Case 2:16-cv-00783-WKW-CSC Document 1 Filed 09/26/16 Page 1 of 58

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN-DIVISION'

r C

TREVA THOMPSON,

MELISSA SWETNAM,

)

ANTWOINE GILES,

ANNA REYNOLDS,

)

LAURA CORLEY,

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LARRY JOE NEWBY,

)

MARIO DION YOW,

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JENNIFER ZIMMER,

)

TIMOTHY LANIER, and

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PAMELA KING, individually

)

and behalf of all others similarly

)

situated, and GREATER

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BIRMINGHAM MINISTRIES,

)

)

Plaintiffs,

)

)

V.

)

)

)

STATE OF ALABAMA,

)

JOHN H. MERRILL, in his official )

capacity as Secretary of State,

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GEORGE NOBLIN, in his official

)

capacity as Chairman of the

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Montgomery County Board of Registrars)

and on behalf of a class of all voter

)

registrars in the State of Alabama, )

CLIFFORD WALKER, in his official )

capacity as Chairman of the Board of )

Pardons and Paroles,

)

)

Defendants.

)

b SEP 2b AID: 12
DEBLRJATP.çHrACTETuTuCL
DS1FT
CIVIL ACTION NO./L.y-? CLASS-ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs allege that: PRELIMINARY STATEMENT
1. This is an action challenging Alabama laws and procedures respecting felon disenfranchisement.

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2. As detailed below, Section 177(b) of the Alabama Constitution, which disenfranchises individuals with convictions of felonies "involving moral turpitude," is a direct successor to the Alabama's 1901 racially discriminatory constitutional disenfranchisement provision. It is inextricably tied to Alabama's long history of denying blacks citizens voting rights and equal access to the polls, using the criminal justice system to achieve those goals.
3. Soon after the Civil War and the passage of the Fourteenth and Fifteenth Amendments, Alabama began to use criminal disenfranchisement as a tool, hand-in-hand with convict leasing and other means, to deny blacks the right to vote and maintain white supremacy. Indeed, the explicit purpose of the 1901 Alabama Constitution was to formally "establish white supremacy." The felon disenfranchisement system in Alabama continues to serve that purpose.
4. In 1985, the Supreme Court held that the drafters of the disenfranchisement provision specifically selected the vague and arbitrary "moral turpitude" standard in order to disenfranchise blacks. Nonetheless, in 1996, Alabama re-inserted that same standard into its felon disenfranchisement law, which remains to this day.
5. The Alabama Legislature has never determined what felonies "involve moral turpitude." Yet the State of Alabama requires citizens to declare under penalty of perjury that they have not been convicted of a "disqualifying crime" in order to register to vote, stifling the registration of qualified voters.
6. The lack of any definition and the vagueness of this term has left the fundamental right to vote of hundreds of thousands of voters to ad hoc and arbitrary determinations by individual county registrars across the state.
7. The result is the disenfranchisement of approximately 7% of Alabama's total voting-age population and 15% of Alabama's black voting-age population.
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8. In 1969, the Supreme Court held that Section 2 of the Fourteenth Amendment sanctions some form of disenfranchisement based on criminal convictions. However, Section 2's language, which speaks of disenfranchisement of "rebellion, or other crime," does not sanction the broad disenfranchisement of individuals for convictions untethered to voting and far less serious than rebellion.
9. Nor do the Fourteenth and Fifteenth Amendments, intended to guarantee equality and eliminate racial discrimination, countenance the use of criminal disenfranchisement as a means of excluding blacks from the right to vote.
10. Alabama compounds this racially discriminatory system by requiring individuals to pay all fines and fees in order to be eligible to restore their voting rights. This requirement is nothing more than a modem day poll tax that disproportionately excludes black voters from the franchise.
11. As detailed below, Plaintiffs pray that this Court strike down this discriminatory system in its entirety as racially discriminatory, unconstitutional, and unlawful under Section 2 of the Voting Rights Act.
JURISDICTION AND VENUE 12, This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, 1343, and 52 U.S.C. § 10308(f). 13. This Court has personal jurisdiction over the defendants, all of whom are either elected officials in Alabama or appointed members of their respective Boards of Registrars. All of the defendants work and reside in the State of Alabama. 14. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b). Among other things, the offices of all three named Defendants in this action are located in this District.

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15. This Court has authority to issue declaratory and injunctive relief pursuant to
28 U.S.C. § 2201 and 2202.
LEGAL FRAMEWORK
16. Article VIII, Section 177, of the Alabama Constitution provides:
(a) Every citizen of the United States who has attained the age of eighteen years and has resided in this state and in a county thereof for the time provided by law, if registered as provided by law, shall have the right to vote in the county of his or her residence. The Legislature may prescribe reasonable and nondiscriminatory requirements as prerequisites to registration for voting The Legislature shall, by statute, prescribe a procedure by which eligible citizens can register to vote
(b) No person convicted of a felony involving moral turpitude, or who is mentally incompetent, shall be qualified to vote until restoration of civil and political rights or removal of disability.
17. A person convicted of "a felony involving moral turpitude" can have her political
rights restored, and therefore be eligible to register to vote, either by receiving a discretionary
pardon from the Board of Pardons and Paroles, see Ala. Code § 15-22-36, or by receiving a
Certificate of Eligibility to Register to Vote (CERV) from the Board of Pardons and Paroles, if she
meets all the relevant requirements, see Ala. Code § 17-3-31.
18. Alabama Code Section 15-22-36.1 outlines the requirements for a CERV and the
process for applying and receiving a CERV. A person who has lost her right to vote by reason of
felony conviction involving moral turpitude is eligible to receive a CERV if she meets the
following requirements:
(1) The person has lost his or her right to vote by reason of conviction in a state or federal court in any case except those listed in subsection (g). (2) The person has no criminal felony charges pending against him or her in any state or federal court. (3) The person has paid all fines, court costs, fees, and victim restitution ordered by the sentencing court at the time of sentencing on disqualifying cases
(4) Any of the following are tPi:
a. The person has been released upon completion of sentence.
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b. The person has been pardoned. c. The person has successfully completed probation or parole and has been released from compliance by the ordering entity. 19. The convictions that make a person ineligible for a CERV as listed in Alabama Code Section 15-22-36.1(g) are: Impeachment, murder, rape in any degree, sodomy in any degree, sexual abuse, in any degree, incest, sexual torture, enticing a child to enter a vehicle for immoral purposes, soliciting a child by computer, production of obscene matter involving a minor, production of obscene matter, parents or guardians permitting children to engage in obscene matter, possession of obscene matter, possession with intent to distribute child pornography, or treason. 20. If a person meets all the eligibility requirements for a CERV under Alabama Code Section 15-22-36.1, issuance of a CERV to the eligible voter is mandatory. Ala. Code § 15-2236.1(b) ("The Certificate of Eligibility to Register to Vote shall be granted upon a determination that all of the requirements in subsection (a) are fulfilled.") (emphasis added). 21. By making the payment of all legal financial obligations (including fines, fees, and restitution) (hereinafter "LFO5") a mandatory eligibility criterion for a CERV, Section 15-22-36.1 disqualifies any persons from receiving a CERV if they are unable to pay "all fines, court costs, fees, and victim restitution ordered by the sentencing court" in their criminal case.
"Felony Involving Moral Turpitude" is Undefined 22., The Alabama Legislature has failed to define the term "moral turpitude" and therefore has failed to define the qualifications for voting in the State of Alabama. Alabama Code Section 15-22-36.1(g) states that a person "who has lost his or her right to vote by reason" of specified convictions is not eligible for a CERV. But this statute does not explicitly define which felonies involve moral turpitude and may assume that all convicted felons are disfranchised, notwithstanding the "moral turpitude" qualification in Section 177(b). There is no apparent standard the Legislature used to determine which crimes make a citizen ineligible for a CERV.
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23. The remaining administrative guidance, to the extent it is followed, is nonexhaustive, non-authoritative, vague, and internally inconsistent.
24. In 2005, the Attorney General of Alabama issued an opinion purporting to address, inter a/ia, the question of what felonies do or do not involve moral turpitude. Att'y Gen. Op. No. 2005-092,2005 WL 1121853 (hereinafter "2005 Attorney General Opinion"). The opinion restates the Alabama Supreme Court's broad definition of moral turpitude, which is "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or to society in general." As the Attorney General has previously acknowledged, this definition ensures that the determination "will turn upon the moral standards" of the decision-maker. Underwood v. Hunter, 730 F.2d 614, 616 n. 2 (11th Cir. 1984), affd sub. nom. Hunter v. Underwood, 471 U.S. 222 (1985).
25. The 2005 Attorney General Opinion states that it could "not provide an exhaustive list of every felony involving moral turpitude." Instead, it purports to provide a non-exhaustive list of crimes, or categories of crimes, thus far determined by Alabama courts to involve moral turpitude as well as a partial list of crimes thus far determined by Alabama courts not to involve moral turpitude.
26. - However, the Attorney General does not have the power to make law or set voter qualifications in the State of Alabama. Only the Alabama Legislature has the power to pass laws, and the judiciary has the power to interpret them. Ala. Const. art. III, § 43. Moreover, Article III, Section 177, of the Alabama Constitution clearly delegates the authority to set voter qualifications to the Legislature only. The 2005 Attorney General Opinion therefore adds nothing to the clarity of the term "involving moral turpitude." While the Attorney General sought to rely upon judicial opinions, those opinions are, for the most part, not based on cases where the Alabama courts were
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defining "moral turpitude" in the context of Section 177(b). Therefore, they cannot stand for the proposition that those convictions are disqualifying under Section 177(b).
27. The Attorney General's list of moral turpitude crimes is broader than the disqualifying crimes listed in Alabama Code Section 15-22-36.1(g) and includes murder, rape, burglary, robbery, income tax evasion, forgery, conspiracy to commit fraud, aggravated assault, possession of marijuana for resale, sale of marijuana, manslaughter, theft, transporting stolen vehicles across state lines, unauthorized sale of a controlled substance, bigamy, and all crimes where fraud is an element.
28. The Attorney General's list of crimes not involving moral turpitude was limited to assault, doing business without a license, violation of liquor laws, aiding prisoner to escape, mere possession of marijuana, and driving under the influence.
29. The crimes specified in the 2005 Attorney General Opinion are not linked to specific, enumerated crimes under the Alabama Code and thus require persons with felony convictions to determine whether their crimes of conviction match the general descriptions in the opinion. For example, the 2005 Attorney General Opinion does not indicate whether all degrees of the crime are included in each category. In the case of "crimes where fraud is an element," the opinion requires the reader to cross-reference the opinion with the elements enumerated in the criminal statute at issue.
30. The Attorney General's list as set forth in his opinion does not address many of Alabama's over five hundred felonies.
31. The Board of Pardons and Paroles' website also asserts that "possession of drugs" does not involve moral turpitude. Even accepting the authority of this statement from an agency that lacks the power to determine voter qualifications, it is not clear whether possession of drugs
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for resale is disqualifying since the 2005 Attorney General Opinion lists possession of marijuana for resale as disqualifying.
32. In 2007 and 2008, the Administrative Office of Courts (AOC) issued memos regarding the definition of moral turpitude for the purposes of criminal disenfranchisement. See Exhibit A. The AOC concluded that the list of crimes involving moral turpitude should be construed to include only those crimes previously so determined by Alabama appellate courts or listed in the 2005 Attorney General Opinion. It developed a list of approximately seventy such felonies.
33. This AOC list is incongruent with the Attorney General Opinion. For example, the AOC limits disqualifying forgery and theft of property crimes to convictions in the first and second degrees and excludes lesser degrees of those crimes, while the Attorney General's list does not contain such limitations. The Attorney General's list includes income tax evasion and all crimes involving fraud as an element, while the AOC list does not include those crimes.
34. The AOC list is also not authoritative under Alabama law. The Legislature has the power to pass laws and the judiciary has the power to interpret them. Ala Const .. art.. III, § 43. The AOC list relies upon judicial opinions, but those opinions are, for the most part, not based On cases where the Alabama courts were defining "moral turpitude" in the context of Section 117(b). Therefore, they cannot stand for the proposition that those convictions are disqualifying under Section 177(b).
35. In 2008, the AOC distributed its list to circuit clerks, probate judges, and sheriffs, and urged them to disqualify only voters convicted of these crimes.
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36. The AOC list has been incorporated into the Alabama Law Institute's Alabama Election Handbook) However, the handbook does not indicate that this list is the comprehensive list of convictions involving moral turpitude. The handbook also clearly states that it is "not an authoritative statement of the law."
37. Upon information and belief, the Boards of Registrars do not rely solely on the 2007 AOC list of moral turpitude crimes in determining whether an applicant is eligible to register to vote.
PARTIES
PLAINTIFFS Individual Plaintiffs
38. Plaintiff Treva Thompson is a black 48-year-old citizen of the United States who resides in Huntsville, Alabama, in Madison County. In 2005, Ms. Thompson was convicted Of theft of property in the first degree, a class B felony, see Ala. Code § 13A-8-3. Ms. Thompson's crime of conviction does not appear as a disqualifying felony in Alabama Code Section 15-2236.1(g). Prior to her conviction, Ms. Thompson was registered to vote in Madison County. Upon information and belief, on the basis of her conviction, the Madison County Board of Registrars removed her from the voter registration list. Ms. Thompson, believing she was eligible to vote after serving her time, reapplied to vote in 2015. Her application to vote was denied on the basis of her conviction, which the county registrar deemed disqualifying as a felony "involving moral turpitude."
39. Ms. Thompson meets all the requirements for a CERV, see Ala. Code § 15-22-36.1, except the payment of all legal financial obligations. She has completed parole and probation and
Available at http://ali.state.al.us/documents/election-handbook.pdf.

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has no pending criminal charges, and was not convicted of a crime ineligible for a CERV, see Ala. Code § 15-22-36.1(g). Ms. Thompson, however, owes over $40,000 in legal financial obligations that she is not financially able to pay in full at this time or anytime in the foreseeable future. Her inability to pay these fines makes her ineligible for a CERV that would restore her voting rights. Ms. Thompson wishes to vote in the 2016 and future elections.
40. Plaintiff Melissa Swetnam is a white 44-year-old citizen of the United States who resides in Huntsville, Alabama, in Madison County. In 2001, she was convicted of assault in the first degree, a class B felony, see Ala. Code § 13A-6-20. Ms. Swetnam's crime of conviction does not appear as a disqualifying felony in Alabama Code Section 15-22-36.1(g). Prior to her conviction, Ms. Swetnam was registered to vote in Madison County. Upon information and belief, on the basis of her conviction, the Madison County Board of Registrars removed her from the voter registration list. Ms. Swetriam would like to register to vote, but she is not sure whether her conviction is disqualifying and therefore cannot affinn under penalty of perjury on the voter registration application that she has not been convicted of a "disqualifying crime."
41. Ms. Swetnam meets all the requirements for a CERV, see Ala,. Code § 152236. 1, except the payment of all legal financial obligations. She is not on parole or probation, has no pending criminal charges, and Was not convicted of a crime ineligible for a CERV, see Ala. Code § 15-22-36.1(g). Ms. Swetham, however, owes over $9,000 in legal financial obligations that she is not financially able to pay in full at this time or anytime in the foreseeable future. She is currently paying $100 per month. At that rate, she would not pay off these fines for at least another seven and a half years. Her inability to pay these fines makes her ineligible for a CERV that would restore her voting rights. Ms. Swetnam wishes to vote in the 2016 and future elections.
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42. Plaintiff Antwoifle D. Giles is a black 38-year-old citizen of the United States who resides in Montgomery, Alabama, in Montgomery County. In 2006, Mr. Giles was convicted of stalking in the first degree, a class C felony, see Ala. Code § 13A-6-90. Prior to his conviction, Mr. Giles was registered to vote in Montgomery County. Upon information and belief, on the basis of his conviction, the Montgomery County Board of Registrars removed him from the voter registration list. His sole crime of conviction, however, does not appear as a disqualifying felony in Alabama Code Section 15-22-36. 1(g), nor in the 2005 Attorney General Opinion, nor in the list of disqualifying convictions compiled by the AOC. Mr. Giles is not sure whether his conviction is for a "felony involving moral turpitude" and therefore fears affirming under penalty of perjury that he has not been convicted of a "disqualifying crime." Mr. Giles wishes to register to vote and vote in the 2016 and future elections.
41 Plaintiff Anna Reynolds is a black 60-year-old citizen of the United States who resides in Dothan, Alabama in Houston County. In 1997, Ms. Reynolds was convicted of theft of property in the second degree, a class C felony, see Ala. Code § 13A-8-4. In 2005, Ms. Reynolds was convicted of felony possession of a controlled substances, a class D felony, see Ala. Code § 13A-12-212(a)(1). In 2008, believing that none of her criminal convictions were disqualifying, Ms. Reynolds successfully registered to vote in Houston County. She was permitted to vote in 2008 and 2012 and in intervening state or local elections. This year, Ms. Reynolds checked her voter registration status and discovered that the Houston County Board of Registrars had removed her from the voter registration list. She contacted the registrar's office, which informed her that she was removed from the registration list on the basis of her 1997 theft of property conviction. Upon information and belief, she did not receive any notice of this removal from the voter registration list. Ms. Reynolds wishes to vote in the 2016 and future elections.
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44. Plaintiff Laura Corley is a white 28-year-old citizen of the United States who now resides in Trussville, Alabama, in Jefferson County. In 2015, she was convicted of two counts of possession of a controlled substance, class C felonies, see Ala. Code § 13A-12-212. Her crimes of conviction do not appear as disqualifying felonies in Alabama Code Section 15-22-36.1(g), nor in the 2005 Attorney General Opinion, nor in the list of AOC list of disqualifying crimes. Nonetheless, she was informed by a Board of Pardons and Paroles official that her convictions are disqualifying under Alabama law and that she is not eligible to vote unless her rights are restored. She proceeded to apply to restore her rights and received a letter informing her that her convictions were not disqualifying. Prior to her convictions, Ms. Corley was registered to vote in Mississippi, where she previously resided. She has never registered to vote in Alabama. Ms. Corley plans to register to vote on the basis of the Board of Pardons and Paroles' letter, but is not sure whether the Jefferson County Board of Registrars will consider her convictions disqualifying and deny her application. Furthermore, she is required to affirm under penalty of perjury that she has not been convicted of a disqualifying felony, which is uncertain in light of the conflicting information she has received. Ms. Corley wishes to vote in the 2016 and future elections.
45. Plaintiff Larry Joe Newby is a black 60-year-old citizen of the United States who resides in Huntsville, Alabama, in Madison County. Mr. Newby has been convicted of two counts of receiving Stolen property in the second degree, class C felonies, see Ala. Code § 13A-8-18, two counts of theft of property in the second degree, also class C felonies, see Ala. Code § 13A-8-4, and one count of possession of a controlled substance by fraud, also a class C felony, see Ala. Code § 13A-12-212(a)(2). Mr. Newby's crimes of conviction do not appear as disqualifying felonies in Alabama Code Section 15-22-36.1(g). Prior to his convictions, Mr. Newby was registered to vote in Madison County. Upon information and belief, on the basis of one or more of
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his convictions, the Madison County Board of Registrars removed Mr. Newby from the voter registration list. Mr. Newby, believing he was eligible to vote after serving his time, applied to register to vote in 2015. His application to vote was denied on the basis of one or more of his convictions, which the county registrar deemed disqualifying as a felony "involving moral turpitude." Mr. Newby wishes to vote in the 2016 and future elections.
46. Plaintiff Mario Dion Yow is a black 38-year-old citizen of the United States who resides in Mobile County. In 2014, Mr. Yow was convicted of trafficking cocaine, a class A felony, see Ala. Code § 13A-12-231(2). Mr. Yow's crime of conviction does not appear as a disqualifying felony in Alabama Code Section 15-22-36.1(g) nor in the 2005 Attorney General Opinion, nor in the AOC list of disqualifying crimes. Prior to his sole conviction, Mr. Yow was registered to vote in Mobile County and was an elected county constable. Upon information and belief, on the basis of his conviction, the Mobile County Board of Registrars removed Mr. Yow from the voter registration list. Mr. Yow would like to register to vote but is not sure whether his conviction is disqualifying and therefore cannot affirm under penalty of perjury that he has not been convicted of a "disqualifying crime." Mr. Yow wishes to vote in the 2016 and future elections.
47. Plaintiff Jennifer Zimmer is a white 39-year-old citizen of the United States who resides in Montgomery, Alabama, in Montgomery County. In 2007, she was convicted of three class C felonies: theft of property in the second degree, breaking and entering a vehicle, and fraudulent use of a credit card, see Ala. Code §* 13A-8-4, 13A-8-11(b), 13A-9-14(B). Her crimes of conviction do not appear as disqualifying felonies in Alabama Code Section 15-22-36.1(g). Prior to her convictions, Ms. Zimmer was registered to vote in Michigan, Where she previously resided. She has never registered to vote in Alabama. Ms. Zimmer would like to register to vote, but she is not sure whether her convictions are disqualifying and therefore cannot affirm under
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penalty of perjury that she has not been convicted of a "disqualifying crime." Ms. Zimmer wishes to vote in the 2016 and future elections.
48. Plaintiff Timothy Lanier is a black 50-year-old citizen of the United States who resides in Birmingham, Alabama, in Jefferson County. Mr. Lather has previously been convicted of two counts of burglary in the first degree, class A felonies, see Ala. Code § 13-7-5, 2 counts of attempted murder, class A felonies, see Ala. Code § 13A-4-2, and conspiracy to obtain drugs by fraud, a class C felony, see Ala. Code § 13A-12-2 .04. His crimes of conviction do not appear as disqualifying felonies in Alabama Code Section 15-22-36.1(g). He has never voted in Alabama, nor has he attempted to regiSter to vote. Mr. Lanier now wishes to engage in greater part with his community. He volunteers with the Empowerment Alliance, a group that provides assistance to those reentering the community from incarceration. Mr. Lather would like to register to vote, but he is not sure whether his convictions are disqualifying and therefore cannot affirm under penalty of perjury that he has not been convicted of a "disqualifying crime." Mr. Lanier wishes to vote in the 2016 and future elections.
49. Plaintiff Pamela King is a black 58-year-old citizen of the United States who resides in Montgomery, Alabama, in Montgomery County. In 1995, she was convicted of murder, a class A felony, see Ala. Code § 13A-6-2' Under Alabama Code Section 15-22-36.1(g), Pamela King is not eligible to apply to restore her voting rights under Alabama Code Section 15-22-36.1.. Prior to her conviction, Ms. King was registered to vote in Montgomery County. She wishes to vote in the 2016 and future elections.
Plaintiff Class
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50. The Plaintiff Class that all Plaintiffs seek to represent is defined as: All unregistered persons otherwise eligible to register to vote in Alabama who are now, or who may in the future be, denied the right to vote because they have been convicted of a felony.
51. Plaintiffs also identify several subclasses that have standing to assert specific causes of action in this complaint.
Subclasses Related to the Scope of Any Fourteenth Amendment Sanction of Felon Disenfranchisement 52. All Plaintiffs seek to represent a subclass (Subclass A) defined as follows: All unregistered persons otherwise eligible to register to vote in Alabama whose felony convictions are not crimes associated with voting such as "bribery, perjury, forgery, or other high crimes or misdemeanors," but who are now, or who may in the future be, denied the right to vote because they have been convicted of a felony, pursuant to the interpretation and enforcement of Section 177(b) of the Alabama Constitution by Defendants. The proposed Plaintiff Subclass A is by definition a subset of the broader proposed Plaintiff Class. 53. Plaintiffs Melissa Swetnam, Antwoine Giles, Laura Corley, and Mario Dion Yow seek to represent a subclass (Subclass B) defined as follows: All unregistered persons otherwise eligible to register to vote in Alabama whose felony convictions were not considered felonies at common law but who are now, or who may in the future be, denied the right to vote because they have been convicted of a felony, pursuant to the interpretation and enforcement of Section 177(b) of the Alabama Constitution by Defendants. The proposed Plaintiff Subclass B is by deflnition a subset of the broader proposed Plaintiff Class. 54. Plaintiffs Treva Thompson, Melissa Swetnam, Antwoine Giles, Anna Reynolds, Laura Corley, Larry Joe Newby, and Jennifer Zimmer seek to represent a subclass (Subclass C) defined as follows: All unregistered persons otherwise eligible to register to vote in Alabama
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whose felony convictions are not class A felonies under Alabama law, but who are now, or who may in the future be, denied the right to vote because they have been convicted of a felony, pursuant to the interpretation and enforcement of Section 177(b) of the Alabama Constitution by Defendants. The proposed Plaintiff Subclass C is by definition a subset of the broader proposed Plaintiff Class.
Subclasses Related to the Vagueness of Section 1 77(b) 's Breadth 55. All plaintiffs except Plaintiff Pamela King seek to represent a subclass (Subclass D) defined as follows: All unregistered persons otherwise eligible to register to vote in Alabama who have not been convicted of felonies appearing in Alabama Code Section 15-22-36.1(g), but who are now, or who may in the future be, denied the right to vote because they have been convicted of a felony, pursuant to the interpretation and enforcement of Section 177(b) of the Alabama Constitution by Defendants. The proposed Plaintiff Subclass D is by definition a subset of the broader proposed Plaintiff Class. 56. Plaintiffs Antwoine Giles, Laura Corley, and Mario Dion Yow seek to represent a subclass (Subclass E) defined as follows: All unregistered persons otherwise eligible to register to vote in Alabama who have not been convicted of felonies appearing in Alabama Code Section 152 2 -36.1(g), the 2005 Attorney General Opinion, or the AOC list, but who are now, or who may in the future be, denied the right to vote because they have been convicted of a felony, pursuant to the interpretation and enforcement of Section 177(b) of the Alabama Constitution by Defendants. The proposed Plaintiff Subclass E is by definition a subset of the broader proposed Plaintiff Class. 57. Plaintiffs Melissa Swetnam, Antwoine Giles, Anna Reynolds, Laura Corley, Mario Dion Yow, Jennifer Zimmer, and Timothy Lanier seek to represent a subclass (Subclass F) defined as follows: All unregistered persons otherwise eligible to register to vote in Alabama with felony
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convictions, but who have not been convicted of felonies appearing in Alabama Code Section 1522-36.1(g), who cannot be legally certain that their convictions are not disqualifying and therefore reasonably fear affirming under penalty of perjury that they have not been convicted of a "disqualifying crime." The proposed Plaintiff Subclass F is by definition a subset of the broader proposed Plaintiff Class.
Subclasses Related to Plaintiffs' Procedural Due Process Rights 58. Plaintiffs Treva Thompson and Larry Joe Newby seek to represent a subclass (Subclass G) defined as follows: All unregistered persons otherwise eligible to register to vote in Alabama who have not been convicted of felonies appearing in Ala. Code Ala. Code § 15-2236.1(g), who have applied to register to vote, and whose applications ,were denied on the basis of a county registrar's determination that their felony convictions were "disqualifying" under Section 177(b) of the Alabama Constitution. The proposed Plaintiff Subclass G is by definition a subset of the broader proposed Plaintiff Class. 59. Plaintiffs Treva Thompson, Melissa Swetnam, Antwoine Giles, Anna Reynolds, Larry Joe Newby, and Mario Dion Yow seek to represent a Subclass (Subclass H) defined as follows: All previously registered persons otherwise eligible to register to vote in Alabama, who have not been convicted of felonies appearing in Ala. Code § 15-22-36.1(g), and who were removed from voter registration lists on the basis of a county registrar's determination that their felony convictions were "disqualifying" under Section 177(b) of the Alabama Constitution. The proposed Plaintiff Subclass H is by definition a subset of the broader proposed Plaintiff Class.
Subclass Related to Payment of LFOs 60. Plaintiffs Treva Thompson and Melissa Swetnam seek to represent a subclass (Subclass I) defined as follows: All unregistered persons otherwise eligible to register to vote in
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Alabama who (a) are now, or who may in the future be, denied the right to vote because they have been convicted of a felony, pursuant to the interpretation and enforcement of Section 177(b) of the Alabama Constitution by Defendants; and (b) are unable to pay their fines, fees, and restitution due to their socioeconomic status; but (c) are otherwise eligible to apply for a CERV.
Organizational Plaintiff 61. Organizational plaintiff Greater Birmingham Ministries ("GBM") was founded in 1969 in response to the urgent human and justice needs in the greater Birmingham, Alabama area. GBM is a multi-faith, multi-racial organization that provides emergency services for people in need, and that engages the poor and the non-poor in systemic change efforts to build a strong, supportive community and to pursue a more just society for all people. 62. A central goal of GBM is the pursuit of social justice in the governance of Alabama. GBM opposes state laws, policies, and practices that result in the exclusion of vulnerable groups or persons from the democratic process. Toward that end, GBM regularly engages in efforts to register, educate, and increase turnout among African-American and Latino voters, as well as lowincome voters in general. 63. As a result of Section 177(b) of the Alabama Constitution, GBM must devote staff time and resources to helping those with felony convictions (1) determine whether they may be eligible to register to vote, (2) attempt to register to vote, (3) determine whether they may be eligible for a CERV, and (4) apply for a CERV. 64. Section 177(b) of the Alabama Constitution is causing, and will continue to cause, GBM to divert a portion of its limited financial and other organizational resources to assisting citizens with felony convictions to determine if they are eligible to register to vote and/or apply for a CERV and to assisting them in registering to vote and/or applying for a CERV. As a result,
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GBM is limited, and will continue to be limited, in the resources that it can devote to its other core organizational goals.
DEFENDANTS 65. Defendant State of Alabama is sued in its own name with respect to Plaintiffs' claims under Section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Congress has abrogated the State's Eleventh Amendment immunity in civil actions brought to enforce the rights guaranteed by the Voting Rights Act. 66. Defendant John H. Merrill is the Secretary of State of Alabama and, as such, is the chief elections official in the state and is responsible for providing uniform guidance and promulgating administrative rules for election activities. Ala. Code § 17-1-3(a). He is sued in his official capacity only. 67. Defendant George Noblin is the Chair of the Board of Registrars for Montgomery County and is responsible for registering voters in Montgomery County. Ala. Code § 17-3-1 et seq. He is sued in his official capacity only. 68. The Defendant Class, represented by Defendant Noblin, is defined as: All voter registrars in the State of Alabama. The voter registrars, as a class, are sued in their official capacities only. 69. Defendant Clifford Walker is the Chairman of the Board of Pardons and Paroles. The Board of Pardons and Paroles is the agency tasked with reviewing and distributing CERVs pursuant to Alabama Code Section 15-22-36.1. He is sued in his official capacity only.
CLASS ALLEGATIONS 70. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs bring this action on behalf of themselves and all other similarly situated persons. Plaintiffs do not seek claims for
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compensatory relief. Instead, Plaintiffs seek only declaratory and injunctive relief broadly applicable to members of the Plaintiff Class and the Plaintiff Subclasses, as defined above. The requirements of Rule 23, and in particular Rule 23(b)(2), are met with respect to the Plaintiff Class and Plaintiff Subclasses, as defined above.
71. The members of the Plaintiff Class and Plaintiff Subclasses are so numerous that joinder is impracticable. While exact numbers of members in the Plaintiff Class and Plaintiff Subclasses are not publicly available, upon information and belief, the total number of otherwise eligible citizens of Alabama disenfranchised on the basis Of felony convictions exceeds 250,000. The Plaintiff Class and Plaintiff Subclasses are ascertainable through Defendants' records, as well as records kept by the Alabama Circuit Clerks and the Board of Pardons and Paroles.
72. The questions of law and fact common to the Plaintiff Class and Plaintiff Subclasses predominate over questions affecting only individual class members, and include, but are not limited to, the following:
a. Whether Section 177(b) was adopted with and/or perpetuates racially discriminatory intent;
b. Whether Section 177(b) violates Section 2 of the Voting Rights Act; c. Whether Section 177(b) violates Section 1 of the Fourteenth Amendment and
the First Amendment by denying the right to vote to those convicted of crimes for which disenfranchisement is not affirmatively sanctioned by Section 2 of the Fourteenth Amendment; d. Whether Section 177(b), as applied by Defendant Secretary of State and Defendant registrars, imposes an unconstitutional burden on the right to vote of
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those convicted of felonies that may not constitute "felonies involving moral turpitude"; e. Whether Section 177(b), as applied by Defendant Secretary of State and Defendant registrars, is unconstitutionally vague; f. Whether Section 177(b), as applied by Defendant Secretary of State and Defendant registrars, denies Plaintiff Class and/or Plaintiff Subclass members equal protection of the laws by arbitrarily and discriminatorily disenfranchising otherwise eligible citizens on the basis of arbitrarily chosen felony convictions; g. Whether the denial of Plaintiff Class and/or Plaintiff Subclass members' voter registration applications and/or removal of Plaintiff Class and/or Plaintiff Subclass members from the voter registration lists on the basis of their felony convictions without a pre-deprivation hearing deprives Plaintiff Class and/or Plaintiff Subclass members of procedural due process; h. Whether Section 177(b), as applied by Defendant Secretary of State and Defendant registrars, violates the Ex Post Facto Clause; i. Whether Section 177(b), as applied by Defendant Secretary of State and Defendant registrars, imposes cruel and unusual punishment in violation of the Eighth Amendment; j. Whether the requirement that a disqualified citizen pay all legal financial obligations in order to be eligible to restore her voting rights denies Plaintiff Class and/or Plaintiff Subclass members equal protection of the laws by imposing a wealth qualification on access to the right to vote;
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k. Whether the requirement that a disqualified citizen pay all legal financial obligations in order to be eligible to restore her voting rights constitutes a poll tax and violates the Twenty-Fourth Amendment;
1. Whether the requirement that a disqualified citizen pay all legal financial obligations in order to be eligible to restore her voting rights violates Section 2 of the Voting Rights Act.
73. The claims of Plaintiffs Treva Thompson, Melissa Swetnarn, Antwoine Giles, Anna Reynolds, Larry Joe Newby, Mario Dion Yow, Jennifer Zimmer, Timothy Lanier, and Pamela King are typical of the Plaintiff Class and Plaintiff Subclasses as defined above. Plaintiffs are not aware of any conflict between their interests and those of the Plaintiff Class and Subclasses they seek to represent.
74. Plaintiffs can fairly and adequately represent the interests of the Plaintiff Class and Plaintiff Subclasses because they are similarly situated with members of their classes. Plaintiffs have retained counsel experienced in class-action litigation and voting rights litigation to represent them and the Plaintiff Class and Subclasses for the purpose of this litigation.
75. Defendants have acted, or refused to act, on grounds generally applicable to the entire class and subclasses, and final injunctive relief and corresponding declaratory relief are appropriate respecting the classes as a whole.
76. A class action is superior to other available means for the fair and efficient adjudication of the Plaintiff Class and Plaintiff Subclass members' claims because joinder of all members is impracticable. Absent the class action, the members of the Plaintiff Class and Plaintiff Subclasses will continue to suffer deprivation of their right to vote.
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77. The Defendant Class, defined as all voter registrars in the State of Alabama, is also so numerous as to make it impractical to join them all before this Court. Each county in Alabama has at least three registrars. Ala. Code § 17-3-2. Alabama has sixty-seven counties.
78. The questions of law and fact common to the Plaintiff Class and Plaintiff Subclasses predominate over questions affecting only individual class members, and include, but are not limited to, the questions listed in paragraph 72, supra.
79. Defendant Noblin can fairly and adequately represent the interests of the Defendant Class because his interests do not conflict with the interests of the Defendant Class members he would represent and he is similarly situated with members of the Defendant Class.
80. The defenses of Defendant Noblin are typical of the Defendant Class as a whole. 81. A class action is therefore superior to other available means for the fair and efficient adjudication of the Defendant Class members' defenses.
FACTUAL ALLEGATIONS A History of Racial Discrimination in Voting 82. Alabama's history of criminal disenfranchisement is inextricably intertwined with Alabama's long history of denying black citizens the right to vote. 83. That history is well established and documented. In addition to Alabama's constitutional protection of slavery and the restriction of the right to vote to white males until the Civil War forced it to abandon those practices, Alabama's history of racial discrimination in voting includes, inter alia, the use of terror and violence, economic intimidation, all-white primaries, bans on single-shot voting, at-large elections, literacy tests, poll taxes, "grandfather" clauses, and good character tests, all with the aim of excluding blacks from the franchise. See, e.g., Dillard v. Crenshaw Cnty., 640 F. Supp. 1347, 1357 (M.D. Ala. 1986) (detailing Alabama's "Unrelenting
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historical agenda, spanning from the late 1800's to the 1980's, to keep its black citizens economically, socially, and politically downtrodden, from the cradle to the grave")
84. Accordingly, in 1965, Alabama was declared a covered state under Section 4(b) of the Voting Rights Act on the basis of its enforcement of unconstitutional tests or devices and its low voter registration and turnout rates. See South Carolina v. Katzenbach, 383 U.S. 301, 312 (1966) ("Discriminatory administration of voting qualifications has been found in all eight Alabama cases.")
85. Since 1965 and continuing to the present, Alabama has a sustained record of racial discrimination in voting, necessitating federal intervention. See, e.g., Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options after LULAC v. Perry: Hearing Before the Subcommittee on the Constitution, Civil Rights and Property Rights of the Senate Committee on the Judiciary, 109th Cong. 365-402 (July 13, 2006) (compiling evidence of Alabama's sustained record of racial discrimination); Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) (redistricting); City of Pleasant Grove v. United States, 479 U.S. 462 (1987) (racially selective annexations); Hunter v. Underwood, 471 U.S. 222 (1985) (felon disfranchisernnt); U.S. Dep't Of Justice, Alabama Voting Determination Letters, http://www.justice.gov/crt/records/votlobj_letters/state_letters.php?state=al (last visited Dec. 1, 2015) (listing all objections imposed against Alabama under Section 5 of the Voting Rights Act, including 24 objections from 1990 to 2008, as well as pre-1990 objections to voter re-identification and literacy requirements).
86. As recently .as January 2014, a federal court in the Southern District of Alabama "bailed-in" the City of Evergreen in Conecuh County for preclearance under Section 3(c) of the
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Voting Rights Act because voter registrars and election officials there continued to unconstitutionally discriminate against black voters.
Criminal Disenfranchisement: A Sordid History 87. Across the country and particularly in the South, felon disenfranchisement carries with it a sordid history as part and parcel of the racist practice of convict leasing and the South's intractable opposition to granting blacks the right to vote. 88. During Reconstruction, after the passage of the Fourteenth and Fifteenth Amendments, Southern states employed felon disenfranchisement as a back door to the wholesale disenfranchisement of blacks. States expanded their lists of disenfranchising offenses—which were previously closely cabined—to include a broad set of minor offenses, tailored their lists based on racial theories of crimes blacks were "prone" to commit, and then prosecuted petty crimes against blacks as a means to both push them into the pipeline of convict leasing and disenfranchise them permanently. See Pippa Holloway, Living in Infamy 80 (2014). 89. For example, South Carolina added larceny to its list of disenfranchising offenses in 1880. Id. at 62-63. One South Carolinian described the scene there around election time: "Negroes are frequently arraigned . . on the most trivial charges of larceny . . . the whole proceedings clearly indicate, in many cases, that the prosecution is merely a pretext to deprive a negro of his vote." Id. at 68. 90. Likewise, Virginia disenfranchised those convicted of petit larceny in 1875. Id. at 61. In practice, it also kept official lists of "Convicted Colored Males Who Are Thereby Disenfranchised." Id. at 67. 91. North Carolina, which also expanded disenfranchisement to minor property crimes in 1875, likewise maintained lists and enforced its laws in a racist manner. Id. In Iredell County,
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for example, 114 of 122 disenfranchised voters were black, and of those, 104 were disenfranchised based on a larceny conviction. Id.
92. Mississippi tied together race and disenfranchisement even more explicitly. In Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896), the court explained that, "[r]estrained by the federal constitution from discriminating against the negro race, the [Mississippi Constitutional] convention discriminated against their characteristics and the offenses to which its weaker members were prone." Aided by the 1876 Pig Law, which expanded the definition of larceny, Mississippi's Constitution served to both disenfranchise blacks and increase the size of its convictleasing program. Id. at 57, 59.
93. Alabama was no exception to this pattern of employing felon disenfranchisement as a means of achieving the wholesale disenfranchisement of blacks.
Criminal Disenfranchisement Based on "Moral Turpitude": An Intentional Mechanism to Disenfranchise Blacks Alabama's 1901 Convention
94. In 1901, Alabama held an all-white Constitutional Convention. The 1901 Convention was "part of a movement that swept the post-Reconstruction South to disenfranchise blacks." Hunter v. Underwood, 471 U.S. 222, 229 (1985).
95. The explicit purpose of the 1901 Convention, as expressed by the Convention president John Knox in his opening address, was to "establish white supremacy" in Alabama. Id.
96. Specifically, the drafters of the 1901 Alabama Constitution sought to impose voter qualifications "that Would subvert the guarantees of the fourteenth and fifteenth amendments without directly provoking a legal challenge." Underwood v. Hunter, 730 F.2d 614, 619 (11th Cir. 1984), aff'd 471 U.S. 222 (1985).
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97. To this end, the drafters expanded

criminal disenfranchisement

provision, adopting Section 182 of the 1901 Constitution, which provided:

[T]hose who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude; also, any person Who shall be convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of another, or of buying or offering to buy the vote of another, or of making or offering to make a false return in any election by the people or in any primary election to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector.

98. The purpose of this provision was, once again, to disenfranchise blacks. John

Fielding Bums, who introduced the provision, boasted "the crime of wife-beating alone would

disqualify sixty percent of Negroes." Underwood, 730 F.2d at 620 (citing J. Gross, Alabama

Politics and the Negro, 1874-1901 244 (1969)).

99. The criminal disenfranchisement provision was framed specifically to

disenfranchise blacks: "In addition to the general catchall phrase 'crimes involving moral

turpitude' the suffrage committee selected such crimes as vagrancy, living in adultery, and wife

beating that were thought to be more commonly committed by blacks." Hunter, 471 U.S. at 232.

