Passage of the 2022 Alabama Constitution was a major victory for the state, reorganizing the document and removing racist language. But we all know there is more that must be done to improve this flawed document for the benefit of all Alabamians.
Toward this end, the Alabama Citizens for Constitutional Reform (ACCR) has engaged the Public Affairs Research Council of Alabama (PARCA) to examine the many ways our constitution impacts the well-being of our citizens. We are planning a series of research briefs that examine the real-world implication of the constitution in areas such as education, the economy, healthcare, democracy, liberty and justice, and the consequences of our tax structure.
We see how our constitution affects us daily in the difficulty it places on local governments, those closest to the citizens, when they simply need to pass laws to govern their communities. PARCA’s research will define how our constitution impacts the daily lives of Alabama citizens.
ACCR needs an objective, well-researched examination of the constitution in order to proceed with its mission to educate and advocate for an Alabama Constitution that protects and enhances the lives for all Alabama citizens.
We need your help to fund the research with PARCA.
Please consider donating to this effort at https://www.constitutionalreform.org. To make a donation online, select Contributions from the menu and make a donation to the tax deductible ACCR Foundation, or mail a check payable to the
On September 8, 2023 Alabama Citizens for Constitutional Reform (ACCR) receivedthe Charles L. Ray, Jr., Memorial Social Justice Award from Interfaith Mission Service of Huntsville. ACCR was one of five recipients of the award. Receiving the award on behalf of ACCR was Kristi Thomson, ACCR Board President.
Alabama Citizens for Constitutional Reform (ACCR) is the force behind constitutional reform in Alabama. A non-profit, grassroots, public interest group dedicated to helping Alabamians draft a new state constitution. Founded in 2000 by journalist and educator Bailey Thomson and his wife Kristi Thomson, many across the state participated and helped in the formation including lawyer Tom Carruthers, Sid McAnnally, the Honorable Jack Edwards, Dr. Thomas Corts, Gov. Albert Brewer, Brunson White, Odessa Woolfolk, Judge Gorman Houston, Professor Wayne Flynt, and others.
Mr. Thomson’s efforts along with those of Gov. Albert Brewer and with the help of the late Dr. Thomas Corts, President of Samford University, resulted in a movement for reform that began in Tuscaloosa with a rally attended by hundreds. ACCR Foundation, and ACCR Inc., grew out of this rally in Tuscaloosa, Ala., on April 7, 2000. ACCR’s goal is a state constitution that unites, rather than divides Alabama’s people and creates a civic atmosphere in which politics can function for the benefit of all citizens, rather than for a few powerful interests. As part of this effort, ACCR supported the effort to recompile Alabama’s constitution removing racist language and reformatting to make the document more coherent. Voters ratified the reformatted Alabama Constitution in 2022.
When Alabama needs to pay for services, it turns to fees and general charges, or fines and fees in the criminal justice system.
Legislators passed almost 60 bills during this spring’s legislative session directing how local governments may raise revenues or spend money. Many generated money for counties, from fundraising events and lodging taxes to vehicle registration and court filing fees. Most passed as local bills, which generally go through the Alabama Legislature with little notice or debate.
The legislation is necessary because the state’s constitution gives local governments little autonomy and few other avenues for raising revenues.
The Fee Trap
How fines, fees and charges cost Alabamians
By one estimate, local Alabama governments generate more than twice as much revenue from fees and charges as they do from property taxes. Fees are often key to keeping public services, like sheriff’s offices, ambulance services and fire rescue teams running.
But funding government through fines and fees can wreak havoc on the budgets of local governments who are forced to come up with creative ways to generate money in a piecemeal fashion. Administrative costs can lower revenues from fees. In some cases, the money can be difficult to collect, and doesn’t cover the full cost of services governments need to provide.
And the fees fall heaviest on those least able to pay.
“Because of our upside-down tax system, a lot of our government agencies, and especially the ones that have a lot of interaction with the public, like the Department of Corrections and the court systems, disproportionately interact with low-income folks,” said Mike Nicholson, senior policy analyst for Alabama Arise. “When we have these structures that are underpinned by fee systems, what they are really doing is asking low-income folks to support these systems that, a lot of times, oppress them. They are almost paying for their own oppression system in a lot of cases.”
