Case: 2:16-cv-690 As of: 09/29/2018 05:37 PM CDT 1 of 13
U.S. District Court Northern District of Alabama (Southern) CIVIL DOCKET FOR CASE #: 2:16−cv−00690−RDP

APPEAL

Lewis et al v. Bentley et al Assigned to: Judge R David Proctor Case in other court: Eleventh Circuit, 17−11009−B Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/28/2016 Date Terminated: 02/01/2017 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Marnika Lewis

represented by George N Davies QUINN CONNOR WEAVER DAVIES & ROUCO LLP Two North Twentieth Street 2 20th Street North Suite 930 Birmingham, AL 35203 205−870−9989 Fax: 205−803−4143 Email: gdavies@qcwdr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glen M Connor QUINN CONNOR WEAVER DAVIES & ROUCO Two North Twentieth Street 2 20th Street North Suite 930 Birmingham, AL 35203 205−870−9989 Fax: 205−803−4143 Email: gconnor@qcwdr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Joyce Carlson 1100 New York Avenue NW Suite 500 West Washington, DC 20005 (202) 230−4096 Email: carlsonmjj@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard P Rouco QUINN CONNOR WEAVER DAVIES & ROUCO LLP Two North Twentieth Street 2 20th Street North Suite 930 Birmingham, AL 35203 205−870−9989 Fax: 205−803−4143 Email: rrouco@qcwdr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Stroup LEVY RATNER PC

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80 Eighth Ave., 8th Floor New York, NY 10011 212−627−8100 Fax: 212−627−8182 Email: rstroup@levyratner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joe R Whatley , Jr WHATLEY KALLAS LLP 2001 Park Place North Suite 1000 Birmingham, AL 35203 205−488−1200 Fax: 800−922−4851 Email: jwhatley@whatleykallas.com ATTORNEY TO BE NOTICED

W Edward Still EDWARD STILL LAW FIRM LLC 429 Green Springs Hwy STE 161−304 Birmingham, AL 35209 205−320−2882 Fax: 205−320−2882 Email: Still@votelaw.com ATTORNEY TO BE NOTICED

Plaintiff Antoin Adams

represented by George N Davies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glen M Connor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Joyce Carlson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Stroup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joe R Whatley , Jr (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
National Association for the Advancement of Colored People

represented by George N Davies (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Glen M Connor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Joyce Carlson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Stroup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joe R Whatley , Jr (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Greater Birmingham Ministries

represented by George N Davies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glen M Connor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Joyce Carlson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Stroup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joe R Whatley , Jr (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff Marika Coleman

represented by James Uriah Blacksher JAMES U. BLACKSHER, ATTORNEY P O Box 636 Birmingham, AL 35201 205−591−7238 Fax: 866−845−4395 Email: jblacksher@ns.sympatico.ca ATTORNEY TO BE NOTICED

U W Clemon U.W. Clemon, LLC 2001 Park Place Suite 1000 Birmingham, AL 35203 205−837−2898 Fax: 205−798−2577 Email: Clemonu@bellsouth.net ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) ATTORNEY TO BE NOTICED

Plaintiff John Rogers

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

U W Clemon (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Priscilla Dunn

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

U W Clemon (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

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Juandalynn Givan

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

U W Clemon (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Louise Alexander

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

U W Clemon (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) ATTORNEY TO BE NOTICED

Plaintiff William Muhammad

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

U W Clemon (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rodger Smitherman

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

U W Clemon (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

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Richard P Rouco (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Oliver Robinson

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

U W Clemon (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Alabama Legislative Black Caucus

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

U W Clemon (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mary Moore

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

U W Clemon (See above for address) ATTORNEY TO BE NOTICED

W Edward Still (See above for address) ATTORNEY TO BE NOTICED

Richard P Rouco (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Robert J. Bentley in his Official Capacity as Governor of the State of Alabama

represented by David B Byrne , Jr ALABAMA SECURITIES COMMISSION 401 Adams Avenue, Ste. 280

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Montgomery, AL 36104 334−242−2984 Fax: 334−353−4690 Email: david.byrne@asc.alabama.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W Davis OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue P O Box 300152 Montgomery, AL 36130−0152 334−242−7300 Fax: 334−353−8440 Email: jimdavis@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Luther J Strange , III OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue PO Box 300152 Montgomery, AL 36130−0152 334−242−7401 Fax: 334−242−4891 Email: lstrange@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

William G Parker , Jr OFFICE OF THE GOVERNOR Alabama State Capitol 600 Dexter Avenue, Room N−203 Montgomery, AL 36130 334−242−7120 Fax: 334−242−2335 Email: wparker@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Luther J Strange, III in his Official Capacity as Attorney General of the State of Alabama

represented by George N Davies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Luther J Strange , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William G Parker , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant State of Alabama, The

represented by William G Parker , Jr (See above for address) ATTORNEY TO BE NOTICED

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Defendant Birmingham, City of, The

represented by Frederic L Fullerton , II CITY OF BIRMINGHAM Legal Department 710 North 20th Street Room 600 Birmingham, AL 35203 205−254−2369 Fax: 205−254−2502 Email: flfulle@ci.birmingham.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kayla Shardae Lawrence CITY OF BIRMINGHAM LAW DEPARTMENT 710 North 20th Street, Ste. 600 Birmingham, AL 35203 205−254−2369 Email: kayla.lawrence@birminghamal.gov ATTORNEY TO BE NOTICED

Defendant William A. Bell, Sr.

represented by Frederic L Fullerton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kayla Shardae Lawrence (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/28/2016 04/28/2016 04/28/2016 04/28/2016 05/02/2016 05/05/2016
05/05/2016
05/05/2016 05/05/2016

# Docket Text
1 COMPLAINT against Robert J. Bentley, Luther J Strange, III, filed by Marnika Lewis, National Association for the Advancement of Colored People, Greater Birmingham Ministries, Antoin Adams.(MRR, ) (Entered: 04/28/2016)
2 Request for service by certified mail filed by Antoin Adams, Greater Birmingham Ministries, Marnika Lewis, National Association for the Advancement of Colored People. (MRR, ) (Entered: 04/28/2016)
3 NOTICE REGARDING CONSENT (MRR, ) (Entered: 04/28/2016)
Filing Fee: Filing fee $ 400, receipt_number 1126−2612782 (B4601070790). (Rouco, Richard) (Entered: 04/28/2016)
4 Summons Issued as to Robert J. Bentley, Luther J Strange, III, sent via certified mail (MRR, ) (Entered: 05/02/2016)
5 MOTION for Admission Pro Hac Vice by Antoin Adams, Greater Birmingham Ministries, Marnika Lewis, National Association for the Advancement of Colored People. (Attachments: # 1 Exhibit 1 Statement, # 2 Exhibit 2 Certificate of Good Standing)(Rouco, Richard) (Entered: 05/05/2016)
6 MOTION for Admission Pro Hac Vice by Antoin Adams, Greater Birmingham Ministries, Marnika Lewis, National Association for the Advancement of Colored People. (Attachments: # 1 Exhibit 1 Statement, # 2 Exhibit 2 Certificate of Good Standing)(Rouco, Richard) (Entered: 05/05/2016)
PHV Fee paid: $ 50, receipt number 1126−2617246 (B4601071083). (Rouco, Richard) Modified on 6/3/2016 (MRR, ). (Entered: 05/05/2016)
PHV Fee paid: $ 50, receipt number 1126−2617249 (B4601071084). (Rouco, Richard) Modified on 6/3/2016 (MRR, ). (Entered: 05/05/2016)

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05/05/2016 05/09/2016 05/11/2016 05/26/2016 05/27/2016
05/27/2016
06/02/2016 06/02/2016 06/03/2016 06/07/2016
06/23/2016 06/30/2016
06/30/2016

7 SUMMONS Returned Executed Robert J. Bentley served on 5/5/2016 (no date entered on green card, court's file stamp date used), answer due 5/26/2016. (MRR, ) (Entered: 05/05/2016)
8 SUMMONS Returned Executed Luther J Strange, III served on 5/5/2016, answer due 5/26/2016. (MRR, ) (Entered: 05/09/2016)
9 ORDER− The motions for Mary Joyce Carlson and Robert H. Stroup to appear pro hace vice for the pltfs (Docs 5 , 6 ) are GRANTED. Signed by Magistrate Judge Staci G Cornelius on 5/11/16. (MRR, ) (Entered: 05/11/2016)
10 MOTION to Dismiss & Supporting Brief by Robert J. Bentley, Luther J Strange, III. (Attachments: # 1 Exhibit A − Ala. Act No. 2016−18)(Parker, William) (Entered: 05/26/2016)
11 TEXT ORDER: The defendants have filed a motion to dismiss. (Doc. 10 ). The plaintiffs are ORDERED to respond within fourteen (14) days of the entry of this order. The response SHALL be limited to thirty (30) pages. The defendants' reply, if any, SHALL be filed within seven days of the plaintiffs' response and SHALL be limited to ten (10) pages. Signed by Magistrate Judge Staci G Cornelius on 5/27/16. (MRR, ) (Entered: 05/27/2016)
12 ORDER − Pursuant to the General Order For Referral of Civil Matters to the United States Magistrate Judges of the Northern District of Alabama, dated January 2, 2015, the parties are REQUIRED to enter an election regarding the exercise of dispositive jurisdiction by a magistrate judge pursuant to 28 U.S.C. § 636(c) no later than July 12, 2016. In the absence of consent by all parties, the Clerk is hereby DIRECTED to reassign the case to a district judge without further order after July 12, 2016. A telephone status conference is hereby SET for 10:30 on June 27, 2016. The parties are DIRECTED to call 877−336−1831 to access the telephone conference. The access code is 2778178. The telephone conference will be cancelled if all forms are submitted twenty−four hours in advance. Signed by Magistrate Judge Staci G Cornelius on 5/27/16. (MRR, ) Modified on 6/1/2016 (MRR, ). (Entered: 05/27/2016)
13 Notice of Reassignment− Because the parties have not unanimously consented to the dispositive jurisdiction by a Magistrate Judge, the above styled civil action has been randomly reassigned to the Honorable R. David Proctor. Please use case number 2:16−cv−690−RDP on all subsequent pleadings. (MRR, ) (Entered: 06/02/2016)
14 NOTICE− The status conference set for June 27, 2016 is CANCELLED. (MRR, ) (Entered: 06/02/2016)
15 Unopposed MOTION for Enlargement of Time to Respond to 10 Motion to Dismiss and/or Amend Plaintiffs' Complaint by Marnika Lewis. (Rouco, Richard) (Entered: 06/03/2016)
16 TEXT ORDER − This matter is before the court on Plaintiffs' Unopposed Motion for Enlargement of Time to Respond to Motion to Dismiss and/or Amend Plaintiffs' Complaint. 15 . The Motion 15 is GRANTED. Plaintiffs SHALL respond to Defendants' Motion to Dismiss or amend the Complaint on or before July 1, 2016. Defendants may reply and/or respond to an amended Complaint on or before July 22, 2016. Signed by Judge R David Proctor on 6/7/2016. (AVC) (Entered: 06/07/2016)
17 INITIAL ORDER − with appendices attached. Signed by Judge R David Proctor on 6/23/2016. (AVC) (Entered: 06/23/2016)
18 AMENDED COMPLAINT against Luther J Strange, III, The State of Alabama, The City of Birmingham, William A. Bell, Sr, filed by Marnika Lewis, Greater Birmingham Ministries, National Association for the Advancement of Colored People, Antoin Adams, Marika Coleman, John Rogers, Priscilla Dunn, Juandalynn Givan, Louise Alexander, William Muhammad, Rodger Smitherman, The State of Alabama, Oliver Robinson, Alabama Legislative Black Caucus, Mary Moore.(Rouco, Richard) (Entered: 06/30/2016)
19 Summons Issued as to William A. Bell, Sr, The City of Birmingham, The State of Alabama; mailed certified mail. (AVC) (Entered: 06/30/2016)

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07/01/2016
07/05/2016 07/06/2016 07/07/2016 07/14/2016 07/15/2016 07/18/2016
07/19/2016 07/19/2016 07/19/2016
07/22/2016
07/26/2016 07/27/2016

20 TEXT ORDER −This matter is before the court on Plaintiffs' Amended Complaint. 18 In light of the Amended Complaint, Defendant's Motion to Dismiss 10 is DENIED WITHOUT PREJUDICE because it is directed at what is no longer the operative Complaint. Defendants may renew any applicable arguments in response to the Amended Complaint. Signed by Judge R David Proctor on 7/1/2016. (AVC) (Entered: 07/01/2016)
21 SUMMONS Returned Executed William A. Bell, Sr; Birmingham, City of, The served on 7/1/2016, answer due 7/22/2016. (AVC) (Entered: 07/05/2016)
22 NOTICE of Appearance by W Edward Still on behalf of Alabama Legislative Black Caucus, Louise Alexander, Marika Coleman, Priscilla Dunn, Juandalynn Givan, Mary Moore, William Muhammad, Oliver Robinson, John Rogers, Rodger Smitherman (Still, W) (Entered: 07/06/2016)
23 SUMMONS Returned Executed State of Alabama, The served (green card not dated). (AVC) (Entered: 07/07/2016)
24 Opposed MOTION to Stay or Extend Rule 26(f) Deadlines by State of Alabama, The, Luther J Strange, III. (Parker, William) (Entered: 07/14/2016)
25 TEXT ORDER − This matter is before the court on Defendants' (Opposed) Motion to Stay and Extend Rule 26(f) Deadlines. 24 . Plaintiffs SHALL respond to the Motion on or before July 22, 2016; Defendants may reply on or before July 27, 2016. Signed by Judge R David Proctor on 7/15/2016. (AVC) (Entered: 07/15/2016)
26 Partially Opposed MOTION for Modification of Scheduling Order (Doc# 25) by Antoin Adams, Alabama Legislative Black Caucus, Louise Alexander, Marika Coleman, Priscilla Dunn, Juandalynn Givan, Greater Birmingham Ministries, Marnika Lewis, Mary Moore, William Muhammad, National Association for the Advancement of Colored People, Oliver Robinson, John Rogers, Rodger Smitherman. (Still, W) (Entered: 07/18/2016)
27 ANSWER to 18 Amended Complaint, by Birmingham, City of, The.(Fullerton, Frederic) (Entered: 07/19/2016)
28 MOTION to Dismiss by William A. Bell, Sr. (Fullerton, Frederic) (Entered: 07/19/2016)
29 TEXT ORDER − This matter is before the court on Plaintiffs' Partially Opposed Motion for Modification of Scheduling Order. 26 . The Motion 26 is GRANTED IN PART. Plaintiffs SHALL respond to the State Defendants' (Opposed) Motion to Stay and Extend Rule 26(f) Deadlines 24 on or before July 29, 2016; Defendants may reply on or before August 3, 2016. In relation to Mayor Bell's Motion to Dismiss 28 filed July 19, 2016, and the anticipated Motion(s) by the State Defendants, the parties are DIRECTED to confer and, to the extent that they desire a briefing schedule other than that set forth in Exhibit B, they should submit an agreed upon proposed briefing schedule on those motions. Signed by Judge R David Proctor on 7/19/2016. (AVC) (Entered: 07/19/2016)
30 MOTION to Dismiss the Amended Complaint & Initial Submission in Response to Exhibit B of the Court's Order by State of Alabama, The, Luther J Strange, III. (Attachments: # 1 Exhibit A − News Articles2, # 2 Exhibit B − Ala Act 2016−18 − Alabama Uniform Minimum Wage & Right−to−Work Act, # 3 Exhibit C − City of Birmingham Minimum Wage Ordinance No. 16−28, # 4 Exhibit D − Ala. Democratic Conf. v. Strange)(Parker, William) (Entered: 07/22/2016)
31 Joint MOTION to Modify Briefing Schedule by State of Alabama, The, Luther J Strange, III. (Parker, William) (Entered: 07/26/2016)
32 TEXT ORDER − This matter is before the court on the parties' Joint Motion to Modify Briefing Schedule. 31 . The Motion 31 is GRANTED. With regard to the two Motions to Dismiss pending before the court, (1) Mayor Bells Motion to Dismiss 28 and (2) the State Defendants Motion to Dismiss 30 , on or before Friday, August 19, 2016, Plaintiffs SHALL respond to both motions. On or before Friday, September 2, 2016, Defendants may reply. Signed by Judge R David Proctor on 7/26/2016. (AVC) (Entered: 07/27/2016)

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07/29/2016 08/02/2016 08/08/2016 08/10/2016 08/18/2016
08/23/2016
08/24/2016
08/24/2016
09/02/2016 09/02/2016
09/21/2016 09/26/2016
09/28/2016

33 RESPONSE in Opposition to 24 Motion to Stay or Extend Rule 26(f) Deadlines filed by Marnika Lewis. (Rouco, Richard) (Entered: 07/29/2016)
34 REPLY Brief filed by Defendants State of Alabama, The, Luther J Strange, III re: 24 Opposed MOTION to Stay or Extend Rule 26(f) Deadlines filed by State of Alabama, The, Luther J Strange, III. (Davis, James) (Entered: 08/02/2016)
35 REPORT of Rule 26(f) Planning Meeting. (Parker, William) (Entered: 08/08/2016)
36 ORDER −The Opposed Motion to Stay and Extend Rule 26(f) Deadlines 24 is GRANTED. The parties' obligations under Rule 26(f) SHALL run from the date of a decision on Defendants' pending Motions to Dismiss. Signed by Judge R David Proctor on 8/9/2016. (AVC) (Entered: 08/10/2016)
37 TEXT ORDER − This matter is before the court on an informal request for a modification of the parties' briefing schedule on the pending Motions to Dismiss. The request is GRANTED. On or before August 24, 2016, Plaintiffs SHALL respond to both motions. On or before September 7, 2016, Defendants may reply. Signed by Judge R David Proctor on 8/18/2016. (KAM, ) (Entered: 08/18/2016)
38 TEXT ORDER −This matter is before the court on an informal request from Plaintiffs' counsel for an extension of the page limit on briefs in response to Defendants' Motions to Dismiss. The court understands that the request is unopposed. The request is GRANTED. By agreement of the parties, Plaintiffs' responsive brief may contain up to forty−five (45) pages. Signed by Judge R David Proctor on 8/23/2016.(AVC) (Entered: 08/23/2016)
39 TEXT ORDER− This matter is before the court on an informal request from Plaintiffs' counsel for an extension of the page limit on briefs in response to Defendants' Motions to Dismiss. The court understands that the request is unopposed. The request is GRANTED. By agreement of the parties, Plaintiffs' responsive brief may contain up to forty−five (45) pages. Signed by Judge R David Proctor on 8/24/2016. (AVC) (Entered: 08/24/2016)
40 Opposition 28 , 30 Motions to Dismiss the Amended Complaint filed by Antoin Adams, Alabama Legislative Black Caucus, Louise Alexander, Marika Coleman, Priscilla Dunn, Juandalynn Givan, Greater Birmingham Ministries, Marnika Lewis, Mary Moore, William Muhammad, National Association for the Advancement of Colored People, Oliver Robinson, John Rogers, Rodger Smitherman. (Attachments: # 1 Exhibit A Declaration of Lisa R. Handley)(Rouco, Richard) (Entered: 08/24/2016)
41 Unopposed Motion to Extend Filing Deadline and Page Limit by State of Alabama, The, Luther J Strange, III. (Parker, William) (Entered: 09/02/2016)
42 TEXT ORDER−This matter is before the court on Defendants' Unopposed Motion to Extend Filing Deadline and Page Limit.. 41 The Motion 41 is GRANTED. Defendants' reply SHALL be filed on or before September 21, 2016, and may contain up to twenty (20) pages. Signed by Judge R David Proctor on 9/2/2016. (AVC) (Entered: 09/02/2016)
43 REPLY Brief filed by State of Alabama, The, Luther J Strange, III. (Parker, William) (Entered: 09/21/2016)
44 MOTION for Leave to Respond to Defendants' Citation of Intervening Case Law filed by Antoin Adams, Alabama Legislative Black Caucus, Louise Alexander, Marika Coleman, Priscilla Dunn, Juandalynn Givan, Greater Birmingham Ministries, Marnika Lewis, Mary Moore, William Muhammad, National Association for the Advancement of Colored People, Oliver Robinson, John Rogers, Rodger Smitherman. (Blacksher, James) (Entered: 09/26/2016)
45 TEXT ORDER −The two Motions to Dismiss pending before the court, (1) Mayor Bell's Motion to Dismiss 28 and (2) the State Defendants' Motion to Dismiss 30 are now fully briefed. The Motions are SET for oral argument at 2:00 p.m. on Wednesday, October 26, 2016. in Courtroom 7A of the Hugo L. Black United States Courthouse, 1729 5th Avenue North, Birmingham, Alabama. Signed by Judge R David Proctor on 9/28/2016. (AVC) (Entered: 09/28/2016)