100. To justify the disenfranchisement of blacks through this mechanism and others in

the 1901 Convention, Knox, the Convention president, specifically invoked the prevalent view of

the moral superiority of Anglos over blacks: "The justification for whatever manipulation of the

ballot that has occurred in this State has been the menace of negro domination....These provisions

are justified in law and in morals, because it is said that the negro is not discriminated against on

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account of his race, but on account of his intellectual and moral condition." Angela Behrens, Christopher Uggen, & Jeff Manza, Ballot Manipulation and the "Menace ofNegro Domination ". Racial Threat and Felon Disenfranchisement in the United States, 1850-2002, 109 Ant J. Soc. 559, 571 (2003).
101. At the same time that Alabama sought to use the criminal system to disenfranchise black voters, it was also utilizing the criminal system to reimpose involuntary servitude of blacks in the after nath of the Civil War and the passage of the Thirteenth Amendment.
102. After the end of the Civil War, many Southern states utilized the exception to the Thirteenth Amendment's prohibition on involuntary servitude for criminal punishment to create a massive convict-leasing system—wherein states and counties could Sweep black communities for petty crimes and violations of the "Black Codes" and then lease those prisoners to private entities for forced labor—to replace slave labor. See generally Douglas Blackmon, Slavery by Another Name (2008).
103. Alabama was the worst offender. Alabama created the largest convict-leasing system in the South—providing large companies like Tennessee Coal and Iron and then U.S. Steel with nearly unlimited labor—and was the last to outlaw the practice. While ascertaining the exact number of victims of this system is not possible given shoddy record keeping, historians estimate that well over 100,000 Alabaman prisoners were "leased" during the sixty-year period that this system prevailed. The mortality rate of these prisoners was extraordinarily high, between 3 and 25 percent. See Douglas Blackmon, From Alabama's Past, Capitalism Teamed With Racism to Create Cruel Partnership, Wall St. J. (July 16, 2001).
104. These leased prisoners, like the slaves that preceded them, were nearly exclusively black. According to one source, in an average year, 97 percent of Alabama's county convicts (those
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convicted of minor crimes) were "colored." David M. Oshinsky, Worse Than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (1996).
105. Thus, the Black Codes, the convict leasing system, and the 1901 criminal disenfranchisement provision all worked together to establish and maintain white supremacy in Alabama. The State convicted black citizens of petty crimes and Black Code violations in the tens of thousands, leased them out to private entities for forced labor with extraordinary financial rewards for the State, and then excluded them permanently from the political franchise on the basis of those convictions. This is the legacy of disenfranchisement on the basis of "moral turpitude" in Alabama.
"Moral Turpitude" in Alabama after the 1901 Convention 106. Racially discriminatory views connecting the disenfranchisement of blacks to their "criminal attitudes" did not end in the early 1900s. In 1961, in a State Democratic Executive Committee meeting discussing a discriminatory requirement that candidates run for numbered places in all at-large elections, a committee member stated that many blacks "cannot qualify because of their criminal records or criminal attitudes," but nonetheless argued that the State must layer additional discriminatory requirements to "protect the white people of Alabama." Dillard v. Crenshaw Cnly., 640 F. Supp. 1347, 1357 (M.D. Ala. 1986) 107. In 1969, a Constitutional Commission was appointed by the Governor with the purpose of updating and revising the 1901 Constitution. 108. The Commission released its proposed constitution in 1973. With respect to criminal disenfranchisement, the Commission recommended the following simplification of Section 182: "No person convicted of a felony involving moral turpitude, or who is mentally
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incompetent, shall be qualified to vote until restoration of civil and political rights or removal of disability:"
109. The commentary to the Commission's drafts of the 1973 proposed Constitution explained the purpose of this simplified provision. The Commission noted that the long list of specific crimes might become "a matter of constitutional interpretation or constitutional amendment." First Draft of Proposed Alabama Constitution at 8 (Oct. 23, 1970). Thus, the Commission sought to "describe such disqualifications in general terms, thus overcoming these objections and eliminating a long, scattered, and redundant list of disqualifying crimes." Id. The commentary included no discussion of alternative motives for criminal disenfranchisement that differed in kind from Section 182 of the 1901 Constitution.
110. Upon information and belief, the 1973 proposal took the "including moral turpitude" clause directly from Section 182 of the 1901 Constitution. The only alternative models cited in the commentary to the 1973 proposal did not include that language.
111. The 1973 Commission sought to simplify the felon disenfranchisement provision, as compared to the lengthy 1901 clause, but there is no evidence that it sought to eliminate its racially discriminatory intent and effect. Indeed, in 1973, George Wallace was Governor of Alabama and there was little political appetite for meaningful change through the Commission. Accordingly, the Commission sought to limit its recommendations to modest proposals intended to streamline the lengthy and unmanageable prior constitution. See William H. Stewart, The Tortured History of Efforts to Revise the Alabama Constitution of 1901, 53 Ala. L. Rev. 295 (2001). The Commission's proposed constitutional reforms were not adopted at that time.
112. In the 1980s, voters challenged Section 182 as intentionally racially discriminatory. The challenge focused specifically on the provision disenfranchising those convicted of the
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enumerated misdemeanors and "crime[s] involving moral turpitude." In 1984, the Eleventh Circuit found "as a matter of law that discriminatory intent motivated Section 182" and enjoined the challenged provisions, including the "crime involving moral turpitude" provision. Underwood, 730 F.2d at 620.
113. With respect to "moral turpitude," the Eleventh Circuit wrote: "The attorney general in opinion has acknowledged that the classification of presently unaddressed offenses 'will turn upon the moral standards of the judges who decide the question.' Thus does the serpent of uncertainty crawl into the Eden of trial administration." Id. at 616 n.2 (internal quotation marks and citations omitted).
114. The Eleventh Circuit held that it was "unable to discern any evidence that [Section 182] was actually intended to serve" the valid "state interest in denying the franchise to those convicted of violating its laws." Id. at 620.
115. The Supreme Court affirmed the Eleventh Circuit and held that Section 182, including the provision disenfranchising citizens convicted of crimes involving moral turpitude, was motivated by racial animus. Rejecting the State's contention "that the State has a legitimate interest in denying the franchise to those convicted of crimes involving moral turpitude," the Court held that "such a purpose simply was not a motivating factor of the 1901 convention. In addition to the general catchall phrase 'crimes involving moral turpitude' the suffrage committee selected such crimes as vagrancy, living in adultery, and wife beating that were thought to be more commonly committed by blacks." Hunter, 471 U.S. at 232.
116. Against this backdrop, Alabama adopted Amendment 579 to the 1901 Constitution in 1996.
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117. Amendment 579's criminal disenfranchisement provision is a word-for-word

adoption of the 1973 proposed revision of Section 182. Amendment 579 added Section 177(b) to

the Alabama Constitution, which now provides, in relevant part, that "No person convicted of a

-

felony involving moral turpitude, or who is mentally incompetent, shall be qualified to vote until

restoration of civil and political rights or removal of disability."

118. Amendment 579 was proposed by the Legislature in 1995, submitted at the June 4,

1996 election, and proclaimed ratified on June 19, 1996.

119. The sponsor of the bill that became Amendment 579 represented to the Legislature

and to the press that it would make no substantive changes to the 1901 Constitution and was

intended merely to simplify the language governing voting.

120. Upon information and belief, none of the legislative history behind Amendment

579 provides any non-racial motive for the "including moral turpitude" language that was taken

directly, without comment, from Section 182's intentionally racially discriminatory language.

121. Indeed, Alabama officials have questioned the inclusion of this explicitly racially

tainted language in the 1996 revision. In a 2007 memo from the AOC about the "moral turpitude"

provision, Griffin Sikes, Director of the Legal Division of the AOC, recounted the moral turpitude

standard's "dubious, ignoble usage and history." He noted that "it is difficult to understand the

decision made in the mid-1990s to reintroduce, via Amendment 579 to the Alabama Constitution,

the phrase, 'involving moral turpitude,' as a basis for again disqualifying or disenfranchising

Alabama citizens of their right to vote" and concluded that "[t]he use of this standard is suspect."

Id.

122. In 1995 and 1996, the State Legislature must have been keenly aware of the strong

connections between Alabama's long history of slavery, convict leasing, and the modern incarceral

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state. In 1995, Governor James revived the chain gang in Alabama, a powerful symbol of Alabama's racist convict-leasing system. Nancy A. Ozimek, Reinstitution of the Chain Gang: A Historical and constitutional Analysis, 6. B.U. Pub. mt. L.J. 753, 758-59 (1997). At that time, roughly 70 percent of Alabamans in prison were black. Aflfle Hull, Chained to a New Kind of Justice, St. Petersburg Times, June 25, 1995, at Al.
123. Commentators repeatedly called upon the Governor to end this practice, arguing that it was an unfortunate return to Alabama's "dark ages" and a stark reminder of slavery. Linnet Myers, Alabama Chain Gang Program Rattles Feelings, Chi. Tribune, May 3, 1995.
124. The practice also stoked racist remarks from the public. One resident reportedly said of the practice: "I love seeing 'em in chains. They ought to make them pick cotton." Tracey Meares, Weak Link, U. Chi. Mag., February 1996. Echoing this sentiment in his own campaign, State Senator Charles Davidson argued that biblical teachings justified slavery. Bible Backed Slavery, Says a Lawmaker, N.Y. Times, May 9, 1996.
125. However, despite critiques regarding the chain gang's explicit racist connotations, the practice did not end in Alabama until a lawsuit was filed and ultimately settled by the State in 1998. In approving the settlement agreement, the court noted that the "heinous roots" of the chain gang had "provoked much concern from commentators as well as jurists." Austin v. Hopper, 15 F. Supp. 2d 1210, 1216 (M.D. Ala. 1998) (citing Alabama v Engler, 85 F.3d 1205, 1210 (6th Cir. 1996) (Jones, J., concurring) (noting that a fugitive from Alabama, whom the Sixth Circuit held should be extradited by the State of Michigan, "will be tossed into a prison system that has adopted the barbaric 'discipline' of the chain gang" and stating that "this perpetuation of injustice cloaked in the tattered cloth of the Alabama justice system is deplorable")).
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126. While the chain gang practice was being hotly debated, the Alabama Legislature approved Amendment 579.
Disproportionate Impact of Section 177(b) on Black citizens 127. Upon information and belief, at the time of Section 182's adoption, it disenfranchised ten times as many blacks as whites. 128. Section 182's (now Section 177(b)) disproportionate and discriminatory effects on blacks continue today. 129. At the time Hunter v. Underwood was decided in 1985, the experts estimated that blacks were at least 1.7 times as likely as whites to be disenfranchised under Section 182. 130. By 1996, when Amendment 579 was ratified, the impact of criminal disenfranchisement on black citizens in Alabama was greater both in comparative and actual magnitude as a result of the dramatic increase in mass incarceration in Alabama, which fell unevenly on the black community. 131. The state prison population in Alabama is now nearly three times the size it was in the mid- 1 980s. The number of incarcerated persons per 100,000 people has more than doubled. 132. The incarceration rate presents stark racial disparities. Based on recent estimates, black residents are incarcerated at a rate over three times that of white residents. 133. This explosion in overall incarceration, which exacerbates its extreme racially disparate impact, was well underway by 1996 when Amendment 579 was ratified. Since 1985, when Hunter was decided, the rate of incarceration had risen from approximately 300 per 100,000 to nearly 500 per 100,000. 134. According to a 2010 study by the Sentencing Project, approximately 7 percent of the voting age population in Alabama is disenfranchised as a result of Section 177(b).
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135. Because Alabama prosecutes and convicts its black citizens at substantially higher rates than its white citizens, the rates of disenfranchisement do not fall evenly on the state's black and white citizens.
136. According to the Sentencing Project study, approximately 15 percent of the black voting age population in Alabama is disenfranchised by Section 177(b), while less than 5 percent of the white voting age population in Alabama is similarly disenfranchised. In other words, black Alabamians are three times more likely to be disenfranchised by Section 177(b) than whites. Blacks comprise well over half of all individuals disenfranchised on the basis of convictions while comprising only approximately one quarter of the total voting age population.
137. Alabama disenfranchises blacks on the basis of convictions at nearly double the nationwide rate.
Disproportionate Impact of LFOs Requirement on Black Citizens 138. Even disregarding the stark racially disproportionate effect of Section 177(b), the requirement that citizens be able to pay all LFOs in order to qualify to receive a CERV and restore their right to vote also has a disproportionate impact on black citizens. 139. According to the 2010-2014 American Community Survey, the poverty rate of blacks in Alabama (31.6%) is well over double the rate of whites (13.8%); and white per capita income ($21,354) is nearly double black per capita income ($16,027). 140. According to the 2010-2014 American Community Survey, the unemployment rate of blacks in Alabama (16%) is double the rate of unemployment of whites (8.1%). 141. These systemic and disproportionately lower economic conditions for blacks in Alabama are the result, at least in part, of a long history of state-sponsored racial discrimination in
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Alabama across all spectrums of society including, but not limited to, education, voting, and employment.
142. These systemic and disproportionately lower economic conditions for blacks in Alabama result in blacks being less able to pay their LFOs and become eligible to restore their voting rights.
143. In a 2015 study, political scientists Marc Meredith and Michael Morse analyzed Alabama Board of Pardons and Paroles data and determined that blacks are statistically less likely to be able to pay all their LFOs. Specifically, blacks are 10% more likely to have a non-zero LFO balance in Alabama. Blacks are also 16% more likely to have their voting rights applications denied due to outstanding LFOs.
Enforcement of Section 1 77's "Moral Turpitude" Standard 144. As discussed above, the Alabama Legislature has failed to define the term "moral turpitude" and therefore has failed to define the qualifications for voting in the State of Alabama. 145. Alabama Code Section 15-22-36.1(g) assumes that that the felonies listed therein are disqualifying but does not reference Section 177(b) or the moral turpitude standard and may assume that all convicted felons are disfranchised, notwithstanding the "moral turpitude" qualification in Section 177(b). 146. Beyond Alabama Code Section 15-22-36.1(g), there are only non-exhaustive and non-authoritative interpretations of what crimes are disqualifying under Section 177. 147. Nonetheless, the State of Alabama Voter Registration Form requires a voter to swear and sign, under penalty of perjury, that she is "not barred from voting by reason of a disqualifying felony conviction." Below the signature line, the form states: "If you falsely sign this
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statement, you can be convicted and imprisoned for up to five years." The form does not provide any additional information about what constitutes a "disqualifying felony."
148. Similarly, the State Instructions for Alabama on the Federal Voter Registration Form state that in order to register to vote in Alabama, an applicant must "not have been convicted of a felony involving moral turpitude (or have had your civil and political rights restored)." The registration form requires the applicant to swear and affirm that she has "reviewed [her] state's instructions" and "meet[s] the eligibility requirements of [her] state." It warns that false information may result in fines and/or imprisonment. The form does not provide any additional information about what constitutes a "felony involving moral turpitude."
149. Upon information and belief, the Secretary of State provides no information whatsoever on its Website regarding what felonies it deems disqualifying. Upon information and belief, nowhere does it refer to the Attorney General's list, the AOC list, or Alabama Code Section 15-22-36-1(g) or otherwise explain to voters how they would determine whether their convictions are disqualifying.
150. Registrars for each county in Alabama comprise a Board of Registrars. They are collectively and individually responsible for registering electors. Ala. Code §* 17-3-1 et seq.
151. Registrars in Alabama are also responsible for purging electors disqualified on the basis of convictions of felonies involving moral turpitude from the voter registration lists on a continuous basis. Ala. Code § 17-4-3.
152. No legal training is required to be a registrar. Ala. Code § 17-3-2(a) (noting that qualifications include: (1) being a qualified elector, (2) being a resident of the county, (3) possessing a high school diploma or equivalent, and (4) possessing computer and map reading skills).
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153. Upon information and belief, registrars in Alabama are responsible for making the determination of whether a voter applicant's felony conviction is disqualifying.
154. If an Alabama registrar improperly determines that a voter applicant's crime is disqualifying, the voter applicant must affirmatively appeal that decision to probate court in order to receive an adjudication of her qualifications as a voter. Ala. Code § 17-3-55. In the interim, she is unable to vote.
155. Upon information and belief, registrars in Alabama are also responsible for making the determination Of whether a current registered voter's conviction is disqualifying and thus whether the current voter's name should be removed from the voter registration list.
156. Upon information and belief, the Secretary of State, Defendant Merrill, instructs registrars to rely upon the 2005 Attorney General Opinion where it is applicable and that they may consult, if they so decide, the Attorney General's Office if they are unsure of a crime's classification as disqualifying.
157. Before striking a voter from the registration list based on a disqualifying criminal conviction, an Alabama registrar must send the voter a notice and "'on- the date set in the notice..
the board shall proceed to consider the case of the elector whose name it proposes to strike. and make its determination." Ala. Code § 17-4-3
158. Upon information and belief, voting registrars in Alabama do not uniformly follow this requirement or uniformly provide registered voters the opportunity to respond to the registrar's determination of whether the applicant's conviction is disqualifying.
159. If a registrar in Alabama improperly determines that a voter's crime is disqualifying and strikes her from the registration list, the voter must affirmatively appeal that decision to probate
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court in order to receive an adjudication of her qualifications as a voter. Ala Code § 17-3-55. In the interim, she is unable to vote.
160. Upon information and belief, there is no uniform system for determining the eligibility of voter applicants and voter registrants across the state.
CLAIMS Count 1: Intentional Race Discrimination, 14th Amendment
(42 U.S.C. § 1983) (All Plaintiffs and Plaintiff Class) (Against Defendant Merrill, Defendant Noblin, and Defendant Class)
161. Plaintiffs reallege the facts set forth in paragraphs 1-160, above. 162. The disenfranchisement of persons convicted of crimes "involving moral turpitude" was adopted by Alabama in 1901 with an explicit intent to exclude blacks from the electoral franchise. 163. In 1985, the Supreme Court unanimously held that Section 182, Section 1 77(b)'s predecessor, and particularly the disenfranchisement of those convicted of crimes "involving moral turpitude," was intentionally racially discriminatory. 164. In 1995, the Alabama Legislature proposed Amendment 579, which reintroduced a provision disenfranchising those convicted of felonies "involving moral turpitude" despite its "ignoble usage and history." Amendment 579 was a word-for-word adoption of a 1973 proposal to simplify, but not substantively change, Section 182. The phrase "involving moral turpitude" was lifted directly from the intentionally racially discriminatory Section 182. Ultimately, the only legislative history on the intent behind the adoption of the "involving moral turpitude" clause is the 1901 legislative history, which has already been fully adjudicated and deemed intentionally racially discriminatory.

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165. Since its inception, Alabama's disenfranchisement of those convicted of crimes involving moral turpitude has had a dramatically disproportionate effect on blacks in Alabama. That effect was in full force in 1995 and remains in full force today.
166. Section 177(b) of the Alabama Constitution, which codifies Amendment 579, violates the Fourteenth Amendment to the Constitution of the United States, because it purposely denies equal protection in registering and voting to Plaintiffs and other minority voters on account of race.
Count 2: Intentional Race Discrimination, 15th Amendment (42 U.S.C. § 1983)
(All Plaintiffs and Plaintiff Class) (Against Defendant Merrill, Defendant Noblin, and Defendant Class) 167. Plaintiffs reallege the facts set forth in paragraphs 1160, above. 168. Section 177(b) of the Alabama Constitution, which codifies Amendment 579, violates the Fifteenth Amendment to the Constitution of the United States because it purposely denies and abridges the right to register and vote to Plaintiffs and other minority voters on account of race or previous condition of servitude.
Count 3: Racial Discrimination in Voting, Section 2 of the Voting Rights Act (52 U.S.C. § 10301)
(All Plaintiffs and Plaintiff Class) (Against Defendant State of Alabama, Defendant Merrill, Defendant Noblin, and
Defendant Class) 169. Plaintiffs reallege the facts set forth in paragraphs 1-160, above. 170. Section 2 of the Voting Rights Act prohibits any state from enacting or administering any voting prerequisite or qualification for voting that results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color or membership in a language minority group.
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171. Under the totality of the circumstances, Alabama's enforcement of Section 177(b) of the Alabama Constitution results in racial discrimination in voting because it denies black voters an equal opportunity to participate effectively in the political process and therefore violates Section 2 of the Voting Rights Act.
172. Section 177(b) of the Alabama Constitution also violates Section 2 of the Voting Rights Act because it purposefully denies black voters an equal opportunity to participate in the political process.
Count 4: Non-Racial Discrimination in Voting, 14th Amendment (42 U.S.C. § 1983)
(All Plaintiffs and Plaintiffs Subclasses A, B, C) (Against Defendant Merrill, Defendant Noblin, and Defendant Class) 173. Plaintiffs reallege the facts set forth in paragraphs 1-160, above. 174. "There is no right more basic in our democracy than the right to participate in electing our political leaders." McCutcheon v. FEC, 134 S. Ct. 1434, 1440-41(2014). The Supreme Court has recognized that "voting is of the most fundamental significance under our constitutional structure" and the right to an effective vote is protected by the Equal Protection Clause of the Fourteenth Amendment. Burdick v. Takashi, 504 U.S. 428, 433 (1992) (internal quotation marks omitted). Indeed, the right to vote is the "fundamental political right. . preseryative of all rights." Reynolds v. Sims, 377 U.S. 533 (1964) (quoting Yick Wo v. Hopkins, 118 U.S. 356 (1886)). 175. The Supreme Court has held that a citizen cannot be denied the right to vote absent a compelling state interest. Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969) (holding unconstitutional a law that denied the right to vote in school board elections to those who were not parents or custodians of children in the local public schools and who did not own or lease taxable real property in the district because it did not "sufficiently further a compelling state interest to justify denying the franchise"); see also Dunn v. Blumstein, 405 U.S. 30 (1972) (striking down a
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lengthy residency requirement); Carrington v. Rash, 380 U.S. 89 (1965) (striking down an
exclusion of military residents).2
176. Section 2 of the Fourteenth Amendment provides as follows:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
(emphasis added).
177. Even if Section 2 implicitly sanctions some criminal disenfranchisement, see
Richardson v. Ramirez, 395 U.S. 621 (1969), the exception for "participation in rebellion, or other
crime," cannot be reasonably read in light of its textual context and history to sanction
disenfranchisement for any crime.
178. Richardson v. Ramirez did not address the question of the breadth of "other crime"
in Section 2 of the Fourteenth Amendment.
179. The most appropriate reading of "other crime" in light of its paradigm case,
rebellion, is to limit Section 2's affirmative sanction to crimes that are meaningfully connected to
the political act of voting such as treason, bribery, or perjury.
2 This Court is bound to follow Supreme Court precedent holding that the right to vote is not among the privileges or immunities of United States citizenship protected by Section 1 of the Fourteenth Amendment Minor v Happersett 88 U 5 (21 Wall) 162 (1874) Accordmgly, plaintiffs do not seek relief from this Court based on the Privileges or Immunities Clause at this time However, Plaintiffs preserve the allegation that the right to vote is protected by both the Equal Protection Clause and the Privileges or Immunities Clause because either Minor v. Happersett was wrongly decided, or it has been superseded by subsequent Amendments and development of federal constitutional law. Therefore, all allegations related to the infringement of the right to vote pursuant to the Fourteenth Amendment incorporate both Equal Protection and Privileges or Immunities allegations.
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180. Prior to the Civil War, Alabama only disenfranchised those convicted of precisely

these crimes. The 1819 Constitution provided that only those convicted of "bribery, perjury,

forgery, or other high crimes or misdemeanors" lost their right to vote. Ala. Const. of 1819, art.

VI, § 5. The term of art "high crimes or misdemeanors" was at that time and still is generally

understood to be limited to political crimes involving the abuse of public office.

181. The breadth of Section 2 of the Fourteenth Amendment's sanction, at least in

Alabama, should be limited to the disenfranchising crimes in Alabama's 1819 Constitution, which

are reasonably connected to the political act of voting and were the disenfranchising crimes in

Alabama at the time of the Fourteenth Amendment's drafting.

182. None of the Plaintiffs or members of Subclass A have been convicted of the limited

political crimes that were disenfranchising under the 1819 Constitution; therefore, their

disenfranchisement on the sole basis of their convictions denies them access to the political

franchise and

protection of the laws in violation of the Fourteenth Amendment.

183. In the alternative, at minimum, the use of the paradigm case of "rebellion," a serious

and dangerous crime, counsels that "other crime" must be restricted to common law felonies and/or

particularly serious crimes.

184. Alabama's disenfranchisement of all those convicted of "felonies involving moral

turpitude," as it is now amorphously applied, does not meet this standard however it is defined.

The 2005 Attorney General Opinion lists, for example, possession of marijuana for resale, codified

at Alabama Code Section 13A-12-213, as a crime of moral turpitude. It is a class C felony, until

recently the least serious of the three categories of felonies and now the second to least serious

category of felonies. Ala. Code § 13A-5-3 (adding class D felonies as of Jan. 30, 2016). The

presumptive punishment for this crime alone is a non-prison punishment.

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185. Serious crimes, akin to rebellion, may be defined in reference to common law felonies at the time of the Fourteenth Amendment's adoption. These are limited to murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny. Jerome v. United States, 318 U.S. 101, 108 n.6 (1943). This construction is supported not only by the text but also by the historical record. The Reconstruction Act of 1867 limited criminal disenfranchisement to "participation in the rebellion or for felony at common law," Reconstruction Act of Mar. 2, 1867, ch. CLII (1867), and the Readmission Acts for each of the readmitted states, including Alabama, also limited criminal disenfranchisement for "such crimes as are now felonies at common law." See Act of June 22, 1868, c. 69 15 Stat. 71; Act of June 25, 1868, c. 70, 15 Stat. 73; Act of Jan. 26, 1870, c. 10, 16 Stat. 62; Act of Feb. 1, 1870, c. 12, 16 Stat. 63; Act of Feb. 23, 1870, c. 19, 16 Stat. 7; Act or Mar. 30, 1870, c. 39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363.
186. Plaintiffs Melissa Swetnarn, Antwoine Giles, and Mario Dion Yow, and all members of Subclass B were not convicted of crimes considered felonies at common law; therefore, their disenfranchisement on the sole basis of their convictions denies them access to the political franchise and equal protection of the laws in violation of the Fourteenth Amençlrnent.
187. Serious crimes, akin to rebellion, may also be defined in reference to Alabama's own standards and limited to class A felonies, the top tier of felonies according to the State of Alabama.
188. Plaintiffs Treva Thompson, Melissa Swetnam, Antwoine Giles, Larry Joe Newby, and Jennifer Zimmer, and all members of Subclass C have not been convicted of any class A felonies under Alabama law; therefore, their disenfranchisement on the sole basis of their convictions denies them access to the political franchise and equal protection of the laws in violation of the Fourteenth Amendment.
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Count 5: Non-Racial Discrimination in Voting, 1st Amendment (42 U.S.C. § 1983)
(All Plaintiffs and Plaintiffs Subclasses A, B, C) (Against Defendant Merrifi, Defendant Noblin., and Defendant Class) 189. Plaintiffs reallege the facts set forth in paragraphs 1-160, above. 190. Voting and participating in the election process is a form of speech and expression. It is the ultimate form of political speech and association and is entitled to First Amendment protection. 191. As a restriction on free speech and association, Section 177(b)' s denial of the tight to vote to citizens convicted of crimes that are not crimes related to the political act of voting, felonies at common law, or class A felonies under Alabama law, violates the First Amendment.
Count 6: Unconstitutional Burden on the Right to Vote, 14th Amendment (42 U.S.C. § 1983)
(All Plaintiffs except Plaintiff King and Plaintiff Subclasses D, E, F) (Against Defendant Merrill, Defendant Noblin, and Defendant Class) 192. Plaintiffs reallege the facts set forth in paragraphs 1-160, above. 193. Alabama citizens who have not been convicted of felonies involving moral turpitude are entitled to vote under Alabama law and the Fourteenth Amendment protects that right. 194. When analyzing the constitutionality of a restriction on voting, the Court "must weigh 'the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' against 'the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration
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'the extent to which those interests make it necessary to burden the plaintiffs rights." Burdick v. Takushi, 504U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
195. When the right to vote is "subjected to 'severe' restrictions, the regulation must be 'narrowly drawn to advance a state interest of compelling importance." Burdick, 504 U.S. at 434 (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). "But when a state election law provision imposes only 'reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, 'the State's important regulatory interests are generally sufficient to justify' the restrictions." Id. at 434 (quoting Anderson, 460 U.S. at 788).
196. The federal and state voter registration forms for Alabama require Alabama citizens to sign under penalty of perjury that they have not been convicted of a "felony involving moral turpitude" (federal form) or a "disqualifying crime" (state form).
197. Neither the federal nor state voter registration forms for Alabama provide additional information about what constitutes a felony involving moral turpitude or a disqualifying crime. Neither form provides any examples of disqualifying or non-disqualifying crimes. A reasonable person cannot determine whether her felony conviction "involves moral turpitude" or is "disqualifying" under state law.
198. The failure to define or list disqualifying crimes or crimes of moral turpitude imposes an unconstitutional burden on those qualified to vote under Alabama law but who have been convicted of felonies.
199. Moreover, even if Alabama citizens investigate state law, those convicted of felonies not appearing in Alabama Code Section 15-22-36.1(g)--the only available source of disqualifying crimes (but not tied to the moral turpitude standard or Section 177(b))—cannot be certain whether their conviction is disqualifying or not. Those convicted of crimes not appearing
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in the 2005 Attorney General Opinion will find it even more difficult to guess (under penalty of perjury) whether they are eligible to vote.
200. The inability to determine whether one is eligible to vote despite a prior felony conviction imposes an unconstitutional burden on those qualified to vote under Alabama law but who have been convicted of felonies.
201. Further, Alabama's application of Section 177(b) leaves registrars, untrained in the law, with the first responsibility for determining whether a voter applicant's conviction or registered voter's conviction is disqualifying or not. Registrars have neither the power to define qualifications of electors in the State of Alabama—a task delegated to the Legislature, Ala. Const. art. VIII, § 177(b)—nor interpret the Constitution—a task delegated to the courts.
202. This denial of the right to vote in circumstances where an Alabama registrar improperly determines that a voter applicant's crime is disqualifying also imposes an unconstitutional burden on those qualified to vote under Alabama law but who have been convicted of felonies.
203. The burdens described above are "severe" and discriminatory. They impose significant burdens on eligible Alabama voters with felony convictions that they do not impose on other eligible Alabama voters.
204. Defendants' application of Section 177(b) imposes an unconstitutional burden on the right to vote of eligible Alabama voters with felony convictions in violation of the Equal Protection Clause.
Count 7: Unconstitutional Burden on the Right to Vote, 1st Amendment (42 U.S.C. § 1983)
(All Plaintiffs, except Plaintiff King, and Plaintiff Subclasses D, E, F) (Against Defendant Merrill, Defendant Noblin, and Defendant Class) 205. Plaintiffs reallege the facts set forth in paragraphs 1-160, above.
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206. Voting and participating in the election process is a form of Speech and expression. It is the ultimate form of political speech and association and is entitled to First Amendment protection.
207. For the reasons set forth in paragraphs 193 to 204, Defendants' application of Section 177(b) imposes an unconstitutional burden on the right to vote on eligible Alabama voters with felony convictions in violation of the First Amendment.
Count 8: Deprivation of Procedural Due Process, 14th Amendment (42 U.S.C. § 1983)
(Plaintiffs Treva Thompson, Melissa Swetnam, Antwoine Giles, Anna Reynolds, Larry Joe Newby, Mario Dion Yow, and Plaintiff Subclasses G and H)
(Against Defendant Merrill, Defendant Noblin, and Defendant class) 208. Plaintiffs reallege the facts set forth in paragraphs 1 . 160, above. 209. The right to vote is a form of liberty under Alabama and federal law. 210. Defendants' enforcement of Section 177(b) provides Alabama citizens with little to no pre-deprivation process before revoking their right to vote, a fundamental right protected by both the Alabama and United States Constitutions. 211. Voter registration applicants are provided with no process whatsoever predeprivation, and the decision regarding a citizen's eligibility under Section 177(b) is left to registrars with no legal training. Therefore, the risk of erroneous deprivation is high. 212. Voters being removed from the voter registration lists are entitled to notice and some minimal opportunity to be heard under Alabama law. Ala. Code § 17-3-56. 213. Upon information and belief, a voter applicant's notice and opportunity to be heard is not uniformly enforced in Alabama.
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214. Moreover, the Alabama Supreme Court has held that Defendants' failure to provide the necessary notice and opportunity to be heard, Ala. Code § 17-3-56, does not invalidate the deprivation. Williams v. Lide, 628 So.2d 531 (Ala. 1983).
215. Any minimal process provided still allows registrars, untrained in the law, to determine the voter's eligibility under Section 177(b). Therefore, the risk of erroneous deprivation is high.
216. Defendants' enforcement of Section 177(b) denies Plaintiffs whose names are removed from the voter registration lists or whose voter registration applications are denied on the basis of their felony convictions Procedural due process in violation of the Fourteenth Amendment.
Count 9: Void for Vagueness, 1st and '14th Amendments (42 U.S.C. § 1983)
(All Plaintiffs, except Plaintiff King, and Plaintiff Subclass D) (Against Defendant Merrill, Defendant Noblln, and Defendant Class) 217. Plaintiffs reallege the facts set forth in paragraphs 1-160, above. 218. Voting and participating in the election process is a fundamental right protected by the Fourteenth Amendment. 219. Voting and participating in the election process is also a form of speech and expression. It is the ultimate form of political speech and association and is entitled to First Amendment protection. 220. The void for vagueness doctrine addresses two interconnected constitutional concerns: "first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not
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act in an arbitrary or discriminatory way." F.C.C. v. Fox Televisions Stations, Inc., 132 S. Ct. 2307, 2317 (2012).
221. When a regulation impinges on the right to free speech, "rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech." Id.; see also Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870-71 (1997) ("The vagueness of [regulation of speech] raises special First Amendment concerns because of its obvious chilling effect.").
222. The prohibition on voting for those convicted of felonies involving moral turpitude—with the possible exception of those crimes listed in Alabama Code Section 15-2236.1(g), although that statute does not reference Section 177(b) or the moral turpitude standard— "fails to provide a person of ordinary intelligence fair notice of what is prohibited." Fox Televisions Stations, Inc., 132 S. Ct. at 2317 (quoting United States v. Williams, 533 U.S. 285 (2008)).
223. As such, it impermissibly chills the speech of many eligible Alabama voters. 224. Moreover, it is so "standardless that it authorizes or encourages seriously discriminatory enforcement." Id. As such, it impermissibly invites and allows for discrimination with respect to access to the electoral franchise. 225. The prohibition on voting for those convicted of felonies "involving moral turpitude" is void for vagueness under the First and Fourteenth Amendments.
Count 10: Arbitrary Disenfranchisement, 14th Amendment (42 U.S.C. § 1983)
(All Plaintiffs and Plaintiff Class) (Against Defendant Merrill, Defendant Noblin, and Defendant Class) 226. Plaintiffs reallege the facts set forth in paragraphs 1-160, above. 227. Defendants' enforcement of Section 177(b) is not guided by any principled determination of which felonies "involve moral turpitude."
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228. Defendants' enforcement of Section 177(b) irrationally disenfranchises an arbitrary

set of Alabama citizens with felony convictions.

229. Therefore, Defendants' enforcement of Section 177(b) cannot withstand even

rational basis scrutiny.

230. Moreover, Defendants' enforcement of Section 177(b) is also not uniform across

the state and allows for arbitrary disenfranchisement depending on where an Alabama citizen lives

within the state.

231. "The right to vote is protected in more than the initial allocation of the franchise.

Equal protection applies as well to the manner of its exercise. Having once granted the right to

vote on equal terms, State may not, by later arbitrary and disparate treatment, value one

person's vote over that other." Bush v. Gore, 531 U.S. 98, 105 (2000); see, e.g., Harper V.

Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) ("[O]nce the franchise is granted to the

electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the

Fourteenth Amendment.'').

232.

enforcement of Section 177(b) results in arbitrary disenfranchisement

of Alabama citizens in

of the Fourteenth Amendment.

Count 11: Retroactive Punishment, Ex Post Facto Clause
(42 U.S.C. § 1983) (All Plaintiffs, except Plaintiff King, and Plaintiff Subclass D)
(Against Defendant Merrill, Defendant Noblin, and Defendant Class)

233. Plaintiffs reallege the facts set forth in paragraphs 1-160, above.

234. Article 1, Section 10, of the United States Constitution prohibits States from

passing ex post facto laws that impose retroactive punishments of their citizens.

235. Section 177(b)'s permanent disenfranchisement of those convicted of "felonies

involving moral turpitude," unless the citizen's rights are affirmatively restored, is inherently

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) penal. No constitutional, non-punitive rationale for limiting the rights of citizens with felony convictions to vote can support Section 177(b). See Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement, 56 Stan. L. Rev. 1147, 1150-55 (2004).
236. Therefore, the only potentially constitutional rationale remaining for Alabama's broad felon disenfranchisement regime is a punitive one, triggering ex post facto scrutiny. See Smith v. Doe, 538 U.S. 84, 92-93 (2003) (holding that "a conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects").
237. Moreover, the disenfranchisement of citizens has harsh punitive effects on individuals. It imposes an affirmative disability on citizens that is, in many cases, permanent, and is excessive with respect to any non-punitive purpose. See Id. at 97 (noting that the factors most relevant to an ex post facto inquiry include whether the regulation imposes an affirmative disability or is excessive with respect to any non-punitive purpose).
238. Since "moral turpitude" is undefined and decided on an ad hoc basis by county registrars, the imposition of Section 177(b)'s penalty is necessarily retroactive and violates the Constitution's prohibition on ex post facto laws.
Count 12: Disenfranchisement as Cruel and Unusual Punishment, 8th Amendment (42 U.S.C. § 1983)
(All Plaintiffs and Plaintiff Class) (Against Defendant Merrill, Defendant Noblin, and Defendant Class) 239. Plaintiffs reallege the facts set forth in paragraphs 1-160, above. 240. The Eighth Amendment "succinctly prohibits '[e]xcessive' sanctions," and the Supreme Court has held that "punishment for crime should be graduated and proportioned to [the] offense." Atkins v. Virginia, 536 U.S. 304, 311(2002).
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241. Section 177(b), as enforced by Defendant Merrill and Defendant registrars, currently indiscriminately and -permanently disenfranchises individuals who have been convicted of a wide-range of minor crimes including many class C felonies. It imposes the same punishment on a person convicted of murder as a person convicted of a minor drug crime.
242. Alabama citizens like Plaintiff Thompson and many others have been convicted of crimes for which the sentencing court determined either no prison time or minimal prison time was appropriate, but nonetheless face permanent exclusion from the political franchise and thus permanent exclusion from meaningful participation in our democracy. They are sentenced, in essence, to civil death.
243. Section 177(b) is also an outlier nationwide. Only eight other states still impose permanent disenfranchisement on any subset of citizens with felony convictions, and several of those remaining eight states more narrowly limit the subset of persons subjected to permanent disenfranchisement than Section 177(b).
244. Section 177(b) imposes indiscriminate, unusual, and often widely disproportionate punishment on Alabama citizens in violation of the Eighth Amendment.
Count 13: Disenfranchisement for Failure to Pay LFOs, 14th Amendment (42 U.S.C. § 1983)
(Plaintiffs Treva Thompson, Melissa Swetnam, and Plaintiff Subclass I) (Against Defendant Walker)
245. Plaintiffs reallege the facts set forth in paragraphs 1-160, above. 246. A state "violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard." Harper, 383 U.S. at 666; see also Johnson v. Governor of State of Florida, 405 F.3d 1214, 1217 (11th Cir. 2005).
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247. By requiring an otherwise eligible Alabama citizen to pay all legal financial obligations before she is able to restore her right to vote, Alabama Code Section 15-22-36.1(a)(3) impermissibly makes payment of fines and fees an electoral standard.
248. By requiring an otherwise eligible Alabama citizen to pay all legal financial obligations before she is able to restore her right to vote, Alabama Code Section 15-22-36.1(a)(3) impermissibly makes the affluence of an otherwise eligible voter an electoral standard.
249. Wealth "is not germane to one's ability to participate intelligently in the electoral process" Harper, 383 U.S. at 668.
250. Plaintiffs Treva Thompson and Melissa Swetnam, and members of Plaintiff Subclass I are unable to afford to pay their remaining legal financial obligations, and this is the only reason they are not eligible to vote in the state of Alabama.
251. It is well established that "a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." Dunn, 405 U.S. at 336.
252. Alabama Code Section 15-22-36.1(a)(3) invidiously discriminates between Alabama citizens with prior disqualifying felonies who are able to pay their legal financial obligations and Alabama citizens with prior disqualifying felonies who are unable to pay their legal financial obligations in violation of the Fourteenth Amendment.
Count 14: Disenfranchisement for Failure to Pay LFOs, Poll Tax, 24th Amendment (42 U.S.C.. § 1983)
(Plaintiffs Treva Thompson, Melissa Swetnarn, and Plaintiff Subclass I) (Against Defendant Walker)
253. Plaintiffs reallege the facts set forth in paragraphs 1-160, above. 254. The Twenty-Fourth Amendment provides that "the right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for
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President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax." (emphasis added).
255. For those who are otherwise eligible to restore their tight to vote, Alabama Code Section 15-22-36.1 (a)(3) denies the right to vote to those who cannot afford to pay their legal financial obligations by reason of their failure to pay fines and fees to the State of Alabama.
256. Alabama Code Section 15-22-36.1(a)(3) directly conflicts with the prohibition of the Twenty-Fourth Amendment. Count 15: Disenfranchisement for Failure to Pay LFOs, Section 2 of-the Voting Rights Act
(52 U.S.C. § 10301) (Plaintiffs Treva Thompson, Melissa Swetnam,
and Plaintiff Subclass I) (Against Defendant State of Alabama and Defendant Walker) 257. Plaintiffs reallege the facts set forth in paragraphs 1-160, above. 258. As a result of a long history of state-sponsored official discrimination that has led to continuing severe economic disparities between white and black residents, Alabama Code Section 15-22-36.1 (a)(3) disproportionately disenfranchises black citizens with prior disqualifying convictions compared to white citizens with prior disqualifying convictions. 259. Regardless of Sections 2's application to felon disenfranchisement provisions because of Section 2 of the Fourteenth Amendment's specific sanction of criminal disenfranchisement, see Johnson v. Governor of Florida, 405 F.3d 1. 214 (11th Cit. 2005), Section 2 of the Voting Rights Act—which broadly applies to any "voting qualification or prerequisite to voting or standard, practice, or procedure"—applies to the prerequisites for voting and voting qualifications set by Alabama for those with prior disqualifying convictions; see Allen v. State Bd.
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of Elections, 393 U.S. 544, 567 (1969) (noting that Section 2 was intended to have the "broadest possible scope").
260. Alabama Code Section 15-22-36.1(a)(3) violates Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, because it results in the denial of the right to vote on account of race.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: (1) Certify the Plaintiff Class and Plaintiff Subclasses as defined in paragraphs 50 to 60. (2) Certify the Defendant class of all voter registrars in the State of Alabama. (3) Issue a declaratory judgment that Section 177(b) of the Alabama Constitution, by its
terms and as applied, violates the Ex Post Facto Clause of Article I of the United States Constitution, the First, Eighth, Fourteenth, and Fifteenth Amendments of the United States Constitution, and Section 2 of the Voting Rights Act, 52 U.S.C. § 10301; (4) Issue a declaratory judgment determining that Alabama Code Section 15-2236.1(4)(3) violates the Fourteenth and Twenty-Fourth Amendments of the United States Constitution and Section 2 of the Voting Rights Act, 52 U.S.C. § 10301; (5) Enjoin the Defendants, their agents, employees and all those persons acting in concert or participation with them, from enforcing Section 177(b) or Alabama Code Section 15-22-36.1(a)(3), including:
a. enjoining Defendants from denying any voter registration applications on the basis of felony convictions;
b. enjoining Defendants from removing any voters from the voter registration rolls on the basis of felony convictions;
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c. requiring Defendants to restore Alabama citizens to the voter registration rolls
if they were removed on the sole basis of their felony convictions;
d. enjoining Defendants from denying any applications for CERVs on the basis
of failure to pay any legal financial obligations;
e. requiring Defendants to inform those with disqualifying convictions that the
failure to pay legal financial obligations does not disqualify them from
restoring their right to vote under Alabama Code Section 15-22-36.1.
(6) Award Plaintiffs their costs, expenses, and reasonable attorneys' fees incurred in the
prosecution of this action, as authorized by the Voting Rights Act and the Civil
Rights Attorneys Fees Awards Act of 1973, 52 U.S.C. § 103 10(e) and 42 U.S.0
§ 1988;
(7) Grant such other equitable and further relief as the Court deems just and proper.
RESPECTFULLY SUBMITTED,
J. MI CH MCGUIRE Alabama Bar No: ASB-83 1 7-S9M MCGUIRE & ASSOCIATES, LLC 31 Clayton Street Montgomery, AL 36104 (334) 517-1000 jmcguirmandabusinesslaw.com
DANIELLE LANG (pro hac vice motion to be filed) California Bar No: 304450 J. GERALD HEBERT (pro hac vice motion to be filed) Virginia Bar No: 38432 CAMPAIGN LEGAL CENTER 1411 K Street NW Suite 1400 Washington, DC 20005 (202) 736-2200 dlangcampaignlegalcenter.org ghebertcampaignlegalcenter.org
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JAMES U. BLACKSH.ER Alabama Bar No: ASB-2381-S82J P.O. Box 636 Birmingham, AL 35201 (205) 591-7238 jblacksherns.Syfnpatico.ca
JESSICA RING AMUNSON (pro hac vice motion to be filed) District of Columbia Bar No: 497223 JENNER & BLOCK LLP 1099 New York Ave. NW, Ste. 900 Washington, DC 20001 (202) 736-6000 jamunsonjenner.com
PAMELA KARLAN (pro hac vice motion to be filed) New York Bar No: 2116994 STANFORD LAW SCHOOL 559 Nathan Abbott Way Stanford, CA 94305 (650) 725-4851 karlan@stanford.edu
ADERSON B. FRANCOIS (pro hac vice motion to be filed) District of Columbia Bar No: 498544 PATRICK LLEWELLYN (pro hac vice motion to be filed) District of Columbia Bar No: 1033296 INSTITUTE FOR PUBLIC REPRESENTATION GEORGETOWN UNIVERISTY LAW CENTER 600 New Jersey Avenue NW Washington, DC 20001 (202) 662-6721 abf48georgetown.edu
ARMAND G. DERFNER (pro hac vice motion to be filed) South Carolina Bar No: 1650 DERFNER & ALTMAN 575 King Street, Suite B Charleston, S.C. 29403 (843) 723-9804 aderther@derfiieraltman.com
Counsel for Plaintiffs and Plaintiff Class
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 Case 2:16-cv-00783-WKW-CSC Document 72 Filed 07/28/17 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

TREVA THOMPSON, et al., Plaintiffs,
v. STATE OF ALABAMA, et al.,
Defendants.