An Alabama Reflector analysis of more than 300 bills introduced in the 2023 legislative session found that:
Counties received the majority of fees, with 32 addressing those governments.
Sheriffs had 13 bills for funding. Limestone, for example, used a booking fee, a fingerprinting fee, a fee for background checks, and fees to serve documents within Alabama and out of state. To fund its sheriff’s office, Lamar County imposed two fees related to serving papers; a fee charged for feeding inmates and another for fingerprinting.
County commissions also received funding, though many said they were simply the conduit for transferring the money to different departments to use the funding.
Legislators authorized lodging taxes for three counties, Elmore, Henry and Tallapoosa, allowing them to charge between 4% and 15.5% on top of the rate that people pay for hotels and other accommodations.
Several approved fees will fall hard on people in the criminal justice system. The city of Northport received permission to enact a $100 warrant recall fee, charged for avoiding jail time for failure to appear in court. Cullman County received permission to impose court costs for criminal cases ranging from $5-$100 to fund a school resource officer. Coffee and Pike counties got permission to set fees for diversion programs — meant to allow people to avoid criminal charges — to between $150 to $2,100, depending on the crime. The city of Tuscaloosa received permission to redistribute the money it collects from pretrial diversion to other programs.
Two bills allow sheriffs in two counties, Winston and Autauga, to host fundraising events to generate revenues.
None of the new fees will offset the entire cost of the services they fund.
“The way it is in Alabama, our Constitution makes it so difficult to raise revenue that this array of local bills is, at its core, fundamental evidence of how difficult it is to raise revenue in Alabama,” said Sonny Brasfield, the executive director of the Association of County Commissions of Alabama (ACCA). “What you have in every county is trying to find some pathway to generate revenue that is politically tolerable in that county.”
A heavy reliance on fees
Governments throughout the country rely on charges to raise revenue. The practice gained steam in the 1980s, said Aravind Boddupalli, a research associate at the Urban-Brookings Tax Policy Center, who works on projects related to federal, state and local tax and budget issues. It was partly a response to some states’ limits on taxing power.
According to the Urban Institute, property taxes represent about 30% of the share of total local general revenues. That is, by far, the largest amount in terms of taxes. Only 5% of local government revenue in the U.S. is from general sales taxes, while another 2% is from individual income taxes.
All major sources of revenue have increased for state and local governments, but charges have increased the most on a percentage basis, increasing by 337%.
“What I broadly see is that states in the South rely less so on income taxes as a share of their revenue total than states in the Northeast for example, or even states in the West or Midwest,” Boddupalli said.
In New Hampshire for example, its share of property taxes is slightly more than $3,000 per capita for 2021. In Massachusetts, the property tax per person was about $2,800 per person in 2021. New Hampshire gets about $379 per person when it comes to fees. Massachusetts charges each person about $493 in fees.
In Alabama, the state received $567 per person in property taxes and $1,346 in fees per individual in 2021, according to data compiled by the Urban Institute. For the United States as a whole, property taxes are $1,837 while general fees charged per person was $982.
Even in the South, Alabama’s dependence on fees stands out. Louisiana, for example, collects about $970 per person in property taxes, and almost the same amount, $981 per person, in fees. In Mississippi, the state gets about $1,200 per person in property taxes and the same amount in fees. Only North Carolina ($1,459 per person) collects more in fees.
“Alabama stands out a little in this regard,” Boddupalli said. “Alabama relies more than the U.S. combined on charges as share of its general revenue. So more of Alabama’s budget relies on these non-tax revenue sources than other states.”
Some paid their registration fee begrudgingly.
Barker didn’t realize the fee for registering his vehicle had increased, and that the money would go to the sheriff’s office.
“They got to get it somehow,” Barker said.
One reason for Alabama’s reliance on charges, as well as fines and fees, is the state’s constitution. Designed in 1901 to disenfranchise Black Alabamians and poor whites, it also tightened restrictive property tax caps even further.
“The Alabama Constitution of 1901 was drafted primarily by the most influential people, who were large landowners and large industries, who did not want to pay property taxes on large land holdings,” said Thomas Spencer, senior research associate with the Public Affairs Research Council of Alabama.
The constitution also gives state government an almost exclusive right to tax. There is little home rule. Counties cannot enact their own tax rules without permission from state representatives and senators.