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10/27/2016
10/28/2016
10/28/2016
11/02/2016
11/10/2016 11/14/2016 11/21/2016 02/01/2017 02/01/2017 03/02/2017
03/02/2017 03/03/2017 03/03/2017

Minute Entry for proceedings held before Judge R David Proctor: Motion Hearing held on 10/26/2016 re 28 MOTION to Dismiss filed by William A. Bell, Sr. and 30 MOTION to Dismiss the Amended Complaint & Initial Submission in Response to Exhibit B of the Court's Order filed by Luther J Strange, III, State of Alabama, The. The motions will be taken under submission and a separate order will be entered by the court. (Court Reporter Leah Turner.) (KLL) Modified on 4/12/2017 (KLL, ). (Entered: 10/27/2016)
46 Unopposed MOTION to File Supplemental Briefs Regarding the Applicable Pleading Standard by Antoin Adams, Alabama Legislative Black Caucus, Louise Alexander, Marika Coleman, Priscilla Dunn, Juandalynn Givan, Greater Birmingham Ministries, Marnika Lewis, Mary Moore, William Muhammad, National Association for the Advancement of Colored People, Oliver Robinson, John Rogers, Rodger Smitherman. (Rouco, Richard) (Entered: 10/28/2016)
47 TEXT ORDER− This matter is before the Court on Plaintiffs' Unopposed Motion to File Supplemental Briefs Regarding the Applicable Pleading Standard. 46 The Motion 46 is GRANTED. Plaintiffs' supplemental brief is due on or before November 9, 2016. The State Defendants may file supplemental briefing on or before November 16, 2016. Supplemental briefs SHALL be limited to five pages. Signed by Judge R David Proctor on 10/28/2016. (AVC) (Entered: 10/28/2016)
48 TEXT ORDER−This matter is before the court on an informal request for an extension of the deadlines for Supplemental Briefs Regarding the Applicable Pleading Standard. The court understand that the request is unopposed. The request is GRANTED. Plaintiffs' supplemental brief is due on or before November 14, 2016. The State Defendants may file supplemental briefing on or before November 21, 2016. Supplemental briefs SHALL be limited to five pages. Signed by Judge R David Proctor on 11/2/2016. (AVC) (Entered: 11/02/2016)
49 NOTICE of Change of Firm Affiliation by Alabama Legislative Black Caucus, Louise Alexander, Marika Coleman, Priscilla Dunn, Juandalynn Givan, Mary Moore, William Muhammad, Oliver Robinson, John Rogers, Rodger Smitherman. (Clemon, U) (Entered: 11/10/2016)
50 SUPPLEMENTAL Brief on Application of IQBAl/Twombly. (Rouco, Richard) (Entered: 11/14/2016)
51 RESPONSE to 50 Plaintiffs' Supplemental Brief on Application of Iqbal/Twombly filed by State of Alabama, The, Luther J Strange, III. (Parker, William) (Entered: 11/21/2016)
52 MEMORANDUM OPINION. Signed by Judge R David Proctor on 1/31/2017. (AVC) (Entered: 02/01/2017)
53 ORDER OF DISMISSAL−In accordance with the Memorandum Opinion 52 , Dfts' Motions to Dismiss 28 and 30 are GRANTED. Pltfs' claims against all Dfts are DISMISSED WITH PREJUDICE. Signed by Judge R David Proctor on 1/31/2017. (AVC) (Entered: 02/01/2017)
54 NOTICE OF APPEAL as to 52 Memorandum Opinion, 53 Order Dismissing Case by Antoin Adams, Alabama Legislative Black Caucus, Louise Alexander, Marika Coleman, Priscilla Dunn, Juandalynn Givan, Greater Birmingham Ministries, Marnika Lewis, Mary Moore, William Muhammad, National Association for the Advancement of Colored People, Oliver Robinson, John Rogers, Rodger Smitherman. Filing fee $ 505, receipt number 1126−2798137. (Attachments: # 1 Exhibit Docket Report, # 2 Exhibit Memorandum Opinion, # 3 Exhibit Order of Dismissal)(Rouco, Richard) (Entered: 03/02/2017)
57 USCA Appeal Fees received $505.00 Receipt# B4601078385 re 54 Notice of Appeal. (AVC) (Entered: 03/03/2017)
55 NOTICE of transmittal letter to the 11th Circuit Court of Appeals (KAM, ) (Entered: 03/03/2017)
56 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 54 Notice of Appeal,, (KAM, ) (Entered: 03/03/2017)

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03/09/2017 03/13/2017 03/17/2017 04/10/2017
04/10/2017 07/13/2017

58 USCA Case Number 17−11009−B and Notification for 54 Notice of Appeal,, filed by John Rogers, Louise Alexander, Marika Coleman, Rodger Smitherman, Alabama Legislative Black Caucus, Mary Moore, Oliver Robinson, National Association for the Advancement of Colored People, Marnika Lewis, Priscilla Dunn, Juandalynn Givan, William Muhammad, Antoin Adams, Greater Birmingham Ministries. (JLC) (Entered: 03/09/2017)
59 TRANSCRIPT REQUEST by Antoin Adams, Greater Birmingham Ministries, Marnika Lewis, National Association for the Advancement of Colored People (Rouco, Richard) (Entered: 03/13/2017)
60 TRANSCRIPT REQUEST − Court Reporter Acknowledgment filed by Leah S. Turner (KAM) (Entered: 03/22/2017)
61 Transcript of Proceedings held on 10/26/2016, before Judge R. David Proctor. Court Reporter/Transcriber Leah S. Turner, Telephone number (256) 656−8239. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 5/1/2017. Redacted Transcript Deadline set for 5/11/2017. Release of Transcript Restriction set for 7/9/2017. (AVC) (Entered: 04/10/2017)
62 NOTIFICATION THAT TRANSCRIPT HAS BEEN FILED IN DISTRICT COURT. (AVC) (Entered: 04/10/2017)
Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Alabama certifies that the record is complete for purposes of this appeal re: 54 Notice of Appeal, Appeal No. 17−11009−BB. The entire record on appeal is available electronically.(JLC) (Entered: 07/13/2017)

 
 Case 2:16-cv-00690-SGC Document 1 Filed 04/28/16 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
(Southern Division)

Marnika Lewis, Antoin Adams,

)

Alabama State Conference of

)

the National Association For the

)

Advancement of Colored People,

)

and Greater Birmingham Ministries,

)

)

Plaintiffs,

)

vs.

)

)

Robert J. Bentley, in his Official Capacity )

as Governor of the State of Alabama; )

and Luther J. Strange, III, in his Official )

Capacity as Attorney General of

)

the State of Alabama;

)

)

Defendants.

)

CIVIL ACTION NO.

FILED
2016 Apr-28 AM 09:57 U.S. DISTRICT COURT
N.D. OF ALABAMA

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Come now the Plaintiffs, by and through counsel and complain against the Defendants, as follows:
INTRODUCTION 1. In August, 2015, the City Council of Birmingham and itsits Mayor decided, on the basis of the economic and social welfare interests of the City’s residents, to increase the minimum wage above the federally mandated minimum of $7.25 per hour for employees employed by employers within the City. City Council President Johnathan Austin stated when the ordinance was first passed in August of 2015, “We're just trying to do what we think is best

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for our citizens and our workers".1 And as city councilor LaShunda Scales said, “We can’t have a progressive city and low wage jobs.”2
2. The passage of the Birmingham minimum wage ordinance, which would have raised the minimum wage to $10.10 per hour, was a move by the elected officials of the City in the interest of Birmingham’s predominately African-American workforce to lift them out of poverty.
3. The City of Birmingham, Alabama is the largest municipality in the state, with a population that is approximately 74% African-American. Approximately 32% of its AfricanAmerican residents have earnings below the federal poverty level. African-American residents’ per capita income averages under $16,000 per year. All those with earnings below the poverty level, as well as others, would have benefited by implementation of the minimum wage ordinance.
4. Deliberately unresponsive and openly hostile to the economic needs of minorities, several white legislators proposed a bill nullifying Birmingham’s minimum wage ordinance during a special session in 2015. Because of the limits on a special session, the Legislature did not act upon the proposed legislation. However, the first order of business in the new session was to revoke and nullify Birmingham’s minimum wage ordinance. The passage of a statute abrogating Birmingham’s “minimum wage” ordinance is the most recent example of the State Legislature denying a predominantly African-American local government and its residents of the right to determine what is best for their community.
1 AL.com, Birmingham City Council Votes to Raise Minimum Wage, http://www.al.com/news/birmingham/index.ssf/2015/08/birmingham_minimum_wage_increa.ht ml, August 18, 2015. 2 Id.
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5. In its haste to override Birmingham’s minimum wage ordinance, the Legislature disregarded even the very limited procedural protections that existed against State intrusion into local affairs. In uncharacteristic fashion, and contrary to its normal practices, the State Legislature passed the so-called “Alabama Uniform Minimum Wage and Right To Work Act” (hereinafter “HB 174”) in a little over a week after its first reading and the Governor signed the bill within two hours after it reached his desk.3
6. The Plaintiffs bring this action to remedy current harms arising from the denial of equal protection under the law. The enactment of HB 174 (a sweeping statute nullifying Birmingham’s minimum wage ordinance and pre-empting any local regulation of matters touching upon private sector employment) is the most recent chapter in a long history of the Alabama State Legislature discriminating against predominantly African-American communities; a history that traces its origins to the 1901 Constitution. Though the Voting Rights Act enabled African-American communities to elect at the local level representatives of their choosing, this ability to elect has not resulted in policies responsive to the needs of these communities.
7. The Plaintiffs’ Complaint asserts claims under the Fourteenth Amendment’s equal protection clause. The Plaintiffs complain that the State Legislature’s decision to nullify Birmingham’s minimum wage ordinance was racially motivated and that this legislation disproportionately impacts African-American residents of Birmingham who work in the city. Second, the Plaintiffs complain that the State Legislature’s nullification of Birmingham’s minimum wage ordinance and pre-emption of any local ordinance or regulation related to private sector employment relies on the 1901 Constitution’s concentration of power at the State level
3 Westlaw provisionally cites HB 174 as Ala. Code § 41-30-1. 3