)

)

)

)

) CASE NO. 2:16-CV-783-WKW

)

[WO]

)

)

)

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Alabama citizens lose their right to vote if they are “convicted of a felony

involving moral turpitude.” Ala. Const., Art. VIII, § 177(b) (1996).

Disenfranchisement of felons, for more than two decades, has hinged on the meaning

of “moral turpitude.” But what does “moral turpitude” mean? Because the Alabama

Constitution did not define this nebulous standard, “[n]either individuals with felony

convictions nor election officials ha[d] a comprehensive, authoritative source for

determining if a felony conviction involve[d] moral turpitude and [was] therefore a

disqualifying felony.” Ala. Code § 17-3-30.1 (eff. Aug. 1, 2017). But that dilemma

for felons and election officials appears to have resolved on May 25, 2017, at least

prospectively, with the enactment of the Felony Voter Disqualification Act,

Alabama Laws Act 2017-378 (“HB 282”), which for the first time established a

Case 2:16-cv-00783-WKW-CSC Document 72 Filed 07/28/17 Page 2 of 35
specific and inclusive list of felonies “involving moral turpitude.” HB 282, codified as § 17-3-30.1 of the Alabama Code, has an effective date of August 1, 2017.
This lawsuit originally was not about HB 282; it could not have been because its commencement preceded HB 282’s enactment by eight months. Rather, Plaintiffs filed this proposed class action against the State of Alabama and its officials, seeking in part to invalidate § 177(b) of Article VIII of the Alabama Constitution of 1901 on federal constitutional grounds, including vagueness.
HB 282 changed the course of this lawsuit significantly. Acknowledging that HB 282 “seeks to put an end to” a system that required “individual county registrars to make subjective and contradictory determinations of citizens’ eligibility to vote on an ad hoc basis” (Pls.’ Mot. Prelim. Inj., at 7), Plaintiffs filed a motion for preliminary injunction thirty-seven days after HB 282’s enactment. Plaintiffs do not challenge the provisions of HB 282 itself. Instead, they ask for a preliminary injunction mandating Defendants to take specified steps to implement HB 282.
The urgency of the motion, according to Plaintiffs, is the upcoming special election for the United States Senate seat in Alabama, and more specifically, the voter registration deadline, which is July 31, 2017. The special primary election is August 15, 2017; the special runoff election is September 26, 2017; and the special general election is December 12, 2017. Plaintiffs contend that, “[a]bsent immediate relief from this Court, thousands of eligible voters risk losing the opportunity to vote
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in yet another election.” (Pls.’ Mot. Prelim. Inj., at 8.) The preliminary injunction motion “seeks relief solely for those voters whose voting rights under Section 177 of the Constitution have been affirmed by HB 282.” (Id.) The motion refers to these potential voters as “HB 282 voters.” (Id.)
In their motion, Plaintiffs ask for a preliminary injunction mandating Defendants to take the following actions prior to the voter registration deadline on July 31, 2017: (1) to provide notice of HB 282’s voting eligibility standards on the electronic Alabama Voter Registration Form on the Alabama Secretary of State’s website; (2) to post notice of HB 282’s voting eligibility standards on the Alabama Secretary of State’s website and at county registrars and DMV offices; (3) to submit a request to the federal Election Assistance Commission to provide notice of HB 282’s voting eligibility standards in Alabama’s state-specific instructions on the Federal Voter Registration Form; and (4) to reinstate HB 282 voters—voters whose registration applications were denied or who were struck from the voter registration rolls in the last two years, but whose eligibility was affirmed by HB 282—to the voter registration rolls and provide them with individualized notice of their eligibility to vote.1
1 At the July 25, 2017, hearing on the motion for preliminary injunction, Plaintiffs orally narrowed their written requests for preliminary injunctive relief. These are the modified requests.
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Defendants oppose the motion, arguing that Plaintiffs have not met “the high bar for an emergency mandatory injunction and [that] the equities clearly outweigh granting one.” (Defs. Resp., at 2 (Doc. # 58).) Defendants further represent that the Alabama Secretary of State is responsible for the unanimous passage of the Act and “fully supports the new law and is implementing it in a deliberate fashion.” (Id. at 8.) The record contains briefing and evidence in support of and in opposition to the motion, and the parties presented additional evidence and arguments at the hearing held on July 25, 2017.
For the reasons that follow, Plaintiffs have not demonstrated that they are entitled to preliminary injunctive relief, and Plaintiffs’ motion (Doc. # 56) is due to be denied.
II. JURISDICTION AND VENUE Subject matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331. The parties do not contest personal jurisdiction or venue.
III. BACKGROUND A. The Relevant Parties and Claims
Plaintiffs seek a preliminary injunction on some, but not all, counts. Only those parties and claims that are the subject of the preliminary injunction are set out here.
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1. Parties Plaintiffs filed this lawsuit on September 26, 2016. The ten individual Plaintiffs are Alabama citizens who, on the basis of their felony convictions, have been removed from the voter registration list, have been denied applications to vote, or have not registered to vote in this state based on the uncertainty of whether they have been convicted of a disqualifying felony involving moral turpitude. The organizational Plaintiff, Greater Birmingham Ministries, whose central goal is “the pursuit of social justice in the governance of Alabama,” expends financial and other resources to help individuals with felony convictions determine whether they are eligible to vote or to have their voting rights restored. (Compl. ¶ 62 (Doc. # 1).) Defendants are the State of Alabama, the Secretary of State of Alabama, the Chair of the Board of Registrars for Montgomery County, and a Defendant class consisting of “[a]ll voter registrars in the State of Alabama.” (Compl. ¶ 68.) The individual Defendants are sued in their official capacities only. The Complaint seeks to certify a class of Plaintiffs defined as: “All unregistered persons otherwise eligible to register to vote in Alabama who are now, or who may in the future be, denied the right to vote because they have been convicted of a felony.” (Compl. ¶ 50.) The Complaint also enumerates nine subclasses of Plaintiffs.
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The motion for preliminary injunction also contains its own class, namely, “those voters whose voting rights under Section 177 of the [Alabama] Constitution have been affirmed by HB 282.” (Pls.’ Mot. Prelim. Inj., at 8 (Doc. # 56).)
2. Claims Section 177(b)’s phrase “moral turpitude” is at the forefront of twelve of the Complaint’s fifteen counts challenging the constitutionality of § 177(b) of the Alabama Constitution. Only Counts 6–10 are relevant to the motion for preliminary injunction. These counts seek injunctive and declaratory relief. Counts 6 and 7 allege that § 177(b)’s failure to define which Alabama felonies involve moral turpitude “imposes an unconstitutional burden on the right to vote of eligible Alabama voters with felony convictions in violation of the Equal Protection Clause” (Count 6) and the First Amendment (Count 7), and that, therefore, § 177(b) is subject to strict scrutiny. (Compl. ¶¶ 204, 207.) Count 8 is a Fourteenth Amendment procedural due process claim, alleging that § 177(b)’s felon-disenfranchisement provision “provides Alabama citizens with little to no pre-deprivation process before revoking their right to vote, a fundamental right protected by both the Alabama and United States Constitutions.” (Compl. ¶ 210.) Count 9 alleges that the “prohibition on voting for those convicted of felonies ‘involving moral turpitude’ is void for vagueness under the First and Fourteenth Amendments.” (Compl. ¶ 225.)
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Count 10 is a selective enforcement claim under the Fourteenth Amendment’s Due Process Clause. It alleges that Defendants arbitrarily distinguish between groups of felons by administering § 177(b) with an unequal hand from county to county and that, therefore, § 177(b) cannot survive rational-basis scrutiny.
The Complaint’s prayer for relief seeks certification of the Plaintiff class, of nine Plaintiff sub-classes, and of a Defendant class of county registrars. It also asks for a declaratory judgment that § 177(b) of the Alabama Constitution, on its face and as applied, violates the First Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. B. HB 282
Shortly after taking office in 2014, Alabama Secretary of State John Merrill established an exploratory committee on “voter disenfranchisement and restoration of voting rights.” (See Ex. A, Decl. of Edward Packard ¶ 6 (Doc. # 63-1).) A subcommittee of the “voter disenfranchisement and restoration of voting rights” committee drafted proposed legislation to create an exclusive list of felonies that would qualify as felonies of “moral turpitude” for the purposes of voting. (Id.) After this bill was introduced in previous sessions, the Legislature ultimately enacted this proposed legislation in a modified form by a unanimous vote in the 2017 regular legislature session. (Id.) HB 282 sets out its purposes, which are:
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a. To give full effect to Article VIII of the Constitution of Alabama of 1901, now appearing as Section 177 of Article VIII of the Official Recompilation of the Constitution of Alabama of 1901, as amended. b. To ensure that no one is wrongly excluded from the electoral franchise. c. To provide a comprehensive list of acts that constitute moral turpitude for the limited purpose of disqualifying a person from exercising his or her right to vote. Ala. Code § 17-3-30.1(b)(2) (eff. Aug. 1, 2017). On May 25, 2017, Governor Kay Ivey signed HB 282 into law. Defendants estimate that some 60,000 felons could be affected by HB 282. The effective date of HB 282 is August 1, 2017. However, because the August 15 special primary election for the U.S. Senate seat in Alabama is after HB 282’s effective date, the Alabama Secretary of State has instructed registrars to use the new law to determine whether new registrants who have committed felonies are qualified to vote in the August 15 primary election. (See Ex. E, Decl. of George Noblin ¶ 4 (Doc. # 63-5).) The Chairman of the Montgomery County Board of Registrars, George Noblin, gave an example that, on July 17, 2017, his staff permitted an individual convicted of a felony to register to vote based upon application of HB 282. The Secretary of State’s liaison with the Board of Registrars is “not aware of any registrar who has received an application to register from a felon and has not applied the new law.” (See Ex. B, Decl. of Clay Helms ¶ 7 (Doc. # 63-2).)
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The Alabama Secretary of State also is implementing statewide training to registrars. Through a contract with Auburn University, the Secretary of the State implemented a three-year training program on a variety of subjects for all of the state’s registrars. The program, which commenced in June 2017, includes a course on felon disenfranchisement and the definition of “moral turpitude.” (See Ex. B, Decl. of Clay Helms ¶ 12 & Ex. 6 (contract and course schedule).) Moreover, on June 2, 2017, which was eight days after HB 282’s enactment, Secretary Merrill gave a presentation on HB 282 to the state association of registrars at their summer conference and advised them to use the list as the exclusive means of evaluating registrants. (See id.) And the Secretary’s staff distributed a modified registrars’ handbook that incorporated HB 282. (See id. ¶ 9 & Ex. 5.) The Secretary of State also has provided written guidance on HB 282 to all registrars via email. (Pls.’ Mot. Prelim. Inj., at 9.) Based on the steps that the Alabama Secretary of State has taken to train the registrars on HB 282, Plaintiffs, at the hearing, withdrew their request for a preliminary injunction ordering that Defendants provide Alabama’s 200 registrars mandatory training regarding the proper implementation of HB 282 for the upcoming special elections for the U.S. Senate seat in Alabama.
IV. STANDARD OF REVIEW A party seeking a preliminary injunction must establish four elements: “(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable
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injury; (3) that its own injury outweighs the injury to the nonmovant; and (4) that the injunction would not disserve the public interest.” Siegel v. LePore, 234 F.3d 1163, 1179 (11th Cir. 2000). “A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishes the burden of persuasion as to the four prerequisites.” Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009). That burden is even higher where, as here, the plaintiff seeks a mandatory preliminary injunction. See Winmark Corp. v. Brenoby Sports, Inc., 32 F. Supp. 3d 1206, 1218 (S.D. Fla. 2014); see also Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996) (A prohibitory injunction “restrains” a party from acting, while a mandatory injunction requires a party to “take action.”). “[T]he burden of persuasion [on a motion for preliminary injunction] becomes even greater where the relief requested is a mandatory injunction, as opposed to a prohibitory injunction.”); see also Harris v. Wilters, 596 F.2d 678, 680 (5th Cir. 1979) (“Only in rare instances is the issuance of a mandatory preliminary injunction proper.” (citing Exhibitors Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 441 F.2d 560 (5th Cir. 1971)).
V. DISCUSSION Plaintiffs have not met their high burden for obtaining a mandatory preliminary injunction. They have failed to demonstrate that any of the preliminary injunction factors weighs in their favor.
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A. Plaintiffs have not shown a likelihood of success on the merits. Plaintiffs argue that they are likely to succeed on their claims challenging
Alabama’s standardless enforcement of the “moral turpitude” provision of § 177(b) as set out in Counts 6–10 of the Complaint. Defendants assert, on the other hand, that Plaintiffs cannot succeed because HB 282 moots Counts 6–10 and because their motion for preliminary injunction seeks relief that is outside the Complaint. These arguments are addressed in turn.
1. Plaintiffs’ claims are moot. When, during the pendency of a lawsuit, the challenged law undergoes substantial amendment “so as plainly to cure the alleged defect, . . . there is no live controversy for the Court to decide.” Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 670 (1993) (O’Connor, J., dissenting). “Such cases functionally are indistinguishable from those involving outright repeal: Neither a declaration of the challenged statute’s invalidity nor an injunction against its future enforcement would benefit the plaintiff, because the statute no longer can be said to affect the plaintiff.” Id. The Eleventh Circuit has recognized that both it and the United States Supreme Court “have repeatedly held that the repeal or amendment of an allegedly unconstitutional statute moots legal challenges to the legitimacy of the repealed legislation.” Nat’l Advert. Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005) (collecting cases).
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“While [the] general rule is that repeal [or amendment] of a statute renders a legal challenge moot, an important exception to that general rule is that mere voluntary termination of an allegedly illegal activity is not always sufficient to render a case moot and deprive the federal courts of jurisdiction to try the case.” Id. at 1333. As a general principle, “[a] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Doe v. Wooten, 747 F.3d 1317, 1322 (11th Cir. 2014) (citation omitted). However, the Eleventh Circuit “gives government actors more leeway than private parties in the presumption that they are unlikely to resume illegal activities”; this leeway translates to a “rebuttable presumption” or a “lesser burden.” Id. (citations omitted).
Before the presumption can attach, a defendant’s termination of the challenged conduct must be “absolutely clear.” Id. at 1322. Three factors guide that analysis: (1) “whether the termination of the offending conduct was unambiguous”; (2) “whether the change in government policy or conduct appears to be the result of substantial deliberation, or is simply an attempt to manipulate jurisdiction”; and (3) “whether the government has ‘consistently applied’ a new policy or adhered to a new course of conduct.” Id. at 1323. The government’s repeal or amendment of a challenged statute is “often a clear indicator of unambiguous termination.” Id. at 1322.
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When the presumption attaches, “the controversy will be moot in the absence of some reasonable basis to believe that the policy will be reinstated if the suit is terminated.” Id. (citation omitted). Stated differently, only “when a court is presented with evidence of a ‘substantial likelihood’ that the challenged statute will be reenacted, the litigation is not moot and the court should retain jurisdiction.” Nat’l Advert. Co., 402 F.3d at 1334. “[T]he cases are legion from this [circuit] and other courts where the repeal of an allegedly unconstitutional statute was sufficient to moot litigation challenging the statute.” Id. at 1333–34.
Defendants argue for application of the general rule—that HB 282 is a clarifying amendment that moots Counts 6–10. Plaintiffs contend that the voluntarycessation exception keeps this case alive.
The court begins with an analysis of the three Doe factors to determine whether HB 282 makes it “absolutely clear” that Defendants have ceased the challenged conduct. To begin, there is no serious debate that HB 282 resolves Plaintiffs’ challenge to § 177(b)’s vagueness. (See, e.g., Pls. Counsel’s Letter to Andrew Brasher (Doc. # 56-1), in which counsel acknowledges that “HB 282 is most relevant to Counts 6–10,” which challenge “the prior standardless system for determining who could vote,” and that “HB 282 is an important step to remedying the harms we alleged in those counts of the complaint”).) At the heart of Counts 6, 7, 8, 9, and 10’s constitutional challenge is that § 177(b)’s phrase “moral turpitude”
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is so vague that it fails to provide reasonable guidelines for determining whether a felony conviction “involves moral turpitude.” (See, e.g., Compl. ¶ 198 (“The failure [of the State of Alabama] to define . . . crimes of moral turpitude imposes an unconstitutional burden on those qualified to vote under Alabama law but who have been convicted of felonies.” (Count 6)); Compl. ¶ 207 (incorporating ¶ 198 into Count 7); Compl. ¶ 211 (“[T]he risk of erroneous deprivation [of procedural due process] is high” because county registrars, with no legal training, must interpret § 177(b) in order to determine a citizen’s eligibility to vote (Count 8); Compl. ¶¶ 222, 224, 225 (§ 177(b)’s “prohibition on voting for those convicted of felonies involving moral turpitude—with possible exception of those crimes listed in Alabama Code Section 15-22-36.1(g)”—is standardless, does not provide fair notice of the conduct prohibited, and is void for vagueness (Count 9); Compl. ¶ 227 (“Defendants’ enforcement of Section 177(b) is not guided by a principled determination of which felonies ‘involve moral turpitude’” and, thus, has resulted in a system of arbitrary disenfranchisement in violation of the Fourteenth Amendment (Count 10)).)
Through the enactment of HB 282, the Alabama legislature has addressed Plaintiffs’ quandary. HB 282’s list of specific Alabama felonies, by crime and code section, is a definitive list of felonies involving moral turpitude under § 177(b)’s felony disenfranchisement provision. Plaintiffs now can be certain whether their
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convictions are disqualifying. They can review HB 282 and know whether their felony conviction involves moral turpitude. In fact, as a result of HB 282’s listing of disqualifying felonies, Antwoine Giles and Laura Corley now know with certainty that they are eligible to vote because their felonies are not on the HB 282 list.2 Counts 6–10’s challenges that § 177(b)’s phrase “moral turpitude” is vague and lacks reasonably clear guidelines hardly can be said to still exist in view of HB 282. Plaintiffs have not argued that HB 282 fails to provide them with clarity as to whether their felony convictions involve “moral turpitude.”
Additionally, although Plaintiffs are not content with the progress of HB 282’s implementation, the preponderance of the evidence shows that registrars are abiding by and applying HB 282 when registering felons to vote. More specifically, at the state association of registrars conference in June 2017, the Alabama Secretary of State advised registrars to use HB 282’s list as the exclusive means of evaluating registrants. Registrars also have received an amended registrars’ handbook that has been updated to incorporate the legislation. (Ex. B, Decl. of Clay Helms ¶¶ 8, 9.) And, in Montgomery County, a felon was permitted to register to vote under the new
2 Mr. Giles alleges that his name was purged from the Montgomery County voter registration list after his 2006 Alabama conviction for stalking in the first degree. Because that felony is not on the HB 282 list, he now is eligible to register to vote. Ms. Corley alleges that she received conflicting information from state agencies as to whether her 2015 Alabama convictions for possession of controlled substances disqualified her from voting, and, thus, she was uncertain whether she could register to vote in Jefferson County. Because the felony underlying Ms. Corley’s convictions is not on the HB 282 list, she now knows with certainty that she is qualified to vote.
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law, whose felony would have been disqualifying under the old law. (Ex. E, Decl. of George Noblin ¶ 4.) The Secretary of State’s liaison with the Board of Registrars is “not aware of any registrar who has received an application to register from a felon and has not applied the new law.” (Ex. B, Decl. of Clay Helms ¶ 7.) These facts demonstrate that HB 282, through its enactment and application, unambiguously terminated the offending conduct. The first factor is satisfied.
As to the second factor, there is no evidence, argument, or suggestion that HB 282 was an attempt to manipulate this court’s jurisdiction over this lawsuit. There is no evidence suggesting that the Alabama legislature intends to repeal HB 282 after this lawsuit concludes. To the contrary, the record reveals that the passage of HB 282 is the culmination of several years of work initiated by the Alabama Secretary of State. (See Ex. C, Decl. of Brent Beal ¶ 2 (Doc. # 63-3).) Defendants’ evidence establishes that, shortly after taking office in 2014, Secretary of State Merrill established an exploratory committee on “voter disenfranchisement and restoration of voting rights.” (Ex. A, Decl. of Edward Packard ¶ 6.) A subcommittee of the “voter disenfranchisement and restoration of voting rights” committee drafted proposed legislation to create an exclusive list of felonies that would qualify as felonies of “moral turpitude” for the purposes of voting. (Id.) Ultimately, after this bill was introduced in previous sessions, the Alabama Legislature enacted this proposed legislation in a modified form by a unanimous vote in 2017. (Id.) These
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facts show that substantial deliberation undergirded HB 282’s enactment. The second factor is met.
Finally, with respect to the third factor, Defendants are applying HB 282 and are in the midst of implementing programs to educate registrars, voters, and other officials on the new law. There is no evidence that any eligible HB 282 voter has been denied the right to register to vote. This evidence, together with the unanimous vote for the law in both chambers of the legislature, demonstrates Defendants’ commitment to abide by the new law and its “adhere[nce] to a new course of conduct.” Doe, 747 F.3d at 1323.
In sum, the State of Alabama’s enactment of HB 282 is “a clear indicator of unambiguous termination” of the allegedly unconstitutional conduct. Id. at 1322. Accordingly, Defendants are entitled to a rebuttable presumption that “they are unlikely to resume illegal activities.” Id. Plaintiffs have failed to rebut that presumption; they have presented no evidence, for example, that the Alabama Legislature intends that HB 282’s repeal will follow on the heels of the conclusion of this lawsuit. The absence of this sort of evidence is not surprising, given that the state legislature passed HB 282 unanimously and that the state’s extensive training efforts on HB 282 already are underway.
Based on the foregoing, the enactment of HB 282, which clarifies for Plaintiffs whether their convictions are felonies “involving moral turpitude” under § 177(b),
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moots a legal challenge to the vagueness of § 177(b)’s moral turpitude phrase. The
claims’ mootness is a jurisdictional flaw that precludes the court from reaching the
merits of these claims. Because Counts 6, 7, 8, 9, and 10 are moot, Plaintiffs cannot
demonstrate a likelihood of success on the merits.3
3 Although the court’s decision on mootness obviates the necessity to delve into the merits of Counts 6–10, it is nonetheless important to clear up a misconception in Plaintiffs’ briefing. Plaintiffs contend that, because “Alabama’s system of disenfranchisement unquestionably . . . led to the arbitrary deprivation of fundamental rights, Plaintiffs are likely to succeed” on Count 6–10. (Pls.’ Mot. Prelim. Inj., at 19 (emphasis added).)
Felons do not have a fundamental right to vote protected by strict scrutiny (absent allegations that a disenfranchisement classification discriminates on the basis of race or other suspect criteria). A state’s decision to deprive some convicted felons, but not others, of voting rights is not subject to a strict scrutiny standard. In Richardson v. Ramirez, 418 U.S. 24 (1974), the Supreme Court upheld a California statute disenfranchising felons convicted of “infamous crimes,” holding that, notwithstanding the guarantee of equal protection in Section 1 of the Fourteenth Amendment, the reduced-representation clause in Section 2 permitted the state to disenfranchise felons. See id. at 52–55. The Court rejected the petitioners’ argument that the statute limiting their voting rights was subject to strict scrutiny. It reasoned that states can disenfranchise felons on the “demonstrably sound proposition that § 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement.” Id. at 55.
The Third, former Fifth, Sixth, and Ninth Circuits have interpreted Richardson’s analysis of the interplay between Sections 1 and 2 of the Fourteenth Amendment as immunizing felondisenfranchisement provisions from strict scrutiny under the Equal Protection Clause. In Owens v. Barnes, 711 F.2d 25 (3d Cir. 1983), which addressed a challenge that Pennsylvania’s law disenfranchising convicted felons during their incarceration violated equal protection, the Third Circuit held that Richardson compelled the conclusion that “the right of convicted felons to vote is not fundamental.” Id. at 27 (citing Richardson, 418 U.S. at 654). It held that “the state cannot only disenfranchise all convicted felons but it can also distinguish among them provided that such distinction is rationally related to a legitimate state interest.” Id. Pennsylvania could have rationally concluded that one of the losses attendant to incarceration should be the loss of “participation in the democratic process” and that incarcerated and un-incarcerated felons did not stand on equal footing for purposes of voting rights. Id. at 28. The Sixth Circuit aligned with Owens, holding that “[i]t is undisputed that a state may constitutionally disenfranchise convicted felons,” id. (citing Richardson, 418 U.S. at 24), and that “the right to vote is not fundamental,” id. (citing Owens, 711 F.2d at 27).
The Ninth Circuit emphasized that, as for their equal protection claim, the plaintiffs could not “complain about their loss of a fundamental right to vote because felon disenfranchisement is explicitly permitted under the terms of Richardson, 18 U.S. at 55.” Harvey v. Brewer, 605 F.3d
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2. The requested preliminary injunctive relief is unlike the relief sought
in the Complaint.
A preliminary injunction is not appropriate when it is based on relief that “is
not of the same character [as that requested in the complaint], and deals with a matter
lying wholly outside the issues in the suit.” Kaimowitz v. Orlando, 122 F.3d 41, 43
(11th Cir. 1997) (per curiam), amended on reh’g on other grounds by 131 F.3d 950
(11th Cir. 1997). See also Westbank Yellow Pages v. BRI, Inc., No. 96-1128, 1996
WL 255912, at *1 (E.D. La. May 13, 1996) (“A preliminary injunction is not an
appropriate vehicle for trying to obtain relief that is not even sought in the underlying
1067, 1079 (9th Cir. 2010). It explained that it would “not apply strict scrutiny as [it] would if plaintiffs were complaining about the deprivation of a fundamental right.” Id. Finally, in Shepherd v. Trevino, 575 F.2d 1110, 1114–15 (5th Cir. 1978), the former Fifth Circuit applied the rationalbasis test, rather than strict scrutiny, to a state statutory scheme that disenfranchised all convicted felons, but that provided a mechanism for the restoration of voting rights only to those who were convicted in state court, not federal court.
All that said, the Supreme Court has not immunized all felon disenfranchisement laws from constitutional review. In Hunter v. Underwood, 421 U.S. 22 (1985), the Court held that the 1901 Alabama Constitution’s provision that disenfranchised individuals convicted of misdemeanors involving moral turpitude was racially discriminatory. The Court explained: “We are confident that [Section] 2 [of the Fourteenth Amendment] was not designed to permit the purposeful racial discrimination attending the enactment and operation of [the state constitutional provision] which otherwise violates [Section] 1 of the Fourteenth Amendment. Nothing in our opinion in Richardson v. Ramirez suggests the contrary.” Id. at 233. This is the claim Plaintiffs bring in Count 1, which will be addressed in a separate opinion in the context of Defendants’ pending motion to dismiss.
States cannot make arbitrary classifications between felons. See, e.g., Richardson, 418 U.S. at 56 (remanding a claim that “there was such a total lack of uniformity in county election officials’ enforcement of the challenged state laws as to work a separate denial of equal protection”); Owen v. Barnes, 711 F.2d 25, 27 (3d Cir. 1983) (noting in dicta that a state “could not disenfranchise similarly situated blue-eyed felons but not brown-eyed felons”); Shepherd v. Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978) (“[S]elective disenfranchisement or reenfranchisement of convicted felons . . . must bear a rational relationship to the achieving of a legitimate state interest.” (internal citations omitted)).
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action.”). The relief requested here is problematic, both for what it seeks and for whom it is sought.
First, the relief requested in the motion for preliminary injunction is of a different nature than that pleaded in the Complaint. The Complaint seeks a declaratory judgment that § 177(b)’s moral-turpitude standard is unconstitutional and a permanent injunction enjoining Defendants from enforcing § 177(b), for example, by preventing Defendants “from denying any voter registration applications on the basis of felony convictions.” (Compl., at 56.) The motion for preliminary injunction changes the focus of the relief to HB 282. (Pls.’ Mot. Prelim. Inj., at 28.) As Plaintiffs admit, the motion for preliminary injunction asserts “new facts relevant to the passage of HB 282,” (id. at 2), and asks the court to order the Secretary to provide notice of HB 282 in a specified manner and to automatically reinstate certain HB 282 voters. These remedies are not the remedies that the Complaint requests should Plaintiffs succeed in their underlying suit challenging the constitutionality of § 177(b).4
Moreover, to be clear, the subject matter of both the Complaint and the motion for preliminary injunction concerns the voting rights of felons. But the Complaint focuses on felons who, under § 177(b), could not vote, either because the state
4 Because the relief Plaintiffs seek in their motion for preliminary injunction arises from the passage of HB 282, which occurred eight months after the commencement of this action, that relief could not have been encompassed in the Complaint.
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explicitly had taken away that right or because of the uncertainty § 177(b) created as to whether a conviction arose from a felony involving moral turpitude. The motion for preliminary injunction, on the other hand, turns attention to felons who now undeniably can vote by virtue of HB 282. Felons whose voting rights have been “affirmed” in that they now are eligible to register to vote (the subject of the motion for preliminary injunction) are not felons whose voting rights have been denied because of a felony conviction (the subject matter of the Complaint).
Second, Plaintiffs request preliminary injunctive relief for a new putative class of felons. In their brief in support of their motion for preliminary injunction, Plaintiffs ask for “relief solely for those voters whose rights under Section 177 of the [Alabama] Constitution have been affirmed by HB 282.” (Pls.’ Mot. Prelim. Inj., at 8.) It appears that Plaintiffs have formulated a class of felons—those who previously were denied voting rights or were unsure of their eligibility to vote under § 177(b) (and therefore did not attempt to register), but who now are eligible to vote and are certain of that eligibility because HB 282 has clarified that their felonies are not disqualifying. But this class is not a part of the class or nine sub-classes alleged in the Complaint.
The Complaint’s class and sub-classes share a common factual denominator. Each includes unregistered voters who have been denied the right to vote because either their voting applications were denied, their names were purged from the
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voting registration rolls, or they cannot be legally certain whether their felony convictions are felonies involving moral turpitude. As Plaintiffs point out, the Complaint could not have alleged a purported class of HB 282 voters because HB 282 was non-existent at the initiation of this suit. But this point ignores that adding classes (and claims) in briefs circumvents the letter and spirit of the orderly procedures established by the Federal Rules of Civil Procedure for the efficient administration of a lawsuit. See Gyenis v. Scottsdale Ins. Co., No. 8:12-CV-805-T33AEP, 2013 WL 3013618, at *1 (M.D. Fla. June 14, 2013) (“The Federal Rules of Civil Procedure are necessary for the orderly and efficient running of this Court and to ensure that in the interests of justice, everyone is on a level playing field. The Rules cannot be ignored or overlooked.”); see, e.g., Fed. R. Civ. 15(a), (d) (governing pre-trial amendments to pleadings and supplemental pleadings); cf. Am. Fed’n of State, Cnty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 863 (11th Cir. 2013) (“A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.”).
Plaintiffs have not moved to amend the Complaint or to supplement the pleadings in order to redefine the claims for relief or the purported class. These pleading deficiencies, which expand the litigation highway outside the Complaint’s roadmap, present yet another reason for denying the motion for preliminary injunction.
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3. Plaintiffs have a Pennhurst problem. The Eleventh Amendment prevents a federal court from issuing an injunction against state officials solely to require them to adhere to state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106–07 (1984) (“[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.”). To avoid the Pennhurst problem, Plaintiffs’ new claims challenging Defendants’ implementation of HB 282 may only proceed in federal court if a provision of federal law creates a right to the enforcement of HB 282. Plaintiffs argue that Pennhurst is inapposite because they seek an injunction against state officials to “remedy the harms caused by their unconstitutional behavior” under federal law. (Doc. # 59, at 4 (emphasis in original).) Plaintiffs’ attempt to differentiate Pennhurst from this case is not convincing. Plaintiffs express no dissatisfaction with HB 282 itself; they advance no argument that HB 282 violates the federal constitution. Rather, Plaintiffs complain that, since May 25, 2017, Defendants have refused to implement HB 282 in a manner that would maximize notice to HB 282 voters and give more opportunities to HB 282 voters to vote in the August 15 special election for the U.S. Senate seat in
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Alabama.5 (See Pls.’ Mot. Prelim. Inj., at 28, in which Plaintiffs argue that they seek “full implementation of governing Alabama law”).) What Plaintiffs really appear to be asking is that this court supervise and direct these state Defendants in how they should carry out their responsibilities under HB 282, a state law. The true nature of this “remedy” sounds in state law. Plaintiffs fail to persuade the court, at this juncture, that Pennhurst is not prohibitive of what they are asking this court to do. At the very least, Pennhurst presents another reason why Plaintiffs have not demonstrated a substantial likelihood of success on the merits. B. Plaintiffs have not shown a substantial threat of irreparable injury.
Plaintiffs contend that “[e]ligible HB 282 voters plainly face irreparable injury if the State does not take the[ ] [requested] commonsense steps to implement HB 282, correct recent unlawful voter registration purges and application denials, and educate voters about HB 282’s eligibility requirements.” (Pls.’ Mot. Prelim. Inj., at 26–27.) The argument is illogical on many levels.
“A showing of irreparable injury is the sine qua non of injunctive relief.” Siegel, 234 F.3d at 1176 (citations omitted). “[T]he asserted irreparable injury must
5 There is irony in this argument because HB 282 is not effective until August 1, 2017. However, because HB 282 voters will be able to vote in the August 15, 2017 special primary election, should they choose to register to vote, Defendants are applying the law now so that these individuals can meet the July 31 voter registration deadline.
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be neither remote nor speculative, but actual and imminent.” Id. (citations omitted). Here, for the most part, the asserted injuries are not actual.
An actual injury is imperceptible under these facts. An “HB 282 voter,” as Plaintiffs explain it, is an individual whose felony offense does not appear on the list of offenses in HB 282 and, thus, who is not disqualified to vote on the basis of a felony involving moral turpitude. The injuries alleged in Counts 6–10 focus on the harm to Plaintiffs—the inability to discern whether their felony convictions render them unable to vote—caused by § 177(b)’s “failure to define or list disqualifying crimes or crimes of moral turpitude.” (Compl. ¶ 198.) HB 282 has alleviated that harm. It is no longer problematic for Plaintiffs to determine whether they are eligible to vote. All a Plaintiff needs to know is the offense resulting in his or her conviction. If that felony is on the HB 282 list, he or she cannot vote; if it is not on that list, he or she can vote. Plaintiffs do not deny that HB 282’s “comprehensive list of crimes that ‘involve moral turpitude’” provides the clarity they sought for § 177(b).6 (Pls.’ Mot. Prelim. Inj., at 7.)
Having acknowledged that the alleged unconstitutional scheme (and thus necessarily the injury) of which Plaintiffs allege in the Complaint is “in the past” because of HB 282 (Prel. Inj. H’rg, June 25, 2017), Plaintiffs are left to argue that
6 At this phase of litigation, the parties have not argued, and the court does not address, felony convictions outside Alabama law. As alleged in the Complaint, all of the named Plaintiffs have Alabama felony convictions.
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Defendants are not doing enough to get the word out on HB 282 to all felons, who were previously disenfranchised under Alabama’s old § 177(b) scheme, but who now are eligible to vote by reason of HB 282.7 They want this court to direct the Alabama Secretary of State to post notice about HB 282’s voting eligibility standards on its website and to update state and federal voter registration forms.8 Plaintiffs go so far as to insist that as to those felons, who in the past two years were denied voter registration or were struck from the voter registration rolls, Defendants should automatically reinstate them on the voter registration rolls and provide them with individualized notice of their automatic registration and right to vote. Having reconstructed their injuries in their motion for preliminary injunction, Plaintiffs contend that, post HB 282, they have suffered injuries as a result of Defendants’ failure to take these affirmative steps to provide notice and automatic reinstatement.
But, at bottom, these alleged injuries are misdirected. It is true that, once the August 15 special primary election passes, “there can be no do-over” for an
7 Of the named Plaintiffs, Mr. Giles and Ms. Corley fit within this new class of HB 282 voters Plaintiffs have identified.
8 There is no dispute that the Alabama Secretary of State’s website includes an electronic state voter registration form and that the Secretary has modified the instructions on the electronic form by including a hyperlink that lists the HB 282 felonies. (See Ex. B, Decl. of Clay Helms ¶ 13.) Plaintiffs want this court to order the Alabama Secretary of State to attach the list generated by that hyperlink and attach that list to the PDF of the registration form. This additional step, says Plaintiffs, would give voters access to the HB 282 crimes list on the downloaded voter registration form.
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unconstitutionally disenfranchised voter. League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014). But the HB 282 voters do not contend that they have been disenfranchised. To quote Plaintiffs, HB 282 has “affirmed” these individuals’ right to vote. It would be an entirely different matter if Defendants were refusing to allow felons to register to vote where their offense of conviction was not on the HB 282 list. There is no evidence, however, that Defendants have denied any eligible HB 282 voter’s application to register to vote or have engaged in any type of prohibitive tactic. Instead, the evidence demonstrates that the county registrars, at the direction of the Alabama Secretary of State, are adhering to HB 282 and are permitting individuals to register whom HB 282 does not disqualify. Plaintiffs, who are eligible HB 282 voters, cannot claim irreparable harm when they have been granted the right to vote.9
Moreover, as to the different forms of notice Plaintiffs request—a posting on the Alabama Secretary of State’s website; updated state and federal registration forms; and individualized notice—Plaintiffs have presented no evidence that either named Plaintiff suffered any injury based upon a lack of notice. There is no evidence that Mr. Giles or Ms. Corley do not know that they can go to their respective county registrars office and register to vote. There is no evidence that imminent injury will
9 Alabama has in place statutory procedures for disenfranchised felons to request restoration of voting rights. There is no evidence that the State of Alabama is requiring an eligible HB 282 voter to apply to have his or her rights restored before he or she can register to vote.
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occur to Mr. Giles or Ms. Corley if the requested forms of notice are denied to them. Moreover, as a matter of general observation on public notice rather than a
finding, HB 282 and Alabama’s felon disenfranchisement laws have received widespread news coverage at the local, county, state, and national levels through broadcast news, the internet, and print media. Exhibits, submitted by both Plaintiffs and Defendants, include compilations of the coverage on these issues and confirm that there have been no less than thirty-five sources of publicity about Alabama’s laws on felon disenfranchisement, with most of those sources also reporting on HB 282. Notwithstanding Plaintiffs’ contention that Defendants have failed to provide adequate notice of HB 282 to the targeted felon pool of eligible HB 282 voters, it is relevant for the equitable equation that the press has assisted in notifying the public about HB 282.10
As to the putative class members of eligible HB 282 voters, the following represents the nature of Plaintiffs’ evidence. There is a declaration from a Greater Birmingham Ministries employee, who “think[s] many of these [eligible HB 282] voters may never discover that they have the right to vote” unless they receive “individual notification” of HB 282. (Shearer Decl. ¶ 10 (Doc. # 66-6).) She
10 The media coverage is not referenced here for the truth of the matter asserted, but rather to demonstrate that the news industry is reporting on HB 282 in and outside this state in multiple media formats. See, e.g., United States v. Michtavi, 155 F. App’x 433, 435 (11th Cir. 2005) (observing that “the Government did not offer the newspaper articles to prove the truth of the matter asserted therein—the occurrence of the drug bust—but rather to show that newspaper articles reporting a New York drug bust existed, and thereby rehabilitate Cohen’s testimony”).
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explains that many of the eligible HB 282 voters “are poor and do not have regular access to computers and the internet,” and, thus, “website notification alone would be insufficient.” (Id. ¶ 11.) There also are two declarations from individuals who are eligible HB 282 voters, but who say that they would have been “unaware of the new law and [their] ability to register to vote” if they had not been contacted by the Campaign Legal Center. (Brio Richardson Decl. ¶ 8 (Doc. # 66-9); (Willie Goldsmith Decl. ¶ 4 (Doc. # 66-10).)
Individualized notice, along with automatic reinstatement on the voter registration rolls, is what the putative class really seeks because Plaintiffs, in effect, concede that a posting on the Secretary’s website on HB 282 would not effectively reach eligible HB 282 voters. These affirmative steps, if Defendants were ordered to take them, would not give HB 282 voters any more voting rights than they have today.11 They, like their proposed class representatives, can register to vote in their respective counties; there is no question as to their eligibility to vote after HB 282.
Plaintiffs contend, though, that Hobson v. Pow, 434 F. Supp. 362 (N.D. Ala. 1977), requires individualized notice and reinstatement to the voter registration rolls
11 It can be assumed that a prominent posting about HB 282 on the Alabama Secretary of State’s website would provide the possibility of more opportunities, for an individual who previously was denied or purged from the voting list, to learn about his or her eligibility to register to vote under HB 282. It is just a possibility on this record, though, where one declarant claims it would be inadequate alone, no Plaintiff contends that such a notice would be adequate, and where the supposition is that most HB 282 voters do not have internet access. This requested relief is too speculative to warrant preliminary injunctive relief.
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of the eligible HB 282 voters. In that case, the district court enjoined the State of Alabama from disenfranchising men convicted of “wife-beating,” which it found to be an impermissible gender-based classification, and ordered registrars to “either publish the notice [of the court’s order] or send notice to each person purged by firstclass mail.” Id. It also ordered some counties to take the extra step of “reinstat[ing] all voters purged” for wife-beating. Id. at 368. Hobson is distinguishable for at least two reasons.
First, in Hobson, the plaintiffs secured the right to vote through litigation and a federal court order. Here, the State changed the law through legislation, which “everyone is presumed to know” and of which everyone “is bound to take notice.” See Meacham v. Halley, 103 F.2d 967, 972 (5th Cir. 1939). Second, Hobson found that it was a violation of equal protection to disqualify a discrete group of male felons (and not their female counterparts). The relief the court granted was prospective declaratory and injunctive relief compelling state officials to comply with federal law. There is no federal constitutional claim by the HB 282 voters; these voters have secured their right to vote. The relief they request arises under state law and seeks enforcement of state law. Again, the HB 282 voters’ claims in this lawsuit succumb to Pennhurst. Because their alleged injuries have no federal law grounding in this court, they cannot be said to be actual, irreparable, or imminent.
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Finally, Plaintiffs’ delay in seeking preliminary injunctive relief undercuts their argument of irreparable injury. Under Eleventh Circuit law, “[a] delay in seeking a preliminary injunction of even only a few months—though not necessarily fatal—militates against a finding of irreparable harm.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016).
Here, two significant events preceded Plaintiffs’ preliminary injunction motion. First, Plaintiffs have known since April 18, 2017, when Governor Kay Ivey signed a proclamation, of the dates for the special election for the United States Senate seat in Alabama. Yet, Plaintiffs delayed filing a preliminary injunction motion until nearly two-and-a-half months later on June 30, 2017. Second, Plaintiffs have been on notice since May 25, 2017, when HB 282 was enacted, of the bill’s effect on current felons’ eligibility to vote, but they still waited more than a month to file their preliminary injunction motion. The court is mindful of the efforts Plaintiffs say they made to reach an agreement with the State without the need for court intervention. But with a July 31 voter registration deadline for the special primary election looming and given the multitude of steps that the State must take to get ready for the election, the delay nevertheless cuts against the premise that these HB 282 voters needed urgent action to protect their rights.
For all of these reasons, Plaintiffs have not shown a substantial threat of irreparable injury if the requested relief is not granted.
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C. Plaintiffs have not shown that the threatened injury to them outweighs the harm an injunction may cause the defendant.
Plaintiffs argue that Defendants will not be harmed by their relief because “[i]t falls squarely within the Secretary of State’s responsibilities to update the voter registration forms, [the website], and all other voter education materials, both to reflect current Alabama law and to provide registrars with ‘uniform guidance’ on the administration of the Election Code.” (Pls.’ Mot. Prelim. Inj., at 27.) Plaintiffs contend that the important “principle of election law . . . that, because of the risk of voter confusion, courts as a general rule should be reluctant to allow last-minute changes to the status quo” is inapplicable in this case because their motion for a preliminary injunction is intended to eliminate confusion. Hall v. Merrill, 212 F. Supp. 3d 1148, 1157 (M.D. Ala. 2016) (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam)).
Contrary to Plaintiffs’ position, the requested preliminary injunction, if granted, would alter the status quo. Defendants would have to divert essential resources needed to prepare for and conduct the election in order to fulfill the many last-minute tasks that Plaintiffs want them to perform. Plaintiffs are requesting, for example, the court to order Defendants to send individualized notice to a sub-group of the approximate 60,000 felons who were removed from voter rolls or denied registration over an indeterminate time frame. Defendants have demonstrated, at the
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very least, that identifying the dates of conviction, the specific felonies committed, and whether new felonies had been committed would be an arduous, case-by-case task. With an election looming and only six employees in the Secretary of State’s Election Division, just the task of preparing the mass mailings to provide individualized notice to potential HB 282 voters in 67 counties and potentially 3,487 precincts would be massive, and likely impossible. Considering cumulatively Plaintiffs’ requests for preliminary injunction, completion of those tasks by Defendants so close to an election would harm Defendants.
Moreover, the harm to Defendants from this court’s meddling with the state’s election law is not inconsequential, particularly here, where Plaintiffs ask this court to oversee Defendants’ implementation of state law. The Eighth Circuit’s observations on principles of federalism are fitting:
The value of decentralized government is recognized more clearly today than it has been for decades. This recognition, born of experience, enables us (and not only us) to see that federal judicial decrees that bristle with interpretive difficulties and invite protracted federal judicial supervision of functions that the Constitution assigns to state and local government are to be reserved for extreme cases of demonstrated noncompliance with milder measures. They are last resorts, not first. Ass'n of Cmty. Organizations for Reform Now (ACORN) v. Edgar, 56 F.3d 791, 798 (7th Cir. 1995). Overall, Plaintiffs have not shown that the threatened injury to them outweighs the harm an injunction may cause Defendants.
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D. Plaintiffs have not demonstrated that a preliminary injunction would serve the public interest.
Finally, the public interest militates against the granting of the preliminary injunction motion. The HB 282 voters can have a voice in the election for the U.S. Senate seat in Alabama; all of them are, by Plaintiffs’ definition of the putative class, eligible to register to vote and to cast a vote in the special election. The grant of a preliminary injunction will not give these voters additional voting rights. HB 282 has advanced, therefore, the public interest in protecting voting rights from erroneous disenfranchisement, and, thus, there is little for the public to gain by granting Plaintiffs’ preliminary injunctive relief.
At the same time, “there is a strong public interest in smooth and effective administration of the voting laws that militates against changing the rules in the hours immediately preceding the election.” Summit Cty. Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547, 551 (6th Cir. 2004). Plaintiffs contend that they only are seeking enforcement of the new HB 282, not a change in the law, so as to avoid voter confusion. Even so, the diversion of the state’s resources to fulfilling Plaintiffs’ requested tasks, when balanced against the multitude of hurdles Plaintiffs face as to the other elements for obtaining injunctive relief and the steps Defendants have taken to implement HB 282, weighs heavily against granting preliminary injunction relief.
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VI. CONCLUSION HB 282 offered long-needed and sought-after clarification to the conundrum in the Alabama Constitution’s disenfranchising provision, § 177(b), when it defined a “felony involving moral turpitude.” HB 282 did not exist when Plaintiffs filed this lawsuit challenging § 177(b) on federal constitutional grounds, but after its enactment, Plaintiffs filed a motion for preliminary injunction asking this court to tell Alabama’s state officials how to implement the law. Plaintiffs’ motion, however, is based on claims that HB 282 has mooted; raises new claims, new requests for relief, a new putative class of voters who were ineligible to vote prior to HB 282, but now are eligible; seeks to alter the status quo; and raises serious concerns about federal instruction into state election law. The motion for preliminary injunction is due to be denied for all these reasons and more. Plaintiffs satisfy none of the elements for granting a preliminary injunction. Accordingly, based upon careful consideration of Plaintiffs’ motion for preliminary injunction, Defendants’ opposition, the evidentiary hearing, and the oral arguments, and the record, it is ORDERED that the motion (Doc. # 56) is DENIED. DONE this 28th day of July, 2017.
/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE
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 Case 2:16-cv-00783-WKW-CSC Document 80 Filed 12/26/17 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

TREVA THOMPSON, et al., Plaintiffs,
v. STATE OF ALABAMA, et al.,
Defendants.