Income tax collections are limited by a 1933 amendment that set the top tax rate and threshold for a married couple at 5% of $6,000. While a progressive measure for its time, inflation gradually made it regressive. According to PARCA, in 2020 Alabama was 16th from the bottom in terms of state income tax collections in 2020. Of those that collected the least, seven states did not collect any income taxes.
Local governments can collect sales taxes, and most do. PARCA estimates Alabama collects $1,834 per person in sales taxes annually for 2020, the puts 28th in terms of rankings when compared to other states. The top state, Hawaii, is the highest at $3,814 per person for 2020.
In Alabama, the state receives $567 per person in local property taxes and $1,346 in fees per individual, according to the Urban Institute. For the United States as a whole, local property taxes are $1,837 while fees charged per person is $982.
After exhausting most of the traditional taxing methods, municipalities and counties are forced to petition the state legislature for any funding possible to pay for their operations.
Fees are politically palatable. One justification is that fees and charges mainly affect people who use the service that saves everyone else from the burden.
“The reason that they do this is because, if not, they will have to fund it with a tax increase,” said Bob Wood, a professor of finance at the University of South Alabama. “And, of course, legislators don’t like tax increases because voters don’t like tax increases. It is a way around raising taxes. That is the bottom line. You never hear that.”
Peter Jones, an associate professor in the Department of Political Science at the University of Alabama at Birmingham, said this state has traditionally disliked broad-based tax systems. However, the public’s demand for services provided by the government has increased.
Cities versus counties
While all local governments rely on charges, fines and fees to some extent, counties are particularly dependent on them.
Cities in Alabama generally have more power to legislate than counties, in part because they form voluntarily. Property owners and citizens agree to be annexed into a city’s borders and to be subject to a city’s laws. That legal theory offers cities broader administrative powers in terms of raising revenues to fund its coffers.
Counties do not have such powers.
“Counties can only exercise the exact powers that the legislature has given them,” Brasfield said. “And the power to tax has been the one thing that the Legislature has been very, very stingy with over the years.”
The Alabama Constitution prohibits county governments from levying more than 5 mills of property taxes. If a county wants to increase property taxes above that limit, it requires an amendment to the Alabama Constitution, a process that involves going through the state legislature and approval by voters in an election.
In addition, constitutional amendments passed in the 1970s severely limited how much property could be assessed for tax purposes, further cutting property tax revenue. Homes and agricultural land are assessed at 10% of their appraised value. Businesses property is assessed at 20% of its appraised value and utilities at 30% of appraised value.
This makes it difficult to raise revenue in rural counties where the property is primarily farm, forest, and homes. In addition, the “Lid Bill” caps the total amount of property taxes that can be collected on a property to 1% of its appraised value in the case of homes and agricultural land, according to Spencer.
The only way to lift these caps would be amending the state constitution. A broad proposal to reform Alabama’s tax methods was defeated in 2003.
That leaves fees.
“If you are trying to secure revenue-raising ideas, you operate like a guy trying to fix a car,” Brasfield said. “You try to diagnose what change will allow the car to run. And you keep trying ideas until the car cranks.”
Vehicle registration and court filing fees were two of the most popular ways to raise money in the 2023 regular session. Vehicle registration fees were included in three bills; court filing fees went into three more.
Both target captive audiences.
“I don’t know if there is anywhere in this state that you can exist without a vehicle,” said Susan Pace Hamill, a professor at the University of Alabama School of Law and expert on the state’s tax system. “We don’t have a public transportation system that is worth speaking of. Outside of a few places, which aren’t huge compared to other places, Birmingham is not Atlanta for example, this is a very rural state. Vehicles are a reality.”
Court fees are inescapable for those in the criminal justice system, and many of those individuals are economically disadvantaged.
“If you have to go to court, you have to go to court,” Hamill said. “Not as many people have to go to court as have vehicles, but if you have to go, you have to go.”
HB 362, sponsored by Rep. Ben Robbins, R-Sylacauga, authorized the Coosa County Commission to levy a $15 fee on top of the existing county vehicle registration fee.
“It was to create an ambulance service for the county,” Robbins said. “Currently, residents do not have ambulatory service. And so, we are creating an ambulance service for the county, and the county commission requested, based on budgeting, what it would need to operate.”