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and its denial of local autonomy (i.e. home rule). The delegates who drafted and voted for the 1901 Constitution concentrated power at the State level for the express purpose of denying predominantly African-American communities local control over matters affecting these communities. They did so expressly upon racial grounds. Finally, the pre-emption of any and all ordinances or regulations related to private sector employment uniquely burdens predominantly African-American communities. As a result of HB 174, African-Americans must now petition the State Legislature for any legislation related to private sector employment, even if the proposed legislation would only affect employment within their city. The State’s Legislature removal of the entire area of private sector employment from the reach of local government is precisely the type of burden that the drafters of the 1901 Constitution imposed on predominantly African-American communities. Moreover, HB 174’s sweeping preemption clause creates a vacuum because it does not substitute Birmingham’s ordinance with a state law, a fact which indicates that the intent of the Legislature was to alter the political process and maintain control over predominantly African-American communities interested in passing minimum employment standards.
PARTIES 8. The Plaintiff Marnika Lewis is twenty-three years old and a resident of the City of Birmingham. Ms. Lewis is African-American and a single mother of a five year old son. She is currently employed at Moe’s Restaurant on 5th Avenue South in Birmingham. She has been employed at Moe’s for approximately three years. She earns $7.75 per hour and since beginning work at Moe’s she has received one 25-cent per hour raise about one and a half years ago. Ms. Lewis makes approximately $270 per week and her annual income is less than $14,000. Despite working close to a full-time schedule, Ms. Lewis cannot afford her basic needs without public
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assistance. She receives Supplemental Nutrition Assistance Program (“SNAP”) benefits to cover food costs. Ms. Lewis relies on Jefferson County Committee for Economic Opportunity’s (“JCCEO”) energy assistance program to heat her home. Ms. Lewis does not receive any health benefits from Moe’s and depends on the University of Alabama-Birmingham’s low-income clinics for her family’s healthcare needs. She cannot afford the cost of childcare. Instead Ms. Lewis is forced to rely on a network of friends and family to care for her son when she is at work. This ad hoc system often leaves her son without a caregiver. The raise in the minimum wage by the city of Birmingham would have helped Ms. Lewis afford daycare for her son and provide additional income to allow her to return to school.
9. The Plaintiff, Antoin Adams is an African American, twenty-three years old and a resident of the City of Birmingham. Mr. Adams has been employed at Hardees at 5113 Airport Highway in Birmingham, AL for approximately four months. He earns $7.25 per hour and his annual income is less than $10,556. Prior to working at Hardee’s, Mr. Adams worked at WalMart. He receives no health benefits and must pay for medical treatment out-of-pocket. Mr. Adams suffers from chronic asthma and must regularly go to the hospital for breathing treatments. He is unable to afford his basic living expenses without government assistance. Mr. Adams received SNAP benefits until last month and he currently lives in Section 8 housing. The raise in the minimum wage by the city of Birmingham would have helped Mr. Adams afford food and household items. It would also allow him to save for college. Mr. Adams wants to become a computer technician but cannot afford to attend college on his current salary.
10. Organizational Plaintiff Alabama State Conference of the National Association for the Advancement of Colored People (“the Alabama NAACP”) is a state subsidiary of the National Association for the Advancement of Colored People, Inc. The Alabama NAACP is the
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oldest and one of the most significant civil rights organizations in Alabama, and it works to ensure the political, educational, social, and economic equality of African Americans and all other Americans. Eliminating the racial wage gap is a key focus of the Alabama NAACP. To that end, it advocates for a living wage in low paying industries where workers of color are disproportionately represented and especially concentrated.
The Alabama NAACP is composed of 48 branches across the state of Alabama, including the Metro Birmingham branch. The Alabama NAACP has significant membership in the City of Birmingham and many of those members will be directly impacted and harmed by HB 174.
The Alabama NAACP has standing to challenge HB 174 on behalf of its members. As a result of HB 174, a number of the Alabama NAACP’s members were deprived of a living wage without constitutional notice. HB 174 also distorted the political process for Alabama NAACP’s members and denied them equal protection of the law.
11. Organizational Plaintiff Greater Birmingham Ministries (“GBM”) was founded in 1969 in response to the urgent human rights and justice needs of the residents of the greater Birmingham, Alabama area. GBM is a multi-faith, multi-racial organization that provides emergency services for people in need. It engages in community efforts to create systemic change with the goal of building a strong, supportive, and politically active society that pursues justice for all people.
12. The Defendant Robert J. Bentley is the Governor of the State of Alabama and is charged with responsibility for upholding the Alabama Constitution and executing state law. He approves and signs into law bills enacted by the legislature. He is named in his official capacity.
13. The Defendant Luther J. Strange, III is the Attorney General for the State of Alabama and its chief legal officer. He advises various state, county and city officials regarding
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questions of law connected with the performance of their duties. He is named in his official capacity.
14. Defendants’ actions in support of the pre-emption of Birmingham’s minimum wage ordinance were taken under color of state law and in violation of 42 U.S.C. § 1983 and the equal protection clause of the Fourteenth Amendment to the United States Constitution.
JURISDICTION 15. This Court has jurisdiction over this matter pursuant to 42 U.S.C. §1983 and 28 U.S.C. § 1331 (federal question).
STATEMENT OF FACTS 16. On April 21, 2015, the Birmingham City Council unanimously passed a resolution asking the state Legislature to raise the minimum wage to $10 per hour across the state. City Councilman, Jay Roberson, in speaking in favor of the resolution stated that “their advocacy on increasing the minimum wage to $10 an hour in Alabama is an economic issue that will benefit all, . . . I hope the city of Birmingham and the business community will respectfully adhere to this great economic boost for all hard working employees which hopefully will become law in the near future."4 17. Almost simultaneously with the rally and the passage of the Birmingham City Council’s resolution calling for an increase in the minimum wage, Representative Arnold Mooney (a white representative from the 43rd District-Shelby) introduced bill HB 495 in the Alabama Legislature. HB 495 sought to prevent any municipality from requiring that employers provide wages, paid or unpaid leave, and/or vacation pay that is not required by federal or state
4Birmingham City Council Endorses Campaign to Raise Minimum Wage, http://www.al.com/news/birmingham/index.ssf/2015/04/birmingham_city_council_endors_1.htm l, April 21, 2015.
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law. HB 495 did not advance out of the Alabama House of Representatives and further consideration was postponed when the legislative session ended in early June 2015.
18. On August 18, 2015, the Birmingham City Council unanimously passed, with one abstention, Ordinance 15-124 that would raise the minimum wage for employees working in the city to $8.50 per hour as of July 1, 2016 and $10.10 per hour on July 1, 2017. The ordinance was published and went into effect on August 30, 2015. (Ordinance 15-24 attached as Exhibit 1 hereto). The ordinance received wide spread approval among Birmingham’s African-American residents, which comprise approximately seventy-three (73) percent of Birmingham’s population.
19. In reaction to the Birmingham City Council’s ordinance increasing the minimum wage, on or about September 8, 2015, at the beginning of Alabama Legislature’s second special legislative session of 2015, Alabama House District 47 Representative David Faulkner, (a white representative of the Birmingham suburb of Mountain Brook),5 introduced bill HB 27 that prevents cities such as Birmingham from raising the minimum wage. Faulkner stated that he was “shocked” that the city could raise the minimum wage for its residents.6 Birmingham was the only city or governmental entity in the state to have passed a minimum wage ordinance at the time of Senator Faulkner’s introduction of HB 27.
20. There was no public notice of the bill or an opportunity for hearing, and HB 27 did not advance through the Legislature during the second special session.
5 According to recent United States census figures, Mountain Brook is approximately 98% white and its median income of approximately $130,000.00 is more than six times higher than that of Birmingham. 6 Alabama Lawmakers Consider Bill to Block City Minimum Wages, http://www.al.com/news/index.ssf/2015/09/alabama_lawmakers_consider_bil.html, September 9, 2015.
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21. Undeterred by the lack of passage of HB 27, Representative Faulkner on February 9, 2016, the third day of the 2016 legislative session of the Alabama Legislature, introduced HB 174 which combined Representative Mooney’s HB 495 introduced in April of 2015 and Representative Faulkner’s HB 27 introduced in September of 2015. HB 174, referred to as the “Alabama Uniform Minimum Wage and Right-To-Work Act,” (hereinafter HB 174 or the Act) sought to block and declare void Birmingham’s minimum wage ordinance passed in August of 2015. The fifty-three sponsors of HB 174 in the House (all of them white) squarely targeted Birmingham and its minimum wage ordinance as Birmingham was the only city or public entity in the state of Alabama that had raised its minimum wage above that required by federal law. No Alabama law provides for a minimum wage, nor did the supporters of HB 174 include any statewide minimum wage within its provisions. The leadership of the House of Representatives fasttracked HB 174 in the House which held a short public hearing on the bill on February 11, 2016 and voted it out of the Committee on State Government by a vote of 10-3. All ten supporters of the bill in the House Committee were white.
22. On February 16, 2016, the House of Representatives approved the bill 71-31 and sent it to the Alabama Senate. All members of the House voting in favor of the bill were white; all twenty-seven African-American Representatives voted against the bill.
23. While the State Legislature was acting to prevent implementation of the Birmingham minimum wage ordinance, on February 9, 2016, the Birmingham City Council adopted Ordinance 16-25 to make the minimum wage increase effective on March 1, 2016. Mayor William Bell signed Ordinance 16-25 on February 16, 2016 and it was published and became effective on February 19, 2016. Accordingly, Ordinance 16-25 went into effect as of that date. (City of Birmingham Ordinance 16-25 attached as Exhibit 2 hereto).
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24. On February 23, 2016, the Birmingham City Council adopted Ordinance 16-28 entitled “An Ordinance Relating to Minimum Wage to Be Paid to Employees by Employers in the City of Birmingham.” Among the reasons the City Council adopted Ordinance 16-28, like ordinances 15-124 and 16-25, was because “Poverty in the city of Birmingham is a problem that affects the general health and welfare of its citizens, it is incumbent upon the city to take legislative steps to help lift working families out of poverty, decrease income inequality, and boost our [Birmingham] economy.” (City of Birmingham Ordinance 16-28 attached as Exhibit 3 hereto).
25. Ordinance 16-28 moved the effective date of the minimum wage increase to February 24, 2016 and increased the minimum wage to $10.10. The City Council acted to move up the date of the minimum wage increase because the white supporters of HB 174 in the Alabama state Legislature were fast-tracking HB 174 in an attempt to have it pass before the first wage increase provided in Birmingham’s August 18, 2015 Ordinance took effect.
26. Birmingham Mayor William Bell signed Ordinance 16-28 on February 24, 2016. Publication of the ordinance in the Birmingham News was set for Sunday, February 28, 2016.
27. The Alabama State Senate, led by Senator Jabo Waggoner (a white senator representing the Birmingham suburb of Vestavia Hills), fast-tracked HB 174 in approximately 36 hours through the Senate Committee on Governmental Affairs and the Senate passed the bill on a 23-12 roll call vote on February 25, 2016. All Senators voting in favor were white; all six African-American members of the Senate voted against passage. The bill was delivered to Governor Robert Bentley on February 25 and it was signed by the Governor approximately ninety minutes after its passage in the Senate.
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28. One specific provision of this new law renders null and void any municipal or county minimum wage ordinance enacted prior to passage of HB 174. This retroactive nullification of wage ordinances applied only to the City of Birmingham. Section 110 of the Alabama Constitution provides, in relevant respects, that a general law affecting only one municipality at the time of enactment must comply with the notice provisions of Section 106.
29. The notice provisions of Alabama Constitution Section 106 require, inter alia, that before a special, private or local law shall be passed, it must be published in the local newspaper for four consecutive weeks in the county or counties affected by the law.
30. The Alabama House of Representatives and the State Senate failed and refused to provide the notice required by Section 106 of the Constitution in an effort to keep Ordinance 1628 from becoming effective.
31. The passage of HB 174 by the Alabama Legislature fits a historical pattern of legislation that discriminates against African Americans and thwarts the efforts of AfricanAmericans in the state of Alabama who seek to improve their economic and social well-being. The enactment of HB 174 resulted in approximately 40,000 low wage workers in Birmingham being denied a wage increase.
32. State Senator Slade Blackwell, (a white senator from the wealthy Birmingham suburb of Mountain Brook) stated in support of the legislation and in opposition to the Birmingham ordinance that increases in the minimum wage especially hurt young people from poorer families who may not have easy access to trendy internships at colleges and private companies to build their skill set and resume. Since HB 174 was targeted only at Birmingham, which is predominately African-American and many of whose residents live below the poverty line, this statement by Senator Blackwell, was directed at the poor, African American residents
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of the city of Birmingham. This statement, and others by white legislators, invoked racial stereotyping to justify denial of a living wage to African-American residents of the city of Birmingham.
33. In contrast to Birmingham’s 32% of African-Americans living below the federal poverty level, only 2.57% of Mountain Brook’s residents (97.2% white) lived below the federal poverty level.
34. Just before the final vote, State Senator Bill Hightower, (a white businessman and real estate investor from Mobile), spoke in support of the bill saying "we should lower the minimum wage," and later posted on his Twitter account his claim that "raising the minimum wage hurts the poor."
35. Sen. Dick Brewbaker, (a white senator from Montgomery) said he was concerned about the bill generally, and speculated that "Montgomery would probably follow suit," if Birmingham’s wage ordinance was allowed to stand.
36. Montgomery is approximately 57% African-American and after Birmingham, has the second highest concentration of African-Americans among Alabama’s large cities.
History of Alabama’s 1901 Constitution and its Present day Effects 37. By almost any measure, the 1901 Constitution with its retention of local control in the hands of the State Legislature is aberrational. With over 700 amendments, Alabama’s 1901 Constitution is uniformly regarded as the longest State constitution in the United States, almost forty times longer than the United States Constitution. The length of the 1901 Constitution is a consequence of the limited home rule the Constitution affords to counties and municipal corporations, requiring the Legislature and the voters to adopt amendments dealing with local
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affairs. More than 500 of the approximately 772 amendments to the 1901 Constitution pertain to a specific county or municipality.
38. The delegates to the 1901 constitutional convention adopted a constitution that concentrates legislative power at the State level. The convention’s president John Knox openly acknowledged the racially discriminatory purpose animating the consolidation of power at the state level: “After the war, by force of Federal bayonets, the negro was placed in control of every branch of our Government. Inspired and aided by unscrupulous white men, he wasted money, created debts, increased taxes until it threatened to amount to confiscation of our property. While in power, and within a few years, he increased our State debt from a nominal figure to nearly thirty million dollars.” Referring to blacks as having the “lowest ... intelligence and moral preceptitions [sic] of all the races,” constitutional convention president John B. Knox confidently commenced the 1901 constitutional convention by proclaiming that “[t]here is in the white man an inherited capacity for government, which is wholly wanting in the negro.”
39. Convention reports of the 1901 constitutional convention establish that the convention delegates adopted and retained the home rule restrictions in part because of a desire to discriminate against the State’s African-American population and to prevent AfricanAmerican citizens from exercising control over local governments where they constituted a majority of the population. Indeed, the 1901 Constitution maintained and expanded home rule restrictions previously adopted in the 1875 Constitution. The 1875 Constitution (referred to as the “Redeemer” Constitution) followed on the heels of an electoral victory by the Democratic Party in 1874. The Democrats campaigned on a slogan of “white supremacy” and claimed to have "redeemed" Alabama from "black rule" and restored white supremacy by capturing the office of Governor and control of both houses of the Legislature in the 1874 state elections.
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Knight v. Alabama, 787 F.Supp. 1030, 1070-71 (N.D. Ala. 1991), aff 'd in part and rev 'd in part, 14 F.3d 1534 (11th Cir. 1994). Once in power, the Democrats convened a constitutional convention and adopted the so-called “1875 Redeemer Constitution” which severely restricted the power of local and state government.
40. In United States of America v. State of Alabama, 252 F. Supp. 95 (M.D. Ala. 1966), the U.S Government challenged a poll tax provision contained in Alabama’s Constitution. The provision had been added to Alabama’s Constitution during the 1901 Convention. A majority of the three judge panel considering this challenge found that racial discrimination motivated the inclusion of a poll tax provision. Writing for the majority Judge Rives made the following finding: “The Journals of the Convention leave absolutely no doubt as to what the delegates of the white citizens of Alabama wished the Convention to accomplish:
‘* * * We want the white man who once voted in the state and controlled it to vote again. We want to see that old condition restored. Upon that theory we took the stump in Alabama having pledged ourselves to the white people upon the platform that we would not disfranchise a single white man if you trust us to frame an organic law for Alabama, but it is our purpose, it is our intention, and here is our registered vow to disfranchise every Negro in the state and not a single white man.” 252 F. Supp. at 98. 41. In rejecting the State’s position that the discriminatory motives behind the original enactment of the 1901 Constitution could not be imputed to the State some sixty-five years after adoption, Judge Rives noted that “from the Constitutional Convention in 1901 to the present [i.e 1966], the State of Alabama has consistently devoted its official resources to maintaining white supremacy and a segregated society. Statutes, cases and the statements of its Governors demonstrate that the State’s resistance to the rights of Negroes to equal treatment continued even after the Congress and the Supreme Court of the United States had expressly declared that the State’s action was unconstitutional.” 252 F. Supp. at 101.
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42. In Dillard v. Crenshaw County, (a Voting Rights Act challenging use of at-large districts), Judge Thompson observed that any doubt about the State’s Legislature’s motivation in adopting such election systems is dispelled by the undisputed fact that such “systems were created in the midst of the state’s unrelenting 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.” 640 F. Supp. 1347, 1357 (M.D. Ala. 1986).
43. Speaking directly about the 1901 Constitution, Judge Thompson made the following findings: “There can be little question but that a major purpose of the 1901 Convention was to disenfranchise black persons. As the Supreme Court recently commented in another case, expert testimony “showed that the Alabama Constitutional Convention of 1901 was part of a movement that swept the post-Reconstruction South to disenfranchise blacks. ... The delegates to the all-white convention were not secretive about their purpose.” Hunter v. Underwood, 471 U.S. 222, 229, 105 S.Ct. 1916, 1920–21, 85 L.Ed.2d 222 (1985). The 1901 Constitution contained so many different voter qualifications that by 1909 all but approximately 4,000 of the nearly 182,000 black persons of voting age in Alabama had been removed from the rolls of eligible voters. Bolden [v. City of Mobile], 542 F.Supp. [1050] at 1063 & n. 10.” 640 F. Supp. At 1358.
44. By pre-empting Birmingham from enacting employment related ordinances that respond to the needs of the individual Plaintiffs and the African-American individuals the organizational Plaintiffs represent, the state of Alabama has deliberately burdened the ability of Plaintiffs to effectuate meaningful change aimed at eliminating the vestiges of de jure race discrimination. These vestiges include, but are not limited to, significant disparities in unemployment rates among racial groups, significant disparities in levels of income and wealth among racial groups, significant disparities in home ownership amount racial groups, significant
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disparities in educational attainment and significant disparities in poverty rates among racial groups. See generally, Regina Moorer, Inequality in Alabama: A County-Level Analysis (2012). Given that African-American communities have no effective representation at the state wide level (e.g. there are no African American state wide elected officials) and the state Legislature is a product of racially polarized voting and racial gerrymandering, the Plaintiffs have no political recourse to address these vestiges of de jure discrimination at the state wide level.
45. As a result of HB 174, the state of Alabama retroactively nullified the Plaintiffs’ right to receive a minimum wage of $10.10. In order to restore that right, the Plaintiffs now have to persuade the state Legislature to raise the minimum wage to $10.10 as opposed to persuading a local government.
46. HB 174 also contains a provision designed to invoke the 1901 Constitution’s restrictions on home rule. Section 6(c) of the Act provides in relevant part that “the authority of a municipality to regulate . . . the wages, leave or other benefits provided by an employer to an employee, class of employees or independent contractor shall not be inferred from proprietary authority, home rule status or other inherent or general power.” Reliance on the 1901 Constitution’s limitations and/or deprivation of home rule (e.g. Article IV, Section 44) to deny decision-making authority to the predominantly African-American community and to entrench racial disparities in income, among other things, taints the enactment of HB 174 with racial animus.
47. The home rule restrictions embodied in the 1901 Constitution and Alabama case law, which the Legislature utilized to enact HB 174, have disparately impacted economic development opportunities in counties and municipalities that are predominantly AfricanAmerican. In addition to the racial disparities noted above, counties with majority white
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populations have successfully secured authority from the Legislature to govern local affairs more often than African-American counties and the counties with majority white population have secured twice as many constitutional amendments granting local authority than predominantly African-American counties.
COUNT I (1901 Constitution’s Deprivation of Home Rule Violates the
Fourteenth Amendment’s Equal Protection Clause) 48. The 1901 Constitution expressly and as interpreted by the Alabama Supreme Court grants municipalities very limited autonomy to legislate over matters directly affecting their residents. 49. As noted above, the inclusion of restrictions on local government autonomy and the centralization of power at the State level in the 1901 Constitution was racially motivated. It is well established that the delegates to the 1901 constitutional convention purposefully deprived local governments of any meaningful authority in order to discriminate against African-American citizens. 50. Section 6 (a) of HB 174 expressly provides that the purpose of the Act is to establish within the Legislature complete control over regulation and policy pertaining to wages, leave or other employment benefits provided by an employer to an employee, class of employees or independent contractor. 51. The State Legislature’s exercise of “complete control” and its preemption of any local ordinance regulating wages, leave or other employment benefits can be traced to the 1901 Constitution’s centralization of power at the State level and its intent to deprive predominantly
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African-American communities of local autonomy on the basis of racially discriminatory motives.
52. The State Legislature’s exercise of “complete control” over regulation and policy pertaining to wages, leave or other employment benefits disproportionately impacts African American employees (like the Plaintiffs) who work and reside in the City of Birmingham.
53. HB 174 violates the Fourteenth Amendment’s equal protection guarantee because (a) the exercise of complete control over regulation and policy pertaining to wages, leave or other employment benefits can be directly traced to provisions in the racially discriminatory 1901 Constitution that deprives African-American citizens (through their locally-elected representatives) the right to regulate such matters of central concern to their daily lives; (b) such provisions that grant exclusive authority to the State Legislature to override any and all local ordinances are vestiges of race discrimination and (c) HB 174 disproportionately impacts African American residents who live and work in the City of Birmingham.
COUNT II (Racially-Motivated Enactment of HB 174 Violates the Equal Protection Clause of the
United States Constitution) 54. The Plaintiffs incorporate by reference the factual allegations in the preceding paragraphs. 55. Defendants’ actions constitute intentional discrimination on the basis of race contrary to the Fourteenth Amendment. 56. The persons denied the benefits of the Birmingham minimum wage legislation are predominantly African-American. Approximately 32% of Birmingham’s African-American residents had annual earnings below what they could have earned had the minimum wage
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ordinance become effective. The Alabama Legislature’s enactment of H.B. 174 denies the City of Birmingham the opportunity to obtain the same economic opportunities for its residents as is presently available to predominantly white communities throughout Alabama.
57. For example, the City of Mountain Brook, home of the sponsor of HB 174, with 97.2% of its residents white, has less than 3% of its residents with annual earnings below the federal poverty level. Additional support for HB 174 came from Senator Waggoner, a white senator representing Vestavia Hills -- a city that is 94.2% white and has only 3.1% of its residents living below the poverty line. Unlike these predominantly white communities, there was a substantial need for a minimum wage law in Birmingham, and the likely beneficiaries of the Birmingham ordinance were, predominantly, African-American.
58. Defendants’ assertions of the need for uniformity in application of minimum wage requirements throughout Alabama are pretextual, in light of the Legislature’s history of less favorable treatment of predominantly African-American jurisdictions in the Legislature’s granting of economic development authority to local jurisdictions (See Will Parker, “Still Afraid Od “Negro Domination?”: Why County Home Rule Limitations in the Alabama Constitution of 1901 are Unconstitutional,” 57 Ala. L. Rev. 545 (Winter 2005)) and in light of the Legislature’s acceptance of non-uniformity in other areas of economic regulation, including but not limited to the sales tax. Defendants’ departure from procedural norms to obtain passage of HB174 also evidences discriminatory intent.
59. Further, contrary to the assertions of the HB 174’s supporters that passage of a minimum wage ordinance would be detrimental to Birmingham residents, economic studies show that enactment of a minimum wage would not have resulted in job loss or economic
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instability. The Legislature cited no economic studies in support its position and instead relied on stereotypes about race and other pretexts to justify its actions.
60. The State Legislature also disregarded procedural requirements related to legislation that affects only a single municipality at the time of enactment. The State did not provide requisite notice to citizens of Birmingham before enacting a provision that nullified the City’s wage ordinance. At the time of HB 174’s enactment, Birmingham was the only city to have enacted an ordinance affected by HB 174. Disregarding these procedural notice provisions supports the inference of improper discriminatory motive.
COUNT III (Equal Protection Claim Based on Political Process Doctrine) 61. Additionally and separately from the equal protection harm that can be traced to the 1901 Constitution’s discriminatory refusal to grant municipal home rule, HB 174 violates the Fourteenth Amendment’s equal protection clause because it specifically targeted an ordinance that Birmingham’s African-American community and their City Council strongly supported. 62. HB 174 preempts a city ordinance that primarily inured to the benefit of Birmingham’s African-American community. Moreover, Birmingham’s African-American community (as the organizational Plaintiffs can attest to) strongly considered the ordinance to be in their interest. Indeed, as noted above, the City Council passed multiple ordinances accelerating the provisions of the wage ordinance in an effort to prevent the State from nullifying the ordinance and usurping all authority to regulate and set policy pertaining to wages, leave or other employment benefits.
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63. The State’s adoption of HB 174 violated the Fourteenth Amendment’s equal protection guarantee because it placed all decision-making authority regarding wages, leave or other employment benefits at the State level rather than the leaving such authority to the City. The intent to uniquely burden the ability of Plaintiffs to obtain employment-related ordinances that Birmingham’s African-American community strongly favored motivated the decision to give the State Legislature “complete control” over regulation and policy pertaining to wages, leave or other employment benefits.
64. Moreover, Defendants’ actions as alleged herein have violated 42 U.S.C. § 1983 and the equal protection clause of the Fourteenth Amendment to the United States Constitution by placing special burdens on racial minorities within the governmental process.
PRAYER FOR RELIEF WHERFORE, plaintiffs respectfully pray that this Court will grant them the following relief: (A) A declaratory judgment that the 1901 Constitution’s deprivation of local selfgovernance over matters affecting primarily municipal residents violates the rights of Plaintiffs and (the members of the organizational Plaintiffs) guaranteed under the Equal Protection Clause of the Fourteenth Amendment and further declaring that Birmingham’s wage ordinance constitutes a lawful exercise of municipal authority; (B) A declaratory judgment that HB 174 violates the rights of Plaintiffs and (the members of the organizational Plaintiffs) guaranteed under the Equal Protection Clause of the Fourteenth Amendment; (C) An injunction prohibiting defendants, their departments, officers, agents, attorneys, employees and those acting in concert with them or at their direction from enforcing
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the provisions of HB 174 and/or taking any action to prevent Birmingham’s wage ordinance from taking effect;
(D) An award of their costs incurred in prosecuting this action, including an award of attorneys' fees and expenses, pursuant to 42 U.S.C. § 1988.
(E) Such other and further equitable relief as the Court may deem just and equitable.