)

)

)

)

) CASE NO. 2:16-CV-783-WKW

)

[WO]

)

)

)

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Under Alabama law, an individual of voting age who commits a “felony

involving moral turpitude” forfeits his or her right to vote. Ala. Const. art. VIII,

§ 177(b). Restoration of the right to vote is available only after the felon has

completed all the terms of his or her sentence, which includes full payment of all

fines, court costs, fees, and restitution. Ala. Code § 15-22-36.1 (2016). In this

putative class action against the State of Alabama and its officials, Plaintiffs contend

that these laws—section 177(b) of Article VIII of the Alabama Constitution of 1901,

and section 15-22-36.1 of the Alabama Code—violate the federal constitution and

section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Plaintiffs allege that, due to

their felony convictions or their financial inability to satisfy the monetary obligations

associated with their convictions, they cannot vote in the State of Alabama.

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In a prior Order, the court granted in part and denied in part Defendants’ motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure and noted that a memorandum opinion would follow. (Doc. # 75.) This is that opinion. For the reasons to follow, Counts 3, 4, 5, 6, 7, 8, 9, 10, 14, and 15 are due to be dismissed either for failure to state a claim upon which relief can be granted or sua sponte for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(6), (h)(3). But this action will proceed as to Counts 1, 2, 11, 12, and 13.
II. JURISDICTION AND VENUE Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331, with the exception of the counts over which this court lacks subject-matter jurisdiction for the reasons discussed below. The parties do not contest personal jurisdiction or venue.
III. STANDARDS OF REVIEW A. Rule 12(b)(6)
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint against the legal standard articulated by Rule 8 of the Federal Rules of Civil Procedure. Rule 8 provides that the complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must take the facts alleged in the complaint as
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true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). However, the court need not accept mere legal conclusions as true. Id. at 1325.
To survive a 12(b)(6) motion, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Additionally, notwithstanding the alleged facts, Rule 12(b)(6) “[d]ismissal is . . . permitted ‘when on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.’” Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (quoting Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)); see also Neitzke v. Williams, 490 U.S. 319, 326–27 (1989) (explaining that Rule 12(b)(6) allows a court “to dismiss a claim on the basis of a dispositive issue of law”). B. Rule 12(h)(3)
“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). “Rule 12(h)(3) motions are subject to the same standard as motions brought pursuant to Rule 12(b)(1)” of
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the Federal Rules of Civil Procedure. Peterson v. Cont’l Airlines, Inc., 970 F. Supp. 246, 248–49 (S.D.N.Y. 1997). In this case, the mootness inquiry is resolved on the complaint and the undisputed post-suit enactment of HB 282, as discussed in Part V.E., and, thus, presents a factual challenge. See Williamson v. Tucker, 645 F.2d 404, 413–14 (5th Cir. 1981)1 (explaining that a factual Rule 12(b)(1) motion can be resolved as a matter of law when it implicates facts outside the pleading that are not contested).
IV. BACKGROUND A. History of the Alabama Constitution’s Disenfranchisement of Individuals
Convicted of “Moral Turpitude” Crimes In the beginning, section 182 of the Alabama Constitution of 1901 denied the right to vote to individuals convicted of “any . . . crime involving moral turpitude,” be it a misdemeanor or a felony. Ala. Const. art. VII, § 182 (repealed 1996). Eightyfour years after the adoption of section 182, on a challenge to its application to misdemeanors, the U.S. Supreme Court in Hunter v. Underwood, 471 U.S. 222 (1985), held that section 182’s “original enactment was motivated by a desire to discriminate against blacks on account of race,” the impact of which had continued up to that point. Id. at 233. Thus, the Court struck down section 182’s
1 In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit issued prior to October 1, 1981. See 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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disenfranchisement provision as applied to misdemeanor offenses on grounds that it violated the Fourteenth Amendment’s Equal Protection Clause. The Court expressly declined to decide whether section 182 “would be valid if enacted today without any impermissible motivation.” Id.
A decade after the Court’s decision in Hunter, the Alabama Legislature replaced section 182. In 1996, the Alabama Legislature unanimously passed Amendment 579, and the state’s voters ratified the amendment thereafter. Amendment 579—hereinafter referred to and cited as section 177(b)2—provides that “[n]o person convicted of a felony involving moral turpitude . . . shall be qualified to vote until restoration of civil and political rights.” Ala. Const. art. VIII, § 177(b). Section 177(b) thus restricted disenfranchisement to individuals convicted of felonies involving moral turpitude and effectively re-enfranchised individuals convicted of misdemeanors involving moral turpitude.
Section 177(b), the same as its predecessor, did not define “moral turpitude.” The Alabama Constitution of 1901—and, until earlier this year, the Alabama Code—contained no definition of the phrase. As a result, the state’s county boards of registrars had the unenviable task of sorting through “Alabama case law or, in
2 In 2012, the Alabama Legislature proposed, and the voters approved, Amendment 865 to section 177. Amendment 865 added subsection (d) to section 177(b), providing that the “right of individuals to vote by secret ballot is fundamental.” (See Doc. # 43, Ex. D (Act No. 2011-656).) The amendment did not affect the disenfranchisement provision in subsection (b).
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absence of a court precedent, opinions of the Alabama Attorney General to determine whether” a given crime was a crime of moral turpitude. Hunter, 471 U.S. at 226; Pippin v. State, 197 Ala. 613, 616 (1916) (explaining, not too helpfully, that “moral turpitude” “impl[ies] something immoral in itself, regardless . . . whether it is punishable by law”). The Alabama Attorney General and the Alabama Administrative Office of Courts attempted to define the phrase in 2005, 2007, and 2008. (See Compl. ¶¶ 24–30, 32–35); see generally Chapman v. Gooden, 974 So. 2d 972, 976 (Ala. 2007) (recounting the Alabama Attorney General’s 2005 opinion listing crimes that the Alabama courts have determined are crimes involving moral turpitude under § 177(b)). But, as alleged in the Complaint, this administrative guidance “is non-exhaustive, non-authoritative, vague, and internally inconsistent.” (Compl. ¶ 23.) B. The Felony Voter Disqualification Act (“HB 282”)
The phrase “moral turpitude” evaded an authoritative definition until after the filing of this lawsuit. In its 2017 regular session, the Alabama Legislature defined the phrase “moral turpitude” for the first time when it unanimously passed the Felony Voter Disqualification Act, House Bill 282 (“HB 282”). Governor Kay Ivey signed HB 282 into law on May 25, 2017, and HB 282 went into effect on August 1, 2017.
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HB 282, which now is codified at section 17-3-30.1 of the Alabama Code, enumerates a list of more than forty Alabama felonies that “involv[e] ‘moral turpitude’” within the meaning of section 177(b). Only the Alabama felony convictions listed prohibit an individual from voting in Alabama. HB 282 sets out its purposes, which are:
a. To give full effect to Article VIII of the Constitution of Alabama of 1901, now appearing as Section 177 of Article VIII of the Official Recompilation of the Constitution of Alabama of 1901, as amended. b. To ensure that no one is wrongly excluded from the electoral franchise. c. To provide a comprehensive list of acts that constitute moral turpitude for the limited purpose of disqualifying a person from exercising his or her right to vote. Ala. Code § 17-3-30.1(b)(2) (2017). C. Section 15-22-36.1 of the Alabama Code Section 177(b) provides an exception to voter disqualification where the individual convicted of a felony involving moral turpitude has had his or her “civil and political rights” restored. Ala. Const. art. VIII, § 177(b). This exception leads to the second Alabama law challenged in this action, namely, section 15-22-36.1(3) of the Alabama Code. Under section 15-22-36.1, a convicted felon can apply for a Certificate of Eligibility to Register to Vote (“CERV”) from the Board of Pardons & Paroles. An individual convicted of a felony involving moral turpitude is eligible to receive a
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CERV if he or she meets specified requirements, including that “[t]he person has paid all fines, court costs, fees, and victim restitution ordered by the sentencing court at the time of sentencing on disqualifying cases.” Ala. Code § 15-22-36.1(a)(3). If a person meets the eligibility requirements for a CERV, issuance of the certificate is mandatory. Id. § 15-22-36.1(b). D. This Lawsuit
1. The Parties The ten individual Plaintiffs are Alabama citizens who, due to their felony convictions, have been purged from the voter registration list, have been denied applications to vote, or have not registered to vote in this state based on the uncertainty of whether their convictions disqualify them to vote. The organizational Plaintiff, Greater Birmingham Ministries, expends financial and other resources to help individuals with felony convictions determine if they are eligible to vote or to have their voting rights restored. The organization’s central goal is “the pursuit of social justice in the governance of Alabama.” (Compl. ¶ 62.) Plaintiffs also seek to certify a class of Plaintiffs defined as: “All unregistered persons otherwise eligible to register to vote in Alabama who are now, or who may in the future be, denied the right to vote because they have been convicted of a felony.” (Compl. ¶ 50.) The Complaint also enumerates nine subclasses of Plaintiffs.
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Defendants are the State of Alabama, Alabama’s Secretary of State, the Chair of the Board of Registrars for Montgomery County, and a Defendant class consisting of “[a]ll voter registrars in the State of Alabama.” (Compl. ¶ 68.) The individual Defendants are sued in their official capacities only.
2. The Claims The phrase “moral turpitude” is at the forefront of Counts 1 through 12, which challenge section 177(b) of the Alabama Constitution on federal constitutional and statutory grounds. Section 15-22-36.1 is the focus of the federal constitutional and statutory challenges in Counts 13 through 15. In Counts 1 through 12, Plaintiffs bring a multitude of challenges against section 177(b). They contend that section 177(b) is racially discriminatory (Counts 1, 2), denies black voters equal opportunity to participate in the political process (Count 3), denies the franchise to Plaintiffs without a compelling state interest (Count 4), restricts free speech and association (Count 5), and burdens the right to vote (Counts 6, 7). Plaintiffs contend further that section 177(b) disqualifies voters without due process (Count 8), is vague, arbitrary, and irrational (Counts 9, 10), is an ex post facto law that retroactively punishes citizens (Count 11), and imposes cruel and unusual punishment (Count 12). These counts allege violations under the First Amendment, the Eighth Amendment, the Fourteenth Amendment’s Equal
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Protection and Due Process clauses, the Fifteenth Amendment, and section 2 of the Voting Rights Act, 52 U.S.C. § 10301 (“VRA”).
In Counts 13 through 15, Plaintiffs allege that section 15-22-36.1(a)(3) transforms the ability to pay into an electoral standard, imposes a poll tax on voting, and denies black citizens the right to vote, in violation of the Fourteenth Amendment’s Equal Protection Clause, the Twenty-Fourth Amendment, and section 2 of the VRA, respectively. Specifically, two of the individual Plaintiffs allege that they cannot meet the eligibility requirements for voting because they “are unable to afford to pay their remaining legal financial obligations.” (Compl. ¶ 250.)
Plaintiffs ask for a declaratory judgment that section 177(b) of the Alabama Constitution, on its face and as applied, violates the First, Eighth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution, the Ex Post Facto Clause of Article I of the U.S. Constitution, and section 2 of the VRA. They also seek a declaratory judgment that section 15-22-36.1(a)(3) of the Alabama Code violates the Fourteenth and Twenty-Fourth Amendments to the U.S. Constitution and section 2 of the VRA.
3. The Order Denying Plaintiffs’ Motion for Preliminary Injunction After the enactment of HB 282, Plaintiffs moved for a preliminary injunction. They argued that Defendants “ha[d] refused to take any meaningful action to implement HB 282” prior to the voter registration deadline of July 31, 2017, for the special election for the U.S. Senate seat in Alabama. (Doc. # 56, at 7.) Plaintiffs
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sought preliminary injunctive relief for those individuals “whose voting rights under
Section 177 of the [Alabama] Constitution ha[d] been affirmed by HB 282.” (Doc.
# 56 at 7.) Plaintiffs moved this court to require Defendants to reinstate HB 282
voters—voters who had lost the right to vote in the past two years, but whose
eligibility was affirmed by HB 282—to the voter registration rolls and provide them
with individualized notice of their eligibility to vote.
After briefing and a hearing, the court denied the motion in an opinion entered
on July 28, 2017, finding that Plaintiffs had not met their high burden for obtaining
a mandatory preliminary injunction. Plaintiffs had failed to demonstrate that any of
the preliminary injunction factors weighed in their favor. Of significance here, the
court found that HB 282, which clarified for Plaintiffs whether their Alabama felony
convictions qualified as felonies “involving moral turpitude” under section 177(b),
mooted their vagueness challenges (Counts 6 through 10) to section 177(b)’s moral
turpitude phrase.3 The claims’ mootness is a jurisdictional flaw that precludes a
3 Plaintiffs’ preliminary injunction motion focused only on Counts 6–10. At the heart of these counts is a constitutional challenge that section 177(b)’s phrase “moral turpitude” is so vague that it fails to provide reasonable guidelines for determining whether a felony conviction “involves moral turpitude.” (See, e.g., Compl. ¶ 198 (“The failure [of the State of Alabama] to define . . . crimes of moral turpitude imposes an unconstitutional burden on those qualified to vote under Alabama law but who have been convicted of felonies.” (Count 6)); Compl. ¶ 207 (incorporating ¶ 198 into Count 7); Compl. ¶ 211 (“[T]he risk of erroneous deprivation [of procedural due process] is high” because county registrars, with no legal training, must interpret § 177(b) in order to determine a citizen’s eligibility to vote (Count 8)); Compl. ¶¶ 222, 224, 225 (§ 177(b)’s “prohibition on voting for those convicted of felonies involving moral turpitude—with possible exception of those crimes listed in Alabama Code Section 15-22-36.1(g)”—is standardless, does not provide fair notice of the conduct prohibited, and is void for vagueness (Count 9)); Compl. ¶ 227 (“Defendants’ enforcement of Section 177(b) is not guided by a principled determination of
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merits resolution of these claims. The court found that, because Counts 6, 7, 8, 9, and 10 are moot, Plaintiffs could not demonstrate a substantial likelihood of success on the merits and, thus, could not prevail on their preliminary injunction motion.
V. DISCUSSION A. Counts 1 and 2: Fourteenth and Fifteenth Amendments (Intentional
Racial Discrimination) In Counts 1 and 2, Plaintiffs contend that section 177(b) of the Alabama Constitution—which disenfranchises individuals convicted of felonies “involving moral turpitude”—violates the Fourteenth Amendment’s Equal Protection Clause and the Fifteenth Amendment because racial discrimination motivated its enactment. “A state’s decision to permanently disenfranchise convicted felons does not, in itself, constitute an Equal Protection violation.” Johnson v. Governor of State of Florida, 405 F.3d 1214, 1217 (11th Cir. 2005) (en banc) (citing Richardson v. Ramirez, 418 U.S. 24, 53–55 (1974)). However, states cannot promulgate felon disenfranchisement laws “with the intent to deprive one racial group of its right to participate in the political process.” Id. at 1218. The U.S. Supreme Court has articulated a two-step procedure for analyzing whether a disenfranchisement law violates the Equal Protection Clause.4 First, the
which felonies ‘involve moral turpitude’” and, thus, has resulted in a system of arbitrary disenfranchisement in violation of the Fourteenth Amendment (Count 10)).)
4 Proof of racially discriminatory intent also is required to establish a violation of the Fifteenth Amendment. See Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 481 (1997) (“Our decisions . . . have made clear that action by a State that is racially neutral on its face violates the
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inquiry focuses on whether racially discriminatory intent was a “‘substantial or motivating factor’” for the law’s enactment that “continues to this day to have that effect.” Hunter v. Underwood, 471 U.S. 222, 227–28 (1985). Second, “[o]nce racial discrimination is shown to have been a ‘substantial’ or ‘motivating’ factor behind enactments of law, the burden shifts [from the plaintiff] to the law’s defenders to demonstrate that the law would have been enacted without this factor.” Id. at 228 (applying this standard on review of a judgment after a trial on the merits); see also Johnson, 405 F.3d at 1222–23 (applying the Hunter Court’s two-step test in reviewing a summary judgment ruling). This two-part procedure is an evidentiary standard. Only the first step is relevant at the Rule 12(b)(6) motion-to-dismiss stage, where the pleadings are under scrutiny. See Hayden v. Paterson, 594 F.3d 150, 163 n.11 (2d Cir. 2010) (noting that Hunter’s burden-shifting analysis did not apply on an appeal from judgment on the pleadings and that the “only concern [was] the first step in this analysis” (“[E]stablishing [a] prima facie case under [the] burden-shifting scheme applicable to employment discrimination claims ‘is an evidentiary standard, not a pleading requirement . . . .’” (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002))).
Fifteenth Amendment only if motivated by a discriminatory purpose” (quoting City of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality opinion))). Hence, the court addresses Counts 1 and 2 under the same analytical framework.
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Based on the foregoing principles, to survive Rule 12(b)(6) scrutiny, the Complaint must contain plausible allegations that racial discrimination motivated the enactment of Alabama’s disenfranchisement provision. The U.S. Supreme Court has articulated six non-exhaustive factors that are probative of discriminatory intent. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). Those factors are: (1) “[t]he impact of the official action—whether it bears more heavily on one race than another”; (2) the historical context of the law, (3) the events leading up to the challenged decision; (4) departures from normal procedures; (5) departures from typical substantive, decision-making practices; and (6) “[t]he legislative or administrative history . . . , especially contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. at 266–68.
Here, without suggesting any view on whether Plaintiffs ultimately will be able to prove intentional discrimination and having considered Defendants’ arguments, the court finds, under Arlington Heights, that the law’s impact, its historical context, and the events leading up to the enactment of section 177(b) are sufficient to allege plausibly a discriminatory intent to disenfranchise black voters. First, Plaintiffs have alleged sufficient facts of a disproportionate impact of section 177(b) on the black voting-age population, as compared to the white voting-age population. According to the allegations, section 177(b) disenfranchises 15% of the
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black voting-age population in Alabama but only 5% of the white voting-age population. (Compl. ¶ 136.) Hence, the black voting-age population is three times as likely as the white voting-age population to suffer disenfranchisement under section 177(b). (See also Compl. ¶ 122 (stating that in 1995 “roughly 70 percent of Alabamans in prison were black”).)
Second, Plaintiffs have summarized the undisputed “well established and documented” history of racially motivated disenfranchisement laws in Alabama. (Compl. ¶¶ 93–105.) It is alleged that, Southern states, including Alabama, have used felon disenfranchisement dating back to Reconstruction “as a means of achieving the wholesale disenfranchisement of blacks.” (Compl. ¶ 93.) Significantly, the Supreme Court’s decision in Hunter, as recounted in the Complaint and elsewhere in this opinion, evidences that the Alabama Constitutional Convention of 1901 purposely produced a post-Reconstruction state constitution intended to discriminatorily disenfranchise the state’s black voting-age population. (Compl. ¶¶ 94–100); see also Hunter, 471 U.S. at 229 (observing that the Alabama Constitutional Convention of 1901 was “part of a movement that swept the postReconstruction South to disenfranchise blacks”). This historical context cannot be ignored.
Third, as to the sequence of events leading up to section 177(b), Plaintiffs allege that the racially discriminatory animus motivating the adoption in the 1901
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Alabama Constitution of section 182’s provision disenfranchising individuals convicted of “any . . . crime involving moral turpitude” infects section 177(b) because section 177(b) lifts the phrase “moral turpitude” directly from the 1901 Alabama Constitution. (Compl. ¶ 164.) Plaintiffs contend that the legislature’s adoption of the phrase “moral turpitude” as the disenfranchising guidepost in section 177(b), without clarification of the phrase’s meaning and denunciation of its racial heritage, makes it plausible that its motives included a racially impermissible one. In particular, Plaintiffs point out that an Alabama official criticized the inclusion of the phrase “moral turpitude” as having a dubious, ignoble usage and history” and its inclusion in section 177(b) as being “suspect.” (Compl. ¶ 121 (noting that an attorney, while employed by a state agency, criticized the inclusion of the phrase “moral turpitude” in section 177(b) as being “suspect” and as having a “dubious, ignoble usage and history”).)
These allegations show a connection between the past and the present that is sufficient to nudge the Fourteenth and Fifteenth Amendment claims “across the line from conceivable to plausible,” Twombly, 550 U.S. at 570, even if it appears “that a recovery is very remote and unlikely,” id. at 556 (citations and internal quotation marks omitted). It is undisputed that racial animus motivated Alabama lawmakers in 1901 to disenfranchise black voters under the guise of a facially neutral law. Whether the modern-day circumstances that Plaintiffs allege—the law’s allegedly
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continued disproportionate impact on the black voting-age population and section 177(b)’s reincorporation of a purportedly standardless standard (i.e., “moral turpitude”)—are enough to prevail on the merits of the Fourteenth Amendment equal protection and Fifteenth Amendment claims is not the question today. At this phase, when the well-pleaded facts are taken as true, Plaintiffs have alleged “enough to raise a right to relief above the speculative level,” id. at 555, and that is sufficient for the claims to survive Rule 12(b)(6) scrutiny and to proceed to the discovery phase where an evidentiary sifting on intent will occur.
Defendants persist, though, that the Eleventh Circuit’s en banc decision in Johnson v. Governor of State of Florida, 405 F.3d 1214 (11th Cir. 2005), compels a contrary finding. In Johnson, which was on appeal from a summary judgment ruling, the Eleventh Circuit rejected an equal protection claim that racial animus motivated the adoption of Florida’s 1968 reenactment of a century-old disfranchisement law. Johnson, at least presently, is distinguishable on three grounds.
First, the cases are in different procedural postures. Here, it is the pleading’s allegations that are subject to scrutiny, not summary judgment evidentiary submissions. See El-Amin v. McDonnell, No. 3:12-CV-00538-JAG, 2013 WL 1193357, at *4 (E.D. Va. Mar. 22, 2013) (denying a Rule 12(b)(6) motion to dismiss and distinguishing the Johnson decision on grounds that it was decided after “the
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parties filed summary judgment motions and submitted evidence, which is the appropriate time to determine whether the parties’ historical arguments stand up to scrutiny and what weight to afford them”). Indeed, the Johnson defendants suffered defeat on Rule 12(b)(6) review. The district court denied the motions to dismiss in a succinct order barely exceeding two pages. See Johnson v. Bush, 1:00-cv-03542JLK (S.D. Fla. Jan. 30, 2001) (order denying defendants’ motion to dismiss).
Second, there was no evidence in Johnson that Florida’s 1868 constitutional provision disenfranchising felons was the product of racial discrimination. Johnson, 405 F.3d at 1216; see also id. (observing that the “plaintiffs’ own historical expert conceded that prior to the instant case, no historian who had studied Florida’s 1868 Constitution had ever contemplated that the 1868 criminal disenfranchisement provision was enacted with discriminatory intent”). Here, the racial animus underlying the 1901 Alabama Constitution’s disenfranchisement law not only is pleaded, but also is a fact judicially established by the highest court in the land. See, e.g., Hunter, 471 U.S. at 233 (Section 182’s “original enactment was motivated by a desire to discriminate against blacks on account of race.”). Third, unlike Plaintiffs here, the Johnson plaintiffs did not allege that “racial discrimination motivated the adoption of Florida’s 1968 felon disenfranchisement law,” Johnson, 405 F.3d at 1220, and they “concede[d] that the 1968 provision was not enacted with discriminatory intent,” id. at 1223. There is no such concession here.
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Reviewing the well-pleaded allegations in the light most favorable to Plaintiffs and applying the Arlington Heights factors, the court finds that the Complaint states an actionable claim for intentional discrimination under the Fourteenth Amendment’s Equal Protection Clause and the Fifteenth Amendment. Accordingly, Defendants’ motion to dismiss Counts 1 and 2 is due to be denied. B. Count 3: Section 2 of the VRA
In Count 3, Plaintiffs allege that Alabama’s enforcement of section 177(b) of the Alabama Constitution impermissibly abridges the right to vote based on race, both through its purpose and results. They bring this claim under section 2 of the VRA.
Section 2 of the VRA prohibits states and their political subdivisions from enforcing any “qualification or prerequisite to voting” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S.C. § 10301(a). Section 2 encompasses claims that a voting practice results in racial discrimination and claims that a voting practice is purposefully racially discriminatory.5 See McMillan v. Escambia County, 748 F.2d 1037, 1046 (5th Cir. 1984) (“Congress intended that fulfilling either the more
5 After the U.S. Supreme Court interpreted section 2 of the VRA to cover only practices that were intentionally discriminatory, see Mobile v. Bolden, 446 U.S. 55 (1980), Congress amended the VRA in 1982 to permit a plaintiff to challenge a voting practice under a results test. See Chisom v. Roemer, 501 U.S. 380, 395 (1991) (explaining that section 2 adopted a results test, “thus providing that proof of discriminatory intent is no longer necessary to establish any violation of the section”).
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restrictive intent test or the results test would be sufficient to show a violation of section 2.”); Greater Birmingham Ministries v. Merrill, No. 2:15-CV-02193-LSC, 2017 WL 2903197, at *2 (N.D. Ala. July 7, 2017).
Relying on the Eleventh Circuit’s decision in Johnson, 405 F.3d at 1214, Defendants contend that Plaintiffs’ section 2 claim is not cognizable as a results claim or as a purposeful-discrimination claim. In Johnson, the Eleventh Circuit held that section 2 of the VRA did not apply to Florida’s felon-disenfranchisement law. After reviewing the congressional record accompanying amendments to the VRA, it reasoned, “Congress never intended the [VRA] to reach felon disenfranchisement provisions.” Id. at 1232; see also id. at 1234 (“Congress has expressed its intent to exclude felon disenfranchisement provisions from Voting Rights Act scrutiny.”). The Eleventh Circuit sought to avoid a construction of the VRA that conflicted with the U.S. Constitution. It explained that interpreting section 2 of the VRA to “prohibit a practice that the Fourteenth Amendment permits,” namely, a state’s enactment of a felon-disenfranchisement law, would “raise[] grave constitutional concerns” by effectuating a federal statutory override of the U.S. Constitution. Id. at 1232.
Plaintiffs propose two avenues to get around the Johnson decision. First, they contend that the Johnson decision does not foreclose a section 2 purposefuldiscrimination claim. (Doc. # 48, at 25.) Although the Johnson court’s discussion focuses on a section 2 results claim, the court’s pronouncements do not appear to
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leave a path under section 2 of the VRA for a purposeful-discrimination challenge to a felon-disenfranchisement law. The court’s holding, which excluded Florida’s disenfranchisement law from section 2’s reach, emanated from a perception that Congress did not intend for the VRA to apply at all to felon-disenfranchisement laws.6 At least two circuits have interpreted the Johnson decision as precluding categorically any challenge to a felon-disenfranchisement law under section 2 of the VRA. See Farrakhan v. Gregoire, 623 F.3d 990, 993 (9th Cir. 2010) (en banc) (per curiam) (stating that the Eleventh Circuit in Johnson “concluded that felon disenfranchisement laws are categorically exempt from challenges brought under section 2 of the VRA” (citing Johnson, 405 F.3d at 1234); Simmons v. Galvin, 575 F.3d 24, 31 (1st Cir. 2009) (observing that, in Johnson, “the Eleventh Circuit concluded in an en banc decision that all felon disenfranchisement claims are excluded from the scope of § 2 of the VRA” (emphasis added) (citing Johnson, 405 F.3d at 1214)).
Second, Plaintiffs argue that the Johnson decision does not foreclose a section 2 results claim where, as here, the “discriminatory result . . . involves more than simple disproportionality.” (Doc. # 48, at 26.) Their argument finds some support
6 The Johnson court was clear, though, that “states cannot use disenfranchisement provisions to discriminate intentionally on the basis of race.” 405 F.3d at 1230 (citing Hunter, 471 U.S. at 222). It said, “[P]laintiffs have a remedy if the state’s provision violates the Equal Protection Clause,” id. at 1230, a remedy that Plaintiffs pursue in this litigation.
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in the Ninth Circuit’s case law. Compare Farrakhan v. Washington, 338 F.3d 1009, 1014–15 (9th Cir. 2003) (“Farrakhan I”) (holding that section 2 of the VRA applied to Washington’s felon-disenfranchisement law), with Gregoire, 623 F.3d at 992–93 (expressing doubt as to the validity of Farrakhan I’s holding but concluding that “plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state’s criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent”). Regardless, Plaintiffs’ argument finds no sustenance in the pages of the Eleventh Circuit’s Johnson decision.
In sum, the Eleventh Circuit’s decision in Johnson forecloses Plaintiffs’ claim under section 2 of the VRA. Accordingly, Count 3 is due to be dismissed. C. Count 4: Fourteenth Amendment (Fundamental Right)
In Count 4, Plaintiffs allege that section 177(b) impermissibly burdens their fundamental right to vote in violation of the Equal Protection Clause of the Fourteenth Amendment. They advocate that, under the standard of strict scrutiny, Defendants must show a compelling state interest and narrow tailoring to further that interest in order to justify section 177(b)’s disenfranchisement of individuals convicted of felonies involving moral turpitude.
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Relying principally on the Supreme Court’s decision in Richardson v.
Ramirez, 418 U.S. 24 (1974), Defendants argue that Plaintiffs, as convicted felons,
do not have a fundamental right to vote. In its prior Order denying Plaintiffs’ motion
for preliminary injunction, this court rejected the argument that Plaintiffs, as
convicted felons, have a fundamental right to vote. It explained that, absent a
disenfranchisement classification that discriminates based on race or another suspect
class,
[a] state’s decision to deprive some convicted felons, but not others, of voting rights is not subject to a strict scrutiny standard. In Richardson v. Ramirez, 418 U.S. 24 (1974), the Supreme Court upheld a California statute disenfranchising felons convicted of “infamous crimes,” holding that, notwithstanding the guarantee of equal protection in [s]ection 1 of the Fourteenth Amendment, the reduced-representation clause in [s]ection 2 permitted the state to disenfranchise felons. See id. at 52–55. The Court rejected the petitioners’ argument that the statute limiting their voting rights was subject to strict scrutiny. It reasoned that states can disenfranchise felons on the “demonstrably sound proposition that [section] 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which [section] 2 imposed for other forms of disenfranchisement.” Id. at 55.
The Third, former Fifth, Sixth, and Ninth Circuits have interpreted Richardson’s analysis of the interplay between [s]ections 1 and 2 of the Fourteenth Amendment as immunizing felondisenfranchisement provisions from strict scrutiny under the Equal Protection Clause. In Owens v. Barnes, 711 F.2d 25 (3d Cir. 1983), which addressed a challenge that Pennsylvania’s law disenfranchising convicted felons during their incarceration violated equal protection, the Third Circuit held that Richardson compelled the conclusion that “the right of convicted felons to vote is not fundamental.” Id. at 27 (citing Richardson, 418 U.S. at 654). It held that “the state cannot only
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disenfranchise all convicted felons but it can also distinguish among them provided that such distinction is rationally related to a legitimate state interest.” Id. Pennsylvania could have rationally concluded that one of the losses attendant to incarceration should be the loss of “participation in the democratic process” and that incarcerated and unincarcerated felons did not stand on equal footing for purposes of voting rights. Id. at 28. The Sixth Circuit aligned with Owens, holding that “[i]t is undisputed that a state may constitutionally disenfranchise convicted felons,” [Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986)] (citing Richardson, 418 U.S. at 24), and that “the right to vote is not fundamental,” id. (citing Owens, 711 F.2d at 27).
The Ninth Circuit emphasized that, as for their equal protection claim, the plaintiffs could not “complain about their loss of a fundamental right to vote because felon disenfranchisement is explicitly permitted under the terms of Richardson, [4]18 U.S. at 55.” Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010). It explained that it would “not apply strict scrutiny as [it] would if plaintiffs were complaining about the deprivation of a fundamental right.” Id. Finally, in Shepherd v. Trevino, 575 F.2d 1110, 1114–15 (5th Cir. 1978), the former Fifth Circuit applied the rational-basis test, rather than strict scrutiny, to a state statutory scheme that disenfranchised all convicted felons, but that provided a mechanism [through the state] for the restoration of voting rights only to those who were convicted in state court, not federal court.
Thompson v. Alabama, No. 2:16-CV-783-WKW, 2017 WL 3223915, at *6 n.3
(M.D. Ala. July 28, 2017). Based on this court’s prior ruling and the well-reasoned
decisions of the Third, former Fifth, Sixth, and Ninth Circuits, section 177(b)—
Alabama’s disenfranchisement law—is not subject to a fundamental rights equal
protection analysis.
In their briefing, however, Plaintiffs seek to avoid this court’s prior ruling.
Count 4, they say, “present[s] a question never addressed by either the Supreme
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Court or the Eleventh Circuit” because the Richardson Court did not decide “which crimes fall under Section 1’s ‘affirmative sanction’ of disenfranchisement.” (Doc. # 48, at 43–44 (citing Richardson, 418 U.S. at 24).) Plaintiffs argue that they can prove that the phrase “other crime” in section 2 of the Fourteenth Amendment “does not extend to the crimes for which [they] were convicted.” (Doc. # 48, at 118.) Plaintiffs’ proffered construction of “other crime” would take their voting rights out of the reach of Richardson’s holding and put those rights back in the fundamental rights framework. But Plaintiffs’ failure to cite any supporting case law exemplifies the novelty of the theory. And the Ninth Circuit decision upon which Plaintiffs rely to argue that the “Supreme Court has not addressed [the] scope of [the] affirmative sanction in § 2” rejected a restricted definition of “other crimes.” Harvey, 605 F.3d at 1075 (“At bottom, plaintiffs provide absolutely no support for the proposition that the word ‘crimes’ meant ‘common-law felonies’ at the time of the Fourteenth Amendment’s ratification.”). The court declines to take Plaintiffs’ novel path and restrict felon disenfranchisement to the narrow circumstances they urge.
Accordingly, Count 4—which is a claim that section 177(b) violates equal protection under the strict scrutiny standard—is not legally cognizable. Because Plaintiffs’ pleading in Count 4 makes the claim therein contingent upon the application of a strict scrutiny standard of review, Count 4 is due to be dismissed.
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D. Count 5: First Amendment In Count 5, Plaintiffs allege that voting is a “form of speech and expression”
and that section 177(b) violates the First Amendment because it denies felons the right to vote for crimes that are unrelated “to the political act of voting, felonies at common law, or class A felonies under Alabama law.” (Compl. ¶ 191.)
Defendants urge dismissal of Count 5, arguing that the “fundamental rights
analysis that the Supreme Court held [did] not to apply to felons . . . is based jointly on the Fourteenth and First Amendment.” (Doc. # 43, at 38 (emphasis omitted)
(citing Richardson, 418 U.S. at 24).) Not surprisingly, Plaintiffs cite no decision in
their briefing in which a court has struck down a state’s felon-disenfranchisement
law on First Amendment grounds. To the contrary, as set out in the next footnote,
courts confronted with First Amendment challenges to felon-disenfranchisement
laws consistently have rejected such claims. Those courts have reasoned that the
First Amendment does not guarantee the right to vote, at least partly based upon the Supreme Court’s rationale in Richardson.7 This court aligns with these decisions.
7 See Farrakhan v. Locke, 987 F. Supp. 1304, 1314 (E.D. Wash. 1997) (To recognize a First Amendment claim, “the Court would have to conclude that the same Constitution that recognizes felon disenfranchisement under § 2 of the Fourteenth Amendment also prohibits disenfranchisement under other amendments . . . . The Court is not inclined to interpret the Constitution in this internally inconsistent manner or to determine that the Supreme Court’s declaration of the facial validity of felon disenfranchisement laws in Richardson v. Ramirez was based only on the fortuity that the plaintiffs therein did not make their arguments under different sections of the Constitution.”), rev’d in part on other grounds, 338 F.3d 1009 (9th Cir. 2003); accord Lawrie v. Harris, No. CIV S-11-0698 EFB P, 2011 WL 3501000, at *3 (E.D. Cal. Aug. 9, 2011) (“The First Amendment does not guarantee felons the right to vote.” (citing Farrakhan, 987
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Accordingly, Plaintiffs’ First Amendment claim in Count 5 fails on an issue of
dispositive law and is due to be dismissed.
E. Counts 6–10 (Vagueness Challenges Under the First and Fourteenth Amendments In a prior Order, the court found that HB 282, which was enacted after the
filing of this lawsuit, rendered Counts 6–10 moot and that this jurisdictional flaw
precluded Plaintiffs from demonstrating a substantial likelihood of success on the merits for purposes of their motion for preliminary injunction. (Doc. # 72, at 11–
18.) Because the issue of mootness was subject to review under the preliminary-
injunction standard, arose from a matter outside the pleadings (i.e., the undisputed
enactment of HB 282), and addressed subject-matter jurisdiction, the ruling cannot apply mechanically to Defendants’ pending Rule 12(b)(6) motion to dismiss.
Nonetheless, a federal court “ha[s] an independent obligation to determine
whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”8 Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). It must dismiss a
F. Supp. at 1314)); Hayden v. Pataki, No. 00 CIV. 8586 (LMM), 2004 WL 1335921, at *6 (S.D.N.Y. June 14, 2004) (“[T]he case law is clear that the First Amendment does not guarantee felons the right to vote.”), aff’d and remanded, 449 F.3d 305 (2d Cir. 2006), and aff’d and remanded sub nom. Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010); see Johnson v. Bush, 214 F. Supp. 2d 1333, 1338 (S.D. Fla. 2002) (“[I]t is clear that the First Amendment does not guarantee felons the right to vote.”), aff’d on other grounds, 405 F.3d 1214 (11th Cir. 2005).
8 Defendants did not raise mootness as a ground for dismissal in their pending motion to dismiss, but that is because the parties completed briefing on the motion to dismiss prior to HB 282’s enactment. Defendants did raise mootness in their brief in opposition to Plaintiffs’ motion for preliminary injunction. In any event, this court can consider an issue of mootness sua sponte.
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claim if at any time it determines that subject-matter jurisdiction is lacking. Fed. R. Civ. P. 12(h)(3). When a claim is moot, the court lacks subject-matter jurisdiction to adjudicate the claim. See Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007); see also Nat’l Advert. Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005) (“A change in the law . . . can give rise to mootness.”).
For the reasons set out in the court’s prior Order (Doc. # 72, at 11–18), which are incorporated here, Counts 6–10 are moot. Because the jurisdictional doctrine of mootness deprives the court of subject-matter jurisdiction over Counts 6–10, these counts will be dismissed without prejudice under Rule 12(h)(3). F. Count 11 (Ex Post Facto Clause) and Count 12 (Eighth Amendment)
In Count 11, Plaintiffs allege that section 177(b)’s felon-disenfranchisement provision imposes retroactive criminal punishment in violation of the Ex Post Facto Clause of the U.S. Constitution. See U.S. Const. art. I, § 10. In Count 12, Plaintiffs contend that section 177(b) constitutes “cruel and unusual punishment” in violation of the Eighth Amendment to the U.S. Constitution. See U.S. Const. amend. VIII.
The Eighth Amendment “bans only cruel and unusual punishment.” Wilson v. Seiter, 501 U.S. 294, 302 (1991). Similarly, “an ex post facto claim can only be successful if the law can be characterized ‘as “punishment” in the constitutional sense.’” Manocchio v. Kusserow, 961 F.2d 1539, 1541 (11th Cir. 1992) (emphasis added) (quoting Flemming v. Nestor, 363 U.S. 603, 613 (1960)). The Eighth
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Amendment and Ex Post Facto Clause focus, therefore, on proscribed forms of punishment.
The framework for analyzing whether a statute imposes punishment for purposes of the Eighth Amendment and the Ex Post Facto Clause is twofold. See Smith v. Doe, 538 U.S. 84, 92 (2003) (applying a two-step “intent-effects” test to analyze whether a state statute violated the Ex Post Facto Clause); United States v. Under Seal, 709 F.3d 257, 263 (4th Cir. 2013) (applying the Smith v. Doe framework to determine whether a statute imposed punishment proscribed by the Eighth Amendment). First, a court must look to the legislative intent at the time of the challenged statute’s passage. If “the intention of the legislature was to impose punishment, that ends the inquiry,” Smith, 538 U.S. at 92, and a plaintiff may proceed with the constitutional challenge. If, however, the legislature intended “to enact a regulatory scheme that is civil and nonpunitive,” the court must proceed to step two and determine “whether the statutory scheme is ‘“so punitive either in purpose or effect as to negate”’” the legislature’s civil intent. Id. (quoting United States v. Ward, 448 U.S. 242, 248–49 (1980)).
Defendants contend that Alabama’s felon-disenfranchisement law does not impose punishment and thus violates neither the Eighth Amendment nor the Ex Post Facto Clause. There is a long line of non-binding decisions, as Defendants point out, in which courts have rejected claims that felon-disenfranchisement laws
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transgress the Eighth Amendment’s prohibition against cruel and unusual
punishment or retrospectively increase punishment in violation of the Ex Post Facto
Clause. These decisions rest principally on the U.S. Supreme Court’s dicta in Trop
v. Dulles, 356 U.S. 86, 96 (1958), and a historical perspective that
disenfranchisement laws are non-penal regulations on voting eligibility.9 These
decisions ultimately may carry the day for Defendants, but not today.
Even if it is true that no court has found a felon-disenfranchisement law to
impose unconstitutional punishment, section 177(b) requires its own analysis.
Defendants’ arguments stop short of applying Smith v. Doe’s framework to section
177(b).10 Absent developed arguments from Defendants, the court declines to
formulate the arguments, to attempt to discern the legislature’s intent behind section
9 In Trop, the U.S. Supreme Court observed that “a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.” 356 U.S. at 595. It then cited a state’s disenfranchisement of an “ordinary felon” as an example of a non-penal law that would pass muster under the Ex Post Facto Clause:
A person who commits a bank robbery, for instance, loses his right to liberty and often his right to vote. If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise. Id. at 596 (internal footnote omitted). 10 Defendants’ collection of cases sheds light on whether felon-disenfranchisement laws have “been regarded in our history and traditions as a punishment.” Smith, 538 U.S. at 97. But that consideration is just one of many at the effects-stage of the Smith v. Doe analysis. That analysis becomes relevant only after a legislative intent to create a non-punitive regulatory scheme is shown at the intent-stage.
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177(b)’s enactment, and to apply the multiple factors relevant to that analysis. That analysis is better left for another stage of this lawsuit, on an evidentiary record and on reasoned arguments. Defendants’ motion to dismiss Counts 11 and 12 is due to be denied. G. Counts 13, 14, 15: Conditioning the Restoration of the Right to Vote upon
Payment of Fines, Court Costs, Fees, and Restitution In Counts 13, 14, and 15, Plaintiffs challenge section 15-22-36.1(a)(3) of the Alabama Code on federal constitutional and statutory grounds. Section 15-22-36.1 provides a process for convicted felons to obtain automatic restoration of their voting rights if, among other requirements, they have “paid all fines, court costs, fees, and victim restitution ordered by the sentencing court at the time of sentencing on disqualifying cases.” Ala. Code § 15-22-36.1(a)(3). If the convicted felon satisfies the specified statutory criteria, then the Alabama Board of Pardons and Paroles must issue him or her a “Certificate of Eligibility to Register to Vote” (“CERV”). Id. § 15-22-36.1(b). Plaintiffs contend that the statutory requirement conditioning restoration of voting rights on full payment of all case-related legal financial obligations (“LFOs”11) discriminates based on wealth in violation of the Equal
11 Plaintiffs use the term “LFOs” and define it as “including fines, fees, and restitution.” (See, e.g., Compl. ¶ 21.) Because Plaintiffs do not treat or analyze differently these three enumerated components of LFOs, which are all monetary parts of their criminal sentences, the court does not either.
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Protection Clause, is an impermissible poll tax that violates the Twenty-Fourth Amendment, and violates section 2 of the VRA.
Defendants submit one argument for why all three counts fail collectively. The court begins with this argument. However, because ultimately the argument fails, discussion with respect to Defendants’ alternative arguments directed to the individual counts will follow.
1. Alabama’s Alternative Pardon Process for Restoration of Voting Rights Felons can bypass section 15-22-36.1’s requirement of full payment of LFOs as a condition of voting restoration by applying for a pardon under section 15-22-36 of the Alabama Code. According to Defendants, “[t]he availability of a pardon under Alabama Code § 15-22-36 dooms” Counts 13, 14, and 15. (Doc. # 43, at 63.) They again rely on the Eleventh Circuit’s decision in Johnson, 405 F.3d at 1214, to support their argument. In Johnson, the plaintiffs filed a class action on behalf of all Florida citizens who had served their felony sentences, but who were ineligible to register to vote under Florida’s disenfranchisement law. See id. at 1216. The Eleventh Circuit summarily disposed of the plaintiffs’ claims that Florida’s executive clemency process for re-enfranchisement imposed a poll tax in violation of the Fourteenth Amendment, the Twenty-Fourth Amendment, and section 10 of the Voting Rights Act. Id. at 1216 n.1. It concluded that, because Florida’s procedure for applying for
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executive clemency provided a mechanism for felons who were financially unable to pay restitution to obtain the right to vote, “Florida d[id] not deny access to the restoration of the franchise based on ability to pay . . . .” Id. The fact that indigent felons had to submit to a hearing was “insufficient” to support their claims. Id.
As Defendants point out, the process for a convicted felon to obtain a pardon from the Alabama Board of Pardons and Paroles gives the board the authority to remit a fine associated with the conviction. See Ala. Code § 15-22-36(a). This alternative statutory avenue for a convicted felon to secure re-enfranchisement at first blush would seem to indicate that, in Alabama, like in Florida, “the right to vote can be granted to felons who cannot afford to pay restitution.” Id. Plaintiffs argue, though, that restoration of voting rights only through the pathway of a discretionary pardon with the potential for a fine remittance erects a barrier to voting based on the felon’s ability to pay. Namely, indigent felons, as opposed to felons with financial means, have only one of two state-provided methods to obtain the franchise and cannot pursue what Plaintiffs contend is the more preferable method of automatic restoration.
After careful consideration of the parties’ arguments, the court declines to dismiss Counts 13, 14, and 15 based upon the Johnson decision, which is the sole authority upon which Defendants rely. At least four reasons compel this conclusion.
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First, the Johnson court’s analysis of the plaintiffs’ poll tax claims is sparse, relegated to a short discussion in an introductory footnote. The bulk of that decision focused on other federal constitutional and statutory claims.
Second, Defendants analogize section 15-22-36.1 to Florida’s Rules of Executive Clemency, which were at issue in Johnson. But there is scant context in Johnson from which to construct a meaningful parallel between Florida’s and Alabama’s re-enfranchisement laws. The Johnson decision does not provide a citation for those rules or quote them, and Defendants do not submit the rules or provide meaningful discussion of their terms. Against this backdrop, it would be unwise to predicate a finding that section 15-22-36.1 does not deprive felons of “the restoration of the franchise based on ability to pay” on the bare fact that the Eleventh Circuit has found that a different Florida law does not.
Third, it is noted again that this action stands in a different procedural posture than the Johnson case. The claims in Johnson reached the circuit on cross-motions for summary judgment, not on a Rule 12(b)(6) motion to dismiss.
Fourth, Defendants do not address whether the distinctions, noted by Plaintiffs, between Alabama’s and Florida’s paths to re-enfranchisement (two paths versus one) are material ones. Suffice it to say, at this juncture, these distinctions separate this action from Johnson.
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So the court turns to Defendants’ other arguments, which are made with the assumption that Alabama law requires a felon to pay LFOs as a condition of reenfranchisement.
2. Count 13: The Fourteenth Amendment’s Equal Protection Clause Defendants contend that requiring convicted felons to pay LFOs as a condition of re-enfranchisement invokes rational basis review under the Fourteenth Amendment and that the State easily has four “legitimate interests that are rationally related to the requirement that felons pay all [LFOs] before having their rights restored.” (Doc. # 43, at 63.) Plaintiffs counter that none of the asserted reasons “meets the low standard of rationality, much less the heightened ‘compelling state interest’ standard [the State] must meet.” (Doc. # 48, at 86.) Hence, a preliminary dispute exists about which level of scrutiny applies in the equal protection analysis. Neither the U.S. Supreme Court nor the Eleventh Circuit has addressed the level of scrutiny applicable to equal protection challenges to felon-reenfranchisement laws. Even if this court were to align with the weight of nonbinding authority and apply rational basis review, dismissal under Rule 12(b)(6) is premature on Defendants’ thin arguments. Defendants provide only snippets from cases in a string citation to support their position that there are multiple rational bases for conditioning re-enfranchisement on the payment of fines, costs, and restitution.
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(Doc. # 43, at 64.) But even a cursory review of these cases reveals notable distinctions that Defendants have failed to address.
To illustrate, in Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010), the Ninth Circuit had “little trouble concluding that Arizona ha[d] a rational basis for restoring voting rights only to those felons who have completed the terms of their sentences, which includes the payment of any fines or restitution orders.” Id. at 1079. But, in Harvey, unlike in this case, no plaintiff had “alleged that he [was] indigent”; hence, the Ninth Circuit expressly declined to address whether “withholding voting rights from those who are truly unable to pay their criminal fines due to indigency would not pass this rational basis test . . . .” Id. Defendants omit any reference to this factual distinction in their cursory citation to Harvey. (See Doc. # 43, at 64.)
For now at least, Count 13 will go forward. Defendants’ motion to dismiss Count 13 is due to be denied.
3. Count 14: The Twenty-Fourth Amendment (Poll Tax) The Twenty-Fourth Amendment prohibits laws that deny or abridge the right to vote “by reason of failure to pay any poll tax or other tax.” U.S. Const. amend. XXIV. Defendants present multiple arguments, all of which Plaintiffs refute, why Count 14 fails as a matter of law. One is dispositive: Section 15-22-36.1(a)(3) is not a poll tax.
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A state may not make a voter’s affluence or ability to pay a poll tax an electoral standard. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966). Several courts, including the Sixth Circuit, have reasoned persuasively that requiring full payment of criminal fines and restitution as a condition of re-enfranchisement does not amount to a poll tax because the fines are terms of the sentence that “Plaintiffs themselves incurred.”12 Johnson v. Bredesen, 624 F.3d 742, 751 (6th Cir. 2010); see also Harvey, 605 F.3d at 1080 (“That restoration of [convicted felons’] voting rights requires them to pay all debts owed under their criminal sentences does not transform their criminal fines into poll taxes.”). In Bredesen, convicted felons who had served their prison sentences and had satisfied the conditions of supervised release were ineligible under Tennessee law to register to vote because they owed past-due child support payments or restitution to the victims of their criminal offenses. Affirming a judgment on the pleadings for the defendants, the Sixth Circuit held that, “even if the Twenty-Fourth Amendment applied to Tennessee’s reenfranchisement law, the provisions requiring payment of restitution and child support do not represent taxes on voting imposed by the state, and therefore do not violate the Amendment’s terms.” Bredesen, 624 F.3d at 751. In other words, “restitution and child-support-payment provisions fail to qualify as the sort of taxes
12 In Johnson v. Governor of State of Florida, 405 F.3d 1214 (11th Cir. 2005), the Eleventh Circuit declined to address “whether conditioning an application for clemency on paying restitution would be an invalid poll tax.” Id. at 1217.
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the Amendment seeks to prohibit.” Id.; see also Johnson v. Bredesen, 579 F. Supp. 2d 1044, 1059 (M.D. Tenn. 2008) (“Imposing a requirement that convicted felons comply with . . . outstanding court orders cannot reasonably be construed as a ‘tax’ on voting.”), aff’d, 624 F.3d 742 (6th Cir. 2010); Coronado v. Napolitano, No. CV– 07–1089–PHX–SMM, 2008 WL 191987, at *4–5 (D. Ariz. Jan. 22, 2008) (finding that Arizona’s re-enfranchisement law did not “make ability to pay ‘an electoral standard,’ but limit[ed] re-enfranchisement to those who ha[d] completed their sentences—including the payment of any fine or restitution imposed”).
Based on the foregoing persuasive authority, Alabama’s statutory requirement that Plaintiffs must pay their LFOs to be eligible for a CERV does not impose a poll tax and, thus, does not violate the Twenty-Fourth Amendment. Consequently, Plaintiffs fail to state a claim upon which relief can be granted under the TwentyFourth Amendment. Count 14 is due to be dismissed.
4. Count 15: Section 2 of the VRA In Count 15, Plaintiffs allege that section 15-22-36.1(a)(3) “disproportionately disenfranchises black citizens with prior disqualifying convictions compared to white citizens with prior disqualifying convictions.” (Compl. ¶ 258.) Consequently, Plaintiffs argue that section 15-22-36.1(a)(3) violates section 2 of the VRA “because it results in the denial of the right to vote on account of race.” (Compl. ¶ 260.)
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Although Count 15 challenges Alabama’s conditions of re-enfranchisement, as opposed to Alabama’s conditions for disenfranchisement, the theory outlined in Count 15 is that section 15-22-36.1 is a disenfranchisement law. In other words, the Complaint’s theory recognizes no difference in the aims of Alabama’s laws on disenfranchisement and re-enfranchisement. For this reason, as Defendants urge, Count 15, like Count 3, cannot survive in the wake of the Eleventh Circuit’s Johnson decision: “Congress never intended the [VRA] to reach felon disenfranchisement provisions.” 405 F.3d at 1232. Accordingly, Count 15 is due to be dismissed.
VI. CONCLUSION To summarize the more-than-nine-thousand words preceding this section in a single thirty-six-word sentence: Plaintiffs’ challenge to Alabama’s constitutional and statutory scheme for the disenfranchisement and re-enfranchisement of individuals convicted of crimes of moral turpitude will proceed, but only on a third of the counts in Plaintiffs’ fifteen-count complaint. Consistent with the reasoning of this opinion, it is ORDERED as follows: (1) Counts 3, 4, 5, 14, and 15 are DISMISSED with prejudice for failure to state a claim upon which relief can be granted; and (2) Counts 6, 7, 8, 9, and 10 are DISMISSED without prejudice for lack of subject-matter jurisdiction.
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This action proceeds as to five counts: Plaintiffs’ claims that section 177(b) of the Alabama Constitution is racially discriminatory in violation of the Fourteenth Amendment’s Equal Protection Clause and the Fifteenth Amendment (Counts 1 and 2); Plaintiffs’ claim that section 177(b) is an ex post facto law that retroactively punishes citizens (Count 11); Plaintiffs’ claim that section 177(b) violates the Eighth Amendment’s proscription against cruel and unusual punishment (Count 12); and Plaintiffs’ claim that section 15-22-36.1(a)(3) of the Alabama Code violates the Fourteenth Amendment’s Equal Protection Clause (Count 13).
DONE this 26th day of December, 2017. /s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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 Case 2:16-cv-00783-ECM-SMD Document 178 Filed 12/03/19 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