The ambulance service will cost $300,000. Coosa County Administrator Amy Gilliland said the state mandated the service.
“We don’t have one. We only have two volunteer fire departments trying to cover this whole county,” Gilliland said. “Volunteers can’t always get all over the county. This is 24 hours a day, 365 days a year.”
The full impact of that fee on residents is not clear. The county has a $25 base fee, but oftentimes registration fees amount to hundreds of dollars because of specific taxes that are levied depending on where they live.
Both parties are sensitive about the potential consequences it has for residents, and neither Robbins nor the county are willing to take the credit for the idea of using a vehicle registration fee to pay for the service.
“In working with our legislators, our representatives, and our senators, that was their suggestion,” Gilliland said. “And they said that would be the best for us to do.”
Robbins said the county commission analyzed the issue and came up with the idea for increasing vehicle registration fees to pay for the service.
“The county commission made the decision, because of the poverty in Coosa County, and some of the lack of health insurance and reimbursed routes, based upon the data they needed as a revenue source,” Robbins said. “This was their decision on how to come up with the most reliable revenue source in a rural county, which was motor vehicle registration.”
Impact and fairness
All governments, whether it be at federal, state or local level, must spend some money to collect the money they are owed.
“For those broad-based taxes, it tends to be proportional so that the more money you are spending to collect tends to reflect getting more money back,” Jones said. “With user fees, those are not set at a rate but at a price, and so you are collecting $32.55 per hunting license and if the cost of collecting that money goes up, you are getting fewer dollars for the provision of the public good.”
Fees, or charges, can be effective and pragmatic in some instances.
“The person using it, or the person benefiting from whatever it is, is the one actually paying for it,” Wood said. “That is what the legislators and the other politicians use to justify them.”
Jones said fees preventing access without payment, like tolls on public roadways or park entrance costs, tend to be the most efficient.
Among the least efficient are fines and fees.
“Fines and fees associated with the criminal justice system are often the least efficient in that they are the hardest to collect,” Jones said. “They are different for a couple of reasons. Obviously, people who pay fines, fees and forfeitures, those are not voluntary transactions. You are not buying a postage stamp.”
LaWanda Bush, 42 years old, was cited for speeding in the city of Northport. She had to go to the city’s municipal court to take care of the situation. The actual fine for speeding is between $20 or $40 depending on how fast over the posted limit a person is driving. But fees tack on another $162. For Bush, this meant she had to pay more than $200.
“They set up a payment plan,” she said.
Then there is the social justice cost.
“Technically, they are regressive taxes,” Jones said of fees. “They take up more of a person’s income.”
Many local governments use a local tax system that collects a greater share of revenues from those who make the least, according to a report from the Institute on Taxation and Economic Policy published in 2018. The report states the lowest 20% of income earners face a local and state tax rate that is at least 50% more than the top one percent of households.
Using fees to pay for government disproportionately negatively affects those on the lower end of the income spectrum because they pay a greater share of their income to pay the fee than Alabama residents who are wealthier.
“The only way the state is going to truly be able to have public policy that approaches some level of reasonableness that will not only be more fair to the most vulnerable, but also help perpetuate more economic growth,” Hamill said. “All of these things that we have been talking about do not help the state economically grow. If you don’t believe me, look at where we economically stand compared to other states.”
And it’s not clear that fees can handle the rising costs of services.
“I think you will see more of this going forward as the cost of law enforcement has increased,” Brasfield said. “There are plenty of counties where law enforcement, and operation of the jail, is more than half of the county general fund.”
Broad-based taxes are generally more flexible, allowing them to be directed to a host of programs and services. Relying on fees can make it difficult to govern. Revenues from income like camp fees can be volatile. If, for some reason, fewer households visit a camp site, then the fees will decline accordingly. And fees often go to specific purposes, making local governments less nimble. A camp fee may be limited to camp maintenance.
“It does constrain the government in terms of what it can provide and the quality in which they can provide it,” Jones said.
Brasfield also said these mechanisms are not sustainable in the long run and are a poor way for subsidizing the cost of operating the government.
“Every county is different,” Brasfield said. “Is this the best way to fund the operation of the government? I would say no, it is not.”