OF COUNSEL:
Glen M. Connor, Esq. George N. Davies, Esq. Richard P. Rouco, Esq. QUINN, CONNOR, WEAVER, DAVIES & ROUCO LLP 2 – 20TH Street North, Suite 930 Birmingham, Alabama 35203 Telephone: 205-870-9989 Facsimile: 205-803-4143 gconnor@qcwdr.com gdavies@qcwdr.com rrouco@qcwdr.com
Robert H. Stroup, Esq. LEVY RATNER, P.C. 80 Eighth Avenue, 8th Floor New York, NY 10011 Tel. (212) 627-8100 Fax (212) 627-8182 rstroup@levyratner.com
Mary Joyce Carlson, Esq. Mary Joyce Carlson 1100 New York Avenue, N.W.. Suite 500 West. Washington, DC 20005 (202) 230-4096 carlsonmjj@yahoo.com
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/s/ Richard P. Rouco Richard P. Rouco

 
 Case 2:16-cv-00690-RDP Document 18 Filed 06/30/16 Page 1 of 52
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2016 Jun-30 PM 01:30 U.S. DISTRICT COURT
N.D. OF ALABAMA

MARNIKA LEWIS, ANTOIN ADAMS, ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, GREATER BIRMINGHAM MINISTRIES, ALABAMA LEGISLATIVE BLACK CAUCUS, LOUISE ALEXANDER, MARIKA COLEMAN, PRISCILLA DUNN, JUANDALYNN GIVAN, MARY MOORE, OLIVER ROBINSON, JOHN ROGERS, RODGER SMITHERMAN, and WILLIAM MUHAMMAD,
Plaintiffs, v.
THE STATE OF ALABAMA, THE CITY OF BIRMINGHAM, LUTHER J. STRANGE, III, in his official capacity as Attorney General, and WILLIAM A. BELL, SR., in his official capacity as Mayor of Birmingham,
Defendants.

Case No.2:16-cv-690-RDP

AMENDED COMPLAINT Pursuant to F.R.C.P. Rule 15(a)(1) and the Court’s June 7, 2016 Order, the Plaintiffs’ amend their complaint to add parties and claims as follows:

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I. INTRODUCTION: This is an action for a declaratory judgment that Act 2016-18, titled the Alabama Uniform Minimum Wage and Right-to-Work Act (a.k.a. HB 174 or Act 2016-18), violates the rights of Birmingham citizens and the citizens of other majority-black municipalities guaranteed by the Constitution and laws of the United States, and for preliminary and permanent injunctions requiring the defendant City of Birmingham to enforce Ordinance No. 16-28, relating to the minimum wage to be paid to employees by employers in the City of Birmingham, Alabama. Act 2016-18 has the purpose and effect of transferring control over minimum wages and all matters involving private sector employment in the City of Birmingham from municipal officials elected by a majority-black local electorate to legislators elected by a statewide majority-white electorate. It perpetuates an official policy of political white supremacy that has been maintained in Alabama since it became a state in 1819, whereby white control is preserved by state government over the governing bodies of majority-black counties, cities, and educational institutions. Thus Act 2016-18 violates Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, and the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution of the United States. Further, Act 2016-18 was enacted with the intent
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of discriminating against the people who live and work in the City of Birmingham on the basis of race, contrary to the Fourteenth Amendment to the United States Constitution.
II. PARTIES 1. Plaintiffs Marnika Lewis and Antoin Adams are African-American citizens of the United States who are registered voters in the City of Birmingham. Each of them is employed in the City of Birmingham at wages that are less than $10.10 per hour. 2. Plaintiff Alabama State Conference of the National Association for the Advancement of Colored People (“the Alabama NAACP”) is a state subsidiary of the National Association for the Advancement of Colored People, Inc. The Alabama NAACP is the oldest and one of the most significant civil rights organizations in Alabama, and it works to ensure the political, educational, social, and economic equality of African Americans and all other Americans. Eliminating the racial wage gap is a key focus of the Alabama NAACP. To that end, it advocates for a living wage in low paying industries where workers of color are disproportionately represented and especially concentrated. The Alabama NAACP is composed of 48 branches across the state of Alabama, including the Metro Birmingham branch. The Alabama NAACP has significant membership in the City of Birmingham and many of those members will be directly impacted and harmed
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by ACT 2016-18. One member is Jaime Chrishon. Ms. Chrishon is an AfricanAmerican woman who resides in City of Birmingham. She has lifetime membership to the NAACP. Ms. Chrishon is employed as a crewmember at Popeye's located on Messer Airport Highway. She earns $7.25 per hour. As a result of HB 174, Ms. Chrishon will not receive the pay increase guaranteed under Ordinance 16-28.
3. The Alabama NAACP also has standing to challenge Act 2016-18 on its own behalf. Act 2016-18, has deprived Birmingham residents of their democratically adopted minimum wage increase. As a result, the Alabama NAACP will be forced to divert time, money, and personnel to educating African-American workers about the law and its impact.
4. Organizational Plaintiff Greater Birmingham Ministries (“GBM”) was founded in 1969 in response to the urgent human rights and justice needs of the residents of the greater Birmingham, Alabama, area. GBM is a multi-faith, multiracial organization that provides emergency services for people in need. It engages in community efforts to create systemic change with the goal of building a strong, supportive, and politically active society that pursues justice for all people. A central goal of GBM is the pursuit of social justice in the governance of Alabama. GBM actively opposes state laws, policies, and practices that result in the exclusion of vulnerable groups or individuals from the democratic process. Toward
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that end, GBM regularly engages in efforts to register, educate, and increase turnout among African-American voters, as well as low-income voters in general. GBM has participated in lawsuits to vindicate these democratic principles.
5. GBM has standing to sue on behalf of its members. GBM counts Christian, Muslim, and Jewish faith communities among its members, as well as individual temples, churches, and mosques, including New Pilgrim Baptist Church. African-American individuals from GBM congregations have been harmed as a result of Act 2016-18.
6. GBM also has standing to sue on its own behalf. GBM has a number of poverty relief programs that support working families and individuals in the city of Birmingham including its utility assistance program, food assistance program, clothes closet, Christmas drive, and a homeless shelter. As the result of Act 201618, GBM has had to divert resources to these programs to respond to poverty created by low wages.
7. Plaintiff Alabama Legislative Black Caucus (hereafter “ALBC”) is an unincorporated political organization of African Americans elected to the Alabama Legislature. Every member of the ALBC is a citizen of the United States and registered voter in Alabama elected from a majority-black House or Senate district. Each of them represents one or more majority-black political subdivisions of the State of Alabama.
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8. Plaintiffs Louise Alexander, Merika Coleman, Juandalynn Givan, Mary Moore, Oliver Robinson and John Rogers are African-American members of the Alabama House of Representatives and members of the ALBC. Representatives Alexander, Coleman, Givan, Moore and Rogers are members of the Jefferson County House Delegation. Plaintiffs Givan, Moore Robinson and Rogers are registered voters in the City of Birmingham.
9. Plaintiffs Priscilla Dunn and Rodger Smitherman are AfricanAmerican members of the Alabama Senate and members of the ALBC. Senators Dunn and Smitherman are also members of the Jefferson County Senate Delegation. Plaintiff Smitherman is a registered voter in the City of Birmingham.
10. Plaintiff William Muhammad is a citizen of the United States and an African-American registered voter in the City of Birmingham.
11. Defendant State of Alabama is sued in its own name with respect to Plaintiffs’ claims under § 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.
12. Defendant Luther J. Strange, III is the Attorney General for the State of Alabama and its chief legal officer. The Attorney General has broad common law and statutory powers to direct and oversee all litigation, civil or criminal, which concerns the interest of the State of Alabama. This includes litigation in
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federal court “in any case in which the state may be interested in the result.” He is named in his official capacity.
13. Strange has advised numerous persons, including governmental and non-governmental actors, regarding the enforcement of the Birmingham wage ordinance and the effect of the State’s passage of the wage preemption law. For example, in February, 2016, prior to the effective date of the ordinance, Strange advised Birmingham businesses, through a press release, that “despite the terms of the ordinance, they will have a reasonable time to prepare to comply, [with the Birmingham ordinance]” and expressed his opinion that the ordinance “does not provide a reasonable time for employers to prepare to comply.” He also advised that “the Alabama Legislature is currently addressing this issue and I expect it will be resolved shortly without adversely affecting the citizens of Birmingham.”
14. Regarding the State’s powers with respect to the Birmingham minimum wage ordinance, Strange also opined publicly, through a spokesperson, that “the Legislature has the authority to preempt local ordinances, even those that are already in effect.”
15. Strange is also charged under Alabama law with reviewing statutes passed by the Alabama legislature for their constitutional validity and to make a report to the Governor and the Chairman of the Judiciary Committees of the House and Senate of the laws or parts of laws which have been held invalid by courts of
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last resort. 16. The City of Birmingham is a municipality of the State of Alabama
whose Mayor and Council are elected by a majority-black local electorate. The City of Birmingham is not enforcing Ordinance 16-28 because of Act 2016-18.
17. William A. Bell, Sr., is sued in his official capacity as Mayor of the City of Birmingham. Defendant Bell, acting through the Legal Department or other city agency, has the duty to take appropriate steps to enforce Ordinance No. 16-28, and under the Mayor-Council Act of 1955, as amended by Ala. Act No. 2016-277, he has the duty to “enforce all laws and ordinances.” Mayor Bell has not acted to enforce Ordinance 16-28 because of Act 2016-18.
18. The City of Birmingham and Mayor Bell are named as defendants only for the purpose of providing complete relief among the parties with respect to the claims raised herein.
III. JURISDICTION & VENUE 19. This Court has jurisdiction of the subject matter of this action, pursuant to 28 U.S.C. §§ 1331, 1343(c) and 52 U.S.C. § 10302, to redress the deprivation of Plaintiffs’ rights guaranteed by the Voting Rights Act, 42 U.S.C. § 1983, and the Thirteenth, Fourteenth, and Fifteenth Amendments. 20. Venue of this action lies in the Middle District of Alabama pursuant to U.S.C. § 1391(b).
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IV. STATEMENT OF FACTS 21. On August 18, 2015, the Birmingham City Council, relying on its broad authority under the Mayor-Council Act of 1955, as amended, adopted Ordinance No. 15-124, raising the minimum wage in the City of Birmingham effective July 1, 2016. 22. On February 9, 2016, the third day of the 2016 Regular Session of the Alabama Legislature, HB 174 was introduced, sponsored by 61 white House members, including 8 of the 10 members of the Jefferson County Local Delegation elected from majority-white districts. 23. On February 16, 2016, HB 174 passed the House, 71 to 31, and was sent to the Senate. All 27 black House members voted no, including all 8 black members of the Jefferson County House Delegation. Of the 10 white members of the Jefferson County House Delegation, 9 voted yes and 1 was absent. 24. On February 19, 2016, the Birmingham City Council adopted Ordinance No. 16-25, which changed the effective date for raising the minimum wage to March 1, 2016. 25. On February 23, 2016, the Birmingham City Council adopted Ordinance No. 16-28, which changed the effective date for raising the minimum wage to $10.10 on February 24, 2016, and provided that the minimum wage must be raised each year to match the increase in cost of living.
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26. On February 25, 2016, the Senate passed HB 174, 23 to 11, and sent it to the Governor, who signed it as Act 2016-18 that same day. All 7 black senators voted no, including all 3 black members of the Jefferson County Senate Delegation. All 5 white members of the Jefferson County Senate Delegation voted yes.
27. Act 2016-18 prohibits any political subdivision from raising the minimum wage or mandating any other terms and conditions of employment beyond what is required by state or federal law. The City of Birmingham is the only political subdivision in Alabama to have regulated the minimum wage. Since there is no minimum wage in Alabama law, the federal minimum wage of $7.25 per hour now governs the City of Birmingham.
28. In Alabama, 6.8% of 1,125,00 hourly workers earn at or below the minimum wage of $7.25.
29. According to statistics compiled by the National Employment Law Project, roughly 19% of Birmingham workers - 40,000 people - earn less than $10.10.
30. The legislature’s pre-emption of the Birmingham wage law adversely impacted black workers. On average, white wage earners in Birmingham earn $1.41 more per hour than black wage earners. While 37% of black wage workers in Birmingham earn wages of $10.10 or less, only 27% of white wage workers
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earn at or below that level. Statewide, the wage gap between white and black workers is even greater than in Birmingham, with white wage workers earning, on average, $2.12 more than black wage workers for each hour worked.
31. According to U.S. Census estimates for 2016, blacks or African Americans constitute 26% of Alabama’s total population of 4,779,736. Blacks or African Americans are 73% of Birmingham’s total population of 212,237.
32. According to the 2010 census, blacks or African Americans were 24.86% of the voting-age population in Alabama, while they were 70.04% of the voting-age population in the City of Birmingham.
33. According to the 2010 census, blacks or African Americans were 27.79% of registered voters in Alabama, while they were 78.58% of registered voters in the City of Birmingham.
34. Voting is racially polarized in Alabama statewide and at the local government level.
35. In the Legislature there are 27 majority-black (voting age) House districts and 8 majority-black Senate districts, but there are no African Americans elected to statewide office. Oscar Adams, elected to the Alabama Supreme Court in 1982 and 1988, and Ralph Cook, elected to the Alabama Supreme Court in 1994, are the only African Americans since Reconstruction to be elected to statewide office in Alabama history.
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36. Today, black political power still has its greatest influence at the local levels of government. There are 12 majority-black (total population) counties in Alabama, all located in the Black Belt: Sumter, Greene, Hale, Marengo, Perry, Dallas, Wilcox, Lowndes, Montgomery, Macon, Bullock, and Barbour.
37. According to the 2000 census there are 2 majority-black municipalities over 100,000 people in Alabama, Birmingham and Montgomery, 2 majority-black municipalities between 25,000 and 100,000 people, Bessemer and Prichard, and 67 majority-black municipalities with fewer than 25,000 people.
38. Act 2016-18 perpetuates Alabama’s de jure policy of white supremacy, in particular its suppression of local black majorities through imposition of white control by state government.
39. Before the Civil War, white supremacy was maintained through slavery, which was guaranteed by the 1819 Constitution. Even free blacks could not vote; the 1819 Constitution, the 1861 Secession Constitution, and even the 1865 Presidential Reconstruction Constitution all restricted the franchise to white males. State law made educating blacks, slave or free, a criminal offense.
40. The antebellum constitutions guaranteed popular election of county officials. Disfranchised slave majorities were tied to the land as cheap laborers, who enabled whites in the Black Belt counties to become the wealthiest citizens in the nation.
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41. Many non-slaveholding whites in the northern counties could not compete with the slave economy and were reduced to subsistence farming. Their support of slavery and, eventually, secession was contrary to the economic interests of the overwhelming majority of white Alabamians and was the first example of Alabama’s official policy of white supremacy benefitting the wealthy at the expense of the working classes.
42. Because the 1819 Constitution apportioned seats in the Legislature based on white population, the white counties outside the Black Belt initially had majority control, and they enacted slave taxes and other taxes on wealth to fund state and local government. The white yeomanry paid virtually no taxes. But in the last antebellum decade representatives of the Black Belt gained more legislative power and began replacing the slave tax with land taxes that nonslaveholding whites had to pay.
43. At the end of the Civil War, Congressional Reconstruction began in 1867, which, protected by the federal army, temporarily disfranchised former Confederate officials, enfranchised blacks, and gave Republicans control of Alabama government. Black men, mostly from the Black Belt, were elected to the Legislature and county offices, but white Republicans (carpetbaggers and scalawags) exercised control over both state and local governments.
44. The Reconstruction Legislature greatly increased land taxes to pay for
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public schools and other services for a citizenry that now included freedmen. This tax burden fell on white landowners, who bitterly resented paying for the education of blacks. Many white subsistence farmers could not afford the property taxes and lost their land. The hardships and humiliations of the Reconstruction era became embedded in white memory, and resentment of federal rule remains part of Alabama’s political culture today.
45. When white Conservative Democrats regained control of state government in the 1874 election, they “redeemed” Alabama from “black rule” and enacted the repressive 1875 Redeemer Constitution. The 1875 constitutional convention was controlled by Black Belt planters and representatives of railway, mining, and financial interests (known in Alabama as the Bourbon Aristocracy and Big Mules). They placed provisions in the 1875 Constitution designed to prevent coalitions of blacks and whites from ever again using their electoral majorities to raise their taxes or interfere with their ability to maintain a cheap labor force to work on their plantations and in their mines. Chief among these constitutional provisions were restraints on home rule, on the ability of county and municipal governments to raise their own revenues or to regulate their local economies. The white counties were persuaded to ratify these terms against their own interests when the Democratic Party drew the color line and invoked white supremacy.
46. The 1875 Redeemer Constitution did not disfranchise blacks for fear
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of federal enforcement of the Fifteenth Amendment. So Black Belt whites devised both legal and extra-legal methods for controlling their overwhelming black majorities. The legal means included enacting statutes that removed local electoral control of many Black Belt county governments, giving the Governor authority to appoint those county officials. The extra-legal means were the use of violence and economic intimidation to control the votes of black sharecroppers, and outright fraudulent stuffing of ballot boxes. Black Belt whites “voted” their black majorities in support of white Democratic candidates both to maintain their control of the Legislature and locally to prevent their land from being taxed.
47. Racially segregated schools made it possible for Black Belt whites to appropriate and redirect to their white schools the state school revenues apportioned to their black schools. Because the Black Belt white schools needed little local school revenue, Black Belt politicians succeeded in defeating efforts by other white county legislators to raise constitutional millage caps on local funding for their white schools. In this way the funding mechanisms supporting de jure school segregation in Alabama helped suppress the wages and economic opportunities of both black and white workers throughout Alabama.
48. Alabama’s policy of white control of schools educating black students, whose purpose, according to Senator John Tyler Morgan, was to combat the danger that “education would spoil a good plow-hand,” succeeded until the
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1970s, when, in response to federal court-ordered desegregation, whites in the Black Belt counties left their public schools en masse, leaving behind virtually allblack student bodies.
49. In 1975, under the sponsorship of newly-elected black legislators, the two historically black state universities, Alabama State University (ASU) and Alabama A&M University (AAMU) were able to obtain their own governing boards. Knight v. Alabama, 787 F.Supp. 1030, 1139-40 (N.D. Ala. 1991), aff’d in relevant part, 14 F.3d 1534 (11th Cir. 1994).
50. As the court noted in Knight v. Alabama, “Since Alabama became a state, it has maintained through a variety of historical circumstances a steadfast policy of imposing white control over the public education of black people. This racially motivated policy was crucial to the regime of white supremacy for two purposes: (1) to make sure the content, values and style of blacks’ education prepared them for subordinate roles in society, and (2) to ensure that white persons would never be forced to submit to the authority of black persons. African Americans have always understood that their educational opportunities depended on the extent to which they could gain a measure of control over their own institutions, and that their ability to combat the policy of white control directly depended on the extent to which black citizens could gain a share of effective political power. Among the earliest achievements of blacks elected as a result of
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the 1965 Voting Rights Act and federal court legislative reapportionment decrees were creation of independent, majority-black boards for ASU and AAMU and corresponding increases in their state appropriations.” Id. at 1052. Public education, however, was not the only area of African American life the Legislature sought to dominate and preempt local efforts of improvement.
51. The most notorious method Black Belt whites and the Legislature they dominated used to control their black majorities and to keep them on the land as cheap labor was the brutal convict leasing and peonage system that began during Radical Reconstruction and continued well into the twentieth century. Black men and women were rounded up and convicted of vagrancy or breaking their labor contracts, then were leased out to farmers and mining companies. The revenues from convict leases helped compensate for the property taxes landowners were evading and provided over one-third the operating budgets of both state and county governments, who competed with each other to capture and convict the most black prisoners. White workers outside the Black Belt had their wages suppressed by convict lease competition, but they did not have the political power to oppose the Bourbons and Big Mules and could not bring an end to the convict lease system, which only ended in the 1920s.
52. In the 1890s the Bourbon/Big Mule alliance again drew the color line and used state government to undermine interracial coalitions of working men,
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both in the agrarian Populist and Greenback Parties and in urban centers where labor unions became active. In particular, the United Mineworkers of America, known as UMW District 20, successfully organized black and white mine workers in Birmingham, breaking the segregation line.
53. In 1901, Alabama adopted a new Constitution was adopted that would fully disfranchise almost all black citizens – and many poor whites as well. The 1901 Alabama Constitution retained the 1875 Constitution’s restrictions on local taxation and other home rule powers and added a set of provisions aimed at disfranchising blacks: a cumulative poll tax, a literacy test, a property ownership requirement, and a list of crimes tailored to disqualify blacks.
54. The avowed purpose of the 1901 Constitution was made clear by John B. Knox, Chairman of the Constitutional Convention: “And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.” Hunter v. Underwood, 471 U.S. 222, 229 (1985) (quoting 1 Official Proceedings of the Constitutional Convention of the State of Alabama, May 21st, 1901, to September 3rd, 1901, p. 8 (1940)).
55. Working class whites supported disenfranchising blacks, but they understood they and their children also would be disfranchised by the 1901 Constitution. So many white counties voted against ratification, and the new constitution would have failed had it not been for Black Belt whites, who for the
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last time fraudulently voted their black majorities, effectively making them vote to disfranchise themselves.
56. The suffrage restrictions in the 1901 Constitution had their desired effect. In 1900 there were 181,000 registered black male voters; in 1903 there were fewer than 5,000. In the first election held after enactment of the 1901 Constitution, overall voter turnout declined by 38% (the white turnout by 19%, black voting by 96%).
57. During the first sixty-five years of the twentieth century, when blacks in Alabama were disfranchised, the Legislature allowed all-white electorates in many counties and cities to restore single-member district elections for their local governing bodies. But as the number of black voters gradually increased after World War II, the Legislature switched back to at-large election of local officials and adopted other laws to preserve white control of black majorities, such as antisingle-shot voting and numbered place laws, and the racial gerrymandering of the City of Tuskegee, which the Supreme Court struck down in Gomillion v. Lightfoot (1960).
58. In 1957, out of fear that blacks were gaining too much political power in the Black Belt, Macon County Senator Sam Engelhardt, Jr., who was also the President of the Alabama White Citizens Council, sponsored Amendment 132 to the Alabama Constitution, which authorized the Legislature to abolish Macon
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County. The Birmingham News reported: Segregationists Win: Alabama Votes Macon County Abolition; Election Follows Tuskegee Boycott Birmingham, Ala. Dec. 18 [1957.] Alabama voters yesterday authorized the Legislature to abolish Macon County rather than see it come under Negro domination. The County may now be abolished by legislative act and its territory added to adjoining counties where whites are in the majority. After the passage of the constitutional amendment, legislators in the
neighboring counties were unable to agree on a division and parceling out of Macon County, because none wanted to increase his county’s percentage of black voters.
59. In 1960, before Congress passed the Voting Rights Act, only 13.7% of voting age blacks were registered to vote in Alabama, and in 1965 there were only six black elected officials anywhere in the state.
60. Bloody Sunday in Selma made Alabama the cradle of the Voting Rights Act of 1965. Under Governor George C. Wallace, Alabama resisted enforcement of the Voting Rights Act, particularly as it began to empower black majorities at the local level.
61. Little progress was made providing black voters equal access to election of their county and municipal governing bodies until 1982, when Judge Virgil Pittman, on remand from the Supreme Court in City of Mobile v. Bolden, found purposeful discrimination behind the laws requiring at-large election of
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Mobile city officials, and Congress amended the Voting Rights Act to outlaw election methods that resulted in dilution of black voting strength regardless of invidious intent.
62. The Voting Rights Act may have had its greatest impact on Alabama through Dillard v. Crenshaw County, a statewide defendant class action begun in 1985 alleging that the use of at-large elections in 192 political subdivisions from sixty-one of Alabama’s sixty-seven counties violated Section 2 of the Voting Rights Act as it was amended in 1982. By the year 2000, black elected officials had achieved close to representational parity on county commissions, county school boards, and city councils in Alabama, reflecting the black voting age population of 22.7% in the state.
63. By 2010, when the last Dillard cases were dismissed, there were 757 black local elected officials. In the legislature there were twenty-seven majorityblack House districts and eight majority-black Senate districts, but there were no African Americans elected to statewide office. Today, black political power still has its greatest influence at the local levels of government.
64. The price Black Belt whites had demanded and received in 1901 in return for abandoning their captive black vote was continuing control of the Legislature. The apportionment of legislative seats in the 1901 Constitution itself was malapportioned in favor of the Black Belt counties. And for the next sixty-
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five years, representatives of the Black Belt beat back efforts by conservative Governors like Frank Dixon and populist Governors like Jim Folsom to get the Legislature to comply with its constitutional duty to reapportion seats among counties after every decennial census. Reapportionment occurred only after urban leaders in Birmingham and Mobile persuaded the U.S. Supreme Court in Reynolds v. Sims (1964) to proclaim the Fourteenth Amendment right to one person, one vote and order the Alabama Legislature to apportion seats in the House and Senate based on substantial population equality.
65. The 1901 Constitution solidified control of the Legislature by the Black Belt/Big Mule alliance, and “Bourbon rule” of Alabama would continue well into the 1980s. The disenfranchisement of poor whites as well as blacks prevented any reoccurrence of a populist, interracial political opposition to Alabama’s employer-friendly, anti-union, low-wage, and low-property tax policies.
66. The 1901 Constitution also entrenched white legislative control of local governments. Since adoption of the 1875 “Redeemer” Alabama Constitution, the state has denied home rule to its counties in order to “guarantee[] the maintenance of white supremacy in majority-black counties.” Knight v. Alabama, 458 F.Supp.2d 1273, 1284-85 (N.D. Ala.), aff’d 476 F.3d 1219 (11th Cir.), cert. denied, 551 U.S. 1146 (2007). The real legislatures of counties and cities are the members of their county legislative delegations, the House members and Senators
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elected by voters in each county. Under the informal rule of “local courtesy,” the
entire Legislature will routinely enact any local bill pertaining solely to one county
or city so long as the affected county’s local delegation agrees to it.
67. As a consequence of the retention of these powers at the state level,
majority black governments have historically been denied and continue to be
denied opportunities to pursue local economic development on the same basis as
majority white governments. (See Will Parker, “Still Afraid of Negro
Domination?”: Why County Home Rule Limitations in the Alabama Constitution
of 1901 are Unconstitutional,” 57 Ala. L. Rev. 545, 562 (Winter 2005):
“black counties received increased power to engage in economic development at a slower rate than white counties. Only three of the first twelve counties to get relief from the restraint embodied in section 94 were black counties. Next, more than half of white counties have secured constitutional amendments allowing them to carry on such government functions as drainage control, fire protection, and sewage removal; meanwhile, only one third of black counties have secured similar authority. Finally, of the first twenty-one counties to receive constitutional permission regarding county officials’ retirement plans, only two were black.” 68. Though the City of Birmingham as a result of the Mayor Council Act
of 1955 has much greater power than counties under Alabama law, the same
pattern of majority white State government preempting and controlling local
governance on account of race applies to the adoption of HB 174.
69. Voters in the majority-black Black Belt counties did not elect
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candidates of their choice to represent them in the Legislature until after the 1983 special election ordered by a federal court. Preparing for the inevitable, Governor George C. Wallace used the popularity of his segregationist policies to help white Black Belt representatives enact and obtain ratification of Amendment 325, in 1972, and Amendment 373, in 1978, that to this day restrict the ability of blackelected tax assessors to assess valuable farm and timber land for property tax purposes above the artificially low levels the amendments set out in the Alabama Constitution. Amendments 325 and 373 have left the nearly all-black public schools in the Black Belt bereft of local school funding.
70. Before they left office, the white legislators representing majorityblack Greene County, exercising their local courtesy powers, passed Act No. 1983507, which transferred the power to appoint members of the Greene County Racing Commission from the Greene County legislative delegation, elected by Greene County voters, to the Governor, elected by the majority-white statewide electorate. A three-judge federal court struck down Act 1983-507 for having failed to obtain preclearance under Section 5 of the Voting Rights Act. Hardy v. Wallace, 603 F.Supp. 174 (N.D. Ala. 1985) (three-judge court).
71. Local black electorates lost protection against legislative acts that cause retrogression in their electoral power when the U.S. Supreme Court ruled in Shelby County v. Holder (2013), that the coverage formula in Section 4 of the
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Voting Rights Act was unconstitutional. Although Alabama’s Shelby County brief claimed there were no longer barriers to blacks’ voting rights, Alabama did not renounce its historical policy of preserving white control of local majority-black electorates.
72. Until 1974, when the first federal court-ordered single-member districts were used to elect legislators, seats in the Alabama House and Senate were apportioned to each county on the basis of its relative population, and only residents of each county voted for their local delegation. Reynolds v. Sims held that the integrity of county boundaries must give way to one person, one vote, but only so far as necessary to reach substantial population equality among House and Senate districts. In each redistricting after the 1980 census the single-member districts drawn by the Legislature have increasingly ignored county boundaries. The House and Senate redistricting plans enacted in 2012, which currently are pending review by a three-judge district court in Montgomery, split the boundaries of 50 of Alabama’s 67 counties. Each county split creates additional non-residents of the county who vote for members of the county local delegation and dilutes the voting strength of county residents. The Legislature has used county splits to preserve white control over many majority-black counties and cities.
73. A particularly telling example of the use of county boundary splits to maintain white control of local governments concerns Birmingham and Jefferson
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County. To comply with one person, one vote, fourteen House districts could be drawn for Jefferson County, none of them crossing the county boundaries and nine of the fourteen (64%) majority-black. Six Senate districts could be drawn for Jefferson County, three of them majority-black, with only one majority-white Senate district crossing the county boundary. Instead, the Legislature in 2012 enacted plans that place Jefferson County in eighteen House districts, only eight (44%) of them majority-black. All of the majority-black House districts lie entirely inside Jefferson County, but six of the ten majority-white districts cross into six other majority-white counties.
74. The 2012 Senate plan puts Jefferson County in eight districts, three majority-black and five majority-white. All three of the majority-black Senate districts lie entirely inside Jefferson County, but all five of the majority-white districts cross the Jefferson County boundary to include parts of eleven other majority-white counties.
75. Altogether, 155,279 nonresidents vote for members of Jefferson County’s House delegation, and 428,101 people residing in other majority-white counties vote for members of the Jefferson County Senate delegation.
76. The legislative redistricting plan enacted by the Legislature after the 2000 census had put nine majority-white and nine majority-black districts in the Jefferson County House Delegation, which, operating by majority vote, prevented
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representatives of majority-white districts from approving bills opposed by the representatives of majority-black districts. But after filibuster-proof white Republican majorities were elected to both Houses in 2010, over the objections of black legislators, one majority-black House district was moved out of Jefferson County and was replaced by a majority-white district, which gave representatives of the white members of the Jefferson County House Delegation the ability to ignore the opposition of black members.
77. Last year, over the objections of black members, the white members of the Jefferson County Delegation procured passage of Act 2015-164, which gave municipalities and counties purchasing services from the Birmingham Water Works Board authority to appoint representatives to that Board. Under general Alabama law, the power to appoint municipal water board members is reserved exclusively to the municipality’s council. The City of Birmingham’s water board operates one of the most profitable water systems in Alabama and has been a valuable asset providing economic development for the citizens of Birmingham. Act 2015-164 made Birmingham’s water board, which was subject to the control of its majority-black electorate, the only municipal water board in Alabama whose governance now must be shared with neighboring cities and counties, all of which are majority-white. In this way, the Legislature, elected by a statewide white majority, diluted the power of a majority-black municipal electorate to exercise
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control over its own water board. 78. The Birmingham water board takeover act (Act 2015-164), like Act
2016-18, altered the voting power of Birmingham residents by removing from their elected representatives and transferring to the majority white state decision-makers authority to control local economic welfare and development policy previously resting within their authority.
79. The continuing racial nature of Alabama’s legislative decisionmaking was noted by the Court in United States v. McGregor, 824 F.Supp.2d 1339-1345-47 (M.D. Ala., 2011), where the Court, in considering the motives of white legislators with respect to their opposition to placing a gambling referendum on the ballot, concluded that their motives, as reflected in tape recordings of their conversations with “other influential Republican legislative allies” were overtly racial, referring to black voters in racially derogatory terms and “singl[ing] out African-Americans for mockery and racial abuse.” The Court further stated “that political exclusion through racism remains a real and enduring problem in this State.”
80. In 2011, the Alabama legislature adopted a comprehensive immigration law described by its co-sponsors as “designed to reduce the number of illegal aliens in the state.” They sought to do so by attacking “every aspect of an illegal immigrant’s life,” … “so they will deport themselves.” Cent. Ala. Fair
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Hous. Ctr. v. Magee, 835 F.Supp.2d 1165, 1182 & n.14 (M.D. Ala. 2011), vacated on other grounds 2013 WL 2372302 (11th Cir. 2013). The Court in Magee enjoined portions of the 2011 immigration law, concluding that there was substantial evidence of racial animus, including legislators using “illegal immigrant as a code for Latino or Hispanic” and making “comments that reflect popular stereotypes about Mexicans and explicit distinctions along the lines of race and national origin.” Magee, 835 F.Supp.2d at 1192-94 and nn. 20-21.
81. At least thirteen of the House sponsors of HB-174, the bill enacted into law as Act 2016-18, were also sponsors of HB-56, the House version of the sweeping immigration bill passed in 2011. Representatives Kerry Rich and Micky Ray Hammon, whose race-based statements were reviewed by the Court in Magee, supra, were also among the co-sponsors of HB-174. The leader of the House, Speaker Mike Hubbard, also co-sponsored both bills.
Passage of Act 2016-18 (HB 174) 82. As recounted above, on April 21, 2015, the Birmingham City Council unanimously passed a resolution asking the state Legislature to raise the minimum wage to $10 per hour across the state. City Councilman, Jay Roberson, in speaking in favor of the resolution stated that “their advocacy on increasing the minimum wage to $10 an hour in Alabama is an economic issue that will benefit all, . . . I hope the City of Birmingham and the business community will respectfully adhere
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to this great economic boost for all hard working employees which hopefully will become law in the near future."1
83. Prior to this resolution, the State legislature had failed to take any action to establish a statewide minimum wage law and had, in fact, been indifferent to efforts to establish such a law.
84. Almost simultaneously with the rally and the passage of the Birmingham City Council’s resolution calling for an increase in the minimum wage, Representative Arnold Mooney (a white representative from the 43rd District-Shelby) introduced bill HB 495 in the Alabama Legislature. HB 495 sought to prevent any municipality from requiring that employers provide wages, paid or unpaid leave, and/or vacation pay that is not required by federal or state law. HB 495 did not advance out of the Alabama House of Representatives and further consideration was postponed when the legislative session ended in early June 2015.
85. On August 18, 2015, the Birmingham City Council unanimously passed, with one abstention, Ordinance 15-124 that would raise the minimum wage for employees working in the city to $8.50 per hour as of July 1, 2016, and $10.10 per hour on July 1, 2017. The ordinance was published and went into effect on
1Birmingham City Council Endorses Campaign to Raise Minimum Wage, http://www.al.com/news/birmingham/index.ssf/2015/04/birmingham_city_council_endors_1.htm l, April 21, 2015.
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August 30, 2015. The ordinance received wide spread approval among Birmingham’s African-American residents, which comprise approximately seventy-three (73) percent of Birmingham’s population, and as noted above, approximately 78.5 percent of registered voters in the City.
86. In reaction to the Birmingham City Council’s ordinance increasing the minimum wage, on or about September 8, 2015, at the beginning of the Legislature’s second special legislative session of 2015, Alabama House District 47 Representative David Faulkner, (a white representative of the Birmingham suburb of Mountain Brook),2 introduced bill HB 27 that prevents cities such as Birmingham from raising the minimum wage. Faulkner stated that he was “shocked” that the city could raise the minimum wage for its residents.3 Birmingham was the only city or governmental entity in the state to have passed a minimum wage ordinance at the time of Senator Faulkner’s introduction of HB 27.
87. There was no public notice of the bill or an opportunity for hearing, and HB 27 did not advance through the Legislature during the second special session.
88. Undeterred by the lack of passage of HB 27, Representative Faulkner
2 According to recent United States census figures, Mountain Brook is approximately 98% white and its median income of approximately $130,000.00 is more than six times higher than that of Birmingham.
3 Alabama Lawmakers Consider Bill to Block City Minimum Wages, http://www.al.com/news/index.ssf/2015/09/alabama_lawmakers_consider_bil.html, September 9, 2015.
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on February 9, 2016, the third day of the 2016 regular session of the Alabama Legislature, introduced HB 174 which combined Representative Mooney’s HB 495 introduced in April of 2015 and Representative Faulkner’s HB 27 introduced in September of 2015. HB 174 sought to block and declare void Birmingham’s minimum wage ordinance passed in August of 2015. The fifty-three sponsors of HB 174 in the House (all of them white) squarely targeted Birmingham and its minimum wage ordinance as Birmingham was the only city or public entity in the state of Alabama that had raised its minimum wage above that required by federal law. No Alabama law provides for a minimum wage, nor did the supporters of HB 174 include any state-wide minimum wage within its provisions or encourage favorable consideration of such. The leadership of the House of Representatives fast-tracked HB 174 in the House, which held a short public hearing on the bill on February 11, 2016, and voted it out of the Committee on State Government by a vote of 10-3. All ten supporters of the bill in the House Committee were white.
89. On February 16, 2016, the House of Representatives approved the bill 71-31 and sent it to the Alabama Senate. All members of the House voting in favor of the bill were white; all twenty-seven African-American Representatives voted against the bill.
90. On February 23, 2016, the Birmingham City Council adopted Ordinance 16-28 entitled “An Ordinance Relating to Minimum Wage to Be Paid to
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Employees by Employers in the City of Birmingham.” Among the reasons the City Council adopted Ordinance 16-28, like Ordinances 15-124 and 16-25, was because “Poverty in the city of Birmingham is a problem that affects the general health and welfare of its citizens, it is incumbent upon the city to take legislative steps to help lift working families out of poverty, decrease income inequality, and boost our [Birmingham] economy.”
91. Ordinance 16-28 moved the effective date of the minimum wage increase to February 24, 2016 and increased the minimum wage to $10.10. The City Council acted to move up the date of the minimum wage increase because the white supporters of HB 174 in the Alabama Legislature were fast-tracking HB 174 in an attempt to have it pass before the first wage increase provided in Birmingham’s Ordinance took effect.
92. Birmingham Mayor William Bell signed Ordinance 16-28 on February 24, 2016. Upon information and belief, the Ordinance was published in the Birmingham News on Sunday, February 28, 2016.
93. The Alabama State Senate, led by Senator Jabo Waggoner (a white senator representing the Birmingham suburb of Vestavia Hills who had also sponsored the unconstitutional immigration bill), fast-tracked HB 174 in approximately 36 hours through the Senate Committee on Governmental Affairs and the Senate passed the bill on a 23-12 roll call vote on February 25, 2016. The
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Committee did not provide adequate notice of any hearing on the proposed bill, and did not permit public comment on HB 174. All Senators voting in favor were white; all seven African-American members of the Senate voted against passage. The bill was delivered to Governor Robert Bentley on February 25 and it was signed by the Governor approximately ninety minutes after its passage in the Senate. Thus, the legislature, which had shown no interest in a minimum wage bill previously, passed and delivered the bill to the Governor for his signature within sixteen days of its introduction.
94. One specific provision of this new law renders null and void any municipal or county minimum wage ordinance enacted prior to passage of HB 174. This retroactive nullification of wage ordinances applied only to the City of Birmingham. Section 110 of the Alabama Constitution provides, in relevant respects, that a general law affecting only one municipality at the time of enactment must comply with the notice provisions of Section 106.
95. The notice provisions of Alabama Constitution Section 106 require, inter alia, that before a special, private or local law shall be passed, it must be published in the local newspaper for four consecutive weeks in the county or counties affected by the law.
96. The Alabama House of Representatives and the State Senate failed and refused to provide the notice required by Section 106 of the Constitution in an
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effort to keep Birmingham Ordinance 16-28 from becoming effective. 97. State Senator Slade Blackwell, (a white senator from the wealthy Birmingham suburb of Mountain Brook) stated in support of the legislation and in opposition to the Birmingham ordinance that increases in the minimum wage especially hurt young people from poorer families who may not have easy access to trendy internships at colleges and private companies to build their skill set and resume. Since HB 174 was targeted only at Birmingham, which is predominately African-American and many of whose residents live below the poverty line, this statement by Senator Blackwell, was directed at the poor, African-American residents of the City of Birmingham. This statement, and others by white legislators, invoked racial stereotyping to justify denial of a living wage to AfricanAmerican residents of the City of Birmingham.
98. In contrast to Birmingham’s 32% of African-Americans living below the federal poverty level, only 2.57% of Mountain Brook’s residents (97.2% white) are below the federal poverty level.
99. Just before the final vote, State Senator Bill Hightower, (a white businessman and real estate investor from Mobile), spoke in support of the bill saying "we should lower the minimum wage," and later posted on his Twitter account his claim that "raising the minimum wage hurts the poor."
100. Sen. Dick Brewbaker, (a white senator from Montgomery) said he
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was concerned about the bill generally and speculated that "Montgomery would probably follow suit," if Birmingham’s wage ordinance was allowed to stand. Brewbaker, too, was a sponsor of the 2011 race-based immigration act.
101. Montgomery is approximately 57% African-American and after Birmingham, has the second highest concentration of African-Americans among Alabama’s large cities.
102. The passage of HB 174 by the Alabama Legislature fits a historical pattern of legislation that discriminates against African Americans and thwarts the efforts of African-Americans in the state of Alabama who seek to improve their economic and social well-being. The enactment of HB 174 resulted in approximately 40,000 low wage workers in Birmingham being denied a wage increase; the vast majority of these workers are African-American.
103. The Defendant City of Birmingham has not taken any steps to enforce Ordinance 16-28. The individual Plaintiffs Marnika Lewis and Antoin Adams currently work in the City of Birmingham and are paid less than $8.50 per hour. Such wage rate violates the provisions of Ordinance 16-28.
COUNT I Violation of § 2 of the Voting Rights Act: Results Standard 104. The factual allegations contained in the preceding paragraphs are realleged as if set out fully herein.
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105. Act 2016-18 is a standard, practice, or procedure which results in the denial or abridgement of the right of citizens of Birmingham to vote on account of their race, in violation of § 2 of the Voting Rights of 1965, as amended, 52 U.S.C. § 10301.
106. Act 2016-18 reverses a scheme of local control by citizens of Birmingham over the power to enact minimum wages and other terms and conditions of employment in their municipality by transferring that power from the city council elected by the majority-black Birmingham electorate to the Legislature elected by the majority-white state electorate.
107. The political processes leading to nomination or election in the State of Alabama, as opposed to the City of Birmingham, are not equally open to participation by African Americans, who have less opportunity than other members of the electorate to participate in the statewide political process and to elect representatives of their choice.
COUNT II Perpetuation of Alabama’s de jure Policy of Maintaining White Control
Over Local Black Majorities in Violation of the Equal Protection Clause.
108. The factual allegations contained in the preceding paragraphs are realleged as if set out fully herein.
109. Act 2016-18 perpetuates Alabama’s official policy of ensuring that
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the governing bodies of those political subdivisions containing actual or potential black voting majorities remain subject to white political control.
110. Act 2016-18 prohibits the majority-black electorate of the City of Birmingham from exercising their electoral power over local government and the right to municipal self-government they had previously enjoyed with respect to economic interests of particular importance to African-American citizens of Alabama.
111. Thus Act 2016-18 denies black citizens of Birmingham equal protection of the law in violation of the Equal Protection Clause of Section 1 of the Fourteenth Amendment to the Constitution of the United States.
COUNT III Perpetuation of Alabama’s de jure Policy of Maintaining White Control Over Local Black Majorities in Violation of the Privileges or
Immunities Clause. 112. The factual allegations contained in the preceding paragraphs are realleged as if set out fully herein. 113. Act 2016-18 perpetuates Alabama’s official policy of ensuring that the governing bodies of those political subdivisions containing actual or potential black voting majorities remain subject to white political control. 114. Act 2016-18 prohibits the majority-black electorate of the City of Birmingham from exercising their electoral power over local government and the
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right to municipal self-government they had previously enjoyed with respect to economic interests of particular importance to African-American citizens of Alabama.
115. Thus Act 2016-18 violates the Privileges or Immunities Clause of Section 1 of the Fourteenth Amendment to the Constitution of the United States, which guarantees that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
COUNT IV Perpetuation of Alabama’s de jure Policy of Maintaining White Control Over
Local Black Majorities in Violation of the Fifteenth Amendment.
116. The factual allegations contained in the preceding paragraphs are realleged as if set out fully herein.
117. Act 2016-18 perpetuates Alabama’s official policy of ensuring that the governing bodies of those political subdivisions containing actual or potential black voting majorities remain subject to white political control.
118. Act 2016-18 prohibits the majority-black electorate of the City of Birmingham from exercising their electoral power over local government and the right to municipal self-government they had previously enjoyed with respect to economic interests of particular importance to African-American citizens of Alabama.
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119. Thus Act 2016-18 denies or abridges the right to vote of black United States Citizens of Birmingham on account of their race, color, or previous condition of servitude and violates the Fifteenth Amendment to the Constitution of the United States.
COUNT V Perpetuation of Alabama’s de jure Policy of Maintaining White Control Over Local Black Majorities in Violation of the Thirteenth Amendment.
120. The factual allegations contained in the preceding paragraphs are realleged as if set out fully herein.
121. Act 2016-18 perpetuates Alabama’s official policy of ensuring that the governing bodies of those political subdivisions containing actual or potential black voting majorities remain subject to white political control, and its corresponding official policy, originating in African slavery, of suppressing the political power of citizens of the United States, both black and white, to increase their incomes and to develop their local economies.
122. Thus Act 2016-18 is a badge or vestige of slavery and violates the Thirteenth Amendment to the Constitution of the United States.
COUNT VI Vestiges of de jure Racial Segregation in Violation of
the Equal Protection Clause
123. The factual allegations contained in the preceding paragraphs are
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realleged as if set out fully herein. 124. Act 2016-18 perpetuates vestiges of Alabama’s policy of de jure
racial segregation and violates the Equal Protection Clause of Section 1 of the Fourteenth Amendment. Alabama has failed its affirmative constitutional duty to eliminate all such vestiges of de jure segregation.
125. First and foremost, Act 2016-18 is a vestige of Alabama’s de jure policy of segregating its African-American citizens in state and local electorates. Under its policy of electoral segregation, Alabama has either completely disfranchised its black citizens, has sought to exclude black voters from its political subdivisions, has sought to submerge black voters in majority-white, at-large election systems, has sought to crack or pack black populations in single-member districts, has sought to segregate black and white voters in separate political parties, and has sought to segregate and minimize the political influence of legislators and local officials elected by black majorities.
126. All of these de jure policies of electoral segregation were intended, and are still intended, to preserve white control over black voters.
127. Alabama has an affirmative constitutional duty to eliminate to the extent practicable all vestiges of its de jure policies of racial segregation. But Alabama has taken no steps to eradicate vestiges of segregation that have not been mandated by federal courts or federal executive actions.
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128. Instead, Alabama continues to evade its duty to eliminate vestiges of segregation and continues to enact laws that have both the purpose and effect of perpetuating its policy of electoral segregation. Act 2016-18 is only the latest example of this continuing violation of the rights of all black citizens of Alabama to equal protection of the laws.
129. Act 2016-18 also perpetuates vestiges of de jure school segregation in Jefferson County. Utilizing Alabama general laws that facilitate the creation of separate municipal school systems, some of which were enacted for the purpose of evading desegregation, eight municipal public school systems have split from the Jefferson County and City of Birmingham school systems to evade federal desegregation mandates: Homewood, Hoover, Leeds, Midfield, Mountain Brook, Tarrant, Trussville, and Vestavia Hills. The City of Gardendale currently is also seeking federal court permission to create its own municipal public school system. Every time one of these municipal school systems breaks away from Jefferson County and City of Birmingham systems they remove valuable public funding and other resources, particularly political resources, from the urban schools they left behind, leave black inner-city students in less well funded and more racially segregated schools.
130. Most of the minimum wage workers the City of Birmingham’s Ordinance 16-28 will benefit attended or will attend the increasingly segregated
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schools in Birmingham and surrounding Jefferson County. The Mayor and Council of Birmingham were responding to these citizens who elected them to represent their economic interests, including increasing their school revenues. Act 2016-18, however, was enacted by the white legislators who represent residents of the breakaway school districts, who no longer have a direct interest in revenues for Birmingham schools or for the financial success of Birmingham students. To the contrary, these white legislators disproportionately represent Birmingham employers who reside in the breakaway suburban school systems and who perceive Birmingham’s minimum wage ordinance as being contrary to their interests. Thus the lack of responsiveness to the needs of Birmingham’s minimum wage workers by the sponsors of Act 2016-18 is a vestige of Alabama’s de jure policies of both political and school segregation.
COUNT VII Intentional Racial Discrimination in Violation of § 2 of the Voting Rights Act and the Thirteenth, Fourteenth, and Fifteenth Amendments.
131. The factual allegations contained in the preceding paragraphs are realleged as if set out fully herein.
132. Act 2016-18 was enacted for the invidious purpose and with the racially discriminatory intent of denying the majority-black electorate of the City of Birmingham the ability to regulate the minimum wages and other terms and
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conditions of employment within their municipality. It has its intended discriminatory effect on Birmingham’s black citizens.
133. Thus Act 2016-18 violates § 2 of the Voting Rights Act, as amended, 52 U.S.C. § 10301; the Thirteenth Amendment; the Privileges or Immunities Clause and the Equal Protection Clauses of the Fourteenth Amendment; and the Fifteenth Amendment.
COUNT VIII Racially-Motivated Enactment of Act 2016-18 Violates the Equal
Protection Clause of the Fourteenth Amendment
134. The factual allegations contained in the preceding paragraphs are realleged as if set out fully herein.
135. Defendants’ actions constitute intentional discrimination on the basis of race contrary to the Fourteenth Amendment.
136. The persons denied the benefits of the Birmingham minimum wage legislation are predominantly African-American. Approximately 32% of Birmingham’s African-American residents had annual earnings below what they could have earned had the minimum wage ordinance become effective. The Alabama Legislature’s enactment of Act 2016-18 denies the City of Birmingham the opportunity to obtain the same economic opportunities for its residents as is presently available to predominantly white communities throughout Alabama.
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137. As noted above, pre-emption of the Birmingham wage law adversely impacted black workers. On average, white wage earners in Birmingham earn $1.41 more per hour than black wage earners. While 37% of black wage workers in Birmingham earn wages of $10.10 or less, only 27% of white wage workers earn at or below that level. Statewide, the wage gap between white and black workers is even greater than in Birmingham, with white wage workers earning, on average, $2.12 more than black wage workers for each hour worked.
138. Further, the City of Mountain Brook, home of the sponsor of Act 2016-18, with 97.2% of its residents white, has less than 3% of its residents with annual earnings below the federal poverty level. Additional support for Act 201618 came from Senator Waggoner, a white senator representing Vestavia Hills -- a city that is 94.2% white and has only 3.1% of its residents living below the poverty line. Unlike these predominantly white communities, there was a substantial need for a minimum wage law in Birmingham, and the likely beneficiaries of the Birmingham ordinance were, predominantly, African-American.
139. Defendants’ assertions of the need for uniformity in application of minimum wage requirements throughout Alabama are pretextual, in light of the Legislature’s history of less favorable treatment of predominantly AfricanAmerican jurisdictions in the Legislature’s granting of economic development authority to local jurisdictions (See Will Parker, “Still Afraid Od “Negro
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Domination?”: Why County Home Rule Limitations in the Alabama Constitution of 1901 are Unconstitutional,” 57 Ala. L. Rev. 545, 562 (Winter 2005)) and in light of the Legislature’s acceptance of non-uniformity in other areas of economic regulation, including but not limited to the sales tax. Defendants’ departure from procedural norms to obtain passage of HB 174 also evidences discriminatory intent. The Alabama legislative committees considering HB 174 deviated from normal practices with respect to the consideration of legislation by, inter alia, failing to give the public proper information on the scheduling of hearings, failing to allow public testimony at the Senate hearing, and by rushing the bill to final votes and the Governor’s signature after years of indifference to the issue.
140. Further, contrary to the assertions of Act 2016-18’s supporters that passage of a minimum wage ordinance would be detrimental to Birmingham residents, economic studies show that increasing the minimum wage to $10.10 would not result in job loss or economic instability. The Legislature cited no economic studies in support of its position and instead relied on stereotypes about race and other pretexts to justify its actions. White majority local and county governments have not been subjected to such limitations upon their powers of governance.
141. The State Legislature also disregarded procedural requirements related to legislation that affects only a single municipality at the time of
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enactment. The State did not provide requisite notice to citizens of Birmingham before enacting a provision that nullified the City’s wage ordinance. At the time of Act 2016-18’s enactment, Birmingham was the only city to have enacted an ordinance affected by Act 2016-18. Disregarding these procedural notice provisions supports the inference of improper discriminatory motive.
COUNT IX Equal Protection Claim Based on Political Process Doctrine 142. Additionally and separately from the claims asserted above, Act 2016-18 violates the Fourteenth Amendment’s equal protection clause because it specifically targeted an ordinance that Birmingham’s African-American community and their City Council strongly supported. 143. Act 2016-18 preempts a city ordinance that primarily inured to the benefit of Birmingham’s African-American community. Moreover, Birmingham’s African-American community (as the organizational Plaintiffs can attest to) strongly considered the ordinance to be in their interest. Indeed, as noted above, the City Council passed multiple ordinances accelerating the provisions of the wage ordinance in an effort to prevent the State from nullifying the ordinance and usurping all authority to regulate and set policy pertaining to wages, leave or other employment benefits. 144. The State’s adoption of Act 2016-18 violates the Fourteenth
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Amendment’s equal protection guarantee because it placed all decision-making authority regarding wages, leave or other employment benefits at the State level rather than leaving such authority to the City. The intent to uniquely burden the ability of Plaintiffs to obtain employment-related ordinances that Birmingham’s African-American community strongly favored motivated the decision to give the State Legislature “complete control” over regulation and policy pertaining to wages, leave or other employment benefits.
145. Moreover, Defendants’ actions as alleged herein have violated 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by placing special burdens on racial minorities within the governmental process.
PRAYER FOR RELIEF For the foregoing reasons, Plaintiffs pray the Court will enter orders as follows: A. A judgment declaring that Act 2016-18 violates the rights of citizens of the City of Birmingham and other municipalities governed by black voter majorities guaranteed by § 2 of the Voting Rights Act and the Thirteenth, Fourteenth, and Fifteenth Amendments. B. Directing Defendant Luther J. Strange, III to give notice to Alabama legislators and to members of the public that Act 2016-18 contravenes §
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2 of the Voting Rights Act and the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution.
C. Preliminary and permanent injunctions ordering defendants City of Birmingham and/or the Mayor Bell to enforce City of Birmingham Ordinance 1628.
D. Awarding Plaintiffs their reasonable costs and attorneys’ fees, pursuant to 42 U.S.C. § 1988 and 52 U.S.C. § 10310.
E. Granting such other and further relief as the Court deems equitable and just.

