, superceded by court rulings and federal civil rights legislation and changes the state has made, too. But to Senator Merika Coleman, there was still plenty of reason to strike it from the constitution. Coleman was a state representative when she sponsored the legislation to launch the revision process. In this PBS news interview she explains why it was important.
Coleman: Your state constitution sets up your values system, and that 1901 constitution didn’t see me as equal. I think it’s really important for us to use that symbol as a catapult to not only change the wording but to change the hearts and minds.
Coleman and others before her had made several attempts over the years to revise the document, but those efforts failed. Coleman doesn’t think that’s because anyone wanted to hang onto the racism in the document; instead many people feared what a major overhaul could do to other things governed by it. For example, the original created the state’s tax structure—not something normally handled in a constitution. It also has a whopping 948 amendments because individual counties and cities can amend it just for their needs, with legislative and usually voter approval.
Coleman kept narrowing the focus to get at the most important changes. By the 2020 session, she gained unanimous support for a bill to do a “reconfiguring” of portions of the constitution and put it before voters in 2022.
As she told a Birmingham Rotary Club audience:
Coleman: We had to be surgical. We wanted to make sure we could get something that the majority of the legislatures could agree on and therefore have an opportunity to bring something to the public. I truly believe this is a great first step.
Also in 2020, George Floyd’s murder by a Minneapolis police officer prompted protests in Alabama and around the world. A group of white Alabama Republicans asked Black Democrats to meet with them out of the public eye for frank conversations on what was fueling the strife. The meetings in a Montgomery church were “raw and emotional” as one participant said, and they were also very productive. We covered this effort in the February episode of Across the Aisle, which is available at our website, ncsl.org.
In those meetings, the lawmakers came up with specific plans to address racism, focused on educational and economic opportunities and they’ve passed laws and are continuing to work together. They also agreed the Constitution finally had to be cleared of that offensive language and worked with Coleman to do it. Rep. Danny Garrett, a Republican who had helped launch those talks about race, took an active role in revising the constitution.
Garrett: What brought me to this was basically just a genuine concern about doing what was right, treating people fairly, you know, making sure tha we do have equal opportunity. That we kind of backed up what we said, we practiced what we preached.
Once the Legislature agreed to reconfigure the constitution, the question was, who should do it? They considered a lot of options but settled on one person to lead the effort: Othni Lathram, director of the state’s nonpartisan Legislative Services Agency. He knows this stuff inside out.
Lathram : I was heavily involved in a process where we rewrote several whole articles of the Constitution. Now, as those were ratified, they were simply further amendments instead of actually getting incorporated. So, so at the end of that process, which kind of ran its course around 2016, um, we started thinking pretty seriously about how can we give full effect to all of this work? And decided we really needed an effort to recompile in, in order to kind of hit, reset and then move forward from there.
Lathram and his staff began their work and connected to many stakeholders in the process. And just to make sure there was plenty of input, the Legislature in 2021 created a bipartisan advisory commission to review Lathram’s work. It also decided that the version he presented would need to get a 3/5ths vote from lawmakers, not just a simple majority, to send it to the ballot.
It was a consuming process. Lathram says he didn’t tally the hours and hours it took, suffice to say it was a lot to meet that November ballot deadline.
While no one was defending the clearly racist language, there was some room for debate. “Indentured service” for instance. The standard definition is merely a contract between two people for work to be done. It’s in the U.S. Constitution and several other states. Lathram says it was important to revise only the truly racist language to meet the carefully agreed upon parameters, so they needed to answer the question: Is indentured servitude racist? Lathram says they looked at the history of how it had been applied in their state.
Lathram “So we had a pretty robust convict leasing system in the late 1800s and early 1900s, where following the Civil War era and an end of slavery, there was some pretty questionable conduct that led to, you know, over-arrest of primarily African Americans and then those prisoners being leased out to work on farms or in mines in a way that was much more consistent with how slavery had operated.”
So yes, they decided it had racist intent.
The second big part of his job was to organize the document so it would be more manageable—for lawyers and judges and regular citizens, too. With an estimated 450,000 words in the document, changing it up was a textbook example of the adage “the devil’s in the details.”
That meant those hundreds of amendments covering a wide array of topics, some for the whole state, and many for just a county here or there, they had to be organized. So for instance, Section 102 that made interracial marriage illegal, had been overturned years later with a subsequent amendment. But you wouldn’t know by looking at section 102.
Lathram: We’d actually voted to repeal that in 2000, but you had to make it to amendment 667 to know that had been repealed.
Now he says, if a portion has been amended, you’ll see that all in one place. And amendments are grouped by the geographic area they cover, and within that by the topics they address.
Lathram said his staff and the advisory committee were so determined to address only what was put on their plate that they even didn’t touch typos if those were in sections that weren’t intended to be reconfigured.
Lathram There’s 12 provisions where it was very obvious typographical mistakes, you know, the funniest of, which is the word repel appears instead of the word repeal,”
Lathram and others don’t think reconfiguration means the constitution is in tip top shape. To Lathram, there’s a straightforward definition of a constitution.
Lathram: “It’s more or less a contract between a group of people and their government, whereby we give government certain powers and we as citizens give up certain rights in order to live as part of a free society.”
But here’s the thing, he says:
Lathram The Alabama constitution was never meant to be that . It wasn’t that in 1901. And it wasn’t meant to be that, I mean, it was meant to be more of a super code where certain operative provisions were enshrined in a constitution so that the only way the representatives of government could change them was by going back to the voters, which of course in 1901, the voters were white male landowners.”
So Lathram and others know there’s more to be done. But they don’t want to lose sight of how much the state has accomplished. And how lawmakers from both sides of the aisle were engaged and finding unexpected common ground.
Lathram It felt like we had done everything the right way to, to reach very strong majorities, but obviously when you, when you hit unanimous, that’s always very, very, very, um, impressive and maybe a little bit surprising. I was surprised, again, in a positive way by the ratification margin, you know, I mean, Alabamians are in general somewhat distrustful of government. We’ve got a long pride, prideful history of that as well. and so, hitting that three quarters mark, you know, was, I was happily surprised.
Senator Merika Coleman says in the PBS interview the vote tells the world a new story of Alabama.
Coleman – When I think of all the new industry we try to recruit here, many people the only image they have of Alabama is hoses on African American youth in the streets of Birmingham. That’s not who we are. We’re not perfect, but that’s not who we are today.
Lathram is keenly aware that the amendments will keep coming.
Lathram Uh, it could get a little messy down the line again.
But, in fact, he is also in a good position to maintain order now that the document is in better shape.
Lathram As the gatekeeper , you know, all constitutional amendments originate technically in our office. And so we’re committed to, you know, making sure going forward, rather than, the kind of the haphazard manner. It was done in the past, actually being very intentional about how and where it goes and having that be part of the document itself. So it’s voted on and ratified in a way that puts it in where it should go. Do I have confidence that that sticks for, you know, however many generations that took us to get to here? I don’t know, but I certainly have hope that it will.
I’m Kelley Griffin. Thank you for listening to Across the Aisle. As always, we want to hear your stories of bipartisanship. Send us an email to [email protected]. You can give a quick summary and we’ll follow up for more details.
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