How we analyzed the bills
Analyzing the local government legislation that passed took weeks and began by reviewing the records the Alabama Reflector had compiled as bills moved through the legislature. Every week during the session, the Reflector published a summary of the legislation that both the House and Senate considered. The Reflector then used Alison, the state’s legislative website, to search for bills using different keywords related to taxation, fines, and fees.
Any legislation that collected any revenue or could be an additional expenditure was considered for review. Some dealt directly with generating revenues through local legislation through vehicle registration fees or dues related to filing documents with the court or serving papers.
Others were less direct and more distantly related, such as technical revisions that were made to a revenue source, or legislation with the potential for affecting expenses, such as increasing the number of days that the board of registrars meets, or consolidating voting centers to reduce cost.
Those bills were then compiled into a spreadsheet that outlined different features of the bills, from the bill number identifying the specific legislation and its sponsor, to the taxing authority and the agency receiving the funding. Specifics of the legislation were also included, such as the fee structure, its purpose and where the legislation ended during the legislative process.
At the end of the search, the Reflector aggregated almost 300 bills meeting those criteria. Of those, the Reflector focused on those that passed during the 2023 regular legislative session, and those bills that, in some fashion, affected the public by generating revenues or cost measures.
Legislation was then filtered even further, concentrating on those bills that generated fees at the state, county, or municipal level. In the end, the Reflector was left with more than 60 pieces of legislation to consider for its analysis.
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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You’ll find The Inside Storey where NCSL’s CEO Tim Storey interviews experts in leadership and legislatures. The podcast Our American States dives into some of the most challenging public policy issues facing legislatures today. And also check out our special series “Building Democracy” which looks at the colorful history of legislatures.
We are happy to announce that Alabama voters approved the Constitution of 2022 in November of 2022!
Confederate monuments are easier to remove than Alabama’s racist laws. Our mammoth state Constitution of 1901 is not just littered with racism, it was written to ensure it: “White Supremacy by Law.” On November 8, Alabama voters will have the opportunity to vote for the ratification of the proposed Alabama Constitution of 2022, a rare piece of legislation that has unanimous bipartisan support among state lawmakers.
In its endorsement, Alabama Citizens for Constitutional Reform (ACCR) writes: “Two items related to the Alabama Constitution will be on the ballot in November, having already received unanimous support from members of the state legislature and Governor Kay Ivey. ACCR also fully endorses ratification of the Constitution of 2022 and companion Amendment 10 which, together, complete the process of updating the state’s 1901 Constitution.
“This November 8th, I look forward to voting yes on the ratification of the proposed Constitution of Alabama of 2022,” Governor Ivey told ACCR. “Two years ago, the people of Alabama voted to streamline our Constitution –without making any substantial changes–and since then we have been fortunate to have some of the best legal minds working on this project which the Legislature unanimously approved last Session. I know a lot of work went into the process and I am appreciative of all involved.”
The bipartisan Constitution of 2022 scrubs racist language and repealed laws in its recompilation of the bloated, oppressive Constitution of 1901. The new version of the constitution was allowed because of state legislation passed in the 2022 session, which lawmakers passed without dissent.
A panel discusses the recompilation of the Alabama constitution at an event hosted by the public Affairs Research Council of Alabama on Tuesday, Oct. 18. (Jacob Holmes/APR)
Alabama voters will have a historic opportunity at the polls on Nov. 8 to ratify a recompilation of the state constitution.
The Public Affairs Research Council hosted a panel discussion Tuesday at Samford University with key leaders in the effort to reorganize and remove racist language from the archaic document.
Alabama voters in 2020 cleared the way for the recompilation to be put on the ballot in 2022, and the recompiled constitution gained unanimous support in both chambers of the Legislature.
While the changes would not affect any substantive area of law, the panel said removing racist language that is no longer enforceable will help the state move away from its bad branding across the globe.
“We suffer from a brand image around the world,” Garrett said. “So I’ll say this, we’re here to update our constitution to move us away from a past that we all regret. That’s important in helping us rebrand and tell everybody who we are today.”
Rep. Merika Coleman, R-Birmingham, who chaired the committee to recompile the constitution, said the constitution serves as a value statement for Alabama.