/s/ Richard P. Rouco Richard P. Rouco
OF COUNSEL:
Glen M. Connor, Esq. George N. Davies, Esq. Richard P. Rouco, Esq. QUINN, CONNOR, WEAVER, DAVIES & ROUCO LLP 2 – 20TH Street North, Suite 930 Birmingham, Alabama 35203
Telephone: 205-870-9989 Facsimile: 205-803-4143 gconnor@qcwdr.com gdavies@qcwdr.com rrouco@qcwdr.com

/s/ James U. Blacksher James U. Blacksher
OF COUNSEL:
James U. Blacksher, Esq. P.O. Box 636 Birmingham, AL 35201 phone: 205-591-7238 fax: 866-845-4395 jblacksher@ns.sympatico.ca
Edward Still, Esq. EDWARD STILL LAW FIRM LLC 429 Green Springs Hwy, Ste. 161-304 Birmingham AL 35209 205-320-2882 still@votelaw.com
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Robert H. Stroup, Esq. LEVY RATNER, P.C. 80 Eighth Avenue, 8th Floor New York, NY 10011 Tel. (212) 627-8100 Fax (212) 627-8182 rstroup@levyratner.com
Mary Joyce Carlson, Esq. 1100 New York Avenue, N.W.. Suite 500 West Washington, DC 20005 (202) 230-4096 carlsonmjj@yahoo.com

U.W. Clemon, Esq. WHITE ARNOLD AND DOWD 2025 Third Avenue North, Suite 500 Birmingham, AL 35203 205-323-3124 UWClemon@whitearnolddowd.com
Attorneys for Alabama Legislative Black Caucus, Rep. Louise Alexander, Rep. Marika Coleman, Sen. Priscilla Dunn, Rep Juandalynn Givan, Rep. Mary Moore, Rep. Oliver Robinson, Rep. John Rogers, Sen. Rodger Smitherman, and William Muhammad

Joe R. Whatley, Jr., Esq. 2001 Park Place North 1000 Park Place Tower Birmingham, AL 35203 Direct: 1-205-488-1226 Facsimile: 1-800-922-4851 Email: jwhatley@whatleykallas.com

Attorneys for Plaintiffs Marnika Lewis, Antoin Adams, Alabama State Conference of the National Association for the Advancement of Colored People, and Greater Birmingham Ministries

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CERTIFICATE OF SERVICE I hereby certify that on June 30, 2016, I filed a true and correct copy of the foregoing via the Court’s CM/ECF system, which will notify and serve the following: David B. Byrne, Jr. State of Alabama Office of the Governor Alabama State Capitol 600 Dexter Avenue, Suite NB-05 Montgomery, Alabama 36130 James W. Davis William G. Parker, Jr. Office of Attorney General 501 Washington Avenue Montgomery, Alabama 36130
/s/ Richard P. Rouco Richard P. Rouco
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DEFENDANTS TO BE SERVED BY CERTIFIED MAIL: The State of Alabama c/o Governor Robert J. Bentley Office of the Governor 600 Dexter Avenue Montgomery, Alabama 36130 The City of Birmingham c/o Mayor William A. Bell, Sr. City Hall, Third Floor 710 20th Street North Birmingham, AL 35203 William A. Bell, Sr. City Hall, Third Floor 710 20th Street North Birmingham, AL 35203
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 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARNIKA LEWIS, et al., Plaintiffs,
v. ROBERT J. BENTLEY., et al.,
Defendants.