TREVA THOMPSON, et al., Plaintiffs,
v. STATE OF ALBAMA, et al.,
Defendants.

)

)

)

)

) CIVIL CASE NO. 2:16-cv-783-ECM

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[WO]

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)

MEMORANDUM OPINION and ORDER Now pending before the Court are a renewed motion to dismiss, motion to dismiss supplemental complaint, or in the alternative, motion for summary judgment (Doc. 95) filed by the Defendants on March 15, 2018; a cross-motion for summary judgment on count 18 (Doc. 97) filed by the Plaintiffs on April 5, 2018; and a motion to strike untimely declaration (Doc. 109) filed by the Defendants on May 22, 2018. Upon consideration of the complaint, the supplemental complaint, the motions, and the briefs and submissions of the parties, and for the reasons that follow, the Defendants’ renewed motion to dismiss is due to be DENIED, the motion to dismiss is due to be GRANTED in part and DENIED in part, the motions for summary judgment are due to be DENIED, and the motion to strike is due to be DENIED as moot.

I. FACTS and PROCEDURAL HISTORY The individual Plaintiffs are citizens who either have been denied applications to vote because of, or have not registered to vote due to uncertainty arising from, the Alabama

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Constitution’s exclusion from voting of persons convicted of crimes of moral turpitude. The organizational plaintiff, Greater Birmingham Ministries (“GBM”), expends resources to help individuals with felony convictions determine if they are eligible to vote or to have their voting rights restored.
In 1996, an amendment to the Alabama Constitution was ratified which provides that “[n]o person convicted of a felony involving moral turpitude . . . shall be qualified to vote until restoration of civil and political rights.” Ala. Const. art. VIII, § 177(b). This section did not define “moral turpitude.” A separate statute, Ala. Code §15-22-36.1(a)(3), sets out the procedure for a person to apply to the Board of Pardons and Paroles for a Certificate of Eligibility to Register to Vote.
On September 26, 2016, the Plaintiffs filed a putative class-action complaint in this Court challenging Alabama Constitution §177(b) and Ala. Code §15-22-36.1(a)(3).
The Defendants filed a motion to dismiss the original complaint on November 16, 2016. (Doc. 43).
House Bill 282 (“HB 282”), codified at Ala. Code § 17-3-30.1, went into effect on August 1, 2017, and defines crimes of moral turpitude. The statute lists forty-seven crimes tied to specific Alabama Criminal Code Sections and lists crimes “as defined by the laws of the United States or by the laws of another state, territory, country, or other jurisdiction, which, if committed in this state, would constitute one of the offenses listed in this subsection.” Ala. Code § 17-3-30.1(c).
On December 26, 2017, the Court denied the Defendants’ motion to dismiss in part and granted it in part. (Doc. 80). The Court concluded that counts asserting vagueness of
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§ 177(b) were mooted by Ala. Code. § 17-3-30.1 and dismissed those counts. (Doc. 80 at 28).
With respect to counts 1 and 2, which are claims that section 177(b) of the Alabama Constitution violates the Fourteenth and Fifteenth Amendments, this Court found as follows:
Here, without suggesting any view on whether Plaintiffs ultimately will be able to prove intentional discrimination and having considered Defendants’ arguments, the court finds, under Arlington Heights that the law’s impact, its historical context, and the events leading up to the enactment of section 177(b) are sufficient to allege a plausibly discriminatory intent to disenfranchise black voters. (Doc. 80 at 14). As to counts 11 and 12, which are claims that section 177(b) is an Ex post facto law that retroactively punishes citizens and violates the Eighth Amendment’s proscription against cruel and unusual punishment, this Court found as follows: Absent developed arguments from Defendants, the court declines to formulate the arguments, to attempt to discern the legislature’s intent behind section177(b)’s enactment, and to apply the multiple factors relevant to that analysis. That analysis is better left for another stage of this lawsuit, on an evidentiary record and on reasoned arguments. (Doc. 80 at 30-31). As to count 13, the Court concluded that the parties had not adequately addressed in briefing the level of scrutiny to be applied in the analysis and found even rational basis review did not justify dismissal on the Defendants’ thin arguments. (Doc. 80 at 35).
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As a result of this Court’s Order, the Plaintiffs proceeded on their claims in counts 1, 2, 11, 12, and 13. (Doc. 80 at 40).
On March 1, 2018, the Plaintiffs filed a supplemental complaint (Doc. 93).1 In it, the Plaintiffs have alleged that the Alabama Secretary of State unilaterally determined that HB 282 applies retroactively to persons convicted of crimes prior to the effective date of HB 282. (Doc. 93 at ¶14). They contend that the statute is plainly written to apply prospectively. In their supplemental complaint, the Plaintiffs added factual allegations to counts 1, 2, 11, 12, and 13 and added counts 16, 17, and 18. Count 16 is a claim that the Secretary of State’s determination that HB 282 applies retroactively is contrary to the language of the statute and therefore violates the Due Process Clause of the Fourteenth Amendment. Count 17 is a claim that the retroactive application of Ala. Code § 17-3-30.1 violates the Due Process Clause.
Count 18 is a claim for violation of the National Voter Registration Act of 1993, 52 U.S.C. § 20501 et seq. (“NVRA”). The Plaintiffs challenge two forms: the State of Alabama Mail-In Voter Registration Form (“State Form”) and the state-specific instructions for Alabama on the National Mail Registration Form (“Federal Form”). The Plaintiffs’ statutory claim is that Defendants failed to include complete voter eligibility requirements on the forms in violation of the NVRA by referring only to “disqualifying felonies” without listing those felonies. At the time of the supplemental complaint, the

1

The Plaintiffs did not file a complete, new amended complaint. Instead, they began the

supplemental complaint with the new count 16. They also included additional facts relevant to

counts in the supplemental complaint.

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State Form stated simply that to register to vote in Alabama a person must not have been convicted of a disqualifying felony, or if the person has been convicted, must have had their civil rights restored. (Doc. 93 at ¶ 19).
In response to the supplemental complaint, the Defendants filed a motion to dismiss which renews their motion to dismiss as to counts 1, 2, 11, 12, and 13; which seeks dismissal of counts 16, 17, and 18; and which alternatively moves for summary judgment as to count 18. The Plaintiffs have cross-moved for summary judgment as to count 18.
On July 23, 2019, the Defendants filed a notice with the Court and attached to that notice a revised State Form (Doc. 171-1 at 4) which states in the requirements section that to register to vote you must not “have been convicted of a disqualifying felony, or if you have been convicted, you must have had your civil rights restored.” In the Voter Declaration section, the form now also includes this statement: “I am not barred from voting by reason of a disqualifying felon conviction (The list of disqualifying felonies is available on the Secretary of State’s web site at: sos.alabama.gov/mtfelonies).” (Doc. 1711 at 4). The State instructions for the Federal Form now state that to register in Alabama you must “not have been convicted of a felony involving moral turpitude (or have had your civil and political rights restored). The list of moral turpitude felonies is available on the Secretary of State web site at: sos.alabama.gov/mtfelonies.” (Doc. 171 at 2).
The parties have advanced arguments regarding the revised forms in notices to the Court filed by the Defendants and a response to Defendants’ notice filed by the Plaintiffs. (Doc. 161, 164, 171). The parties have also filed supplemental notices regarding two non-binding decisions. (Doc. 173, 174).
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II. LEGAL STANDARDS A. Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8: “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U. S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for relief [is] ... a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 663 (alteration in original) (citation omitted). The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U. S. at 678. Conclusory allegations that are merely “conceivable” and fail to rise “above the speculative level” are insufficient to meet the plausibility standard. Twombly, 550 U. S. at 555, 570. This pleading standard “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Id. at 678. Indeed, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.
B. Motion for Summary Judgment “Summary judgment is proper if the evidence shows ‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”
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Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). “[A] court generally must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1252 (11th Cir. 2016). However, “conclusory allegations without specific supporting facts have no probative value.” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924–25 (11th Cir. 2018). If the record, taken as a whole, “could not lead a rational trier of fact to find for the non-moving party,” then there is no genuine dispute as to any material fact. Hornsby-Culpepper, 906 F.3d at 1311 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The movant bears the initial burden of demonstrating that there is no genuine dispute as to any material fact, and the movant must identify the portions of the record which support this proposition. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The movant may carry this burden “by demonstrating that the nonmoving party has failed to present sufficient evidence to support an essential element of the case.” Id. The burden then shifts to the non-moving party to establish, by going beyond the pleadings, that a genuine issue of material fact exists. Id. at 1311–12.
In resolving cross-motions for summary judgment, the Court construes the facts in the light most favorable to the nonmovant when the parties' factual statements conflict or inferences are required. Barnes v. Southwest Forest Industries, 814 F.2d 607, 609 (11th Cir.1987). Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter
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of law on facts that are not genuinely disputed. United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984).
III. DISCUSSION The Defendants move to dismiss certain parties based on the Court’s previous Order; renew their original motion to dismiss as to counts 1, 2, 11, 12, and 13; move to dismiss counts 16 and 17 of the supplemental complaint; and move to dismiss or alternatively for summary judgment as to count 18 of the supplemental complaint. The Plaintiffs filed a motion for summary judgment only as to count 18. In connection with the summary judgment motion, the Defendants move to strike evidence submitted by the Plaintiffs. The Court will consider each motion in turn. A. Motion to Dismiss Certain Parties The Defendants contend that because in its previous Order the Court dismissed all of the counts in which the State of Alabama is listed as a Defendant, the State ought to be dismissed as a party. The Plaintiffs do not respond to this argument in their brief, apparently conceding the point. The Plaintiffs’ supplemental complaint lists Defendant John H. Merrill, in his official capacity as the Secretary of State, not the State of Alabama, as the first Defendant, and no count of the supplemental complaint is asserted against the State of Alabama. (Doc. 93). The Court concludes, therefore, that the State of Alabama is due to be dismissed as a separate party. The Defendants also argue that Plaintiffs Antwoine Giles (“Giles”) and Laura Corley (“Corley”) are now able to vote, so their claims are moot, and they should be
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dropped as Plaintiffs in this case. The Plaintiffs respond that they have not agreed to the dismissal of Giles and Corley because they wish to preserve the issue of mootness for appeal. (Doc. 97 at 8, n.1). It appears that the Plaintiffs do not dispute that the claims of these two Plaintiffs are moot under this Court’s analysis. The Plaintiffs can appeal a mootness determination by the Court. See, e.g., Troiano v. Supervisor of Elections in Palm Beach Co., Fla., 382 F.3d 1276, 1281 (11th Cir. 2004) (voters appealed determination that their claims were moot). Accordingly, the Court will grant the motion to dismiss and dismiss these two Plaintiffs’ claims on the ground of mootness.
B. Motion to Dismiss Counts 1, 2, 11, 12, 13 With respect to counts 1, 2, and 13, the Defendants merely reincorporate the briefs they submitted in support of their original motion to dismiss. (Doc. 95 at 2, 13).2 The Plaintiffs respond that successive motions to dismiss the same claims are improper, and also argue that as a motion to reconsider, the Defendants’ motion is due to be denied because it is inappropriate to relitigate issues raised in an earlier motion, citing Harris v. Corr. Corp. of Am., 433 F. App’x 824, 825 (11th Cir. 2011). Although the Plaintiffs added factual allegations in their supplemental complaint, the Defendants’ motion as to counts 1, 2, and 13 is based on the same arguments already advanced in its initial motion and is construed as a request for reconsideration of the Court’s denial of the motion to dismiss as to those counts. Motions to reconsider are

2

The Defendants also reincorporate their briefing from the original motion to dismiss as to

count 12, but they also advance additional arguments which they contend apply to count 11 and

count 12. The Court will address separately counts 11 and 12.

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generally granted only if there is newly-discovered evidence or a manifest error of law or fact. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). By merely citing to previous briefing on an earlier motion, the Defendants have established neither. The Court concludes, therefore, that there is no cause to reconsider its determination, and concludes that that the renewed motion to dismiss is due to be DENIED as counts 1, 2, and 13.
With respect to counts 11 and 12 of the original complaint, the Defendants again do not contend that there is new information, but merely state that the claims should be dismissed based on “developed arguments” that were “not highlighted in [the] original motion to dismiss.” (Doc. 95 at 2). The Defendants assert that the complaint and supplemental complaint do not plead a plausible Ex post facto or Eighth Amendment claim because the Plaintiffs do not allege that felon disenfranchisement is penal in nature, and the statutes do not impose greater punishment than the law at the time of the Plaintiffs’ offenses.
The Plaintiffs respond that raising these arguments now is inappropriate. Cf. Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (stating “[t]he purpose of a Rule 59(e) motion is not to raise an argument that was previously available but not pressed.”).
This Court previously determined that the question of whether the statutes in question constitute punishment is one which must be determined after factual development, and after application of multi-factor analysis. (Doc. 80 at 29-31). This Court explained that the determination of the punitive nature of the statutes could not be made without an “evidentiary record” and “developed arguments.” (Doc. 80 at 30-31). Therefore, the Court
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is not inclined to revisit its analysis as to counts 11 and 12 because there is not yet an evidentiary record.
Even if the Court considered the Defendants’ now-developed arguments, the Court notes, as the Plaintiffs point out in their opposition to the new motion to dismiss, that the Eleventh Circuit has acknowledged that criminal disenfranchisement provisions have existed as a punitive device. See Johnson v. Governor of State of Fla., 405 F.3d 1214, 1218 & n.5 (11th Cir. 2005) (en banc). As this Court explained previously, in examining an Ex Post Facto Clause challenge, a court must look to the legislative intent at the time of the challenged statute’s passage. (Doc. 80 at 29). The Court, therefore, again concludes that factual development is needed to evaluate the claims.
With respect to the argument that there can be no plausible allegation that a new punishment is imposed, the Court finds this argument unavailing, based on its previous Orders. This Court previously reasoned that HB 282 mooted some claims because it clarified for the Plaintiffs the convictions which are felonies involving moral turpitude. (Doc. 80 at 28)(incorporating Doc. 72 at 17-18). The amended statutes as applied have made it clear, whereas before it was arguably unclear, which persons are now disenfranchised. Therefore, for purposes of a motion to dismiss, the Court concludes that the Plaintiffs have stated a plausible claim that greater punishment is now imposed by the clarified law than the arguably ambiguous law in effect at the time of the Plaintiffs’ offenses. The Court again concludes that the motion to dismiss as to counts 11 and 12 is due to be DENIED.
C. Motion to Dismiss Count 16 11

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The Defendants move to dismiss count 16 on the ground that if it is a claim that the Secretary of State is not correctly enforcing the new statute, it is barred by the Eleventh Amendment. The Defendants also argue that there is no substantive due process right to vote for felons, that an error in applying state law cannot constitute a procedural due process violation, and that the Plaintiffs have not shown the lack of a state remedy. The Defendants also take issue with the Plaintiffs’ reading of §177(b). Finally, the Defendants argue that if there is any question about the meaning of the state law, this Court should certify a question to the Alabama Supreme Court.
Count 16 of the supplemental complaint alleges that the Plaintiffs have been deprived of a state-created right to vote in violation of the Due Process Clause of the Fourteenth Amendment. The Plaintiffs’ theory is that the retrospective application of Section 17-3-30.1 to people with disqualifying convictions before August 1, 2017 is not consistent with the wording of the statute and, therefore, the disenfranchised are deprived of their right to vote in violation of the Due Process Clause. The claim is not, as the Defendants have characterized it, that the State of Alabama was improperly applying state law as a stand-alone claim, but is instead that by interpreting state law to apply retrospectively, the State of Alabama has violated state law in a way which violated the federal rights of voters who had committed certain felonies which had not been determined to be disqualifying at the time of their offense.
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The Plaintiffs rely in part on Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981),3 in response to the Defendants’ arguments based on procedural due process. In Duncan, the court examined a violation of substantive due process when a state failed to provide an election, impinging on the right to vote. Id. at 704. The Plaintiffs’ position is that once the State of Alabama gave certain persons with felony convictions the right to vote, it could not then take away that right in violation of state law. (Doc. 97 at 29).
The Plaintiffs’ characterization of their claim, as the Court understands it, is one which has not been thoroughly addressed by the Defendants and which the Court finds needs additional briefing. The arguments which have been advanced also reveal that development of the facts is required. For example, the Defendants support their interpretation of state law by relying on the complexity of administering the statute under a different interpretation and on the number of people disenfranchised under a particular interpretation. (Doc. 95 at 14 & n.6). Relying on outside indicators of legislative intent does not appear consistent with plain meaning analysis. See Chism v. Jefferson Cty., 954 So. 2d 1058, 1069 (Ala.)(quotation omitted)(stating “a court should gather the legislative intent from the language of the statute itself. If the statute is ambiguous or uncertain, the court may consider conditions that might arise under the provisions of the statute and examine results that would flow from giving the language in question one particular meaning rather than another.”), as modified on reh'g (Ala. 2006); cf. Landgraf v. USI Film Prod., 511 U.S. 244, 280 (1994)(examining retroactivity in the context of federal law and

3

Decisions of the former Fifth Circuit issued prior to October 1, 1981 are binding precedent.

Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1210 (11th Cir.1981) (en banc).

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stating that “first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules.”). Therefore, the Defendants’ argument that the statute must be interpreted as applying retrospectively may ultimately prevail, but it needs further factual development.
The Court cannot agree that the Defendants have established a basis for dismissal of count 16 at this point in the proceedings. The issues raised, including the issue of whether a question should be certified to the Alabama Supreme Court, can be taken up again at a later point in the proceedings after development of the facts, along with other issues that require more complex analysis than has been provided to this point.
D. Motion to Dismiss Count 17 The Defendants contend that this count of the supplemental complaint is duplicative of the Ex Post Facto Clause claim and suffers from the same flaws. In opposition to the Defendants’ motion, the Plaintiffs argue that if during this litigation the felony disenfranchisement statute is determined to be civil, and not penal, its retroactive application violates due process. In other words, count 17 is pleaded as an alternative count to count 11. To the extent that the Defendants’ previously advanced arguments regarding the Ex Post Facto Clause claim are raised in connection with this claim, for the same reasons previously discussed in this Order and in previous Orders, those grounds for dismissal are unavailing. The Court now turns to arguments specific to the alternatively pleaded civil penalty claim.
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Retrospective application of law is said to be disfavored and there are multiple prohibitions of it. See Landgraf, 511 U.S. at 268. The Ex Post Facto Clause prohibits laws that impose punishment for acts not punishable when committed or that impose greater disadvantages upon the offender than those imposed when the act was committed. Weaver v. Graham, 450 U.S. 24, 28–29 (1981). The Due Process Clause “also protects the interests in fair notice and repose that may be compromised by retroactive legislation.” Landsgraf, 511 U.S. at 266. Retroactivity is present if a statute would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. Id. at 280.
The Plaintiffs analogize the claim in count 17 to one which challenges the imposition of punitive damages on the basis that the damages are so high, the tortfeasor cold not have had reasonable notice of the potential severity of the civil penalty. See BMW of N. Am. Inc., 517 U.S. 573 (1996). This type of due process claim also has arisen in the context of the application of a bar to seeking relief from deportation based on a resident alien having pleaded guilty to a felony. See Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 324-25 (2001). This Court concludes, therefore, that while the Plaintiffs may not ultimately prevail on this claim, they have plausibly alleged that application of the statute is a civil and not criminal penalty.
One argument advanced by the Defendants specific to the Due Process claim is that there is a rational basis for the statute, so the claim is due to be dismissed. In support of the proposition that this claim is subject to rational basis analysis, however, the Defendants cite a case which is distinguishable because in that case the Supreme Court merely declined
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to depart from the standard of review used by the lower courts in evaluating an Equal Protection claim. (Doc. 95 at 16)(citing Heller v. Doe, 509 U.S. 312, 319 (1993)).
The Plaintiffs’ position is that the rational basis test is not the appropriate test to apply. The Plaintiffs cite to Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626 (1969), in which the Supreme Court explained that when it reviews statutes which deny some residents the right to vote, the general presumption of constitutionality “if the Court can conceive of a ‘rational basis’ for the distinctions made are not applicable.”
In part because the Defendants did not file a reply in support of their motion to dismiss, the Defendants have not addressed the Plaintiffs’ arguments regarding the standard of review. At this point in the proceedings, therefore, the Court cannot conclude as a matter of law that the alternatively pleaded civil claim is due to be dismissed. The issues raised regarding this claim can be more fully developed at a later stage of the case.
E. Motion to Dismiss or for Summary Judgment as to Count 18 The Defendants have moved to dismiss count 18 of the supplemental complaint, or, alternatively, moved for summary judgment on that count. The alternative motion appears to be supported by evidence of the registration forms used by other states. The Plaintiffs also moved for summary judgment as to count 18. In replying to the Defendants’ opposition to the Plaintiffs’ cross motion for summary judgment, the Plaintiffs attached a new declaration, which is the subject of the Defendants’ motion to strike. Therefore, the Court will first turn to the motion to strike before addressing the merits of the cross motions and motion to dismiss. 1. Motion to Strike
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The Defendants contend that the declaration of Tari Williams could have been and should have been, under the briefing order, attached to the Plaintiffs’ original motion for summary judgment. The Plaintiffs respond that a motion to strike is not appropriate relief for evidence in support of a motion for summary judgment, and that the evidence is appropriate because it was offered in opposition to a specific point raised by the Defendant in opposition to summary judgment.
New evidence is not properly considered if offered for the first time in support of a reply brief, but evidence can be offered to rebut a point raised in an opposition brief. See Hinson v. Chelsea Indus., Inc., 542 F. Supp. 2d 1236, 1248 (M.D. Ala. 2008) (finding that reply evidence would be considered and citing case law for the proposition that reply evidence is not new when the reply brief addressed the same set of facts supplied in opposition to the motion). To the extent the evidence offered by the Plaintiffs is in response to an argument by the Defendants, it is not due to be stricken. As will be discussed below, however, the evidence presented in the context of the cross-motions for summary judgment relates more to remedy than statutory interpretation and will not be considered at this time. Therefore, because the Court has not considered the evidence, the motion to strike is due to be DENIED as moot.
2. Motion to Dismiss and Cross Motions for Summary Judgment Count 18 of the supplemental complaint alleges that the State Form and the instructions for the Federal Form, violate the NVRA because the forms must include eligibility information.
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The Defendants originally moved to dismiss or for summary judgment on the federal and state aspects of this claim. The Plaintiffs have also moved for summary judgment on this count and have argued that the violation of the NVRA can be decided on summary judgment, but also contend that Plaintiff GMB should have an opportunity to discover and present evidence that the current form fails to serve their purpose under the NVRA. (Doc. 97 at 40).
With respect to the Federal Form specifically, the Defendants state that the claim is moot because all the Secretary of State can do is inform the EAC of changes to the law, which he has done. In their reply brief, the Plaintiffs concede that the claim regarding the Federal Form is moot, because the Secretary of State has complied with his statutory obligation. (Doc. 108 at 1, n.1). Therefore, the Defendants’ motion to dismiss is due to be GRANTED, and the Plaintiffs’ cross motion for summary judgment is due to be DENIED, to the extent that the claim based on the Federal Form is moot.
The State Form, at the time the Plaintiffs filed their supplemental complaint, stated simply that to register to vote in Alabama a person must not have been convicted of a disqualifying felony, or if the person has been convicted, must have had their civil rights restored. (Doc. 93 at ¶ 19). The revised State Form still contains that language, but now also states in a separate place on the form, where the Voter Declaration is located, that “I am not barred from voting by reason of a disqualifying felony conviction (The list of disqualifying felonies is available on the Secretary of State’s web site at: sos.alabama.gov/mtfelonies).” (Doc. 171-1).
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The Plaintiffs allege that this form violates the portion of the NVRA which provides that any state-issued mail-in voter registration form used to register voters for federal elections “shall include a statement that—(A) specifies each eligibility requirement (including citizenship).” 52 U.S.C. § 20508(b)(2)(A); see also 52 U.S.C. § 20505(a)(2) (stating that a State may develop and use a mail voter registration form that meets all of the criteria of 52 U.S.C. 52 U.S.C. § 20508(b)). The Plaintiffs allege that because the State Form states only that to register to vote one must not have been convicted of a disqualifying felony or if one has been convicted has had civil rights restored, but does not name the disqualifying convictions, it violates the statute. (Doc. 93 at ¶ 19). The Plaintiffs note that other requirements on the form go beyond a mere statement to an explicit naming of the requirement. For example, the form does not merely state that there is a minimum age requirement, but instead specifies that to register to vote, a person must be at least 18 years of age on or before election day.
With respect to the updated form that includes a parenthetical reference to the Secretary of State’s website, the Plaintiffs’ position is that the changed form still does not comply with the NVRA because it does not specify the felony convictions that make a citizen ineligible to vote on the form, but only refers to a website with the eligibility requirement and provides no alternative to the website. The Plaintiffs also contend that the forms do not include a paper copy of the list of disqualifying felonies for agencies or organizations to disseminate at the site of voter registrations. Finally, the Plaintiffs’ position is that the language used does not clarify that not all felonies are disqualifying felonies.
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The Defendants argue for a plain text interpretation of the NVR and contend that the State Form complies with the statute.4
As a general rule, when the terms of a statute are unambiguous on their face then the Court must enforce the statute according to its terms. Jimenez v. Quarterman, 555 U.S. 113, 118 (2009). Any ambiguity in the statutory language must result from the common usage of that language, not from the parties' dueling characterizations of what Congress “really meant.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1224 (11th Cir. 2001). If the statutory language is not entirely clear, courts apply canons of construction “which do not require resort to extrinsic material.” Id. at 1225 (11th Cir. 2001). “In other words, when the words of a statute are unambiguous, then, this first canon of statutory construction is also the last: judicial inquiry is complete.” Id. at 1222 (quotation and citation omitted). Another canon of construction is that where Congress knows how to say something but chooses not to, its silence is controlling. Id. at 1226.
The Defendants attempt to rely on this latter canon of construction to support their motion. The Defendants argue in their brief that if Congress had intended the forms to “specify” eligibility requirements, it would have used a word like “describe,” “detail,” “explain,” or “specify.” (Doc. 95 at 21).

4

The Defendants also argue that there is only evidence that GMB uses one of the state forms

identified; namely, the mail-in form, and that GMB does not have standing to challenge other

forms. Because the mail-in form is the form specifically identified in the supplemental complaint

(Doc. 93), the fact that other forms exist is not a bar to the Plaintiffs’ claim. The scope of any relief

ultimately granted to the Plaintiffs is one the Court will not address at this time.