“And right now it says our value system disenfranchises communities of color, not just African Americans but all communities of color,” Coleman said. “those folks that don’t own land, poor people and women, and also people who choose to love whoever they want … So I don’t believe that’s the Alabama that we are today. And so this is the right time to not only say to the rest of the country, but to the world, that we are no longer that 1901 Alabama.”
In addition to removing racist language including the segregation of schools by race and the enforcement of poll taxes, the panel said the recompilation will also reorganize the constitution to make it slightly less cumbersome to navigate.
Othni Lathram, director of the Alabama Legislative Services Agency, explained how the 1901 constitution laid the framework for the state to develop the world’s longest operational constitution.
“We are a people —and I think, you know, for better or worse, we still have some of these common threads today— were people who were distrustful of government,” Lathram said. “And we really wanted to create a system where any significant decision got to be decided by the voters rather than the representatives of the voters. And that led to a lot of the problems. It certainly disenfranchised African Americans. It disenfranchised poor white persons as well. It disenfranchised women, because of course the power was all concentrated in landowners and landowners were a single demographic in Alabama in 1901. So almost from the day it was ratified we’ve had to work to change it.”
That has led to more than 950 amendments to the constitution as the Legislature has had to work piecemeal to make changes statewide and even at the county level. If ratified, the new constitution will incorporate all of those amendments into the constitution itself, as well as the amendments on the upcoming ballot if voters vote yes on Amendment 10, a companion amendment to the recompilation.
When students are studying the Alabama constitution, Lathram said, and they come across the outdated racist language without the context that it has been nullified, it makes an impact.
“What I think is exciting about this, why this helps change the trajectory, is that when you have a middle school or a high schooler who’s learning about their state and about how it operates, and they pull out their state constitution, without somebody sitting there to help explain it to them, and they hit section 256 and see that our governing documents still talks about keeping schools separate by race— that does something to their mind, right?” Lathram said. “Whether we realize it or not— I’m not saying it changes the trajectory of their life, but it has an impact on them.”
Alabama voters will have a chance to ratify a recompiled state constitution when they go to the polls for the general election on Nov. 8.
The Alabama Constitution of 2022 is a reorganized version of the current constitution, which has been the state’s foundational law since it was ratified in 1901.
The 1901 Constitution has grown to be almost indecipherable after more than a century of piling on amendments. Original sections that were changed and repealed remain in the document. Amendments that were changed by later amendments remain. More than 700 amendments apply to only one county but are mixed with the statewide amendments.
Overall, the Constitution of 1901 has 977 amendments to the original 18 articles that are intended to spell out the basics of state government, such as the authorities of the legislative, executive, and judicial branches.
The Constitution of 2022 is the product of an effort to arrange the massive document in a coherent format. It folds the amendments into the main articles. It organizes the local amendments by county, municipality, and topic.
Three sections are revised or deleted because they are leftovers from the era of racial segregation. Other defunct laws, including some from the segregation era, are eliminated through the process of recompilation.
The vote in November will be the culmination of a project that started a few years ago and was built on decades of reform efforts.
Legislative Services Agency Director Othni Lathram, who has overseen the drafting of the Constitution of 2022 with help from an advisory committee and the LSA staff, said the main goal is to make Alabama’s foundational law understandable.
“I think at its core the most important thing about this is that we’ve reached the point where the average person probably has no idea what our constitution is or what’s in it,” Lathram said. “You’ve got to read the original 290 or so sections, and then wade your way through all of those amendments in order to know what the core governing law of the state even is. And that’s confusing under the best of circumstances for people who are really well informed and know what we have done over the years. And it’s virtually impossible for just the average citizen.”
While the project came in response to the glut of amendments, it took an amendment to make it possible.
In 2019, state lawmakers passed a bill by Rep. Merika Coleman, D-Pleasant Grove, proposing a recompilation of the 1901 Constitution. The bill limited changes to four categories: Remove racist language; delete duplicative and repealed sections; consolidate economic development provisions; and arrange local amendments by county.
In 2020, voters, by a 2-to-1 margin, approved Coleman’s bill as Amendment 951. The amendment directs the head of the Legislative Services Agency, which drafts bills for lawmakers, to develop the draft of the recompiled Constitution.
In 2021, lawmakers passed a bill to create a 10-member committee to assist the LSA and to receive ideas from the public. Six lawmakers and four others served on the committee, which Coleman chaired. They held a series of public meetings starting in July 2021.