} } } } } Case No.: 2:16-CV-690-RDP } } } }

FILED
2017 Feb-01 AM 08:26 U.S. DISTRICT COURT
N.D. OF ALABAMA

MEMORANDUM OPINION This matter is before the court on (1) Defendant Mayor William A. Bell, Sr.’s Motion to Dismiss (Doc. # 28), and (2) the Motion To Dismiss filed by the State Of Alabama and Attorney General Strange (Doc. # 30). The State Defendants’ Motion has been fully briefed. (Docs. # 40, 43, 44, 50 and 51). At issue in this case is the tug of war between the State of Alabama and the City of Birmingham (and others) over the authority to establish a minimum wage. Plaintiffs have painted this dispute as yet another chapter in Alabama’s civil rights journey. Defendants disagree and frame it as a simple matter of ensuring consistency in how employers operating within the state are treated. After careful review, the court concludes there are fatal flaws affecting Plaintiffs’ claims: (1) they have not sued the correct Defendants (i.e., they have not included the appropriate characters in their “painting),” and this affects their standing to pursue certain of their claims; (2) they have failed to state a claim under Section 2 of the Voting Rights Act; (3) their Section 2 claim is also barred by the Eleventh Amendment; (4) their equal protection claim has not been plausibly pled; (5) their Thirteenth and Fifteenth Amendment

claims necessarily fail; and (6) they are not entitled to go forward on their race discrimination or “political process” claims. I. Background
For over a century, the Alabama courts have recognized that cities in Alabama are “mere creatures of the legislative power, established as political agencies for the more convenient administration of local government, with such powers . . . as the [legislature] may, from time to time, see fit to confer.” Hare v. Kennerly, 3 So. 683, 684 (Ala. 1888) (citing Meriwether v. Garrett, 102 U.S. 472 (1880)). Alabama municipalities are subject to what is essentially a state version of the Supremacy Clause prohibiting them from “pass[ing] any laws inconsistent with the general laws of [the] state.” Ala. Const. art. IV, § 89; see also Ala. Code § 11-45-1 (authorizing cities to “adopt ordinances” except as “inconsistent with the laws of the state”).
The federally mandated minimum wage is currently $7.25 per hour. 29 U.S.C. § 206(a)(1)(C). Congress last adjusted the minimum wage in 2007. 29 U.S.C. § 206 (a). In April 2015, the Birmingham City Council adopted a resolution urging the Alabama Legislature to exceed the federal minimum wage on a statewide basis. (Doc. # 18, ¶ 82). When the Legislature did not act, the Birmingham City Council responded with a series of ordinances first enacting, and later expediting, a local minimum wage of its own. (Doc. # 18, ¶¶ 21, 24-25, 85, 90-92). Various state legislators then proposed bills that would require statewide adherence to the federal minimum wage. In the 2016 regular session -- just as Birmingham’s ordinance was set to go into effect -- the Legislature enacted the Alabama Uniform Minimum Wage and Right-to-Work Act at issue in this lawsuit (“Act 2016-18” or “the Act”). See Ala. Act No. 2016-18, provisionally codified at Ala. Code §§ 25-7-40 et seq. The purpose of the Act was to “ensure that [labor] regulation and policy is applied uniformly throughout the state.” Act No. 2016-18, § 6(a). The
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Act further establishes the Legislature’s “complete control” over not only minimum wage policy, but also other issues such as “collective bargaining under federal labor laws,” and “the wages, leave, or other employment benefits provided by an employer” to its employees. Id. The Act parallels similar legislation adopted in at least sixteen other states prohibiting localities from enacting their own minimum wage ordinances.
Plaintiffs principally allege that Act 2016-18 has the purpose and effect of transferring control over minimum wages and all matters involving private sector employment in the City of Birmingham from municipal officials elected by a majority-black local electorate to legislators elected by a statewide majority-white electorate. They further contend that Act 2016-18 was enacted with the intent of discriminating against the people who live and work in the City of Birmingham on the basis of race in violation of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, as well as the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution of the United States.
The Amended Complaint names as Defendants the State of Alabama, Luther Strange in his official capacity as Attorney General, the City of Birmingham, and William Bell in his official capacity as Mayor of Birmingham. It contains the followings counts:
1. Count I: Violation of § 2 of the Voting Rights Act: Results Standard 2. Count II: Perpetuation of Alabama’s de jure Policy of Maintaining White Control over Local Black Majorities in Violation of the Equal Protection Clause. 3. Count III: Perpetuation of Alabama’s de jure Policy of Maintaining White Control over Local Black Majorities in Violation of the Privileges or Immunities Clause. 4. Count IV: Perpetuation of Alabama’s de jure Policy of Maintaining White Control over Local Black Majorities in Violation of the Fifteenth Amendment. 5. Count V: Perpetuation of Alabama’s de jure Policy of Maintaining White Control over Local Black Majorities in Violation of the Thirteenth Amendment.
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6. Count VI: Vestiges of de jure Racial Segregation in Violation of the Equal Protection Clause. 7. Count VII: Intentional Racial Discrimination in Violation of § 2 of the Voting Rights Act and the Thirteenth, Fourteenth, and Fifteenth Amendments. 8. Count VIII: Racially-Motivated Enactment of Act 2016-18 Violates the Equal Protection Clause of the Fourteenth Amendment. 9. Count IX: Equal Protection Claim Based on the Political Process Doctrine. (Doc. # 18). After careful review, and for the reasons stated below, the court concludes that Defendants are entitled to judgment as a matter of law on Plaintiffs’ claims. II. Standard of Review The Federal Rules of Civil Procedure require only that the complaint provide Aa short and plain statement of the claim showing that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). However, the complaint must include enough facts Ato raise a right to relief above the speculative level.@ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than Aa formulaic recitation of the elements of a cause of action@ do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon Alabels and conclusions@ or Anaked assertion[s]@ without supporting factual allegations. Twombly, 550 U.S. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in a complaint in the light most favorable to the non-moving party. Watts v. Fla. Intl. Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). To survive a motion to dismiss, a complaint must Astate a claim to relief that is plausible on its face.@ Twombly, 550 U.S. at 570. AA 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.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although A[t]he
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plausibility standard is not akin to a >probability requirement,=@ the complaint must demonstrate Amore than a sheer possibility that a defendant has acted unlawfully.@ Id. A plausible claim for relief requires Aenough fact[s] to raise a reasonable expectation that discovery will reveal evidence@ to support the claim. Twombly, 550 U.S. at 556.
In considering a motion to dismiss, a court should “1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 Fed. Appx. 136, 138 (11th Cir. 2011) (quoting Am. Dental Assn. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations must permit the court based on its Ajudicial experience and common sense . . . to infer more than the mere possibility of misconduct.@ Twombly, 550 U.S. at 556. Further, “courts may infer from the factual allegations in the complaint ‘obvious alternative explanation[s],’ which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental, 605 F.3d at 1290 (quoting Iqbal, 556 U.S. at 682). If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S. at 556. III. Analysis
The court will first take up Mayor Bell’s Motion, to which no opposition has been filed. The court will then address the overarching standing issues relevant to all claims in this case, examine each individual claim, and discuss the specific issues applicable to each of the claims.
A. Mayor Bell’s Motion to Dismiss In the Amended Complaint, Plaintiffs state:
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The City of Birmingham and Mayor Bell are named as defendants only for the purpose of providing complete relief among the parties with respect to the claims raised herein. (Doc. # 18 at & 18). Plaintiffs have indicated that Mayor Bell is a party because he “has not acted to enforce Ordinance 16-281 because of Act 2016-18.” (Doc. # 18 at & 17). Similarly, they have sued the City due to its non-enforcement of “Ordinance 16-28 because of Act 2016-18.” (Doc. # 18 at & 16). Mayor Bell is only named in the Amended Complaint in his official capacity. He seeks dismissal of the claims against him as duplicative of the claims against the City. Plaintiffs have not opposed Mayor Bell’s Motion. “Official-capacity suits ... ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’” See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 44 (1978)). Thus, “[b]ecause suits against a municipal officer sued in his official capacity and direct suits
against municipalities are functionally equivalent, there no longer exists a need to bring official-
capacity actions against local government officials, because local government units can be sued directly ... .” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). Upon review, the court finds that Plaintiffs’ claims against Mayor Bell are entirely duplicative of Plaintiffs’ claims
against the City. (Doc. # 18 at 8). Permitting Plaintiffs to pursue claims against both the City and
Mayor Bell in his official capacity in this case would be redundant and needlessly confusing. See Busby, 931 F.2d at 776. Therefore, Mayor Bell’s Motion to Dismiss is due to be granted.
B. Plaintiffs Lack Article III Standing (All Counts Against Attorney General Strange, Mayor Bell and the City of Birmingham) Standing to sue is a doctrine rooted in the traditional understanding of the case or
1 On August 18, 2015, the Birmingham City Council unanimously passed, with one abstention, Ordinance 15-124 that would raise the minimum wage for employees working in the city to $8.50 per hour as of July 1, 2016, and $10.10 per hour on July 1, 2017. Ordinance 16-28 moved the effective date of the minimum wage increase to February 24, 2016 and increased the minimum wage to $10.10.
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controversy requirement. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The doctrine delimits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. Id. (citing Valley Forge Christ. College v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 473 (1982); Warth v. Sedlin, 422 U.S. 490, 498-99 (1975)). To bring suit in federal court, a plaintiff must establish three elements as to each defendant: (1) an injury in fact—that is, an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of—in other words, the injury must be fairly traceable to the challenged action of Defendants, and not the result of the independent action of some third party not before the court; and (3) a likelihood, as opposed to a merely speculative chance, that the injury will be redressed by a favorable decision of the court. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-62 (1992). “Failure to establish any one [of the three standing elements] deprives the federal courts of jurisdiction to hear the suit.” Rivera v. Wyeth–Ayerst Labs., 283 F.3d 315, 319 (5th Cir. 2002); see also Delta Commercial Fisheries Association v. Gulf of Mexico Fishery Management Council, 364 F.3d 269, 273 (5th Cir. 2004).
The Motion to Dismiss currently before the court was filed by the State of Alabama and Attorney General Strange. These Defendants argue that the conclusory allegations of the Amended Complaint do not show how Defendants’ actions affected, or even could affect, Plaintiffs’ pay. 2 The court addresses each standing element below.
2 Moreover, Defendants assert that the City of Birmingham has not caused Plaintiffs any injury. Rather, this is a situation in which its city ordinance became inoperative as a result of Act 2018-18. Apparently recognizing these facts, Plaintiffs state that the City Defendants are included in the Amended Complaint “only” for purposes of the “relief” sought. (Doc. # 18, ¶ 18). Nonetheless, the City will be included in the court’s analysis.
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1. Element One: Injury-in-Fact Plaintiffs contend that they -- and in the case of the organizational Plaintiffs, their members -- have suffered an injury in fact because they are being paid less than the minimum wage the City has adopted. Injury-in-fact has been called the “[f]irst and foremost” of standing's three elements. Spokeo, Inc., 136 S. Ct. at 1547 (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103 (1998)). In Spokeo, the Supreme Court discussed the dual requirements of “particularization” and “concreteness” necessary to establish the “injury-in-fact” prong of Article III standing. 136 S.Ct. at 1548. “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. Concreteness, meanwhile, refers to the realness of the injury. Id. Plaintiffs argue that their allegations regarding the Attorney General’s supervisory responsibilities regarding enforcement of Alabama laws (Doc. 18, ¶12), together with the very specific public role that they ascribe to him in advising businesses on both Act 2016-18 and the Birmingham ordinance (Doc. # 18, ¶¶ 13- 14), sufficiently show at this stage that the Attorney General has “some connection with enforcement of the provision at issue.” (Doc. # 40 at 16). They also contend that the City’s actions complying with state law under the terms of Act 201618 are a cause of the Plaintiffs’ loss of wages coerced by the challenged statute. By complying with the Act, Plaintiffs argue, the City of Birmingham effectively “enforces” it and therefore has “some connection with the enforcement of the provision at issue.” (Id.). Defendants respond that it is employers and the Alabama courts -- i.e., parties not before this court -- who will decide whether the Act 2016-18 controls the wages payable to employees in the City of Birmingham. (Doc. # 43 at 8).
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In San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121 (9th Cir. 1996), the Ninth Circuit denied standing to plaintiffs who alleged, among other things, that the Crime Control Act, which banned certain types of guns (but “grandfathered” in certain others) made the guns and ammunition the plaintiffs wished to purchase more expensive. Id. at 1124–30. Even assuming that the law restricted supply and that the purported economic injury was an “injury in fact,” the Reno court found it to be a “fatal flaw” in the plaintiff's standing argument that “nothing in the Act directs manufacturers or dealers to raise the price of regulated weapons.” Id. at 1130. Rather, third parties such as weapon dealers and manufacturers broke the chain of causation by independently charging higher prices. Id. (citing Lujan, 504 U.S. at 560). There is a similar “fatal flaw” in Plaintiffs’ standing argument here. To be sure, nothing prohibits employers from paying the minimum wage set forth in the city’s ordinance (or more than the federal minimum wage). Reno, 98 F.3d at 1130. What the Alabama Legislature has decreed is that a municipality may not require a different minimum wage than that sanctioned by federal law. There is no plausible allegation here that implicates the Attorney General or the City Defendants with respect to any injury in fact suffered by Plaintiffs.
2. Element Two: Traceability But even if Plaintiffs could establish an injury in fact here, they still lack standing because they cannot meet the second standing element – traceability. In Allen v. Wright, 468 U.S. 737 (1984), the Supreme Court acknowledged that a certain group of plaintiffs, who were parents of black schoolchildren, had indeed stated an injury in fact (i.e., a diminished chance for their children to receive a racially integrated education) but nevertheless found that the injury was not “fairly traceable” to the government's actions they challenged (i.e., granting tax-exempt status to racially discriminatory public schools). Id. at 753, 756–58. Rather, the Supreme Court
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held that the causal link between the plaintiffs’ injury and defendant’s actions was “highly indirect” and “attenuated at best” because the injury “‘results from the independent action of some third party not before the court.’” Id. at 757 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 42 (1976)) (emphasis added). That is, the Court found the allegation that had the schools not been given tax-exempt status, white students would have attended public rather than private schools was wholly “speculative” Id. at 758.
“Cases after Allen have held that when a plaintiff is not the direct subject of government action, but rather when the asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, satisfying standing requirements will be ‘substantially more difficult.’” Frank Krasner Enterprises, Ltd. v. Montgomery Cty., MD, 401 F.3d 230, 234 (4th Cir. 2005) (quoting Lujan, 504 U.S. at 562 (in turn quoting Allen, 468 U.S. at 758) (internal punctuation and citations omitted))). “This is so because, ‘[t]he existence of one or more of the essential elements of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict.”’” Frank Krasner Enterprises, Ltd., 401 F.3d at 234 (quoting Allen, 468 U.S. at 758 (in turn quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989) (opinion of Kennedy, J.))). This rationale is fatal to Plaintiffs’ standing arguments. The parties who are responsible for the passage of Act 2016-18 (which Plaintiffs contend delimited their wages) are not before this court.
3. Element Three: Redressability Defendants argue that another crucial defect in Plaintiffs’ standing argument is that the Act 2016-18 will be in force regardless of any action this court may order Defendant Strange or the City Defendants to undertake. The court agrees. “Nothing the Attorney General could be
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ordered to do or refrain from doing would redress the injuries [Plaintiffs] allege[].” Doe v. Pryor, 344 F.3d 1282, 1286 (11th Cir. 2003) (citing Hope Clinic v. Ryan, 249 F.3d 603, 605–06 (7th Cir.2001) (holding that the plaintiffs did not have standing to challenge state laws authorizing private suits for damages where only the state attorney general is named in the suit because “[the state attorney general] cannot cause the plaintiffs injury by enforcing the private-action statutes [and] any potential dispute plaintiffs may have with future private plaintiffs could not be redressed by an injunction running only against public prosecutors”)). Where a defendant occupies a position having no duty at all with regard to an Act, he cannot not be properly made a party to a claim challenging the Act. Ex parte Young, 209 U.S. 123, 158 (1908).
The case of Fernandez v. Brock, 840 F.2d 622 (9th Cir. 1988), is instructive. As a subsequent Ninth Circuit panel (in a later opinion) observed, in Fernandez:
plaintiffs were migrant workers seeking a court order to force the Secretary of Labor to establish regulations that might affect their eligibility for retirement benefits. However, because any increase in the benefits for which plaintiffs would be eligible was entirely contingent upon the actual content of the regulations the Secretary would ultimately establish, as well as the actions of plaintiffs' private employer, the court could not say with any degree of confidence that granting the plaintiffs their requested relief would benefit them. Alaska Ctr. for the Env't v. Browner, 20 F.3d 981, 985 (9th Cir.1994) (citing Fernandez, 840 F.2d at 626–28) (emphasis added).3 Similarly, here, as a matter of law and logic, nothing this court could order Attorney General Strange or the City Defendants to do will affect Plaintiffs’ wages. Plaintiffs’ employers set those wages, and it is the courts who will determine whether there is any violation of law with respect to the setting of those wages. Therefore, Plaintiffs have failed to establish the
3 The Fernandez court ultimately held that the plaintiffs had standing as a result of a “procedural injury” that existed apart from any reduction in benefits, and that would be redressed by requiring the Secretary to establish the desired regulations. Fernandez, 840 F.2d at 631.
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requisite elements of Article III standing as to Attorney General Strange and the City Defendants in this case.
At oral argument, the court posed this question: who would be a proper defendant in this action? Other than possibly Plaintiffs’ current employers, the answer is quite obvious that the body which most directly “caused” Plaintiffs’ alleged injury by enacting Act 2016-18, is the Alabama Legislature. But, notably, this case does not involve a claim against the Alabama Legislature, and with good reason. Members of the legislature are entitled to absolute immunity from the types of claims asserted by Plaintiffs. “Legislative immunity has long been a fixture of our constitutional system. ‘The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries.’” Freedom from Religion Found., Inc. v. Saccone, 894 F. Supp. 2d 573, 582 (M.D. Pa. 2012) (quoting Tenney v. Brandhove, 341 U.S. 367, 372 (1951). In Tenney, the Supreme Court held that state legislators are immune from suit under § 1983 when “acting in the sphere of legitimate legislative activity.” Id. at 376–77; see also Bogan v. Scott– Harris, 523 U.S. 44, 48–49 (1998) (explaining that “legislators were entitled to absolute immunity from suit at common law and that Congress did not intend the general language of § 1983 to impinge on a tradition so well grounded in history and reason”) (internal citation and quotations omitted).
The relief sought in the Amended Complaint includes a request for injunctive relief directing the Attorney General to notify legislators and members of the public that the Act 201618 violates Section 2 of the VRA and the Thirteenth, Fourteenth and Fifteenth Amendments to the US Constitution4, and ordering the City of Birmingham and Mayor Bell to enforce Ordinance 16-28. These actions, according to Plaintiffs, would redress the wrongs caused by the
4 For the reasons discussed below, however, the court finds that the Act does not violate these provisions.
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enforcement of 2016-18. Despite Plaintiffs’ creative attempts to plead around legislative immunity, Plaintiffs simply do not have Article III standing to pursue these claims against the Attorney General or the City Defendants.
C. The Voting Rights Act (Count I) is Not Implicated Here Even if Plaintiffs’ had Article III standing (and, to be clear, they do not), there is an alternative reason to dismiss the claim asserted in Count I: the conduct alleged in the Amended Complaint simply does not implicate Section 2 of the Voting Rights Act. That section bans “all States and their political subdivisions from maintaining any voting ‘standard, practice, or procedure’ that ‘results in a denial or abridgement of the right ... to vote on account of race or color.’” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 479 (1997) (quoting 42 U.S .C. § 1973(a) (emphasis omitted)). Section 2 “does not deal with every voting standard, practice, or procedure, but rather is limited to voting procedures that deny someone the right to vote.” Dougherty Cnty., Ga., Bd. of Ed. v. White, 439 U.S. 32, 50 n. 4, (1978). To prevail, a plaintiff must demonstrate that “based on the totality of the circumstances, ... the political processes leading to ... election ... are not equally open to participation by [minority groups] ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C.A. §10301 (formerly 42 U.S.C. §1973(b)). In Presley v. Etowah County Commission, the Supreme Court examined the scope of the phrase “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” found in Section 5 of the Voting Rights Act. 502 U.S. 491 (1992). Although the Presley decision addressed the scope of Section 5 of the Voting Rights Act, its analysis applies with equal force to Section 2 because the same phrase is embodied in both sections: “voting qualification or prerequisite to voting, or standard, practice, or procedure” with respect to voting. Compare 42 U.S.C. § 1973(a) with 42 U.S.C. § 1973c. See Morse v. Republican Party of
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Va., 517 U.S. 186, 209 (1996) (Stevens, J.) (“[C]hanges in practices within covered jurisdictions
that would be potentially objectionable under § 2 are also covered under § 5.”); Holder v. Hall,
512 U.S. 874, 882 (1994) (Kennedy, J.) (“[T]he coverage of §§ 2 and 5 is presumed to be the
same.”); Bonilla v. City Council of City of Chi., 809 F.Supp. 590, 596 n. 3 (N.D. Ill. 1992)
(noting that “[a]lthough Presley technically dealt with the scope of § 5 ..., it is equally applicable
to § 2 because Presley defined the key terms in both sections”).
This court has previously adopted the following summary of the Presley decision,
authored by Chief Judge Watkins of the Middle District of Alabama:
In Presley, the Supreme Court held that § 5 applies only to a change in a “standard practice or procedure” that has a “direct relation to, or impact on, voting.” 502 U.S. at 506. The Court observed that it had recognized four types of changes that meet the “direct relation” test: Those that (1) “involved the manner of voting”; (2) “involve[d] candidacy requirements and qualifications”; (3) “concerned changes in the composition of the electorate that may vote for candidates for a given office” or (4) “affect[ed] the creation or abolition of an elective office.” Id. at 502-03. “The first three categories involve changes in election procedures, while all the examples within the fourth category might be termed substantive changes as to which offices are elective.” Id. at 503. Presley distinguished between changes in a standard, practice, or procedure directly affecting voting by the electorate and “changes in the routine organization and functioning of government.” Id. at 504. While the latter changes may indirectly affect voting, they are not within the scope of § 5.
The Presley plaintiffs argued that a transfer of duties among and away from elected officials pertaining to repairs and discretionary spending for road maintenance within two Alabama county commissions constituted “changes” that had a direct relation to voting and, thus, required preclearance. See id. at 493. The first alleged change took away the commissioners' discretion to allocate funds as needed in their districts and instead put all funds in a common account to be doled out based upon needs of the county as a whole. The second alleged change, which occurred within another county commission, transferred authority concerning road and bridge operations from the elected county commissioners to an appointed county engineer who answered to the commission. See id. at 497–99.
The Supreme Court held that these changes did not fit within any of the four categories it had previously recognized as having a direct relation to voting. See id. at 503-08. The first alleged § 5 change “concern[ed] the internal operations of an elected body.” Id. at 503. “Changes which affect only the
14