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As the Plaintiffs point out, clearly Congress did use the word “specify” with regard to mail-in forms in 52 U.S.C. § 20508(b)(2)(A). That statute states that the form “shall include a statement that—(A) specifies each eligibility requirement (including citizenship).” Id.
As stated previously, under the plain meaning rule, the Court looks only to the language of the statute. “Specify” does not appear to be a defined term in the statute. “In the absence of a statutory definition of a term, [courts] look to the common usage of words for their meaning.” CBS Inc., 245 F.3d at 1222. “Specify” is defined in BLACK’S LAW DICTIONARY as “to mention specifically; to state in full and explicit terms; to point out; to tell or state precisely or in detail; to particularize; or to distinguish by words one thing from another.” BLACK’S LAW DICTIONARY (6th ed. 1990); see also WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, Unabridged. 2019 (defining “specify” as “to mention or name in a specific or explicit manner,” “to include as an item in a specification,” “to make specific: to give a specific character or application to.”). In the context of interpreting a different statute, the Supreme Court has cited the following definition of “specify:” “to name or state explicitly or in detail.” See Kucana v. Holder, 558 U.S. 233, 243 & n.10 (2010) (citing WEBSTER’S NEW COLLEGIATE DICTIONARY 1116 (1974)).
The Defendants do not offer any other meaning of “specify.” In fact, the Defendants’ argument that “specify” equates to “describe,” “detail,” “explain” (Doc. 95 at 21), actually supports the Plaintiffs’ interpretation that “specify” means more than what the State has included in its form. See also United States v. LaBonte, 520 U.S. 751, 757 (1997) (stating that courts assume that in drafting legislation Congress said what it meant).
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The Defendants do make an additional text-based argument, citing to an NVRA provision which states that an application for voter registration and motor vehicle driver’s license “may require only the minimum amount of information necessary to (i) prevent duplicate voter registrations; and (2) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” 52 U.S.C. 20504 (c)(2)(B).
The Plaintiffs respond that this statutory section refers to the amount of information that the State can require of the prospective voter, not the information provided to the prospective voter on the form, as it is in a provision regarding the voter registration application portion of a motor vehicle driver’s license application.
The Court agrees that 52 U.S.C. 20504(c)(2)(B)’s plain meaning is that the application may require only minimum information of the voter, not that the form is restricted in the amount of information it can provide. See Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) (stating that the minimum-information principle “establishes a ceiling on what information the states can require.”). The statute, therefore, does not impact the meaning of “specify” in 52 U.S.C. § 20508(b)(2)(A), which sets out the requirements of the mail-in State Form.
The Court finds at this point in the proceedings that the Plaintiffs’ allegation that the State Form, which contains a statement that to register to vote one must not have been convicted of a disqualifying felony and refers to a web site that contains an explicit naming of the felonies, but which does not itself explicitly name or state in detail the disqualifying felonies, is sufficient to plausibly state a claim under 52 U.S.C. § 20508(b)(2)(A) & 52
22

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U.S.C. § 20505(a)(2). The Defendants’ motion to dismiss is, therefore, due to be DENIED as to the state-form aspect of count 18.
As noted, the claim in count 18 is also pending before the Court on cross-motions for summary judgment. In the Second Notice Concerning Count 18, the Defendants point to changes made by the EAC to Alabama-specific instructions of the Federal Form and attach it as an exhibit. (Doc. 171-2). The Defendants contend that because the State Form is consistent with the instructions given with the Federal Form, it meets the statutory requirements. The Defendants, however, have advanced a plain meaning interpretation of the statute. Therefore, it is unclear to the Court why the Defendants have relied on outside evidence in support of their plain language interpretation. See CBS Inc., 245 F.3d at 1225 (stating “where the meaning of a statute is discernible in light of canons of construction, we should not resort to legislative history or other extrinsic evidence.”).
The Defendants cite the Court to Fish v. Kobach, 840 F.3d 710, 721 (10th Cir. 2016), and state that the reference to the Alabama Secretary of State’s website in the revised instructions of the Federal Form “has apparently satisfied the EAC, which is ‘entrusted’ to make the judgment for the federal form.” (Doc. 171 at 2). The Defendants cannot be arguing that the language used by the EAC is somehow binding on the Secretary of State, however, because the language used by the EAC is not the same as the language used by the Secretary of State on the State Form. (Doc. 171-2) (under the Alabama-specific instructions stating one must not “have been convicted of a felony involving moral turpitude (or have had your civil and political rights restored). The list of moral turpitude felonies is available on the Secretary of State web site at: sos.alabama.gov/mtfelonies.”).
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If the Defendants intended to argue that this Court must defer to a particular interpretation by the EAC, they will have to do more than point to that apparent interpretation, and more fully develop these arguments in a new motion at a later stage of this case.
The remaining arguments raised by the parties which rely on evidence exterior to the allegations of the supplemental complaint primarily relate to the practical issues of how the form could be written, and the implications of different choices in forms. For example, the Defendants have argued that the State’s practice is consistent with the forms used in other states, whereas the Plaintiffs cite to a Mississippi form which lists out all of the disqualifying felonies of that state. The Defendants also point to affidavit evidence that including the disqualifying felonies on the form would be confusing and point to the cost of replacing the forms when new crimes are added to the list.
The Court also notes that the Plaintiffs disagree with the Defendants’ suggestion that the Plaintiffs’ position would require analogous convictions under other states’ laws and federal law to be listed in the State Form. (Doc. 108 at 7, n.5). The Plaintiffs do not explain, however, how that aspect of the eligibility requirement would be placed on the form.
Rather than address these arguments which have been raised in a piecemeal fashion in cross-motions for summary judgment at the motion to dismiss stage of this case, the Court concludes that both motions for summary judgment as to Count 18 are due to be
24

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DENIED at this time. These issues can be raised, and more fully developed, at a later stage of this case.5
V. CONCLUSION For the reasons discussed, it is hereby ORDERED as follows: 1. The renewed motion to dismiss (Doc. 95) is DENIED. 2. The motion to dismiss supplemental complaint (Doc. 95) is GRANTED as to Plaintiffs Antwoine Giles and Laura Corley and the claims of those Plaintiffs are DISMISSED as moot. 3. The motion to dismiss supplemental complaint (Doc. 95) is GRANTED as to the State of Alabama, and the State of Alabama is DISMISSED as a party in this case. 4. The motion to dismiss supplemental complaint (Doc. 95) is GRANTED as to the claim in count 18 relating to the Federal Form and that claim is DISMISSED as moot. 5. The motion to dismiss supplemental complaint (Doc. 95) is DENIED in all other aspects, as is the alternative motion for summary judgment (Doc. 95), and the cross-motion for summary judgment on count 18 (Doc. 97). 6. The motion to strike untimely declaration (Doc. 109) is DENIED as moot. Done this 3rd day of December, 2019.
/s/ Emily C. Marks EMILY C. MARKS CHIEF UNITED STATES DISTRICT JUDGE
5 Once a new Uniform Scheduling Order is entered in this case, the parties will be given a dispositive motion deadline, and any grounds for summary judgment which a party seeks to raise should be briefed together by that deadline.
25

Case 2:16-cv-00783-ECM-SMD Document 178-1 Filed 12/03/19 Page 1 of 3 A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov
Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate’s jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 132728 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93

Case 2:16-cv-00783-ECM-SMD Document 178-1 Filed 12/03/19 Page 2 of 3
L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits: (a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
Rev.: 3/2011

Case 2:16-cv-00783-ECM-SMD Document 178-1 Filed 12/03/19 Page 3 of 3 3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of
Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant. 4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
Rev.: 3/2011

 
 Case 2:16-cv-00783-ECM-GMB Document 93 Filed 03/01/18 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

Treva Thompson, et al.,

Plaintiffs,
v.
John H. Merrill, in his official capacity as Secretary of State, et al.,
Defendants.

PLAINTIFFS’ SUPPLEMENTAL CLASS-ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Civil Action No. 2:16-cv-783-WKWCSC

Pursuant to Federal Rule of Civil Procedure 15(d), Plaintiffs file this Supplemental Complaint setting forth events that occurred after the filing of their Original Complaint on September 26, 2016 and pleading additional claims based on those events. This supplemental complaint is filed in addition to, not in replacement of, Plaintiffs’ original complaint. Plaintiffs allege as follows.
Supplemental Factual Allegations 1. Plaintiffs brought this case challenging Alabama’s laws and procedures respecting felony disenfranchisement pursuant to the U.S. Constitution, 42 U.S.C. §1983, and the Voting Rights Act, 52 U.S.C. §10301. 2. Section 177(a) of Alabama’s Constitution affirmatively guarantees the right to vote of Alabamians that meet the age, citizenship, residency, and registration qualifications and are not disqualified on the basis of Section 177(b). Section 177(a) and Section 177(c) charge the Alabama Legislature with implementing Section 177’s guarantees and restrictions through statute.

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3. As discussed at length in Plaintiffs’ original complaint, Section 177(b) of the Alabama Constitution disenfranchises individuals “convicted of a felony involving moral turpitude” until their political rights are restored. Ala. Const. art. VIII, §177(b).
4. However, Section 177 of the Alabama Constitution does not specify any felonies “involving moral turpitude,” and the Legislature did not do so until after the filing of Plaintiffs’ original complaint.
5. Until the 2017 legislative session, any guidance on what felonies involved “moral turpitude” was non-exhaustive, non-authoritative, vague, and internally inconsistent.
6. In May 2017, the Alabama Legislature enacted and Governor Ivey signed into law the Felony Voter Disqualification Act, House Bill 282 (“HB 282”). 2017 Ala. Laws Act 2017-378, codified at Ala. Code § 17-3-30.1.
7. HB 282 conceded that, until its passage, “there [was] no comprehensive list of felonies that involve moral turpitude which disqualify a person from exercising his or her right to vote. Neither individuals with felony convictions nor election officials ha[d] a comprehensive, authoritative source for determining if a felony conviction involve[d] moral turpitude and [was] therefore a disqualifying felony.” Ala. Code § 17-3-30.1(b)(1)(b).
8. HB 282 provides a list of forty-six disqualifying crimes tied to specific Alabama criminal code violations pursuant to Section 177. Ala. Code § 17-3-30.1(c).
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9. This list includes a range of crimes not ordinarily subject to the same penalties, from various degrees of homicide and torture to non-violent trafficking in cannabis to simple non-violent theft of property and forgery convictions. Id.
10. HB 282 does not include bribery, perjury, abuse of public office, and other related crimes meaningfully connected to the act of voting on its list of disqualifying convictions. Yet, these were the only crimes that could take away citizens’ “privilege of free suffrage” upon conviction, Ala. Const. of 1819, art. VI, § 5, in the 1819 and 1861 Alabama Constitutions, when only “male white person[s] . . . [were] entitled to vote.” Ala. Const. of 1861, art. III, § 5. See also, Ala. Const. of 1819, art. III, § 5; Ala. Const. of 1861, art. VI, § 5.
11. On March 9, 2017, Representative John Knight entered the following statement into the House Journal: “HB 282 in its current form would enfranchise some of our citizens, so we can support it as a step in the right direction. But ‘moral turpitude’ was placed in the Alabama Constitution for the purpose of disfranchising African Americans, and it needs to be repealed altogether. We ask the State of Alabama to release to the public complete information about the racial impact of the crimes that this bill defines to be ‘moral turpitude.’”
12. HB 282 is written in the present tense. It states that “a person is disqualified to vote by reason of conviction of a felony involving moral turpitude only when convicted” of the disqualifying crimes and “[t]he felonies involving moral turpitude listed in subsection (c) are the only felonies for which a person, upon conviction, may be disqualified from voting.” Ala. Code § 17-3-30.1(c), (e) (emphasis added).
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13. The effective date of HB 282 was August 1, 2017. 2017 Ala. Laws Act 2017378, § 3.
14. Despite the prospective language in HB 282, the Secretary of State has unilaterally determined that HB 282, the only statute that implements Section 177, shall be applied retroactively to those convicted of crimes prior to HB 282’s effective date. The Secretary of State has instructed registrars to purge voters and reject voter registrants who have convictions listed on HB 282 even if those convictions occurred prior to HB 282’s passage and effective date.
15. As a result of the Secretary of State’s unilateral retroactivity determination, Plaintiffs Treva Thompson, Melissa Swetnam, Mario Dion Yow, Jennifer Zimmer, Timothy Lanier, Pamela King, and all other similarly situated individuals whose HB 282-enumerated convictions predated the HB 282’s effective date are ineligible to register and vote, unless they succeed in having those rights specifically restored.
16. As a result of HB 282, Plaintiffs Antwoine Giles and Laura Corley are now eligible to vote.
17. Since the filing of the original complaint, Plaintiffs Anna Reynolds has received a Certificate of Eligibility to Register to Vote (CERVs) and is now eligible to vote. Plaintiff Larry Joe Newby Newby has also applied for his CERV and the Board has informed him through counsel that it will be approved.
18. Despite HB 282’s significant change to the law regarding voter eligibility, the Secretary of State has not updated the State of Alabama Mail-In Voter Registration Form (“State Form”), or alerted the Election Assistance Commission of these
4

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eligibility changes, or requested changes to the state-specific instructions for Alabama on the National Mail Registration Form (“Federal Form”).
19. The State Form informs each potential voter that to register to vote: “you must: . . . [n]ot have been convicted of a disqualifying felony, or if you have been convicted, you must have had your civil rights restored.” The State Form also requires each potential voter to affirm under penalty of perjury: “I am not barred from voting by reason of a disqualifying felony conviction.” The State Form provides no information regarding HB 282’s list of “disqualifying convictions,” or how to determine whether a conviction is disqualifying.
20. A likely and reasonable interpretation of the phrase “disqualifying felony conviction,” without additional information, is that felony convictions are always disqualifying, rather than a subset of felony convictions are disqualifying.
21. The Alabama state-specific instructions on the Federal Form inform each potential voter that to register to vote: “you must: . . . not have been convicted of a felony involving moral turpitude (or have had your civil and political rights restored).” The instructions do not refer the voter to any information regarding what felonies involve “moral turpitude.”
22. The Federal Form requires voters to swear/affirm that they have reviewed the state-specific instructions in the Federal Form and that they meet the eligibility requirements of their state.
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23. On December 26, 2017, this Court entered a Memorandum Opinion and Order granting and denying, in part, Defendants’ motion to dismiss this action in its entirety.
24. The Order dismissed Counts 3, 4, 5, 6, 7, 8, 9, 10, 14, and 15 of the original complaint on various grounds. With respect to Counts 6, 7, 8, 9, and 10, this Court held that HB 282, as described herein, mooted Plaintiffs’ claims. This Court denied Defendants’ motion to dismiss as to Counts 1 and 2, alleging that Section 177 was enacted and maintained with discriminatory intent; Count 11, alleging that Section 177’s application violates the Ex Post Facto Clause; Count 12, alleging that Section 177’s application violates the U.S. Constitution’s prohibition on cruel and unusual punishment; and Count 13, alleging that Alabama Code Section 15-22-36.1’s requirement that individuals pay all fines and fees in order to restore their right to vote violates the Fourteenth Amendment, at least as applied to those who cannot afford to pay their fines and fees.
25. Without waiving their right to appeal the dismissal of their other claims at the appropriate time, Plaintiffs submit this Supplemental Complaint to supplement only their allegations with respect to their remaining claims in light of HB 282 and to add new claims that have arisen in light of HB 282 and Defendant Merrill’s improper retroactive implementation of it.
Additional Parties 26. Plaintiff Darius Gamble is a black 42-year-old citizen of the United States who resides in Gardendale, Alabama, in Jefferson County. In or around 2008,
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Plaintiff Gamble was convicted of trafficking marijuana in violation of Alabama Code Section 13A-12-231. Trafficking in cannabis is a disqualifying conviction under HB 282. Plaintiff Gamble’s conviction was entered years before the passage of HB 282, but the Secretary of State considers his conviction disqualifying. Plaintiff Gamble’s conviction for trafficking in cannabis did not appear on any of the prior lists of potentially disqualifying crimes, including Alabama Code Section 15-22-36.1(g), the 2005 Attorney General Opinion, Att’y Gen Op. No. 2005-092, 2005 WL 1121853, and the 2007 Administrative office of Courts list of “disqualifying” crimes, see Ex. A to Doc. 1.
27. Plaintiff Gamble meets all the requirements for a CERV, except the payment of all legal financial obligations. In or around 2014, after the completion of his probation, Mr. Gamble applied for a CERV. His CERV application was denied based on his outstanding fines and fees. At the time of his conviction, the court imposed a $50,000 fine on Plaintiff Gamble. Ala. Code § 13-A-12-231. Mr. Gamble has regularly paid monthly installments of $25 to $50 toward his fine. Nonetheless, his outstanding fines have been compounded by a thirty percent collection fee. Ala. Code § 12-17-225.4. He currently owes $63,073.30 in fines and fees. He has no outstanding restitution. All of his outstanding legal obligations are to the State. Mr. Gamble is not financially able to pay his outstanding fines and fees in full at this time or anytime in the foreseeable future. His inability to pay these fines and fees makes him ineligible for a CERV that would restore his voting rights. Mr. Gamble wishes to vote in the 2018 and future elections.
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Additional Party Allegations 28. In addition to its initial allegations, organizational plaintiff Greater Birmingham Ministries (“GBM”) alleges the following. 29. As a result of Defendant Merrill’s implementation of HB 282 pursuant to Section 177(b), GBM must devote staff time and resources to helping those with felony convictions (1) determine whether they may be eligible to register to vote, (2) attempt to register to vote, (3) determine whether they may be eligible for a CERV, and (4) apply for a CERV. 30. As a result of Defendant Merrill’s retroactive implementation of HB 282, GBM must devote more staff time and resources to these activities than would be required if HB 282 was applied only prospectively. More members of GBM’s community are disenfranchised due to the retroactive application of this law. 31. As a result of Defendant Merrill’s refusal to update Alabama’s voter registration forms to include eligibility information for people with convictions pursuant to HB 282, GBM must devote more staff time and resources to these activities than would be required if the forms provided prospective voters with complete eligibility information. Many members of GBM’s community remain confused about their eligibility to vote due to Defendant Merrill’s failure to update the State and Federal voter registration forms.
Classes and Subclasses 32. The passage and implementation of HB 282 necessarily changes the scope of Plaintiffs’ alleged class and subclasses. The following class and two subclasses are
8

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defined for purposes of the remaining claims and the new claims raised in this Supplemental Complaint.
33. The Plaintiff Class that Plaintiffs Gamble, Thompson, Swetnam, Yow, Zimmer, Lanier, and King seek to represent is now defined as: all persons otherwise eligible to register to vote in Alabama who are now, or who may in the future be, denied the right to vote pursuant to Section 177(b) because of a conviction for a felony “involving moral turpitude” as defined by section (c) of Alabama Code Section 17-330.1.
34. Plaintiffs seek relief for the entire Plaintiff Class pursuant to Counts 1, 2, and 12, which allege that Section 177(b) was enacted and maintained with discriminatory intent and imposes cruel and unusual punishment.
35. Plaintiffs also seek to represent a subclass relevant to their Ex Post Facto and additional Due Process claims (Counts 11, 16, and 17). Plaintiffs Gamble, Thompson, Swetnam, Yow, Zimmer, Lanier, and King seek to represent an Ex Post Facto subclass defined as follows: all persons otherwise eligible to register to vote in Alabama who were convicted of a felony “involving moral turpitude” as defined by section (c) of Alabama Code Section 17-3-30.1 before August 1, 2017 but are unable to register to vote pursuant to Defendant Merrill’s retroactive implementation of Alabama Code Section 17-3-30.1 to individuals with prior convictions.
36. Plaintiffs Gamble, Swetnam, and Thompson seek to represent an Legal Financial Obligation (LFO) subclass defined as follows: all persons otherwise eligible to register to vote in Alabama who (1) are now, or who may in the future be, denied
9

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the right to vote pursuant to Section 177(b) because of a conviction for a felony “involving moral turpitude” as defined by section (c) of Alabama Code Section 17-330.1; and (2) are unable to pay their fines, fees, and/or restitution due to their socioeconomic status; but (3) are otherwise eligible to apply for a CERV.
37. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs bring this action on behalf of themselves and all other similarly situated persons. Plaintiffs do not seek claims for compensatory relief. Instead, Plaintiffs seek only declaratory and injunctive relief broadly applicable to members of the Plaintiff Class and the Plaintiff Subclasses, as defined above. The requirements of Rule 23, and in particular Rule 23(b)(2), are met with respect to the Plaintiff Class and Plaintiff Subclasses, as defined above.
38. The members of the Plaintiff Class and Plaintiff Subclasses are so numerous that joinder is impracticable. The Plaintiff Class and Plaintiff Subclasses are ascertainable through Defendants’ records, as well as records kept by the Alabama Circuit Clerks and the Board of Pardons and Paroles.
39. In addition to the common questions of law and fact alleged in the original complaint, common questions of law and fact predominate over questions affecting only individual class members with respect to allegations in this Supplemental Complaint. Those questions include, but are not limited to, the following:
a. Whether Defendant’s retroactive application of Section 17-3-30.1 violates the Ex Post Facto Clause;
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b. Whether Defendants’ retroactive application of Section 17-3-30.1 violates the Fourteenth Amendment; and
c. Whether Defendants’ application of Section 17-3-30.1, in whole or in part, imposes cruel and unusual punishment in violation of the Eighth Amendment.
40. The claims of Plaintiffs Gamble, Thompson, Swetnam, Yow, Zimmer, Lanier, and King are typical of the Plaintiff Class and Plaintiff Subclasses as defined above. Plaintiffs are not aware of any conflict between their interests and those of the Plaintiff Class and Subclasses they seek to represent.
41. Plaintiffs can fairly and adequately represent the interests of the Plaintiff Class and Plaintiff Subclasses because they are similarly situated with members of their classes. Plaintiffs have retained counsel experienced in class-action litigation and voting rights litigation to represent them and the Plaintiff Class and Subclasses for the purpose of this litigation.
42. Defendants continue to act, or refuse to act, on grounds generally applicable to the Plaintiff Class and Plaintiff Subclasses, and final injunctive relief and corresponding declaratory relief are appropriate respecting the classes as a whole.
43. A class action is superior to other available means for the fair and efficient adjudication of the Plaintiff Class and Plaintiff Subclasses members’ claims because joinder of all members is impracticable. Absent the class action, the members of the Plaintiff Class and Plaintiff Subclasses will continue to suffer deprivation of their right to vote.
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Additional Allegations with Respect to Counts 1, 2, 11, 12, and 13 Count 1: Intentional Race Discrimination, 14th Amendment (42 U.S.C. § 1983) (All Plaintiffs and Plaintiff Class)
(Against Defendant Merrill, Defendant Noblin, and Defendant Class) 44. Plaintiffs reallege the facts set forth in paragraphs 1-45, above. 45. In addition to all of the allegations in their original complaint, Plaintiffs allege the following. 46. The passage of Section 17-3-30.1—which only implements Section 177(b) of the Alabama Constitution and does not independently disenfranchise individuals— does not affect Plaintiffs’ allegations that Section 177(b) of the Alabama Constitution was passed and maintained with racially discriminatory intent in violation of the Equal Protection Clause of the Fourteenth Amendment. 47. Upon information and belief, Section 17-3-30.1 does not cure, but rather maintains, the racially discriminatory impact of Section 177(b).
Count 2: Intentional Race Discrimination, 15th Amendment (42 U.S.C. § 1983)
(All Plaintiffs and Plaintiff Class) (Against Defendant Merrill, Defendant Noblin, and Defendant Class) 48. Plaintiffs reallege the facts set forth in paragraphs 1-45, above. 49. In addition to all of the allegations in their original complaint, Plaintiffs allege the following. 50. The passage of Section 17-3-30.1—which only implements Section 177(b) of the Alabama Constitution and does not independently disenfranchise individuals— does not affect Plaintiffs’ allegations that Section 177(b) violates the Fifteenth
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Amendment to the U.S. Constitution because it purposely denies and abridges Plaintiffs’ and other minority voters’ right to register and vote on account of race or previous condition of servitude.
51. Upon information and belief, Section 17-3-30.1 does not cure, but rather maintains, the racially discriminatory impact of Section 177(b).
Count 11: Retroactive Punishment, Ex Post Facto Clause (42 U.S.C. § 1983)
(Plaintiffs GBM, Gamble, Thompson, Swetnam, Yow, Zimmer, Lanier, King and Ex Post Facto Subclass)
(Against Defendant Merrill, Defendant Noblin, and Defendant Class) 52. Plaintiffs reallege the facts set forth in paragraphs 1-45, above. 53. In addition to all of the allegations in their original complaint, Plaintiffs allege the following. 54. Prior to the passage of Section 17-3-30.1 in May 2017, as alleged in Plaintiffs’ original complaint, determinations about disenfranchisement based on felony convictions were made on an individualized basis by registrars at the time of registration. 55. Upon passage of Section 17-3-30.1, Defendant Merrill instructed Defendant registrars to apply Section 17-3-30.1 retroactively to disenfranchise individuals with convictions listed in Section 17-3-30.1 even if those convictions occurred prior to Section 17-3-30.1’s passage and effective date. 56. The exclusion of bribery, perjury, abuse of public office, and other related crimes meaningfully connected to the act of voting from Section 17-3-30.1’s list of
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disqualifying convictions further demonstrates that Section 17-3-30.1 functions as a punishment.
57. As to individuals with convictions prior to August 1, 2017, Section 17-3-30.1’s application imposes retroactive punishment in violation of the U.S. Constitution’s prohibition on ex post facto laws.
Count 12: Disenfranchisement as Cruel and Unusual Punishment, 8th Amendment (42 U.S.C. § 1983)
(All Plaintiffs and Plaintiff Class) (Against Defendant Merrill, Defendant Noblin, and Defendant Class) 58. Plaintiffs reallege the facts set forth in paragraphs 1-45, above. 59. In addition to all of the allegations in their original complaint, Plaintiffs allege the following. 60. Plaintiffs bring this claim on behalf of the Plaintiff Class but also bring this claim in the alternative on behalf of the subclasses in paragraph 37. 61. Similar to the registrars’ prior application of Section 177(b), Section 17-330.1 permanently disenfranchises a broad swath of individuals convicted of vastly disparate crimes, from various degrees of homicide to assault to non-violent trafficking in cannabis to simple non-violent theft of property and forgery. It permanently disenfranchises individuals who have been convicted of many class C felonies. It imposes the same punishment on a person convicted of murder and a person convicted of a single theft crime. 62. Alabama citizens like Plaintiff Thompson and many others have been convicted of crimes for which the sentencing court imposed either no or minimal
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prison time, but nonetheless face permanent exclusion from the political franchise and thus permanent exclusion from meaningful participation in our democracy. They are sentenced, in essence, to civil death.
63. Section 17-3-30.1 is also an outlier nationwide. Only eight other states still impose permanent disenfranchisement on any subset of citizens with felony convictions, and several of those remaining eight states limit the subset of persons subjected to permanent disenfranchisement more narrowly than Section 17-3-30.1.
64. Section 17-3-30.1 imposes unusual, unreasonable, and often widely disproportionate punishment on Alabama citizens in violation of the Eighth Amendment.
Count 13: Disenfranchisement for Failure to Pay LFOs, 14th Amendment (42 U.S.C. § 1983)
(Plaintiffs GBM, Gamble, Thompson, Swetnam and LFO Subclass) (Against Defendant Walker)
65. Plaintiffs reallege the facts set forth in paragraphs 1-45, above. 66. In addition to all of the allegations in their original complaint, Plaintiffs allege the following. 67. The passage of Section 17-3-30.1 has no impact whatsoever on the unconstitutional wealth restriction on access to the right to vote imposed by Alabama Code Section 15-22-36.1(a)(3). 68. For those disenfranchised by Section 17-3-30.1 as applied by Secretary Merrill and who are unable to pay their fines and fees—including Plaintiffs Gamble,
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Thompson, Swetnam, and the LFO subclass—the LFO requirement remains a wealth barrier to political participation.
69. As alleged in the original complaint, Alabama Code Section 15-22-36.1(a)(3) invidiously discriminates between Alabama citizens with prior disqualifying felonies who are able to pay their legal financial obligations and those who are unable to do so, in violation of the Fourteenth Amendment.
Supplemental Claims Count 16: Unlawful Deprivation of State-Created Right to Vote, Due
Process Clause, 14th Amendment (42 U.S.C. § 1983)
(Plaintiffs GBM, Gamble, Thompson, Swetnam, Yow, Zimmer, Lanier, King and Ex Post Facto Subclass)
(Against Defendant Merrill, Defendant Noblin, and Defendant Class) 70. Plaintiffs reallege the facts set forth in paragraphs 1-45, above. 71. In addition to all of the allegations in their original complaint, Plaintiffs allege the following. 72. It is well-established that state laws may create liberty interests that are entitled to the protections of the Due Process Clause of the Fourteenth Amendment. See Vitek v. Jones, 445 U.S. 480 (1980). 73. It is further well-established that the right to vote—where it is granted by state law—is a protected liberty interest under the Due Process Clause of the Fourteenth Amendment. See, e.g., Bush v. Gore, 531 U.S. 98, 105 (2000); Anderson v. Celebrezze, 460 U.S. 780 (1983).
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74. The Due Process Clause of the Fourteenth Amendment protects individuals from disenfranchisement in violation of state election law. Duncan v. Poythress, 657 F.2d 691, 708 (5th Cir. 1981).
75. Pursuant to Alabama law, otherwise eligible individuals with felony convictions prior to the passage and implementation of Section 17-3-30.1 have the same right to vote as other eligible citizens.
76. Section 177(a) of Alabama’s Constitution affirmatively guarantees the right to vote of citizens of the United States who meet the age, residency, and registration qualifications and are not disqualified on the basis of Section 177(b).
77. As discussed at length in Plaintiffs’ original complaint, Section 177(b) of the Alabama Constitution disenfranchises individuals “convicted of a felony involving moral turpitude” until their political rights are restored. Ala. Const. art. VIII, §177(b). However, the Alabama Constitution does not specify the felonies “involving moral turpitude,” nor did the Legislature do so until after the filing of Plaintiffs’ original complaint. Sections 177(a) and 177(c) require the Alabama Legislature to implement Section 177’s guarantees and restrictions through statute.
78. Therefore, prior to the passage of Section 17-3-30.1, no operative state provision lawfully disenfranchised any persons based on their felony convictions. Citizens convicted of felonies after ratification of Amendment 579 in 1996 retained the same state right to vote, affirmatively protected by Section 177(a), as all other eligible citizens.
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79. Pursuant to well-established Alabama law, Section 17-3-30.1 does not apply retrospectively. Section 17-3-30.1 is written in the present tense. It states that “a person is disqualified to vote by reason of conviction of a felony involving moral turpitude only when convicted” of the disqualifying crimes and “[t]he felonies involving moral turpitude listed in subsection (c) are the only felonies for which a person, upon conviction, may be disqualified from voting.” Ala. Code § 17-3-30.1(c), (e) (emphasis added).
80. Under Alabama law, retroactive application of statutes is highly disfavored and must be clearly expressed. Bd. of Sch. Comm'rs of Mobile Cty. v. Christopher, 97 So. 3d 163, 167 (Ala. Civ. App. 2012).
81. Defendant Merrill’s unilateral determination to apply HB 282 retroactively to people with “disqualifying convictions” entered prior to August 1, 2017—despite HB 282’s prospective language and applicable state law—constitutes unlawful disenfranchisement in violation of state election law and thus violates the Due Process Clause of the Fourteenth Amendment.
Count 17: Unlawful Retroactive Deprivation of the Right to Vote, Due Process Clause,14th Amendment (42 U.S.C. § 1983)
(Plaintiffs GBM, Gamble, Thompson, Swetnam, Yow, Zimmer, Lanier, King and Ex Post Facto Subclass)
(Against Defendant Merrill, Defendant Noblin, and Defendant Class) 82. Plaintiffs reallege the facts set forth in paragraphs 1-45, above. 83. In addition to all of the allegations in their original complaint, Plaintiffs allege the following.
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84. Elementary notions of fairness enshrined in the Due Process Clause dictate that a person receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a state may impose. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996).
85. Even if this Court finds that Section 177(b), as enforced through Section 173-30.1, does not constitute punishment within the meaning of the Ex Post Facto Clause, the stripping of political rights on the basis of criminal convictions “share[s] key characteristics of criminal sanctions” such that “[r]etroactive imposition” of Section 17-3-30.1 “raise[s] a serious constitutional question.” Landgraf v. USI Film Prod., 511 U.S. 244, 281 (1994).
86. “The retrospective aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 (1976).
87. Retroactive application of legislation is most suspect when it is imposed on the basis of a theory of deterrence or blameworthiness. Id.
88. As alleged in Plaintiffs’ original complaint, no constitutional, non-punitive rationale for limiting the rights of citizens with felony convictions to vote can support Section 177(b) and Section 17-3-30.1. See Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement, 56 Stan. L. Rev. 1147, 1150-55 (2004).
89. As alleged above, Section 17-3-30.1’s exclusion of bribery, perjury, abuse of public office, and other related crimes meaningfully connected to the act of voting
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from its list of disqualifying convictions further demonstrates that Section 17-3-30.1 can only operate to punish individuals for their conduct.
90. Therefore, the retroactive application of Section 17-3-30.1 to individuals with convictions predating its passage violates the Due Process Clause as it cannot be sufficiently justified by its punitive goals.
Count 18: Failure to Specify Eligibility Requirements, National Voter Registration Act (52 U.S.C. § 20510) (Plaintiff GBM)
(Against Defendant Merrill) 91. Plaintiffs reallege the facts set forth in paragraphs 1-45, above. 92. In addition to all of the allegations in their original complaint, Plaintiffs allege the following. 93. The principle purpose of the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq., is to “establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office.” 52 U.S.C. § 20501(b)(1). 94. Specifically, the NVRA requires states to “inform applicants . . . of [ ] voter eligibility requirements,” whether registrants apply via the Federal Form, a state mail-in form, the department of motor vehicles, or any other NVRA agency. 52 U.S.C. § 20507(a)(5). 95. The NVRA further requires that the Federal Form and any state-issued mail-in voter registration form used to register voters for federal elections
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accurately “specif[y] each eligibility requirement” for applicants. 52 U.S.C. §

20508(b)(2)(A); see also 52 U.S.C. § 20505(a)(2).

96. To ensure the Federal Form’s accuracy, a state’s chief election official must

notify the Election Assistance Commission (EAC) of any changes in the state’s

voter eligibility requirements within 30 days. 11 C.F.R. § 9428.6.

97. Neither the Alabama-specific instructions to the Federal Form, as dictated

to the EAC by Defendant Merrill, nor the State Form provide sufficient information

to meaningfully “inform applicants . . . of [ ] voter eligibility requirements” in

Alabama.

98. By failing to include complete voter eligibility requirements on these forms,

Defendant Merrill has violated and continues to violate the NVRA.

99. Defendant Merrill is aware of this violation. Plaintiffs sent Defendant Merrill

notice of this violation of the NVRA through counsel on June 9, 2017. See Ex. A.

100. Because of this ongoing NVRA violation, GBM diverts significant

organizational resources to informing voters of the eligibility requirements within

Section 17-3-30.1 that are not communicated via the State Form or Federal Form.

101. Plaintiff GBM is aggrieved by Defendants’ past and continuing violations of

the NVRA, and has no adequate remedy at law. Declaratory and injunctive relief are

required to remedy Defendants’ past and continuing violations of the NVRA and to

ensure

Defendants’

future

compliance

with

the

NVRA.

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PRAYER FOR RELIEF In addition to Plaintiffs’ prayers for relief in their original complaint, Plaintiffs respectfully pray this Court: (1) Certify the class and subclasses as defined in paragraphs 33, 35, and 36; (2) Issue a declaratory judgment that Section 177(b) of the Alabama Constitution, by its terms and as applied through Alabama Code Section 17-3-30.1, violates the Eighth, Fourteenth, and Fifteenth Amendments of the U.S. Constitution; (3) Issue a declaratory judgment that Defendant Merrill’s retroactive application of Alabama Code Section 17-3-30.1 to citizens with convictions entered prior to August 1, 2017 violates the Ex Post Facto Clause of Article I and the Fourteenth Amendment of the U.S. Constitution; (4) Issue a declaratory judgment that Alabama Code Section 15-22-36.1(a)(3) violates the Fourteenth Amendment of the U.S. Constitution; (5) Issue a declaratory judgment that Defendant Merrill’s failure to update the State and Federal voter registration forms violates the NVRA, 52 U.S.C. § 20501 et seq. (6) Enjoin the Defendants, their agents, employees and all those persons acting in concert or participation with them, from enforcing Section 177(b) or Alabama Code Section 15-22-36.1(a)(3), including:
a. Enjoining Defendants from denying any voter registration applications on the basis of felony convictions;
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b. Enjoining Defendants from removing any voters from the voter registration rolls on the basis of felony convictions;
c. Requiring Defendants to restore Alabama citizens to the voter registration rolls if they were removed on the sole basis of their felony convictions;
d. In the alternative, entering injunctive relief as outlined in (a)-(c) above as to Alabama citizens with convictions entered prior to August 1, 2017;
e. Enjoining Defendants from denying any applications for CERVs on the basis of failure to pay any legal financial obligations;
f. Requiring Defendants to inform those with disqualifying convictions that the failure to pay legal financial obligations does not disqualify them from restoring their right to vote under Alabama Code Section 15-22-36.1;
g. Requiring Defendant Merrill to update the Federal and State voter registration forms to reflect the voter eligibility requirements as defined by Alabama Code Section 17-3-30.1.
(7) Award Plaintiffs their costs, expenses, and reasonable attorneys’ fees incurred in the prosecution of this action, as authorized by the Voting Rights Act and the Civil Rights Attorney’s Fees Awards Act of 1973, 52 U.S.C. § 10310(e) and 42 U.S.C § 1988(b); and
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(8) Grant such other equitable and further relief as the Court deems just and
proper.
Respectfully submitted,
/s/ Danielle Lang Danielle Lang (CA Bar: 304450) J. Gerald Hebert (VA Bar: 38432) Campaign Legal Center 1411 K Street NW, Suite 1400 Washington, DC 20005 (202) 736-2200 dlang@campaignlegalcenter.org ghebert@campaignlegalcenter.org
J. Mitch McGuire (AL Bar: ASB-8317-S69M) McGuire & Associates LLC 31 Clayton Street Montgomery, AL 36104 (334) 517-1000 jmcguire@mandabusinesslaw.com
James U. Blacksher (AL Bar: ASB-2381-S82J) P.O. Box 636 Birmingham, AL 35201 (205) 591-7238 jblacksher@ns.sympatico.ca
Jessica Ring Amunson (DC Bar: 497223) Jenner & Block LLP 1099 New York Ave. NW, Suite 900 Washington, DC 20001 (202) 736-6000 jamunson@jenner.com
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Pamela Karlan (NY Bar: 2116994) Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305 (650) 725-4851 karlan@stanford.edu Aderson B. Francois (DC Bar: 498544) Institute for Public Representation Georgetown University Law Center 600 New Jersey Avenue NW Washington, DC 20001 (202) 662-6721 abf48@georgetown.edu Armand Derfner (SC Bar: 1650) Derfner & Altman 575 King Street, Suite B Charleston, SC 29403 (843) 723-9804 aderfner@derfneraltman.com Counsel for Plaintiffs and Plaintiff Class
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CERTIFICATE OF SERVICE I hereby certify that, on March 1, 2018, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record.
/s/ Danielle Lang Danielle Lang Counsel for Plaintiffs and Plaintiff Class

 
 Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 1 of 42
ECM−Clerk2
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:16−cv−00783−ECM−SMD

Thompson et al v. Merrill et al Assigned to: Chief Judge Emily C. Marks Referred to: Honorable Judge Stephen Michael Doyle Cause: 42:1973 Voting Rights Act
Plaintiff

Date Filed: 09/26/2016 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Treva Thompson individually and behalf of all others similarly situated

represented by Aderson B. Francois Institute for Public Representation Georgetown University Law Center 600 New Jersey Avenue NW Washington, DC 20001 202−662−6721 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Armand Derfner Derfner & Altman LLC 575 King St − Ste B Charleston, SC 29403 843−723−9804 Fax: 843−723−7446 Email: aderfner@derfneraltman.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle Lang Campaign Legal Center 1411 K Street NW − Ste 1400 Washington, DC 20005 202−736−2200 Email: dlang@campaignlegalcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James Uriah Blacksher Attorney at Law PO Box 636 Birmingham, AL 35201 205−591−7238 Fax: 866−845−4395 Email: jblacksher@ns.sympatico.ca LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason P. Hipp Jenner & Block LLP 919 Third Ave − 38th Floor New York, NY 10022 212−407−1784 Fax: 212−891−1699 Email: jhipp@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 2 of 42
Jennifer J. Yun Jenner & Block LLP 1099 New York Avenue; Suite 900 Washington, DC 20001 202−637−6334 Email: jyun@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Ring Amunson Jenner & Block LLP 1099 New York Ave NW − Ste 900 Washington, DC 20001 202−639−6023 Email: JAmunson@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Gerald Hebert Campaign Legal Center 1411 K St NW − Ste 1400 Washington, DC 20005 202−736−2200 Fax: 202−736−2222 Email: GHEBERT@CAMPAIGNLEGALCENTER.ORG LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Mitchell McGuire McGuire & Associates LLC 31 Clayton Street Montgomery, AL 36104 334−517−1000 Fax: 334−517−1327 Email: jmcguire@mandabusinesslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Peter Gaber Campaign Legal Center 1411 K St NW − Ste 1400 Washington, DC 20005 202−736−2200 Email: mgaber@campaignlegalcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael E. Stewart Jenner & Block LLP 1099 New York Avenue, NW; Suite 900 Washington, DC 20001 202−637−6329 Email: MStewart@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Molly Elizabeth Danahy Campaign Legal Center 1101 14th St NW − Ste 400 Washington, DC 20005

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 3 of 42

202−736−2200 Email: mdanahy@campaignlegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela Karlan Stanford Law School Nathan Abbott Way at Alvarado Row Stanford, CA 94305 650−725−4851 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Patrick D Llewellyn Public Citizen Litigation Group 1600 20th Street NW Washington, DC 20009 202−588−7727 Fax: 202−588−7795 Email: pllewellyn@citizen.org TERMINATED: 06/13/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Melissa Swetnam individually and behalf of all others similarly situated TERMINATED: 03/19/2018

represented by Aderson B. Francois (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Armand Derfner (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle Lang (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James Uriah Blacksher (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Ring Amunson (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph Gerald Hebert (See above for address) LEAD ATTORNEY

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 4 of 42

PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph Mitchell McGuire (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela Karlan (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Patrick D Llewellyn (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Antwoine Giles individually and behalf of all others similarly situated TERMINATED: 12/03/2019

represented by Aderson B. Francois (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Armand Derfner (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle Lang (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James Uriah Blacksher (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason P. Hipp (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer J. Yun (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 5 of 42

Plaintiff
Anna Reynolds individually and behalf of all others similarly situated TERMINATED: 03/19/2018

Jessica Ring Amunson (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Gerald Hebert (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Mitchell McGuire (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Peter Gaber (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael E. Stewart (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Molly Elizabeth Danahy (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pamela Karlan (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick D Llewellyn (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Aderson B. Francois (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Armand Derfner

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 6 of 42

(See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle Lang (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James Uriah Blacksher (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Ring Amunson (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph Gerald Hebert (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph Mitchell McGuire (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela Karlan (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Patrick D Llewellyn (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Laura Corley individually and behalf of all others similarly situated TERMINATED: 12/03/2019

represented by Aderson B. Francois (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Armand Derfner (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 7 of 42
PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle Lang (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James Uriah Blacksher (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason P. Hipp (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer J. Yun (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Ring Amunson (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Gerald Hebert (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Mitchell McGuire (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Peter Gaber (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael E. Stewart (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Molly Elizabeth Danahy

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 8 of 42

(See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela Karlan (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Patrick D Llewellyn (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Larry Joe Newby individually and behalf of all others similarly situated TERMINATED: 03/19/2018

represented by Aderson B. Francois (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Armand Derfner (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle Lang (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James Uriah Blacksher (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Ring Amunson (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph Gerald Hebert (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph Mitchell McGuire (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 9 of 42

ATTORNEY TO BE NOTICED

Pamela Karlan (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Patrick D Llewellyn (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Mario Dion Yow individually and behalf of all others similarly situated TERMINATED: 12/05/2019

represented by Aderson B. Francois (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Armand Derfner (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle Lang (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James Uriah Blacksher (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason P. Hipp (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer J. Yun (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Ring Amunson (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 10 of 42

Plaintiff
Jennifer Zimmer individually and behalf of all others similarly situated TERMINATED: 12/05/2019

Joseph Gerald Hebert (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Mitchell McGuire (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Peter Gaber (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael E. Stewart (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Molly Elizabeth Danahy (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pamela Karlan (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick D Llewellyn (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Aderson B. Francois (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Armand Derfner (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle Lang

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 11 of 42
(See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James Uriah Blacksher (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason P. Hipp (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer J. Yun (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Ring Amunson (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Gerald Hebert (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Mitchell McGuire (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Peter Gaber (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael E. Stewart (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Molly Elizabeth Danahy (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 12 of 42

Plaintiff
Timothy Lanier individually and behalf of all others similarly situated

Pamela Karlan (See above for address) TERMINATED: 12/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick D Llewellyn (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Aderson B. Francois (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Armand Derfner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle Lang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James Uriah Blacksher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason P. Hipp (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer J. Yun (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Ring Amunson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Gerald Hebert (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Mitchell McGuire

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 13 of 42

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Peter Gaber (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael E. Stewart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Molly Elizabeth Danahy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela Karlan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Patrick D Llewellyn (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Pamela King individually and behalf of all others similarly situated

represented by Aderson B. Francois (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Armand Derfner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle Lang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James Uriah Blacksher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason P. Hipp (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 14 of 42

Jennifer J. Yun (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Ring Amunson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph Gerald Hebert (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph Mitchell McGuire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Peter Gaber (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael E. Stewart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Molly Elizabeth Danahy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela Karlan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Patrick D Llewellyn (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Greater Birmingham Ministries

represented by Aderson B. Francois (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Armand Derfner (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 15 of 42
ATTORNEY TO BE NOTICED
Danielle Lang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James Uriah Blacksher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason P. Hipp (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer J. Yun (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Ring Amunson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Gerald Hebert (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Mitchell McGuire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Peter Gaber (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael E. Stewart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Molly Elizabeth Danahy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pamela Karlan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 16 of 42