Lathram said the LSA and the committee relied on a key resource, a recompilation authorized by legislation that passed in 2003. That project was never intended to be ratified by voters and did not include all the components of the 2022 recompilation. But Lathram said it was an important interim step and the committee adopted it as the baseline for their work.
The final product, the Alabama Constitution of 2022, went to the Legislature during this year’s regular session. Legislators approved it without a dissenting vote, a step required to put it on the ballot in November.
“We spent two years working on these drafts in a very public process,” Lathram said. “There were numerous public meetings, opportunity for the public to engage and participate. When we were done with that process it had to pass both legislative bodies again by a three-fifths vote. They were debated, talked about during the legislative process. Then, of course, it’s got to be ratified in November.
“So, we’re not talking about a quick or simple process. It really was a process with multiple, pretty significant hurdles that had to be checked through the representative government process.”
You can see the proposed Alabama Constitution of 2022 and documents explaining the committee’s work under the Legislative Service Agency’s tab on the Legislature’s website.
Taxes, home rule, and gambling
For decades, advocates for reforming Alabama’s Constitution of 1901 have cited the need to change limits on property taxes that limit school funding and for giving county governments more authority, or home rule.
The Alabama Constitution of 2022 is not that version of reform.
“This doesn’t address any of that,” Lathram said. “It maintains the status quo on all tax issues. It maintains the status quo on all local governance issues.”
The prohibition on gambling in the Constitution of 1901 is unchanged. That means the Legislature cannot create a lottery unless voters approve a constitutional amendment. The Constitution of 2022 does not change the Legislature’s powers in any area, Lathram said.
“It does not take away or give any authority, even on the provisions where theoretically authority is coming out, like on segregated schools or poll taxes, those are authorities that have been taken away under federal case law for over a generation now anyway.
“We are not taking out anything that’s operative. We’re taking out vestiges of a prior time.”
Even though the recompilation does not address some issues that have long been cited as the reasons for overhauling the constitution, longtime supporters of reform say it is an important step.
Kristi Thomson is a retired teacher and principal who chairs Alabama Citizens for Constitutional Reform, which has spearheaded efforts for more than two decades. Thomson said her husband, journalist and educator Bailey Thomson, who died in 2003, would have endorsed the work, including the removal of racist language. Thomson was a founder of ACCR in 2000.
“My husband started his research way back in 1998 and realized that the constitution was just keeping Alabama back,” Thomson said. “And Bailey was an Alabama boy. He grew up in Aliceville. His dream was that over time we could get a new constitution. But we realized that if that was not in the cards could we get reform. And when I say we, I mean the people who support the ACCR mission.”
Thomson said she sat attended the advisory committee meetings.
“I was very impressed with all the research that had gone on and the considerations, the concerns,” Thomson said. “They were so careful in planning how everything would be worded and how it would affect the state.”
Removing racist provisions
An example of how the recompilation works is the treatment of the ban on interracial marriage that is part of the 1901 Constitution.
Section 102 of the 1901 Constitution says: “The legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.”
Alabama’s ban, like those in other states, was nullified in 1967 when the U.S. Supreme Court ruled those laws were unconstitutional.
In 2000, Alabama voters approved Amendment 667 to formally repeal the inoperative ban by a vote of 59 percent to 41 percent.
The Alabama Constitution of 2022 does not have the original ban in Section 102 or the amendment that repealed it. Sections that voters have repealed, along with the amendments that repealed those sections, are not part of the recompiled constitution.
The LSA and advisory committee identified three sections with racist connotations that would not be eliminated by recompilation. Those are removed or revised.
Section 32 is the prohibition against slavery in the 1901 Constitution: “That no form of slavery shall exist in this state; and there shall not be any involuntary servitude, otherwise than for the punishment of crime, of which the party shall have been duly convicted.”
In the late 19th century and early 20th century, Alabama abused the practice of involuntary servitude. The notorious convict-lease system targeted former slaves and their descendants for dangerous work in coal mines and other places until the 1920s.
The Constitution of 2022 deletes the last portion of Section 32 and reads: “That no form of slavery shall exist in this state; and there shall not be any involuntary servitude.”
Section 256 in the Constitution of 1901 required “separate schools for white and colored children.”
After the U.S. Supreme Court’s Brown v. Board of Education ruling outlawed segregated schools in 1954, Alabama amended Section 256 (Amendment 111 in 1956) but tried to keep the door open for segregation. The amended version of Section 256 says, in part, “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.”
The Constitution of 2022 deletes that portion of Section 256 as well as the original section that mandated segregated schools. Also deleted was a provision from the 1956 amendment that said the Legislature could “require or impose conditions or procedures deemed necessary to the preservation of peace and order.”
The poll tax was used for decades to keep poor people, white and Black, from voting. Alabama was one of five states that still had a poll tax when Congress passed a law to ban poll taxes in 1962. That law was ratified as the 24th Amendment to the U.S. Constitution in 1964.
Most of the references to the poll tax in the Alabama Constitution of 1901 are in Article VIII on suffrage and elections. Article VIII was repealed and replaced in 1996, one of several article-by-article reform efforts.
Section 259 is part of Article XIV on education and is the surviving reference to the poll tax. It says: “All poll taxes collected in this state shall be applied to the support and furtherance of education in the respective counties where collected.”
That is deleted from the Constitution of 2022.
The Constitution of 1901 limited the authority of county governments, forcing them to seek approval from state legislators and voters on mundane matters and basic operations. That is why about three-fourths of the 977 amendments affect just one county.
Here’s a few of the hundreds of examples: Amendment 710 imposes fees in drug cases in Escambia County to help fund the canine unit for the sheriff’s office; Amendment 934 authorizes the Madison County Commission to enact noise ordinances; Amendment 938 concerns the use of golf carts on public roads in Marengo County; and Amendment 974 prohibits the use of septic tank discharges as fertilizer in Talladega County.
All amendments, local and statewide, are listed in chronological order in the Constitution of 1901. The Constitution of 2022 moves all the county amendments into a separate volume organized by county and topic.
“This goes a long way toward hopefully that ease of use for voters to allow them to know what laws are in the constitution for their county that don’t exist for the rest of the state,” Lathram said. “I think it’s a very significant portion of the effort.”
History of reform efforts
Governors, legislators, and citizen groups have pushed for constitutional reform for decades.
Gov. Albert Brewer advocated for reform, as did Gov. Fob James during his first term from 1979-1983.
The Legislature passed a new constitution in 1983 sending it to the voters for ratification. But the Alabama Supreme Court removed it from the ballot, ruling that a wholesale rewrite of the constitution required a constitutional convention.
Reformers then tried a different approach, overhauling the constitution article-by-article. One such effort predated the Supreme Court ruling. In 1973, voters ratified Amendment 328, a rewrite of Article VI, the judicial article, authored by then-Alabama Supreme Court Chief Justice Howell Heflin.
In 1996, voters ratified a new Article VIII, suffrage and elections. That was an effort spearheaded by Rep. Jack Venable of Tallassee.
Brewer chaired a constitutional revision commission created by the Legislature in 2011. It rewrote the articles on the distribution of powers, impeachment, corporations, and banking. All were ratified from 2014 to 2016.
Also in 2016, voters approved an amendment that was a step toward more home rule for counties. It allowed county commissions to adopt policies on county personnel, litter control, public transportation, traffic safety and emergency assistance without approval of the Legislature.
Another amendment approved in 2016 changed the procedure for determining whether constitutional amendments affecting only one county go on the ballot statewide or only in the affected county, an effort to confine more of those votes to the affected county.
Stayed within guidelines
Sen. Sam Givhan, R-Huntsville, a lawyer who served on the advisory committee for the Constitution of 2022, said the panel was careful to limit changes to the four categories authorized by voters two years ago. He said that should give voters confidence in the finished product.
“I would just remind them that they did vote to authorize this before,” Givhan said. “And they gave us very confined parameters with which we could operate to reorganize the constitution and to remove the racist language. And lots of different groups were represented with varied interests to keep an eye out if you will to make sure that we stayed within those parameters.
“There was really no controversy in how we handled it because there were some clear-cut areas that were overt racist language that were removed. There were some that had deep racist connotations that were removed. But there’s nothing in terms of how our government works, how our tax system, nothing like that was changed. We didn’t have the authority to change it.”