Patrick D Llewellyn (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Darius Gamble

represented by Aderson B. Francois (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Armand Derfner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle Lang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James Uriah Blacksher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason P. Hipp (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer J. Yun (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Ring Amunson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph Gerald Hebert (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph Mitchell McGuire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Peter Gaber (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 17 of 42
ATTORNEY TO BE NOTICED
Michael E. Stewart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Molly Elizabeth Danahy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pamela Karlan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
State of Alabama TERMINATED: 12/03/2019

represented by Andrew Lynn Brasher Office of the Attorney General 501 Washington Avenue Montgomery, AL 36130 334−353−2690 Fax: 334−242−4891 Email: abrasher@ago.state.al.us TERMINATED: 07/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James William Davis State of Alabama Office of the Attorney General P O Box 300152 Montgomery, AL 36130−0152 334−353−1356 Fax: 334−353−8440 Email: Jim.Davis@AlabamaAG.gov TERMINATED: 12/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Misty Shawn Fairbanks Messick Office of the Attorney General 501 Washington Avenue Post Office Box 300152 Montgomery, AL 36130−0152 334−353−8674 Fax: 334−353−8400 Email: Misty.Messick@AlabamaAG.gov TERMINATED: 12/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad A. Chynoweth State of Alabama Office of the Attorney General 501 Washington Avenue Post Office Box 300152 Montgomery, AL 36130 334.242.7997

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 18 of 42

Fax: 334.353.8440 Email: Brad.Chynoweth@AlabamaAG.gov TERMINATED: 12/03/2019 ATTORNEY TO BE NOTICED

Laura Elizabeth Howell Office of the Alabama Attorney General P O Box 300152 Montgomery, AL 36130 334−353−1018 Fax: 334−353−8440 Email: laura.howell@alabamaag.gov TERMINATED: 12/03/2019 ATTORNEY TO BE NOTICED

Mary Mangan Maynard Cooper & Gale 1901 Sixth Avenue North 2400 Regions Harbet Plaza Birmingham, AL 35209 205.254.1065 Email: mmangan@maynardcooper.com TERMINATED: 08/11/2017 ATTORNEY TO BE NOTICED

Winfield James Sinclair Office of the Attorney General 501 Washington Avenue Montgomery, AL 36104 334−242−7300 Fax: 334−353−8400 Email: Winfield.Sinclair@AlabamaAG.gov TERMINATED: 12/03/2019 ATTORNEY TO BE NOTICED

Defendant
John H. Merrill in his official capacity as Secretary of State

represented by Andrew Lynn Brasher (See above for address) TERMINATED: 07/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James William Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Misty Shawn Fairbanks Messick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brad A. Chynoweth (See above for address) ATTORNEY TO BE NOTICED

Laura Elizabeth Howell (See above for address) TERMINATED: 01/14/2020 ATTORNEY TO BE NOTICED

Mary Mangan (See above for address) TERMINATED: 08/11/2017

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 19 of 42

ATTORNEY TO BE NOTICED

Winfield James Sinclair (See above for address) ATTORNEY TO BE NOTICED

Defendant
George Noblin in his official capacity as Chairman of the Montgomery County Board of Registrars and on behalf of a class of all voter registrars in the State of Alabama TERMINATED: 05/24/2018

represented by Andrew Lynn Brasher (See above for address) TERMINATED: 07/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James William Davis (See above for address) TERMINATED: 05/24/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Misty Shawn Fairbanks Messick (See above for address) TERMINATED: 05/24/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brad A. Chynoweth (See above for address) TERMINATED: 05/24/2018 ATTORNEY TO BE NOTICED

Laura Elizabeth Howell (See above for address) TERMINATED: 05/24/2018 ATTORNEY TO BE NOTICED

Mary Mangan (See above for address) TERMINATED: 08/11/2017 ATTORNEY TO BE NOTICED

Winfield James Sinclair (See above for address) TERMINATED: 05/24/2018 ATTORNEY TO BE NOTICED

Defendant
Clifford Walker in his official capacity as Chairman of the Board of Pardons and Paroles TERMINATED: 10/16/2018

represented by Andrew Lynn Brasher (See above for address) TERMINATED: 07/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James William Davis (See above for address) TERMINATED: 10/16/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Misty Shawn Fairbanks Messick (See above for address) TERMINATED: 10/16/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 20 of 42

Brad A. Chynoweth (See above for address) TERMINATED: 10/16/2018 ATTORNEY TO BE NOTICED

Laura Elizabeth Howell (See above for address) TERMINATED: 10/16/2018 ATTORNEY TO BE NOTICED

Mary Mangan (See above for address) TERMINATED: 08/11/2017 ATTORNEY TO BE NOTICED

Winfield James Sinclair (See above for address) TERMINATED: 10/16/2018 ATTORNEY TO BE NOTICED

Defendant
Cindy Sahlie in her official capacity as Chairman of the Montgomery County Board of Registrars and on behalf of a class of all voter registrars in the State of Alabama

represented by Brad A. Chynoweth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James William Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Elizabeth Howell (See above for address) TERMINATED: 01/14/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Misty Shawn Fairbanks Messick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip G. Fairbanks Mehr Fairbanks & Peterson Trial Lawyers PLLC 201 West Short St − Ste 800 Lexington, KY 40507 859−225−3731 Fax: 859−225−3830 Email: pgf@austinmehr.com TERMINATED: 10/25/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Winfield James Sinclair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lyn Head in her official capacity as Chairman of the Board of Pardons and Paroles TERMINATED: 10/16/2019

represented by Brad A. Chynoweth (See above for address) TERMINATED: 10/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 21 of 42

Defendant Leigh Gwathney in her official capacity as Chairman of the Board of Pardons and Paroles
Movant Rep. David Faulkner

James William Davis (See above for address) TERMINATED: 10/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Elizabeth Howell (See above for address) TERMINATED: 10/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Misty Shawn Fairbanks Messick (See above for address) TERMINATED: 10/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip G. Fairbanks (See above for address) TERMINATED: 10/25/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Winfield James Sinclair (See above for address) TERMINATED: 10/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brad A. Chynoweth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James William Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Elizabeth Howell (See above for address) TERMINATED: 01/14/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Misty Shawn Fairbanks Messick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Winfield James Sinclair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher William Weller Capell Howard PC PO Box 2069 Montgomery, AL 36102−2069 334−241−8000

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 22 of 42

Fax: 334−323−8888 Email: cww@chlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Cam Ward

represented by Christopher William Weller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc James Ayers , Sr. Bradley Arant Boult Cummings LLP 1819 Fifth Avenue North Birmingham, AL 35203 205−521−8598 Fax: 205−488−6598 Email: mayers@bradley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/26/2016
09/26/2016 09/26/2016 09/26/2016 09/26/2016 09/26/2016 09/26/2016 09/26/2016 09/26/2016 09/26/2016 09/26/2016 09/26/2016 09/26/2016

# Docket Text
1 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against John H. Merrill, George Noblin, State of Alabama, Clifford Walker ( Filing fee $ 400.00 receipt number 4602042577.), filed by Melissa Swetnam, Antwoine Giles, Laura Corley, Jennifer Zimmer, Larry Joe Newby, Greater Birmingham Ministries, Timothy Lanier, Treva Thompson, Pamela King, Anna Reynolds, Mario Dion Yow. (Attachments: # 1 Filing Fee Receipt)(dmn, ) (Entered: 09/28/2016)
2 Corporate/Conflict Disclosure Statement by Laura Corley. (dmn, ) (Entered: 09/28/2016)
3 Corporate/Conflict Disclosure Statement by Antwoine Giles. (dmn, ) (Entered: 09/28/2016)
4 Corporate/Conflict Disclosure Statement by Greater Birmingham Ministries. (dmn, ) (Entered: 09/28/2016)
5 Corporate/Conflict Disclosure Statement by Pamela King. (dmn, ) (Entered: 09/28/2016)
6 Corporate/Conflict Disclosure Statement by Timothy Lanier. (dmn, ) (Entered: 09/28/2016)
7 Corporate/Conflict Disclosure Statement by Larry Joe Newby. (dmn, ) (Entered: 09/28/2016)
8 Corporate/Conflict Disclosure Statement by Anna Reynolds. (dmn, ) (Entered: 09/28/2016)
9 Corporate/Conflict Disclosure Statement by Treva Thompson. (dmn, ) (Entered: 09/28/2016)
10 Corporate/Conflict Disclosure Statement by Melissa Swetnam. (dmn, ) (Entered: 09/28/2016)
11 Corporate/Conflict Disclosure Statement by Mario Dion Yow. (dmn, ) (Entered: 09/28/2016)
12 Corporate/Conflict Disclosure Statement by Jennifer Zimmer. (dmn, ) (Entered: 09/28/2016)
13 Summons Issued as to John H. Merrill, George Noblin, State of Alabama, Clifford Walker and returned to counsel for personal service.(dmn, ) (Entered: 09/28/2016)

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 23 of 42

09/26/2016 09/26/2016 09/26/2016 09/26/2016 09/29/2016 09/29/2016 09/29/2016 09/29/2016 09/29/2016 09/29/2016 09/29/2016 09/29/2016 09/29/2016 10/07/2016

14 SUMMONS Returned Executed by Melissa Swetnam, Antwoine Giles, Laura Corley, Jennifer Zimmer, Larry Joe Newby, Greater Birmingham Ministries, Timothy Lanier, Treva Thompson, Pamela King, Anna Reynolds, Mario Dion Yow. State of Alabama served on 9/26/2016, answer due 10/17/2016. (dmn, ) (Entered: 09/28/2016)
15 SUMMONS Returned Executed by Melissa Swetnam, Antwoine Giles, Laura Corley, Jennifer Zimmer, Larry Joe Newby, Greater Birmingham Ministries, Timothy Lanier, Treva Thompson, Pamela King, Anna Reynolds, Mario Dion Yow. John H. Merrill served on 9/26/2016, answer due 10/17/2016. (dmn, ) (Entered: 09/28/2016)
16 SUMMONS Returned Executed by Melissa Swetnam, Antwoine Giles, Laura Corley, Jennifer Zimmer, Larry Joe Newby, Greater Birmingham Ministries, Timothy Lanier, Treva Thompson, Pamela King, Anna Reynolds, Mario Dion Yow. George Noblin served on 9/26/2016, answer due 10/17/2016. (dmn, ) (Entered: 09/28/2016)
17 SUMMONS Returned Executed by Melissa Swetnam, Antwoine Giles, Laura Corley, Jennifer Zimmer, Larry Joe Newby, Greater Birmingham Ministries, Timothy Lanier, Treva Thompson, Pamela King, Anna Reynolds, Mario Dion Yow. Clifford Walker served on 9/26/2016, answer due 10/17/2016. (dmn, ) (Entered: 09/28/2016)
18 Motion for Danielle Lang to Appear Pro Hac Vice by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit 1)(McGuire, Joseph) Modified on 9/30/2016 to include name of attorney (qc/djy, ). (Entered: 09/29/2016)
19 Motion for J. Gerald Hebertto Appear Pro Hac Vice by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit 1)(McGuire, Joseph) Modified on 9/30/2016 to clarify text to add name of attorney (qc/djy, ). (Entered: 09/29/2016)
20 Motion for JESSICA RING AMUNSON to Appear Pro Hac Vice by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit 1)(McGuire, Joseph) Modified on 9/30/2016 to clarify text to add name of attorney (qc/djy, ). (Entered: 09/29/2016)
21 Motion for Aderson B. Francois to Appear Pro Hac Vice by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit 1)(McGuire, Joseph) Modified on 9/30/2016 to clarify text to add attorney name (qc/djy, ). (Entered: 09/29/2016)
22 Motion for Patrick Llewellyn to Appear Pro Hac Vice by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit 1)(McGuire, Joseph) Modified on 9/30/2016 to clarify text to add attorney name (qc/djy, ). (Entered: 09/29/2016)
23 Motion for Armand Derfner to Appear Pro Hac Vice by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit 1)(McGuire, Joseph) Modified on 9/30/2016 to clarify text to add attorney name (qc/djy, ). (Entered: 09/29/2016)
24 Pro Hac Vice Filing fee for Jessica Amunson received re 20 Motion: $ 50.00, receipt number 4602042601. (dmn, ) (Entered: 10/03/2016)
25 Pro Hac Vice Filing fees received for Danielle Lang and Joseph Hebert re Motions (Doc. Nos. 18 and 19 ): $ 100.00, receipt number 4602042600. (dmn, ) (Entered: 10/03/2016)
26 Pro Hac Vice Filing fee received for Armand Derfner re 23 Motion: $ 50.00, receipt number 4602042602. (dmn, ) (Entered: 10/03/2016)
27 TEXT ORDER granting 18 Motion for Danielle Lang to Appear Pro Hac Vice; granting 19 Motion for J. Gerald Hebertto to Appear Pro Hac Vice; granting 20

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 24 of 42

10/11/2016 10/11/2016 10/12/2016
10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/13/2016
10/20/2016
10/24/2016
10/28/2016
11/01/2016
11/01/2016

Motion for Jessica Ring Amunson to Appear Pro Hac Vice; granting 23 Motion for Armand Derfner to Appear Pro Hac Vice. Signed by Chief Judge William Keith Watkins on 10/7/2016. (dmn, ) (NO PDF) (Entered: 10/07/2016)
28 Pro Hac Vice Filing fee for Aderson B. Francois re 21 Motion: $ 50.00, receipt number 4602042735. (dmn, ) (Entered: 10/12/2016)
29 Pro Hac Vice Filing fee received for Patrick D. Llewellyn re 22 Motion: $ 50.00, receipt number 4602042736. (dmn, ) (Entered: 10/12/2016)
30 TEXT ORDER granting 21 Motion for Aderson B. Francois to Appear Pro Hac Vice; and granting 22 Motion for Patrick Llewellyn to Appear Pro Hac Vice. Signed by Chief Judge William Keith Watkins on 10/12/2016. (dmn, ) (NO PDF) (Entered: 10/12/2016)
31 NOTICE of Appearance by Andrew L Brasher on behalf of All Defendants (Brasher, Andrew) (Entered: 10/12/2016)
32 NOTICE of Appearance by James William Davis on behalf of All Defendants (Davis, James) (Entered: 10/12/2016)
33 NOTICE of Appearance by Misty Shawn Fairbanks Messick on behalf of All Defendants (Messick, Misty) (Entered: 10/12/2016)
34 Corporate/Conflict Disclosure Statement by State of Alabama. (Davis, James) (Entered: 10/12/2016)
35 Corporate/Conflict Disclosure Statement by John H. Merrill. (Davis, James) (Entered: 10/12/2016)
36 Corporate/Conflict Disclosure Statement by George Noblin. (Davis, James) (Entered: 10/12/2016)
37 Corporate/Conflict Disclosure Statement by Clifford Walker. (Davis, James) (Entered: 10/12/2016)
38 MOTION for Extension of Time to File Answer by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Brasher, Andrew) (Entered: 10/12/2016)
39 TEXT ORDER: It is ORDERED that the 38 Motion for Extension of Time to Answer is granted to and including 11/16/2016. Answer due from John H. Merrill, George Noblin, State of Alabama, and Clifford Walker on 11/16/2016. Signed by Chief Judge William Keith Watkins on 10/13/2016. (dmn, ) (NO PDF) (Entered: 10/13/2016)
Mail Returned as Undeliverable. 27 Text Order mailed to Armand Derfner returned by USPS with the following notation, "Return to Sender, Attempted, Not Known, Unable to Forward." Text Order re−mailed 10/21/2016 to updated address. (dmn, ) (NO PDF) (Entered: 10/21/2016)
Mail Returned as Undeliverable. 30 Text Order mailed to Armand Derfner returned by USPS with the following notation, "Return to Sender, Attempted, Not Known, Unable to Forward." Text order re−mailed 10/25/2016 to updated address as noted on docket. (dmn, ) (NO PDF) (Entered: 10/25/2016)
Mail Returned as Undeliverable. 39 Text Order mailed to Armand Derfner returned by USPS with the following notation, "Return to Sender, Attempted, Not Known, Unable to Forward." Text order re−mailed 10/31/2016 to updated address as noted on docket. (dmn, ) (NO PDF) (Entered: 10/31/2016)
40 Motion for Pamela S. Karlan to Appear Pro Hac Vice by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit 1)(McGuire, Joseph) Modified on 11/4/2016 to add attorney name requesting appearance. (dmn, ) (Entered: 11/01/2016)
41 Pro Hac Vice Filing fee for Pamela Karlan received re 40 Motion: $ 50.00, receipt number 4602042962 (dmn, ) (Entered: 11/01/2016)

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 25 of 42

11/04/2016 11/16/2016 11/16/2016 11/17/2016 11/21/2016
11/28/2016 11/30/2016 01/13/2017 01/13/2017 01/18/2017 02/10/2017 02/28/2017

42 TEXT ORDER: It is ORDERED that the 40 Motion for Pamela S. Karlan to Appear Pro Hac Vice is granted. Signed by Chief Judge William Keith Watkins on 11/4/2016. (dmn, ) (NO PDF) (Entered: 11/04/2016)
43 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Brief in Support by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Brasher, Andrew) (Entered: 11/16/2016)
BRIEF/MEMORANDUM in Support of 43 Motion to Dismiss filed by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (dmn, ) (NO PDF, see Doc. 43 for pdf.) (Entered: 11/17/2016)
44 BRIEFING ORDER setting out briefing schedule on dispositive motions as further set out in the order. It is ORDERED that the 43 Motion to Dismiss be submitted without oral argument on 12/15/2016. It is further ORDERED that the plaintiffs file a response, which shall include a brief, on or before 12/8/2016. The defendants may file a reply brief on or before 12/15/2016. Signed by Chief Judge William Keith Watkins on 11/17/2016. (dmn, ) (Entered: 11/17/2016)
45 UNOPPOSED MOTION for Extension of Time to File Response/Reply as to 43 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Brief in Support by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Blacksher, James) Modified on 11/28/2016 to reflect the motion is unopposed. (dmn, ) (Additional attachment(s) added on 11/28/2016: # 1 Correct Certificate of Service) (dmn, ). (Entered: 11/21/2016)
46 [VACATED PURSUANT TO COURT 47 ORDER.] TEXT ORDER: Upon consideration of the 45 Unopposed Motion for Extension of Time to File Response to the 43 Motion to Dismiss, it is ORDERED that the motion is GRANTED, and the deadline to file a response is extended to and including 1/27/2017. Signed by Chief Judge William Keith Watkins on 11/28/2016. (dmn, ) (NO PDF) Modified on 11/30/2016 (dmn, ). (Entered: 11/28/2016)
47 ORDER: The order entered on 11/28/2016 is VACATED. It is further ORDERED that Plaintiffs' 45 Unopposed Motion for Extension of Time is GRANTED. Plaintiffs' deadline to file a response to Defendants' 43 Motion to Dismiss is EXTENDED to and including 1/13/2017, and Defendants' deadline to file a reply brief is EXTENDED to and including 1/27/2017. Signed by Chief Judge William Keith Watkins on 11/30/2016. (dmn, ) (Entered: 11/30/2016)
48 RESPONSE in Opposition re 43 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Brief in Support filed by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit Exhibit 1 − Gooden v. Worley)(Lang, Danielle) (Entered: 01/13/2017)
BRIEF/MEMORANDUM in Support of 48 Opposition to 43 Motion, filed by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (dmn, ) (NO PDF, see Doc. 48 for pdf.) (Entered: 01/17/2017)
49 MOTION for Extension of Time to File Response/Reply as to 43 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Brief in Support by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Brasher, Andrew) (Entered: 01/18/2017)
50 REPLY in Support of 43 Motion to Dismiss for Failure to State a Claim and Brief in Support filed by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Attachments: # 1 Exhibit 1)(Brasher, Andrew) Modified on 2/13/2017 to clean up text. (dmn, ) (Entered: 02/10/2017)
51 TEXT ORDER granting 49 Motion for Extension of Time to File Response/Reply. Signed by Chief Judge William Keith Watkins on 2/28/2017. (dmn, ) (NO PDF)

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 26 of 42

04/17/2017
04/20/2017
06/13/2017
06/13/2017 06/13/2017 06/30/2017 06/30/2017 06/30/2017 06/30/2017 07/03/2017 07/05/2017

(Entered: 02/28/2017)
52 MOTION to Stay Discovery and Extend Rule 26(f) Deadlines (opposed), filed by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Attachments: # 1 Exhibit 1 − Plaintiffs First Requests for Production, # 2 Exhibit 2 − Deposition Notice 30(b)(6) Office of the Secretary of State, # 3 Exhibit 3 − Deposition Notice 30(b)(6) Board of Pardons and Paroles, # 4 Exhibit 4 − Deposition Notice 30(b)(6) Association of the Boards of Registrars)(Davis, James) (Entered: 04/17/2017)
53 [VACATED PURSUANT TO COURT 81 ORDER.] ORDER: Upon consideration of Defendants 52 Opposed Motion to Stay Discovery and Extend Rule 26(f) Deadlines, it is ORDERED that the motion is GRANTED. All discovery obligations and Rule 26(f) deadlines are STAYED until further order of the court. Signed by Chief Judge William Keith Watkins on 4/20/2017. (dmn, ) Modified on 12/26/2017 (dmn, ). (Entered: 04/20/2017)
54 MOTION for Patrick Llewellyn to Withdraw as Attorney for Plaintiffs and Plaintiff Class by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Llewellyn, Patrick) Modified on 6/14/2017 to include name of attorney requesting withdrawal. (dmn, ) (Entered: 06/13/2017)
55 TEXT ORDER granting 54 Motion for Patrick Llewellyn to Withdraw as Attorney. Signed by Chief Judge William Keith Watkins on 6/13/17. (NO PDF document attached to this notice). (djy, ) (Entered: 06/13/2017)
*** Attorney Patrick D Llewellyn terminated pursuant to Court 55 Text Order. (dmn, ) (Entered: 06/14/2017)
56 MOTION for Preliminary Injunction by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit Exhibits A−G)(Lang, Danielle) (Entered: 06/30/2017)
57 MOTION To Shorten Time for Plaintifs' 56 MOTION for Preliminary Injunction by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Lang, Danielle) Modified on 7/3/2017 to clean up text. (dmn, ) (Entered: 06/30/2017)
58 RESPONSE in Opposition re 57 MOTION To Shorten Time for Plaintifs' Motion for Preliminary Injunction re 56 MOTION for Preliminary Injunction filed by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Attachments: # 1 Exhibit A − Handbook, # 2 Exhibit B − Website, # 3 Exhibit C − Agenda)(Brasher, Andrew) (Entered: 06/30/2017)
BRIEF in Support of 56 MOTION for Preliminary Injunction filed by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (dmn, ) (NO PDF, see Doc. 56 for pdf.) (Entered: 07/03/2017)
59 REPLY to Response to Motion re 57 MOTION To Shorten Time for Plaintifs' Motion for Preliminary Injunction re 56 MOTION for Preliminary Injunction filed by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Lang, Danielle) (Entered: 07/03/2017)
60 ORDER: Before the court are Plaintiffs' 56 Motion for Preliminary Injunction and 57 Motion to Expedite Briefing and a Hearing on the Motion for Preliminary Injunction. This Order sets the schedule for the submission of the preliminary injunction motion as further set out in the order. Based upon careful consideration of the full panoply of arguments as to the time frame for addressing the motion for preliminary injunction, it is ORDERED that Plaintiff's 57 Motion to Shorten the Time on the Preliminary Injunction Motion is GRANTED to the following extent: (1) Defendants shall file a response to Plaintiffs' 56 Motion for Preliminary Injunction on or before 7/21/2017; and (2) A hearing on the Motion

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 27 of 42

07/18/2017
07/21/2017 07/21/2017
07/21/2017 07/21/2017 07/24/2017 07/25/2017 07/25/2017
07/25/2017

for Preliminary Injunction is set for 7/25/2017 at 2:30 PM in CR 2B in Montgomery, AL before Chief Judge William Keith Watkins. It is further ORDERED that, on or before 7/21/2017, Defendants shall disclose to counsel for Plaintiffs a list of all voter applicants previously purged or denied based on convictions for the last two years, see 52 U.S.C. 20507(i), or SHOW CAUSE on or before 7/13/2017, why they should not be required to do so. Signed by Chief Judge William Keith Watkins on 7/5/2017. Copies furnished to calendar group, AR. (dmn, ) (Entered: 07/05/2017)
61 ORDER: The 60 Order directing Defendants to file a response to Plaintiffs' motion for preliminary injunction on or before 7/21/2017, is AMENDED as follows: Defendants shall file a response to Plaintiffs' 56 Motion for Preliminary Injunction on or before 7/21/2017, at 3:00 p.m. Additionally, two duplicate sets of courtesy copies shall be delivered to chambers on on before 7/21/2017, at 4:00 p.m. The courtesy copies should comply with the requirements set out in 11/17/2016 Order (Doc. 44 ), with the exception that Defendants are excused from the requirements that the courtesy copies should include the CM/ECF header. The courtesy copies do not have to be printed after filing in CM/ECF. Signed by Chief Judge William Keith Watkins on 7/18/2017. (dmn, ) (Entered: 07/18/2017)
62 NOTICE of Appearance by Mary Mangan on behalf of John H. Merrill, George Noblin, State of Alabama, Clifford Walker (Mangan, Mary) (Entered: 07/21/2017)
63 BRIEF/MEMORANDUM in Opposition re 56 MOTION for Preliminary Injunction filed by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Attachments: # 1 Exhibit A−Declaration of Edward Packard, # 2 Exhibit B−Declaration of Clay Helms, # 3 Exhibit C−Declaration of Brent Beal, # 4 Exhibit D−Declaration of Phil Bryant, # 5 Exhibit E−Declaration of George Noblin, # 6 Exhibit F−Declaration of Angelique Pugh, # 7 Exhibit F(12) (CD−being filed conventionally, see Doc. 65 ), # 8 Exhibit G−Declaration of James Donald Milligan)(Brasher, Andrew) Modified on 7/25/2017 to create link to Doc. 65 , Exhibit F (Attachment No. 12), CD filed conventionally. (dmn, ) (Entered: 07/21/2017)
64 NOTICE by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer re 56 MOTION for Preliminary Injunction (Lang, Danielle) (Entered: 07/21/2017)
65 NOTICE OF CONVENTIONAL FILING (EXHIBIT F (Attachment No. 12) on CD) to Defendant's 63 Opposition to Plaintiffs' 56 Motion for Preliminary Injunction, by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (CD placed in small envelope attached to this document; placed in file in Clerk's office.) (dmn, ) (Entered: 07/21/2017)
66 Evidentiary Submission re 56 MOTION for Preliminary Injunction Hearing on 7/25/2017 filed by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(McGuire, Joseph) (Entered: 07/24/2017)
67 MOTION to Strike 66 Evidentiary Submission,, by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Mangan, Mary) (Entered: 07/25/2017)
68 ORDER: An on−the−record hearing on Plaintiffs' 56 Motion for Preliminary Injunction is set for 7/25/2017 at 02:30 PM in CR 2B in Montgomery, AL before Chief Judge William Keith Watkins. It is ORDERED that all attorneys of record who are appearing for the hearing today shall confer with the court, off the record, at 2:15 PM, in CR 2A of the Frank M. Johnson, Jr. U. S. Courthouse. Signed by Chief Judge William Keith Watkins on 7/25/2017. Copies furnished to calendar group, AR. (dmn, ) (Entered: 07/25/2017)
69 Minute Entry for proceedings held before Chief Judge William Keith Watkins: Motion Hearing held on 7/25/2017 re 67 MOTION to Strike 66 Evidentiary Submission filed by State of Alabama, Clifford Walker, John H. Merrill, George Noblin, 56 MOTION for Preliminary Injunction filed by Melissa Swetnam, Anna Reynolds, Pamela King, Timothy Lanier, Antwoine Giles, Larry Joe Newby, Jennifer Zimmer, Treva

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 28 of 42

07/28/2017 07/28/2017 07/28/2017
08/10/2017 08/11/2017 08/11/2017 09/28/2017
10/17/2017 10/17/2017 10/18/2017
10/19/2017 12/26/2017

Thompson, Laura Corley, Greater Birmingham Ministries, Mario Dion Yow (PDF available for court use only). (Court Reporter Risa Entrekin.) (ajr, ) (Entered: 07/26/2017)
70 NOTICE by John H. Merrill, George Noblin, State of Alabama, Clifford Walker (Notice of Supplemental Information) (Attachments: # 1 Exhibit A − Second Declaration of Edward Packard)(Mangan, Mary) (Entered: 07/28/2017)
71 NOTICE by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer re 70 Notice (Other) (Response to Notice of Supplemental Information) (Lang, Danielle) (Entered: 07/28/2017)
72 MEMORANDUM OPINION AND ORDER: Accordingly, based upon careful consideration of Plaintiffs motion for preliminary injunction, Defendants opposition, the evidentiary hearing, and the oral arguments, and the record, it is ORDERED that the motion (Doc. 56 ) is DENIED as further set out in the opinion and order. Signed by Chief Judge William Keith Watkins on 7/28/2017. (dmn, ) (Entered: 07/28/2017)
73 MOTION to Withdraw as Attorney Mary Mangan by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Mangan, Mary) (Entered: 08/10/2017)
74 TEXT ORDER granting 73 Motion for Mary Mangan to Withdraw as Attorney. Signed by Chief Judge William Keith Watkins on 8/11/2017. (dmn, ) (NO PDF) (Entered: 08/11/2017)
*** Attorney Mary Mangan terminated pursuant to Text Order (Doc. #74). (dmn, ) (Entered: 02/13/2018)
75 ORDER: It is ORDERED that Defendants Motion to Dismiss (Doc. 43 ), filed pursuant to Federal Rule of Civil Procedure 12(b)(6), is GRANTED in part and DENIED in part, with a memorandum opinion to follow at a later date.The time for Defendants to file a responsive pleading, as set out in Federal Rule of Civil Procedure 12(a)(4), is STAYED until the entry of the memorandum opinion. Signed by Chief Judge William Keith Watkins on 9/28/2017. (dmn, ) (Entered: 09/28/2017)
76 MOTION Lift Stay on Discovery Obligations re 52 MOTION to Stay Discovery and Extend Rule 26(f) Deadlines (opposed), filed, 53 Order on Motion to Stay, by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Lang, Danielle) (Entered: 10/17/2017)
77 RESPONSE in Opposition re 76 MOTION Lift Stay on Discovery Obligations re 52 MOTION to Stay Discovery and Extend Rule 26(f) Deadlines (opposed), filed, 53 Order on Motion to Stay, filed by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Davis, James) (Entered: 10/17/2017)
78 REPLY to Response to Motion re 76 MOTION Lift Stay on Discovery Obligations re 52 MOTION to Stay Discovery and Extend Rule 26(f) Deadlines (opposed), filed, 53 Order on Motion to Stay, filed by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Lang, Danielle) (Entered: 10/18/2017)
79 TEXT ORDER: It is ORDERED that Defendants' 67 Motion to Strike Plaintiffs' Evidentiary Submissions is GRANTED in part and |DENIED in part in accordance with the rulings made in open court on 7/25/2107. Signed by Chief Judge William Keith Watkins on 10/19/2017. (dmn, ) (NO PDF) (Entered: 10/19/2017)
80 MEMORANDUM OPINION AND ORDER: To summarize the more−than−nine−thousand words preceding this section in a single thirty−six−word sentence: Plaintiffs challenge to Alabamas constitutional and statutory scheme for the disenfranchisement and re−enfranchisement of individuals convicted of crimes of moral turpitude will proceed, but only on a third of the counts in Plaintiffs fifteen−count complaint. Consistent with the

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 29 of 42

12/26/2017
12/26/2017 01/03/2018 01/03/2018 01/03/2018 01/12/2018 01/19/2018 01/29/2018
02/12/2018 02/23/2018
02/26/2018

reasoning of this opinion, it is ORDERED as follows: (1) Counts 3, 4, 5, 14, and 15 are DISMISSED with prejudice for failure to state a claim upon which relief can be granted; and (2) Counts 6, 7, 8, 9, and 10 are DISMISSED without prejudice for lack of subject−matter jurisdiction. This action proceeds as to five counts: Plaintiffs claims that section 177(b) of the Alabama Constitution is racially discriminatory in violation of the Fourteenth Amendments Equal Protection Clause and the Fifteenth Amendment (Counts 1 and 2); Plaintiffs claim that section 177(b) is an ex post facto law that retroactively punishes citizens (Count 11); Plaintiffs claim that section 177(b) violates the Eighth Amendments proscription against cruel and unusual punishment (Count 12); and Plaintiffs claim that section 15−22−36.1(a)(3) of the Alabama Code violates the Fourteenth Amendments Equal Protection Clause (Count 13). Signed by Chief Judge William Keith Watkins on 12/26/2017. (dmn, ) (Entered: 12/26/2017)
81 ORDER: Upon consideration of Plaintiffs Motion to Lift Stay on Discovery Obligations (Doc. 76 ), it is ORDERED that the motion is GRANTED. Accordingly, the Order (Doc. 53 ) staying all discovery obligations and Rule 26(f) deadlines is VACATED. Defendants are DIRECTED to file their responsive pleading on or before 1/12/2018. Signed by Chief Judge William Keith Watkins on 12/26/2017. (dmn, ) (Entered: 12/26/2017)
82 RULE 26(f) ORDER directing the parties to file the Rule 26(f) report containing the proposed discovery plan as further set out in the order. Rule 26 Meeting Report due by 1/19/2018. Signed by Chief Judge William Keith Watkins on 12/26/2017. (dmn, ) (Entered: 12/26/2017)
83 NOTICE of Appearance by Laura Elizabeth Howell on behalf of All Defendants (Howell, Laura) (Main Document 83 replaced on 1/4/2018 with properly formatted pdf only, no text modified.) (dmn, ). Modified on 1/4/2018. (dmn, ) (Entered: 01/03/2018)
84 NOTICE of Appearance by Brad A. Chynoweth on behalf of All Defendants (Chynoweth, Brad) (Entered: 01/03/2018)
85 NOTICE of Appearance by Winfield James Sinclair on behalf of All Defendants (Sinclair, Winfield) (Main Document 85 replaced on 1/4/2018 with properly formatted pdf only, no text modified.) (dmn, ) Modified on 1/4/2018. (dmn, ) (Entered: 01/03/2018)
86 ANSWER to 1 Complaint, by John H. Merrill, George Noblin, State of Alabama, Clifford Walker.(Messick, Misty) (Entered: 01/12/2018)
87 REPORT of Rule 26(f) Planning Meeting. (Messick, Misty) (Entered: 01/19/2018)
88 UNIFORM SCHEDULING ORDER: An on−the−record Pretrial Conference is set for 4/8/2019 in Courtroom 2B FMJJ/USCC before Chief Judge William Keith Watkins. Non−Jury Trial set for 5/6/2019 in Montgomery, AL before Chief Judge William Keith Watkins. Amended Pleadings due by the plaintiffs on or before 2/23/2018, and by the defendants on or before 3/9/2018. Discovery due by 12/18/2018. Motions due by 1/15/2019. Mediation Notice due by 12/23/2018. Signed by Chief Judge William Keith Watkins on 1/29/2018. Copies furnished to calendar group, AR. (dmn, ) (Entered: 01/29/2018)
89 Objection to re 88 Scheduling Order,, filed by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Messick, Misty) (Entered: 02/12/2018)
90 MOTION for Leave to File Supplemental Complaint naming Darius Gamble as an additional plaintiff by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit Proposed Supplemental Complaint)(Lang, Danielle) Modified on 5/15/2018 to include text regarding Darius Gamble. (dmn, ) (Entered: 02/23/2018)
91 ORDER: Before the court is the State Defendants' timely Objection to Uniform Scheduling Order ("USO"). (Doc. # 89 .) Defendants object to Section 8 of the USO (Doc. # 88 ) on grounds that it does not expressly provide Defendants a right to file rebuttal expert reports as contemplated by Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure. The objection is well taken. Accordingly, it is

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 30 of 42

02/27/2018 03/01/2018
03/01/2018 03/15/2018 03/15/2018 03/15/2018 03/19/2018 04/05/2018

ORDERED that Section 8 of the USO is AMENDED to add the following: The deadline for the disclosure of defense rebuttal experts is twenty−one days after Plaintiffs' disclosure. Signed by Chief Judge William Keith Watkins on 2/26/2018. (kh, ) (Entered: 02/26/2018)
92 ORDER granting 90 Motion for Leave to File Supplemental Complaint. On or before March 2, 2018, Plaintiffs shall file electronically a duplicate of the amended complaint attached to their motion, but with a current filing date, in accordance with the Middle District of Alabamas Civil Administrative Procedures. Signed by Chief Judge William Keith Watkins on 2/27/2018. (kh, ) (Entered: 02/27/2018)
93 [PLEASE DISREGARD THIS DOCKET ENTRY, WRONG EVENT SELECTED WHEN ORIGINALLY FILED. SEE CORRECTED DOCKET ENTRY.] AMENDMENT TO COMPLAINT Re: 1 Supplemental Complaint against All Defendants, filed by Melissa Swetnam, Antwoine Giles, Laura Corley, Jennifer Zimmer, Larry Joe Newby, Greater Birmingham Ministries, Timothy Lanier, Treva Thompson, Pamela King, Anna Reynolds, Mario Dion Yow. Related document: 1 Complaint, filed by Melissa Swetnam, Anna Reynolds, Pamela King, Timothy Lanier, Antwoine Giles, Larry Joe Newby, Jennifer Zimmer, Treva Thompson, Laura Corley, Greater Birmingham Ministries, Mario Dion Yow, Darius Gamble.(Lang, Danielle) Modified on 3/2/2018 to include Darius Gamble. (dmn, ). Modified on 5/15/2018 (dmn, ). (Entered: 03/01/2018)
SUPPLEMENTAL CLASS−ACTION COMPLAINT for Declaratory and Injunctive Relief against All Defendants, filed by Melissa Swetnam, Antwoine Giles, Laura Corley, Jennifer Zimmer, Larry Joe Newby, Greater Birmingham Ministries, Timothy Lanier, Treva Thompson, Pamela King, Anna Reynolds, Mario Dion Yow, Darius Gamble.(dmn, ) (NO PDF, see Doc. 93 for pdf. Wrong event code selected when originally filed.) Modified on 5/15/2018 to include Darius Gamble as a filer. (dmn, ) (Entered: 03/02/2018)
94 JOINT STIPULATION of Dismissal of Plaintiffs Swetnam, Reynolds, and Newby by John H. Merrill, George Noblin, State of Alabama, Clifford Walker, Jennifer Zimmer, Mario Dion Yow, Treva Thompson, Melissa Swetnam, Anna Reynolds, Larry Joe Newby, Timothy Lanier, Pamela King, Greate Birmingham Ministries, Antwoine Giles, Laura Corley. (Messick, Misty) Modified on 3/16/2018 to clean up text and include additional filers. (dmn, ) (Entered: 03/15/2018)
95 RENEWED MOTION to Dismiss (Defendants' Renewed Motion to Dismiss and Motion to Dismiss Supplemental Complaint (Doc. 93 ) or, in the Alternative, Motion for Summary Judgment) by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Attachments: # 1 Exhibit 1 − Second Declaration of Angelique Pugh)(Brasher, Andrew) Modified on 3/16/2018 to clean up text. (dmn, ) (Entered: 03/15/2018)
MOTION to Dismiss 93 Supplemental Complaint or, in the alternative, MOTION for Summary Judgment, by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (dmn, ) (NO PDF, see Doc. 95 for pdf.) (Entered: 03/16/2018)
96 ORDER: Before the court is the parties Joint Stipulation of Dismissal of Plaintiffs Swetman, Reynolds, and Newby. (Doc. 94 ) Based on the stipulation, which comports with Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, the actions filed by Plaintiff Melissa Swetnam, Plaintiff Anna Reynolds, and Plaintiff Larry Joe Newby are DISMISSED. The Clerk of the Court is DIRECTED to terminate these Plaintiffs as parties to this lawsuit. Signed by Chief Judge William Keith Watkins on 3/19/2018. (dmn, ) (Entered: 03/19/2018)
97 RESPONSE in Opposition re MOTION to Dismiss MOTION for Summary Judgment filed by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Lang, Danielle) Modified on 5/15/2018 to remove repetitive text. (dmn, ) (Entered: 04/05/2018)

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 31 of 42

04/05/2018 04/06/2018 04/06/2018 04/06/2018 04/09/2018 04/30/2018
04/30/2018 04/30/2018 05/01/2018
05/01/2018 05/04/2018 05/10/2018
05/17/2018

CROSS MOTION for Summary Judgment on Count 18 by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (dmn, ) (NO PDF, see Doc. 97 for pdf.) (Entered: 05/01/2018)
98 Motion for Mark P. Gaber to Appear Pro Hac Vice by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit Certificate of Good Standing)(McGuire, Joseph) Modified on 4/6/2018 to include attorney name. (dmn, ) (Entered: 04/06/2018)
***Attorney Mark P. Gaber added Pro Hac Vice for Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (dmn, )(NO PDF, see Doc. 98 for pdf.) (Entered: 04/09/2018)
99 Pro Hac Vice Filing fee received for Mark P. Gaber re 98 Motion: $ 50.00, receipt number 4602048871 (dmn, ) (Entered: 04/09/2018)
100 TEXT ORDER granting 98 Motion for Mark P. Gaber to Appear Pro Hac Vice. Signed by Chief Judge William Keith Watkins on 4/9/2018. (dmn, ) (NO PDF) (Entered: 04/09/2018)
101 Joint MOTION for Entry of a Protective Order by John H. Merrill, George Noblin, State of Alabama, Clifford Walker, Jennifer Zimmer, Mario Dion Yow, Treva Thompson, Timothy Lanier, Pamela King, Greater Birmingham Ministries, Antwoine Giles, Laura Corley . (Attachments: # 1 Text of Proposed Order Proposed Protective Order)(Messick, Misty) Modified on 5/1/2018 to include additional filers. (dmn, ) (Entered: 04/30/2018)
102 MOTION for Extension of Time to File Response/Reply as to 97 Response in Opposition to Motion, (State Defendants' Motion for Leave to File Out of Time or, in the Alternative, to Treat Motion as Opposition) by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Messick, Misty) (Entered: 04/30/2018)
Alternative MOTION to Treat Motion as an Opposition by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (dmn, ) (NO PDF, see Doc. 102 for pdf.) (Entered: 05/01/2018)
103 TEXT ORDER: It is ORDERED that the State Defendants unopposed motion for leave to file out of time or, in the alternative, to treat motion as opposition (Doc. 102 ) is GRANTED as follows. Defendants are GRANTED to and including May 4, 2018, to file an opposition to Plaintiffs cross−motion for summary judgment (Doc. 97 ), and Plaintiffs are GRANTED to and including May 18, 2019, to file a reply brief. Signed by Chief Judge William Keith Watkins on 5/1/2018. (dmn, )(NO PDF) (Entered: 05/01/2018)
104 ORDER that the 101 Unopposed Joint Motion for Entry of a Protective Order be and is hereby GRANTED as further set out in the order. Signed by Honorable Judge Charles S. Coody on 5/1/2018. (dmn, ) (Entered: 05/01/2018)
105 OPPOSITION to Plaintiffs' CROSS−MOTION for Summary Judgment filed by John H. Merrill. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Messick, Misty) Modified on 5/7/2018 to clean up text. (dmn, ) (Entered: 05/04/2018)
106 MOTION to Certify Class by Laura Corley, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit 1: Thompson Decl., # 2 Exhibit 2: Gamble Decl., # 3 Exhibit 3: Lanier Decl., # 4 Exhibit 4: King Decl., # 5 Exhibit 5: Lang Decl., # 6 Exhibit 6: Amunson Decl., # 7 Exhibit 7: Karlan Decl., # 8 Exhibit 8: McGuire Decl., # 9 Exhibit 9: Blacksher Decl.)(Lang, Danielle) (Entered: 05/10/2018)
107 STIPULATION of Dismissal (Joint Stipulation of Dismissal of Plaintiff Yow) by John H. Merrill, George Noblin, State of Alabama, Clifford Walker, Laura Corley, Antwoine Giles, Treva Thompson, Mario Dion Yow, Jennifer Zimmer, Timothy Lanier, Greater Birmingham Ministries, Pamela King, Darius Gamble. (Messick, Misty) Modified on 5/17/2018 to include additional filers. (dmn, ) (Entered:

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 32 of 42

05/18/2018 05/22/2018 05/23/2018 05/24/2018 05/25/2018 05/31/2018
06/07/2018 06/26/2018
06/27/2018 06/29/2018 07/02/2018 07/02/2018 07/02/2018

05/17/2018)
108 REPLY BRIEF in Support of their 97 Cross−Motion for Summary Judgment on Count 18 filed by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Jennifer Zimmer. (Attachments: # 1 Exhibit 1: Declaration of Tari Williams)(Gaber, Mark) Modified on 5/29/2018 to create link. (dmn, ) (Entered: 05/18/2018)
109 MOTION to Strike Untimely Declaration of Tari Williams filed as an attachment to 108 Reply Brief, by John H. Merrill. (Messick, Misty) Modified on 5/29/2018 to clean up text. (dmn, ) (Entered: 05/22/2018)
110 RESPONSE in Opposition re 109 MOTION to Strike 108 Reply Brief, (Secretary of State's Motion to Strike Untimely Declaration) filed by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Jennifer Zimmer. (Gaber, Mark) (Entered: 05/23/2018)
111 NOTICE of Rule 25(d) Substitution of the Defendant Chairman of the Montgomery County Board of Registrars by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Messick, Misty) Modified on 5/29/2018 to include actual title. (dmn, ) (Entered: 05/24/2018)
112 REPLY in Support of 109 MOTION to Strike Untimely Declaration of Tari Williams filed as an attachment to 108 Reply Brief, filed by John H. Merrill. (Messick, Misty) Modified on 5/29/2018 to reflect actual title. (dmn, ) (Entered: 05/25/2018)
113 RESPONSE in Opposition re 106 MOTION to Certify Class filed by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Attachments: # 1 Exhibit 1 (Helms declaration), # 2 Exhibit 2 (AOC subpoena), # 3 Exhibit 3 (Yow CERV), # 4 Exhibit 4 (Vance opinion), # 5 Exhibit 5 (Siegelman opinion), # 6 Exhibit 6 (Duncan opinion), # 7 Exhibit 7 (list), # 8 Exhibit 8 (Segrest opinion), # 9 Exhibit 9 (GBM deposition excerpts))(Messick, Misty) (Entered: 05/31/2018)
114 REPLY to Response to Motion re 106 MOTION to Certify Class filed by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Jennifer Zimmer. (Attachments: # 1 Exhibit 1 (Lang Declaration), # 2 Exhibit 2 (Blacksher Declaration))(Gaber, Mark) (Entered: 06/07/2018)
115 Joint MOTION for Entry of a Protective Order (re AOC Subpoena) by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Jennifer Zimmer, John H. Merrill, George Noblin, Clifford Walker, State of Alabama, Mario Dion Yow. (Attachments: # 1 Exhibit Proposed Protective Order)(Gaber, Mark) Modified on 6/27/2018 to include additional filers. (dmn, ) (Entered: 06/26/2018)
116 PROTECTIVE ORDER: It is ORDERED that the 115 Joint Motion for Entry of a Protective Order be and is hereby GRANTED as further set out in the order. Signed by Honorable Judge Charles S. Coody on 6/27/2018. (dmn, ) (Entered: 06/27/2018)
117 MOTION for Andrew L. Brasher to Withdraw as Attorney for Defendants by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Brasher, Andrew) Modified on 7/2/2018 to include name of attorney requesting withdrawal. (dmn, ) (Entered: 06/29/2018)
118 TEXT ORDER granting 117 Motion for Andrew Brasher to Withdraw as Attorney. Signed by Chief Judge William Keith Watkins on 7/2/2018. (dmn, ) (NO PDF) (Entered: 07/02/2018)
*** Attorney Andrew Lynn Brasher terminated pursuant to 118 Text Order. (dmn, ) (Entered: 07/02/2018)
119 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION HEARING Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on July 25, 2018, in Montgomery, AL before Judge W. Keith Watkins. Court Reporter/Transcriber Risa L. Entrekin, Telephone number 334−240−2405. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 33 of 42

07/24/2018 07/31/2018 08/06/2018
08/08/2018 08/08/2018 08/08/2018 08/20/2018
09/07/2018
09/07/2018 09/10/2018 09/11/2018

deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 7/23/2018. Redacted Transcript Deadline set for 8/2/2018. Release of Transcript Restriction set for 10/1/2018. (dmn, ) (Entered: 07/02/2018)
120 MOTION to Modify re 88 Scheduling Order,, by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit Exhibits A through I, # 2 Text of Proposed Order)(Lang, Danielle) (Entered: 07/24/2018)
121 TEXT ORDER: Upon consideration of the opposed Motion to Modify the Scheduling Order (Doc. 120 ), it is ORDERED that Defendants file a response to the motion on or before 8/6/2018. Signed by Chief Judge William Keith Watkins on 7/31/2018. (dmn, ) (NO PDF) (Entered: 07/31/2018)
122 RESPONSE in Opposition re 120 MOTION to Modify re 88 Scheduling Order,, filed by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Messick, Misty) (Entered: 08/06/2018)
123 REPLY BRIEF re 120 MOTION to Modify re 88 Scheduling Order,, filed by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Gaber, Mark) (Entered: 08/08/2018)
124 Case reassigned to Honorable Judge Emily C. Marks. Chief Judge William Keith Watkins no longer assigned to the case as presiding judge. (dmn, ) (Entered: 08/08/2018)
Case reassigned to Honorable Judge Susan Russ Walker as referral judge. Honorable Judge Charles S. Coody no longer assigned to the case. (dmn, ) (NO PDF) (Entered: 08/09/2018)
125 ORDER that the Plaintiffs' 120 Motion to Modify the 88 Scheduling Order be and is hereby GRANTED to the extent that all pending deadlines be and are hereby CONTINUED generally. It is further ORDERED that a Status and Scheduling Conference be and is hereby SET on 9/11/2018 at 10:00 AM in CR 2A in Montgomery, AL before Honorable Judge Emily C. Marks. Counsel for all parties shall personally appear for this conference. The Clerk of the Court is DIRECTED to provide a court reporter for this proceeding. Signed by Honorable Judge Emily C. Marks on 8/20/2018. Copies furnished to calendar group, WS. (Deadlines terminated: Non Jury Trial set for 5/6/2019, Final PTC set for 4/8/2019.)(dmn, ) (Entered: 08/20/2018)
126 Motion for Michael E. Stewart to Appear Pro Hac Vice by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (McGuire, Joseph) Modified on 9/12/2018 to include name of attorney requesting appearance. (dmn, ) Modified on 9/12/2018 to remove terminated parties, Larry Joe Newby, Anna Reynolds, Melissa Swetnam, selected in error as filers. (dmn, ) (Entered: 09/07/2018)
***Attorney Michael E. Stewart added Pro Hac Vice for Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (dmn, ) (NO PDF, see Doc. 126 for pdf.) (Entered: 09/12/2018)
127 Filing fee received re 126 Motion for Michael E. Stewart to Appear Pro Hac Vice : $ 50.00, receipt number 4602050616 (kh, ) (Entered: 09/11/2018)
128 Minute Entry for proceedings held before Honorable Judge Emily C. Marks: Scheduling Conference held on 9/11/2018 (PDF available for court use only). (Court Reporter Patricia Starkie.) (ws, ) (Entered: 09/13/2018)

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 34 of 42

09/21/2018 10/15/2018
10/16/2018 10/16/2018 10/25/2018 10/25/2018 01/17/2019 02/25/2019 02/25/2019 02/25/2019 02/26/2019
02/26/2019

129 ORDER that the 126 Motion for Admission Pro Hac Vice be and is hereby GRANTED and Attorney Michael E. Stewart be and is hereby ADMITTED to appear before this Court pro hac vice to represent the plaintiffs in this action. Counsel shall file a notice of appearance with the court. Signed by Honorable Judge Emily C. Marks on 9/21/2018. (dmn, ) (Entered: 09/21/2018)
130 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of SCHEDULING CONFERENCE Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on September 11, 2018, in Montgomery, AL before Judge Emily Coody Marks. Court Reporter/Transcriber Patricia G. Starkie, Telephone number 334−262−1221. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 11/5/2018. Redacted Transcript Deadline set for 11/15/2018. Release of Transcript Restriction set for 1/14/2019. (dmn, ) (Entered: 10/15/2018)
131 NOTICE by John H. Merrill, George Noblin, State of Alabama, Clifford Walker (Notice of Rule 25(d) Substitution) (Messick, Misty) (Entered: 10/16/2018)
[PLEASE DISREGARD THIS DOCKET ENTRY, ENTERED ERRONEOUSLY.] MOTION to Substitute Defendant Lyn Head as Chairman of the Alabama Board of Pardons and Paroles, in place of Cliff Walker pursuant to Rule 25(d) by John H. Merrill, George Noblin, State of Alabama, Clifford Walker. (dmn, ) (NO PDF, see Doc. 131 for pdf.) Modified on 10/25/2018 (dmn, ). (Entered: 10/16/2018)
132 NOTICE of Error re MOTION to Substitute Party re 131 Notice. The referenced docket entry was erroneously entered. The docket entry is hereby STRICKEN from the record and the parties are instructed to disregard the entry on this court's docket. (dmn, ) (Entered: 10/25/2018)
***Attorney Misty Shawn Fairbanks Messick for Lyn Head,Misty Shawn Fairbanks Messick for Cindy Sahlie added; Attorney Philip G. Fairbanks terminated as this attorney was selected in error as representing these parties (NO PDF document attached to this notice). (djy, ) (Entered: 02/21/2019)
Case reassigned to Honorable Judge Wallace Capel, Jr. Honorable Judge Susan Russ Walker no longer assigned to the case as referral judge (NO PDF Document attached to this notice). (djy, ) (Entered: 01/17/2019)
133 MOTION to Quash Subpoenas and to Enjoin Plaintiffs from Effecting Same Upon Non−Party Legislators David Faulkner and Cam Ward by David Faulkner, Cam Ward. (Attachments: # 1 Exhibit A − Subpoena to Faulkner, # 2 Exhibit B − Subpoena to Ward, # 3 Exhibit C − Memorandum of Opinion and Order 15−CV−02193)(Weller, Christopher) (Entered: 02/25/2019)
Motions No Longer Referred to Mag Judge Capel, case reassigned to another Mag Judge: 133 MOTION to Quash Subpoenas and to Enjoin Plaintiffs from Effecting Same Upon Non−Party Legislators David Faulkner and Cam Ward (djy, ) (Entered: 02/25/2019)
Case reassigned to Honorable Judge Gray M. Borden. Honorable Judge Wallace Capel, Jr no longer assigned to the case as referral judge (NO PDF document attached to this notice). (djy, ) (Entered: 02/25/2019)
134 TEXT ORDER setting Status Conference set for 2/27/2019 @ 2:00 PM before Honorable Judge Gray M. Borden re: 133 MOTION to Quash ; No later than five minutes prior to the start of the call, the parties and movants are directed to call the chambers conference call number. The movants and parties should contact chambers directly at (334) 954−3920 to obtain the conference call number and access code. Signed by Honorable Judge Gray M. Borden on 2/26/19. Furnished to calendar group & CB.(NO PDF document attached to this notice).(djy, ) (Entered: 02/26/2019)
135 NOTICE of Appearance by Marc James Ayers, Sr on behalf of Cam Ward (Ayers, Marc) (Entered: 02/26/2019)

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 35 of 42

02/27/2019 02/28/2019
03/13/2019 03/13/2019 03/13/2019 03/15/2019
03/19/2019 03/19/2019 03/19/2019 03/19/2019 03/22/2019 03/22/2019
03/22/2019

Minute Entry for Status Conference held before Honorable Judge Gray M. Borden on 2/27/2019. NO PDF ATTACHED TO THIS ENTRY. (Recording Time 2:00−2:10.) (cb, ) (Entered: 02/27/2019)
136 ORDER directing that plf's have until 3/20/2019 to file a response to the 133 MOTION to Quash Subpoenas and to Enjoin Plaintiffs from Effecting Same Upon Non−Party Legislators David Faulkner and Cam Ward; the movants have until 3/27/2019 to file a reply in support; defs have until 3/27/2019 to file any response to the motion they may choose to file. Signed by Honorable Judge Gray M. Borden on 2/28/19. (djy, ) (Entered: 02/28/2019)
137 Motion for Jennifer Yun to Appear Pro Hac Vice by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit Certificate of Good Standing)(McGuire, Joseph) Modified on 3/19/2019 to clarify text to reflect attorney's name in entry (qc/djy, ). (Entered: 03/13/2019)
***Attorney Jennifer Yun for Laura Corley,for Darius Gamble, for Antwoine Giles, for Greater Birmingham Ministries, for Pamela King, for Timothy Lanier, for Treva Thompson, for Mario Dion Yow, for Jennifer Zimmer added (NO PDF document attached to this notice−See Docket entry 137 ). (djy, ) (Entered: 03/14/2019)
138 Received Pro Hac Vice Filing fee re 137 motion for Jennifer Yun: $ 50.00, receipt number 4602052790. (djy, ) (Entered: 03/14/2019)
139 RESPONSE in Opposition re 133 MOTION to Quash Subpoenas and to Enjoin Plaintiffs from Effecting Same Upon Non−Party Legislators David Faulkner and Cam Ward filed by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit 1 (Packard Deposition), # 2 Exhibit 2 (Exploratory Committee Meeting Minutes))(Gaber, Mark) (Entered: 03/15/2019)
140 Motion for Jason Hipp to Appear Pro Hac Vice by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit Certificate of Good Standing)(McGuire, Joseph) Modified on 3/19/2019 to clarify text to include attorney's name (qc/djy, ). (Entered: 03/19/2019)
***Attorney Jason P. Hipp for Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, for Jennifer Zimmer added pursuant to 140 motion (NO PDF document attached to this notice). (djy, ) (Entered: 03/19/2019)
141 TEXT ORDER granting 137 Motion for Jennifer Yun Leave to Appear Pro Hac Vice. Signed by Honorable Judge Gray M. Borden on 3/19/19. (NO PDF document attached to this notice). (djy, ) (Entered: 03/19/2019)
142 Received Pro Hac Vice Filing fee re: 140 motion for Jason Hipp: $ 50.00, receipt number 4602052883 (djy, ) (Entered: 03/20/2019)
143 ORDER granting 140 Motion for Jason Hipp Leave to Appear Pro Hac Vice, as further set out in order. Signed by Chief Judge Emily C. Marks on 3/22/19. (djy, ) (Entered: 03/22/2019)
144 (STRICKEN AS ERRONEOUS DOCKET ENTRY−ENTERED IN WRONG CASE) SCHEDULING ORDER: setting on−the−record Pretrial Conference for 5/21/2020 @ 10:00 AM before Chief Judge Emily C. Marks, in Courtroom 2A, FMJ US Courthouse, Montgomery, AL; directing the parties to prepare a Proposed Pretrial Order due by 5/14/2020; Jury Selection and Jury Trial set for 7/6/2020 @ 10:00 AM before Chief Judge Emily C. Marks, in Montgomery, Alabama; dispositive and Daubert Motions due by 11/22/2019; Mediation Notice due by 10/28/2019; Amended Pleadings due by 5/31/2019; Discovery completed by 10/23/2019, as further set out in order. Signed by Chief Judge Emily C. Marks on 3/22/19. Furnished to calendar group & WS.(djy, ) (Main Document 144 replaced on 3/22/2019) (djy, ). Modified on 3/22/2019 (djy, ). (Entered: 03/22/2019)
145 NOTICE of ERROR re 144 Scheduling Order which was entered in incorrect case. Parties are instructed to DISREGARD this ORDER entry on the docket. (djy, )

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 36 of 42

03/22/2019
03/27/2019 04/01/2019 04/01/2019 04/11/2019 04/11/2019 04/18/2019
04/25/2019 04/25/2019 04/25/2019 05/02/2019
05/03/2019

(Entered: 03/22/2019)
146 REPLY to 139 Response to Motion re 133 MOTION to Quash Subpoenas and to Enjoin Plaintiffs from Effecting Same Upon Non−Party Legislators David Faulkner and Cam Ward filed by David Faulkner, Cam Ward. (Attachments: # 1 Exhibit D − Deposition of J. Bennett, # 2 Exhibit E − Deposition of Edward Packard, # 3 Exhibit F − 11/18/2015 Meeting Minutes, # 4 Exhibit G − 12/12/2015 Meeting Minutes, # 5 Exhibit H − 01/20/20/2016 Meeting Minutes)(Weller, Christopher) Modified on 3/25/2019 to clarify text to reflect also as a REPLY to 139 RESPONSE (qc/djy, ). (Entered: 03/22/2019)
147 RESPONSE in Support re 133 MOTION to Quash Subpoenas and to Enjoin Plaintiffs from Effecting Same Upon Non−Party Legislators David Faulkner and Cam Ward filed by Lyn Head, John H. Merrill, Cindy Sahlie, State of Alabama. (Messick, Misty) (Entered: 03/27/2019)
148 NOTICE of Appearance by Jason P. Hipp on behalf of Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer (Hipp, Jason) (Entered: 04/01/2019)
149 NOTICE of Appearance by Jennifer J. Yun on behalf of Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer (Yun, Jennifer) (Entered: 04/01/2019)
150 (WITHDRAWN PURSUANT TO THE COURT'S 183 TEXT ORDER) MOTION to Compel Plaintiff Jennifer Zimmer to Attend Her Deposition by Lyn Head, John H. Merrill, Cindy Sahlie, State of Alabama. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Messick, Misty) Modified on 12/16/2019 (cnw, ). (Entered: 04/11/2019)
151 ORDER TO SHOW CAUSE: it is ORDERED that, on or before 4/18/2019, Plfs shall show cause in writing, if any exists, as to why the 150 motion should not be granted. Signed by Honorable Judge Gray M. Borden on 4/11/2019. (cnw, ) (Entered: 04/11/2019)
152 RESPONSE in Opposition re 150 MOTION to Compel Plaintiff Jennifer Zimmer to Attend Her Deposition filed by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit Exhibit A)(Lang, Danielle) Modified on 4/19/2019 to remove terminated parties Larry Joe Newby, Anna Reynolds, Melissa Swetnam as filers (cnw, ). (Entered: 04/18/2019)
153 NOTICE by Lyn Head, John H. Merrill, Cindy Sahlie, State of Alabama (State Defendants' Notice Concerning In Camera Review) (Attachments: # 1 Exhibit 1 (privilege log))(Messick, Misty) (Entered: 04/25/2019)
154 MOTION to Compel Production of Documents by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit 1 Through 8, # 2 Text of Proposed Order)(Lang, Danielle) (Entered: 04/25/2019)
155 ORDER TO SHOW CAUSE: It is ORDERED that Defs show cause, if any exists, on or before 5/2/2019, why Plfs' 154 motion should not be granted. Signed by Honorable Judge Gray M. Borden on 4/25/2019. (cnw, ) (Entered: 04/25/2019)
156 RESPONSE in Opposition re 154 MOTION to Compel Production of Documents and Response to 155 Show Cause Order filed by Lyn Head, John H. Merrill, Cindy Sahlie, State of Alabama. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21)(Messick, Misty) Modified on 5/3/2019 to add link to the 155 show cause order (cnw, ). (Entered: 05/02/2019)
157 Joint STIPULATION of Voluntary Dismissal of Plaintiff Jennifer Zimmer without Prejudice by Jennifer Zimmer, Treva Thompson, Antwoine Giles, Laura Corley, Mario Dion Yow, Timothy Lanier, Pamela King, Greater Birmingham Ministries, Darius Gamble, State of Alabama, John H. Merrill, Cindy Sahlie, Lyn Head. (Attachments: #

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 37 of 42

05/09/2019
05/10/2019 05/10/2019 05/10/2019 06/05/2019 06/07/2019 06/10/2019 06/26/2019 06/26/2019 06/26/2019 06/27/2019 06/28/2019 07/08/2019

1 Text of Proposed Order)(Gaber, Mark) Modified on 5/3/2019 to clarify text to reflect as filed on behalf of all parties (cnw, ). (Entered: 05/03/2019)
158 REPLY to 156 Response to Motion re 154 MOTION to Compel Production of Documents filed by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Lang, Danielle) Modified on 5/10/2019 to remove movant Cam Ward as a filer and to add link to the 156 Response (cnw, ). (Entered: 05/09/2019)
159 NOTICE by Lyn Head, John H. Merrill, Cindy Sahlie, State of Alabama re 150 MOTION to Compel Plaintiff Jennifer Zimmer to Attend Her Deposition (State Defendants' Withdrawal of Motion to Compel), CONSTRUED AS A MOTION TO WITHDRAW PURSUANT TO THE COURT'S 183 TEXT ORDER) (Messick, Misty) Modified on 12/16/2019 (cnw, ). (Entered: 05/10/2019)
160 (CHAIRMAN HEAD'S) Objection to 158 Reply to Response to Motion, or in the alternative, Surreply on 154 Motion to Compel) filed by Lyn Head, John H. Merrill, Cindy Sahlie, State of Alabama. (Messick, Misty) Modified on 5/13/2019 to clarify text and add link to the 154 motion (cnw, ). (Entered: 05/10/2019)
MOTION to Withdraw 150 MOTION to Compel Plaintiff Jennifer Zimmer to Attend Her Deposition, as construed in the Court's 183 Text Order by Lyn Head, John H. Merrill, Cindy Sahlie, State of Alabama. (No pdf attached to this entry − see doc 159 for pdf) (cnw, ) (Entered: 12/16/2019)
161 NOTICE (Secretary of State's Notice Concerning Count 18) by John H. Merrill re 95 MOTION to Dismiss (Defendants' Renewed Motion to Dismiss and Motion to Dismiss Supplemental Complaint (Doc. 93) or, in the Alternative, Motion for Summary Judgment) (Messick, Misty) Modified on 6/5/2019 to clarify text (kr, ). (Entered: 06/05/2019)
162 Joint MOTION for Protective Order by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow. (Attachments: # 1 Exhibit A: Subpoena, # 2 Exhibit B: Proposed Protective Order, # 3 Exhibit C: Acknowledgment)(Gaber, Mark) (Entered: 06/07/2019)
163 ORDER granting 162 Motion for Protective Order regarding Confidential information, as further set out in order. Signed by Honorable Judge Gray M. Borden on 6/10/2019. (kr, ) (Entered: 06/10/2019)
Case Reassigned to Honorable Judge Stephen Michael Doyle as referral judge; Honorable Judge Gray M. Borden no longer assigned to the case. (No pdf attached) (kr, ) (Entered: 06/26/2019)
164 Response to Secretary of State's 161 Notice by Greater Birmingham Ministries, (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Lang, Danielle) Modified on 6/28/2019 to clarify text (kr, ). (Entered: 06/26/2019)
165 MOTION for Status Conference by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Lang, Danielle) Modified on 6/27/2019 to clarify text (kr, ). (Entered: 06/26/2019)
166 RESPONSE in Opposition re 165 MOTION for Status Conference filed by Lyn Head, John H. Merrill, Cindy Sahlie, State of Alabama. (Attachments: # 1 Exhibit A (RFP responses))(Messick, Misty) Modified on 6/27/2019 to clarify text (kr, ). (Entered: 06/27/2019)
167 REPLY BRIEF re 166 Response in Opposition to Motion, 165 MOTION for Status Conference filed by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow. (Gaber, Mark) (Entered: 06/28/2019)
168 Motion for Molly E. Danahy to Appear Pro Hac Vice by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 38 of 42

07/08/2019 07/08/2019 07/08/2019
07/23/2019
10/16/2019 10/23/2019
10/24/2019 10/30/2019
11/12/2019 11/12/2019 12/03/2019

Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer. (Attachments: # 1 Exhibit Certificate of Good Standing)(McGuire, Joseph) Modified on 7/8/2019 to clarify the docket text (cnw, ). (Entered: 07/08/2019)
169 Pro Hac Filing fee for Molly E. Danahy received: $ 75.00, receipt number 4602054143. (cnw, ) (Entered: 07/08/2019)
***Pursuant to the 168 Motion − Attorney Molly Danahy for Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow, Jennifer Zimmer added. (No pdf attached to this entry) (cnw, ) (Entered: 07/08/2019)
170 ORDER: Upon consideration of the 168 Motion to Admit Pro Hac Vice, filed on 7/8/2019 on behalf of Molly Danahy, and it appearing that Ms. Danahy is a member in good standing of the United States District Court for the District of Columbia, it is ORDERED that the motion is GRANTED. Signed by Chief Judge Emily C. Marks on 7/8/2019. (cnw, ) (Entered: 07/08/2019)
171 NOTICE by John H. Merrill re 95 MOTION to Dismiss (Defendants' Renewed Motion to Dismiss and Motion to Dismiss Supplemental Complaint (Doc. 93) or, in the Alternative, Motion for Summary Judgment) (Secretary of State's Second Notice Concerning Count 18) (Attachments: # 1 Exhibit 1 (declaration of Ed Packard), # 2 Exhibit 2 (federal form), # 3 Exhibit 3 (Ala. Act No. 2019−513), # 4 Exhibit 4 (quote for posters), # 5 Exhibit 5 (US Statement of Interest))(Messick, Misty) (Entered: 07/23/2019)
172 NOTICE of Rule 25(d) Substitution by Lyn Head, John H. Merrill, Cindy Sahlie, State of Alabama (Messick, Misty) Modified on 10/16/2019 to clarify text (cnw, ). (Entered: 10/16/2019)
173 NOTICE of Supplemental Authority by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow (Attachments: # 1 Exhibit A (Order, Jones v. DeSantis))(Gaber, Mark) Modified on 10/30/2019 to clarify text (kr, ). (Entered: 10/23/2019)
174 NOTICE of Supplemental Authority by Leigh Gwathney, John H. Merrill, Cindy Sahlie, State of Alabama (Attachments: # 1 Exhibit A (Hopkins decision))(Messick, Misty) Modified on 10/30/2019 to clarify text (kr, ). (Entered: 10/24/2019)
175 ORDER: Upon consideration of the two notices of supplemental authority (doc. 173 , 174 ) filed in this case, it is hereby ORDERED that any party which chooses to file a response to the supplemental authority filed is given until 11/12/2019 to do so. Signed by Chief Judge Emily C. Marks on 10/30/2019. (kr, ) (Entered: 10/30/2019)
176 Response to Order re 173 Notice (Other), 175 Order, (Chair Gwathney's Response to Supplemental Authority) by Leigh Gwathney. (Messick, Misty) (Entered: 11/12/2019)
177 Response to Order re 175 Order, 174 Notice (Other) (Plaintiffs' Response to Supplemental Authority) by Laura Corley, Darius Gamble, Antwoine Giles, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson, Mario Dion Yow. (Gaber, Mark) (Entered: 11/12/2019)
178 MEMORANDUM OPINION and ORDER: it is hereby ORDERED as follows: 1) The renewed motion to dismiss (Doc. 95 ) is DENIED. 2) The motion to dismiss supplemental complaint (Doc. 95 ) is GRANTED as to Plfs Antwoine Giles and Laura Corley and the claims of those Plfs are DISMISSED as moot. 3) The motion to dismiss supplemental complaint (Doc. 95 ) is GRANTED as to the State of Alabama, and the State of Alabama is DISMISSED as a party in this case. 4) The motion to dismiss supplemental complaint (Doc. 95 ) is GRANTED as to the claim in count 18 relating to the Federal Form and that claim is DISMISSED as moot. 5) The motion to dismiss supplemental complaint (Doc. 95 ) is DENIED in all other aspects, as is the alternative motion for summary judgment (Doc. 95 ), and the cross−motion for summary judgment on count 18 (Doc. 97 ). 6) The motion to strike untimely declaration (Doc. 109 ) is DENIED as moot. Signed by Chief Judge Emily C. Marks on 12/3/2019. (Attachments: # 1 Civil Appeals

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 39 of 42

12/05/2019 12/05/2019
12/16/2019 12/16/2019 12/16/2019 12/17/2019 12/17/2019
12/19/2019 12/19/2019 12/19/2019 12/19/2019 01/02/2020
01/13/2020 01/13/2020

Checklist)(cnw, ) (Main Document 178 replaced on 12/5/2019 to correct the spelling of one of the plf's name as Antwoine Giles and not Antoine Giles.) (cnw, ). Modified on 12/5/2019 to clarify docket text (cnw, ). (Entered: 12/03/2019)
179 NOTICE of Correction re 178 Memorandum Opinion and Order, to correct the spelling of one of the plf's name as Antwoine Giles and not Antoine Giles. (Attachments: # 1 Corrected Main PDF docket entry 178 )(cnw, ) (Entered: 12/05/2019)
180 ORDER: Upon consideration of the Joint Stipulations (doc. 107 & 157 ) filed on 5/17/2018 and 5/3/2019, respectively, which comport with FRCP 41(a)(1)(A)(ii), the claims of Plfs Mario Dion Yow and Jennifer Zimmer have been dismissed without prejudice by operation of Rule 41, on the terms agreed to and set out by the parties. Signed by Chief Judge Emily C. Marks on 12/5/2019. (Attachments: # 1 Civil Appeals Checklist)(cnw, ) (Entered: 12/05/2019)
181 ORDER TO SHOW CAUSE as to why 150 Motion to Compel Plf Jennifer Zimmer to Attend Her Deposition, should not be denied as moot; Defs are ORDERED to reply on or before 12/23/2019. Signed by Honorable Judge Stephen Michael Doyle on 12/16/2019. (cnw, ) (Entered: 12/16/2019)
182 RESPONSE TO ORDER TO SHOW CAUSE by Leigh Gwathney, John H. Merrill, Cindy Sahlie re 181 Order to Show Cause,. (Messick, Misty) (Entered: 12/16/2019)
183 TEXT ORDER construing Notice # 159 as a motion to withdraw motion to Compel Plaintiff Jennifer Zimmer to Attend Her Deposition # 150 , granting 150 motion to withdraw. Signed by Honorable Judge Stephen Michael Doyle on 12/16/2019. (No pdf attached to this entry) (cnw, ) (Entered: 12/16/2019)
184 ANSWER to Amended Complaint, by Leigh Gwathney, John H. Merrill, Cindy Sahlie.(Messick, Misty) (Entered: 12/17/2019)
185 MOTION to Amend/Correct (State Defendants' Motion for Leave to Amend Answers to Original Complaint and Supplemental Complaint) by Leigh Gwathney, John H. Merrill, Cindy Sahlie. (Attachments: # 1 Exhibit 1 (Proposed Consolidated Answer to Complaint and Supplemental Complaint), # 2 Exhibit 2 (email string between counsel))(Messick, Misty) (Entered: 12/17/2019)
186 MOTION for Order re 184 Answer to Amended Complaint (State Defendants' Notice of Constitutional Question and Motion for Certification by the Court) by Leigh Gwathney, John H. Merrill, Cindy Sahlie. (Messick, Misty) (Entered: 12/19/2019)
187 ORDER granting 185 Motion for Leave to Amend Answers to Original Complaint and Supplemental Complaint; The Dfts are given until 12/31/2019 to file as an amended answer the attachment to their motion. (Doc. 185 −1). Signed by Chief Judge Emily C. Marks on 12/19/2019.(bes, ) (Entered: 12/19/2019)
188 ORDER: it is ORDERED that a new FRCP 26(f) report be filed as soon as practicable, as further set out in order; Rule 26 Meeting Report due by 1/13/2020. Signed by Chief Judge Emily C. Marks on 12/19/2019. (bes, ) (Entered: 12/19/2019)
189 Amended ANSWER to Complaint (Original and Supplemental) by Leigh Gwathney, John H. Merrill, Cindy Sahlie.(Messick, Misty) (Entered: 12/19/2019)
190 ORDER granting 186 Motion for Certification by the Court and the Court hereby certifies to the Attorney General of the United States that the Dfts have raised a constitutional challenge to the National Voter Registration Act; If the United States elects to do so, the United States may intervene in this action within 60 days after the date of entry of this Order; copy mailed CMRRR to Attorney General of the United States. Signed by Chief Judge Emily C. Marks on 1/2/2020. (wcl, ) (Entered: 01/02/2020)
191 MOTION to Withdraw as Attorney by John H. Merrill. (Howell, Laura) (Entered: 01/13/2020)
192 REPORT of Rule 26(f) Planning Meeting. (Messick, Misty) (Entered: 01/13/2020)

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 40 of 42

01/14/2020 01/14/2020 01/24/2020
01/24/2020
02/14/2020 02/14/2020 02/18/2020 03/20/2020 03/24/2020 04/03/2020 04/03/2020 04/06/2020 04/10/2020
04/13/2020

193 TEXT ORDER granting 191 Motion to Withdraw as Attorney for Laura Howell. Signed by Chief Judge Emily C. Marks on 01/14/2020. (No PDF attached to this entry) (bes, ) (Entered: 01/14/2020)
***PURSUANT TO THE TEXT ORDER (DOC 193) − Attorney Laura Elizabeth Howell terminated. (No PDF attached to this entry) (bes, ) (Entered: 01/14/2020)
194 MEMORANDUM OPINION AND ORDER: it is hereby ORDERED as follows: 1) The 106 Motion for Class Certification is DENIED; 2) The 165 Motion for Status Conference is DENIED as moot, the Court having ruled on the pending motions. Signed by Chief Judge Emily C. Marks on 01/24/2020. (bes, ) (Entered: 01/24/2020)
195 AMENDED UNIFORM SCHEDULING ORDER: Final Pretrial Conference set for 12/17/2020 at 10:30 AM in Courtroom 2A FMJJ/USCC before Chief Judge Emily C. Marks; Proposed Pretrial Order due by 12/10/2020; Non−Jury Trial set for 2/1/2021 at 10:00 AM in Montgomery, Alabama before Chief Judge Emily C. Marks; Dispositive and Daubert Motions due by 8/19/2020; Mediation Notice due by 7/25/2020; Discovery due by 7/20/2020, as further set out in order. Signed by Chief Judge Emily C. Marks on 01/24/2020. (Furn: Calendar, ws) (bes, ) Modified on 1/24/2020 to remove the Expert Witness Disclosure and Exhibit List Deadline from the docket text and to correct the mediation notice deadline to reflect as 07/25/2020, not 07/20/2020 (bes, ). (Entered: 01/24/2020)
196 NOTICE of Appearance by Julie Straus Harris on behalf of United States of America (Straus Harris, Julie) (Entered: 02/14/2020)
197 NOTICE by United States of America re 190 Order on Motion for Order, Acknowledgment of Constitutional Challenge (Straus Harris, Julie) (Entered: 02/14/2020)
198 Return Receipt Card showing service of 190 Order signed by illegible for the US Attorney General, served on 01/08/2020. (bes, ) (Entered: 02/18/2020)
199 ORDER: the 133 Motion to Quash Subpoenas and to Enjoin Plfs from Effecting Same Upon Nonparty Legislators David Faulkner and Cam Ward is hereby GRANTED in its ENTIRETY. Signed by Honorable Judge Stephen Michael Doyle on 3/20/2020. (bes, ) (Entered: 03/20/2020)
200 ORDER denying Plf's 154 Motion to Compel Production of Documents. Signed by Honorable Judge Stephen Michael Doyle on 3/24/2020. (bes, ) (Entered: 03/24/2020)
201 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Darius Gamble, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson re 199 Order on Motion to Quash (Gaber, Mark) (Entered: 04/03/2020)
Objection to 199 Magistrate Judge's Order ruling on Motion to Quash filed by Darius Gamble, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson. (NO PDF document attached to this notice−See Docket entry 201 ). (djy, ) (Entered: 04/06/2020)
202 ORDER directing that on or before 4/20/2020, the opposing party shall file a response to the 201 re Objections. Signed by Chief Judge Emily C. Marks on 4/6/2020. (djy, ) (Entered: 04/06/2020)
203 Unopposed MOTION for Extension of Time to File Objection's to Magistrate Judge's Ruling by Darius Gamble, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson. (Attachments: # 1 Proposed Objections to Magistrate Judge's Ruling on Motion to Compel)(Gaber, Mark) Modified on 4/13/2020 to clarify the docket text (bes, ). (Entered: 04/10/2020)
204 TEXT ORDER granting 203 Unopposed MOTION for Extension of Time to File Objection's to Magistrate Judge's Ruling; Plf's shall file their objections on or before 4/15/2020. Signed by Honorable Judge Stephen Michael Doyle on 4/13/2020. (No PDF attached to this entry)(bes, ) (Entered: 04/13/2020)

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 41 of 42

04/13/2020 04/14/2020 04/14/2020
04/15/2020 04/17/2020
04/28/2020 04/30/2020
05/19/2020 05/26/2020 05/27/2020 05/27/2020

205 Objection to re 200 Order on Motion to Compel filed by Darius Gamble, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson. (Gaber, Mark) (Entered: 04/13/2020)
206 ORDER: it is ORDERED that on or before 4/30/2020, the opposing parties shall file a response to the Objections. Signed by Chief Judge Emily C. Marks on 4/14/2020. (bes, ) (Entered: 04/14/2020)
207 MOTION for Extension of Time to File Response/Reply as to 201 Appeal of Magistrate Judge Decision to District Court Non−Party Legislators' Motion for 14 Day Extension to Respond to Plaintiff's Objections to the Magistrate Judge's April 3, 2020 Order (Doc. 201) by David Faulkner, Cam Ward. (Attachments: # 1 Exhibit 4−3−20 Notice of Elect Filing, # 2 Exhibit 4−6−20 Notice of Elect Filing)(Weller, Christopher) Modified on 4/15/2020 to correct a typographical error within the docket text (bes, ). (Entered: 04/14/2020)
208 TEXT ORDER granting 207 Motion for Extension of Time to File Response/Reply; Opposing party shall now file their response to the 201 Objections on or before 4/28/2020. Signed by Chief Judge Emily C. Marks on 4/15/2020. (No PDF attached to this entry) (bes, ) (Entered: 04/15/2020)
209 Response to Order re 201 Appeal of Magistrate Judge Decision to District Court, 202 Order, 208 Order on Motion for Extension of Time to File Response/Reply, (State Defendants' Response to Plaintiffs' Objections to Magistrate Judge Doyle's Order on Legislators' Motion to Quash) by Leigh Gwathney, John H. Merrill, Cindy Sahlie. (Attachments: # 1 Exhibit 1 (deposition transcript − Win Johnson), # 2 Exhibit 2 (deposition transcript − Judge Jolley), # 3 Exhibit 3 (email from Plaintiffs' counsel), # 4 Exhibit 4 (Plaintiffs' Interrogatories to Secretary of State))(Messick, Misty) (Entered: 04/17/2020)
210 (NonParty Legislators' Response to Plaintiffs' Objections to magistrate Judge's Ruling on Motion to Quash Subpoenas) Response to Order re 209 Response to Order, by David Faulkner, Cam Ward. (Weller, Christopher) Modified on 4/28/2020 (cnw, ). (Entered: 04/28/2020)
211 Response to Order re 205 Objection to, 200 Order on Motion to Compel, 206 Order (Chair Gwathney's Response to Plaintiffs' Objections to Magistrate Judge Doyle's Order Denying Plaintiffs' Motion to Compel Production of Documents) by Leigh Gwathney, John H. Merrill, Cindy Sahlie. (Attachments: # 1 Exhibit 1 (Feb. 2019 log) (Restricted, Privacy Issue), # 2 Exhibit 2 (June 2019 letter), # 3 Exhibit 3 (June 2019 log) (Restricted, Privacy Issue), # 4 Exhibit 4 (July 2019 letter), # 5 Exhibit 5 (deposition transcript), # 6 Exhibit 6 (Nov. 2019 letter), # 7 Exhibit 7 (Nov. 2019 log)(Restricted, Privacy Issue))(Messick, Misty) (Additional attachment(s) added on 5/1/2020 to redact personal information contained in original filing pursuant to the E−government rules: # 8 Exhibit 1 (Feb. 2019 log) (REDACTED), # 9 Exhibit 3 (June 2019 log) (REDACTED), # 10 Exhibit 7 (Nov. 2019 log) (REDACTED)) (bes, ). Modified on 5/1/2020 (bes, ). (Entered: 04/30/2020)
212 MEMORANDUM OPINION AND ORDER: it is hereby ORDERED that the Objections (doc. 201 ) are OVERRULED. Signed by Chief Judge Emily C. Marks on 5/19/2020. (cwl, ) (Entered: 05/19/2020)
213 Motion for Armand Derfner to Appear Pro Hac Vice by Darius Gamble, Greater Birmingham Ministries, Pamela King, Timothy Lanier, Treva Thompson. (Attachments: # 1 Exhibit Certificate of Good Standing)(McGuire, Joseph) Modified on 5/26/2020 to clarify text (cwl, ). (Main Document 213 replaced on 5/27/2020 to correct typographical errors pursuant to email communication with counsel) (cwl, ). Modified on 5/27/2020 (cwl, ). (Entered: 05/26/2020)
214 NOTICE of Correction re 213 Motion for Armand Derfner to Appear Pro Hac Vice, to correct typographical errors pursuant to email communication with counsel. (Attachments: # 1 Corrected Main Document Entry 213 )(cwl, ) (Entered: 05/27/2020)
215 MOTION for Preliminary Injunction by Darius Gamble, Greater Birmingham Ministries, Treva Thompson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − 01.2019 Request to Reprioritize Costs, # 3 Exhibit 2 − Defendants Responses to Requests for Admission, # 4 Exhibit 3 − Declaration of Treva Thompson with Exhibits A−D, # 5 Exhibit 4 − 06.22.2017 Thompson Pardon Denial, # 6 Exhibit 5 − Gamble

Case: 2:16-cv-783 As of: 05/27/2020 08:25 PM CDT 42 of 42

05/27/2020

Declaration with Exhibits A−E, # 7 Exhibit 6 − 05.31.2018 Jones, A. Email Chain, # 8 Exhibit 7 − Note on Gamble File, # 9 Exhibit 8 − 05.30.2019 BPP Email Thread, # 10 Exhibit 9 − States Op. to Mot. To Modify Gamble Sentence, # 11 Exhibit 10 − 08.17.2019 Gamble BPP Remarks, # 12 Exhibit 11 − Douglas Declaration, # 13 Exhibit 12 − Dr. Daniel Smith Expert Report, # 14 Exhibit 13 − BPP FY19 Annual Report, # 15 Exhibit 14 − BPP FY18 Annual Report, # 16 Exhibit 15 − Subcommittee on Felony Restitution Collection Draft Report, # 17 Exhibit 16 − 30(b)(6) Deposition of BPP, # 18 Exhibit 17 − 12.21.17 Simmons, G. Email, # 19 Exhibit 18 − BPP Remissions Database, # 20 Exhibit 19 − 07.03.19 Moore, H. Email, # 21 Exhibit 20 − BPP Action on Application For Pardon with Restoration of Rights, # 22 Exhibit 21 − 10.22.2019 BPP Letter, # 23 Exhibit 22 − 12.24.2015 BPP Letter, # 24 Exhibit 23 − 05.24.2016 Peterson, V. Email, # 25 Exhibit 24 − 05.24.2016 Bramburg, J. Email, # 26 Exhibit 25 − 02.08.2018 Simmons, G. Email, # 27 Exhibit 26 − 05.05.2018 BPP Investigation Letter, # 28 Exhibit 27 − PB Form 5−19 Investigation, # 29 Exhibit 28 − 02.02.2018 BPP DNA Sample Letter, # 30 Exhibit 29 − 08.07.2014 BPP Out−of−State Conviction Letter, # 31 Exhibit 30 − Gaber Declaration)(Amunson, Jessica) Modified on 5/27/2020 to clarify the docket text (bes, ). (Entered: 05/27/2020)
MEMORANDUM of Law in Support re 215 MOTION for Preliminary Injunction filed by Darius Gamble, Greater Birmingham Ministries, Treva Thompson. (No PDF attached to this entry − See Doc 215 for PDF) (bes, ) (Entered: 05/27/2020)