distribution of power among officials are not subject to § 5 because such changes have no direct relation to, or impact on, voting.” Id. at 506. The other alleged § 5 change also did not require preclearance because even if “the delegation of authority to an appointed official is similar to the replacement of an elected official with an appointed one” (fourth category), it did not “change[ ] an elective office to an appointive one.” Id. at 506-07. Both before and after the change, the county voters could elect their county commissioners. And while the change resulted in a shift in the balance of authority through the creation of an appointed post, the commission “retain[ed] substantial authority, including the power to appoint the county engineer and to set his or her budget.” Id. at 508. The Supreme Court concluded:
Covered changes must bear a direct relation to voting itself. That direct relation is absent in both cases now before us. The changes in [the two county commissions] affected only the allocation of power among governmental officials. They had no impact on the substantive question whether a particular office would be elective or the procedural question how an election would be conducted. Neither change involves a new “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U.S.C. § 1973c.
Id. at 510.
Barber v. Bice, 44 F. Supp. 3d 1182 (N.D. Ala. 2014) (quoting Ford v. Strange, 2013 WL
6804191, at *12-13 (M.D. Ala. Dec. 23, 2013), aff'd, 580 F. App'x 701 (11th Cir. 2014)).
Similarly, here, there is no question that Act 2016-18 does not involve a new “voting
qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.”
42 U.S.C. § 1973c. Both before and after the Act, the Birmingham City voters were free to elect
their city councilors. And while the Act may have resulted in a tangential shift in the balance of
authority with regard to the setting of wages, the Birmingham City Council has nevertheless
“retain[ed] substantial authority.”
In Ford, city and county officials commenced an action against the Governor and the
Attorney General for the State of Alabama claiming that State's elimination of gambling
operations was a violation of their rights under the Voting Rights Act and constituted a violation
15

of their due process rights. 580 F. App'x at 709–10. In addressing Plaintiffs’ claims, the
Eleventh Circuit stated:
Plaintiffs have not alleged injury to any cognizable “voting rights” for the simple reason that their “asserted basis for standing has nothing to do with voting.” Abortion Rights Mobilization Inc. v. Baker (In re U.S. Catholic Conference), 885 F.2d 1020, 1028 (2d Cir.1989). Plaintiffs allege that Defendants undermined Amendment 744 several years after Plaintiffs had supported it. To the extent that Plaintiffs assert a “voting right” to the post-enactment enforcement of the laws that they vote for, their claims are “wholly insubstantial and frivolous.” Section 2 of the Voting Rights Act protects a right to equal-opportunity participation in the electoral process. See Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 2764, 92 L.Ed.2d 25 (1986) (“The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”). We find no authority for the proposition that it purports to protect a voter's interest in the post-enactment enforcement of the laws that he supports. See, e.g., 42 U.S.C. § 1973l (c)(1) (defining the words “vote” and “voting”). We consequently affirm the district court's dismissal of Count Two on jurisdictional grounds.
Ford, 580 F. App'x at 709–10 (emphasis added). The Eleventh Circuit further held that “the
connection between Defendants' alleged conduct and Plaintiffs' votes -- which were cast years
earlier -- is simply too tenuous to establish “injury in fact” to any voting rights protected by
either Section 2 of the Voting Rights Act or the Thirteenth, Fourteenth, or Fifteenth Amendments
to the United States Constitution.” Id.
Here, too, the operative votes electing Plaintiffs’ local and statewide representatives were
cast before the passage of the city ordinance and the Act. Any connection between Defendants’
conduct (which had nothing to do with the enactment of Act 2016-18), and their non-
enforcement of Birmingham’s ordinance, is simply too tenuous to establish an injury in fact to
any voting rights. That is, even if the States’ Eleventh Amendment immunity had been
abrogated with respect to a Section 2 claim, the “VRA § 2 does not apply, because this is not a
case involving a voting qualification or prerequisite to voting or standard, practice, or procedure
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resulting in the denial of a right to vote.” Phillips v. Snyder, 2016 WL 4728026, at *9 (6th Cir. Sept. 12, 2016).
Nor does the passage of Act 2016-18 touch, concern, or even relate to any of the recognized categories to which the VRA applies. See Presley, 502 U.S. at 506. Plaintiffs have not alleged any action by Defendants that (1) “involved the manner of voting”; (2) “involve[d] candidacy requirements and qualifications”; (3) “concerned changes in the composition of the electorate that may vote for candidates for a given office” or (4) “affect[ed] the creation or abolition of an elective office.” Id. at 502-03. At most, the Act 2016-18 removes one thimblesize slice of local authority. There is no colorable assertion that passage of Act 2016-18 has had (or will have) any impact whatsoever on Plaintiffs’ right to vote or cast an effective ballot. Under Presley, reallocations of government authority do not have the requisite relation to voting on which to base a VRA claim. Presley, 502 U.S. at 506. Plaintiffs’ Section 2 claim in Count I is due to be dismissed.
D. Sovereign Immunity Bars Plaintiffs Claim under Section 2 of the VRA (Count I) Even if Plaintiffs had Article III standing (and they do not), and even if Plaintiffs’ claim was cognizable under Section 2 of the Voting Rights Act (and, again, it is not), their claims against the Attorney General and the State are still barred by the doctrine of Sovereign Immunity. A federal court’s jurisdiction is limited “to the power conferred by the Constitution and federal statutes, and the party invoking the court's jurisdiction bears the burden of proving the existence of federal jurisdiction.” Lichtenberg v. Sec'y of the Navy, 627 F. App'x 916, 917 (11th Cir. 2015) (citing Bishop v. Reno, 210 F.3d 1295, 1298 (11th Cir. 2000)). The Eleventh Amendment deprives federal courts of the power to hear claims brought by parties against states, their agencies, or their officers, unless the state has waived its immunity or Congress has
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abrogated the state's immunity. U.S. Const. amend. XI. Plaintiffs have not alleged any facts establishing that Alabama’s sovereign immunity has
been waived. A waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969). The Supreme Court has rejected a finding of a waiver of Eleventh Amendment immunity based on a general statement allowing suit against the state, even when the statement was coupled with an express agreement to obey a specific federal law. Florida Dep't of Health and Rehabilitative Services v. Florida Nursing Home Ass'n, 450 U.S. 147, 149–50 (1981) (per curiam) (statute allowing a state to “be sued” and promising to “abide by ... the Title XIX Medicaid Program” did not waive the state's immunity).
Therefore, the fundamental question becomes whether Congress abrogated the state's immunity in enacting the VRA. The standard for finding a valid abrogation is “stringent.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 56 (1996) (internal quotation marks omitted). And even where Congress has the power to abrogate state immunity (such as in this case here, when it has legislated under the Fourteenth and Fifteenth Amendments), it may do so “only by making its intention unmistakably clear in the language of the statute.” Id. So, while Congress certainly had the power to abrogate state immunity when it passed the VRA, the key question is this: did it unmistakably make clear its intent to do so? The court concludes that it did not.
In reviewing the relevant portions of the VRA, the court cannot discern any implied, let alone unequivocally expressed, abrogation of sovereign immunity. Notably, when private plaintiffs sue under Section 2 of the VRA, they do so only through an “implied private right of action.” See, e.g., Ford v. Strange, 580 Fed. App’x at 705 n.6 (citing Morse v. Republican Party of Va., 517 U.S. 186 (1996)). That is, the statute is silent not only as to the abrogation issue, but also as to whether it creates a private right of action. When statutory text is silent on the issue of
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whether it abrogates sovereign immunity, that text is ambiguous. See Williams v. Poarch Band of Creek Indians, 839 F.3d 1312, 1321 (11th Cir. 2016). And ambiguity cuts no abrogation ice at all. “‘To be effective the expression of Congressional intent [to abrogate sovereign immunity] must be a clarion call of clarity. Ambiguity is the enemy of abrogation.’” Williams, 839 F.3d at 1321 (quoting Freemanville Water Systems v. Poarch Band of Creek Indians, 563 F.3d 1205 (11th Cir. 2009)) (emphasis added). There simply is no “clarion call of clarity” found in Section 2’s language which signals an abrogation of sovereign immunity. Id.
The court acknowledges that at least three courts have found that Congress has abrogated state sovereign immunity for claims arising under Section 2 of the Voting Rights Act. See Mixon v. State of Ohio, 193 F.3d 389, 398–99 (6th Cir. 1999); Reaves v. United States DOJ, 355 F.Supp.2d 510, 515 (D. D.C. 2005); and Terrebonne Par. NAACP v. Jindal, 154 F. Supp. 3d 354, 359 (M.D. La. 2015). But none of these decisions is binding on this court and they are not at all persuasive. Terrebonne relied on Mixon with little or no examination or analysis of that decision. 154 F. Supp. 3d at 359. And in Mixon, the Sixth Circuit’s discussion of whether Congress had employed language abrogating states’ immunity to these actions consisted of a single paragraph that did not even mention that the plaintiffs were proceeding under an implied right of action. Mixon, 193 F.3d at 398. Moreover, in Mixon, “the Ohio Attorney General ha[d] not [even] pressed the immunity question on appeal.” 193 F.3d at 397. And Reaves addressed claims under Section 5 of the Voting Rights Act. Reaves, 355 F. Supp. 2d at 513. None of these decisions explains why Congress has unmistakably made clear that it was abrogating states’ immunity.
But, even more importantly, each of the three decisions got it wrong not only because they failed to apply the stringent analysis (the proper standard required by Seminole Tribe, 517 U.S. at 56), but also because the application of such an analysis makes clear that Congress has
19

not spoken on the issue of abrogation. For illustration’s sake, an example of an express abrogation of sovereign immunity is found in Title IX. Title IX explicitly states, “[a] state shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of ... title IX.” 42 U.S.C. § 2000d-7(a)(1). Title IX was enacted in 1972. So, it is readily apparent that, in 1972 and since, Congress knew precisely how to clearly and unmistakably announce the abrogation of sovereign immunity in this manner. The VRA has been amended a number of times since 1972, yet Congress has never added language to the Act indicating a clear intention to abrogate states’ sovereign immunity. In light of this silence, this court is constrained by binding precedent to hold that the State Defendants’ immunity was not abrogated with respect to any implied private right of action under Section 2 of the VRA. Williams, 839 F.3d at 1321; see Ford, 580 Fed. App’x at 705 n.6.
E. Plaintiffs Have Not Adequately Alleged Any Equal Protection Violation (Counts II, VI and VIII)
The Fourteenth Amendment to the United States Constitution provides, in pertinent part: “No State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1. This clause is commonly referred to as the equal protection clause and “is essentially a direction that all persons similarly situated should be treated alike.” Alamo Rent–A–Car, Inc. v. Sarasota–Manatee Airport Auth., 825 F.2d 367, 369 (11th Cir. 1987). Equal protection claims arise from an individual's right not to be subjected to intentional discrimination at the hands of the government. Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1313-14 (11th Cir. 2006).
Where, as here, the claim is based on a facially neutral statute, an allegation of intentional discrimination is required. E & T Realty v. Strickland, 830 F.3d 1107, 11014 (11th Cir. 1987) (“The requirement of intentional discrimination prevents plaintiffs from bootstrapping all
20

misapplications of state law into equal protection claims.”); see Etherton v. City of Rainsville, 2016 WL 5349206, at *4 (11th Cir. Sept. 26, 2016). Indeed, Plaintiffs seemingly conceded that allegations of intentional discrimination are required to state an equal protection claim when they state that Count I of the Amended Complaint under the VRA “is the one claim that does not require proof of racially discriminatory intent.” (Doc. # 40 at 25-26).
Plaintiffs’ Amended Complaint makes a conclusory allegation, unsupported by any specific factual allegations, that “Defendants actions constitute intentional discrimination on the basis of race.” (Doc. # 18 at & 135). But an equal protection claim is not plausible where there is an “obvious alternative explanation” for the conduct other than intentional discrimination. Jabary v. City of Allen, 547 F. App'x 600, 605 (5th Cir. 2013) (citing Twombly, 550 U.S. at 567). In such a circumstance, a plaintiff must “allege more by way of factual content to ‘nudge’ his claim of purposeful discrimination ‘across the line from conceivable to plausible.’” Iqbal, 556 U.S. at 683 (quoting Twombly, 550 U.S. at 570). Without specific factual allegations of an intent to discriminate on the part of any particular legislators, Plaintiffs’ equal protection claims fail.
In light of the controlling Twombly/Iqbal standard, and the requirement that a Plaintiff allege intentional discrimination, Plaintiffs’ allegations regarding vestiges of de jure discrimination fail to ‘nudge’ their claim equal protection claims across the line from conceivable to plausible. Therefore, these claims are due to be dismissed for this alternative reason.
F. Plaintiffs Have Conceded their Privileges and Immunities Claim (Count III) Plaintiffs have expressly conceded that their claim under the Fourteenth Amendment’s Privileges or Immunities Clause (Count III) is foreclosed by Supreme Court precedent. (Doc. # 40 at 53 (“the right to vote is not among the privileges or immunities of United States citizenship
21

protected by Section 1 of the Fourteenth Amendment. Minor v. Happersett, 88 U.S. 162 (1874).”). Therefore, Count III is due to be dismissed for this alternative reason.
G. The Fifteenth Amendment is Not Implicated (Count IV) In Count IV, Plaintiffs assert a claim based on Alabama’s alleged de jure policy of maintaining white control over local black majorities under of the Fifteenth Amendment. That assertion lacks merit. The Fifteenth Amendment provides that a citizen's right “to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” U.S. Const. amend. XV, § 1. This claim is due to be dismissed for the same reasons that Plaintiffs’ claim under the Voting Rights Act fails — “the connection between Defendants' alleged conduct and Plaintiffs' votes -- which were cast years earlier -- is simply too tenuous to establish ‘injury in fact’ to any voting rights protected by either section 2 of the Voting Rights Act or the [] Fifteenth Amendment[] … .” Ford v. Strange, 580 F. App'x at 710. See also Osburn v. Cox, 369 F.3d 1283, 1288 (11th Cir. 2004) (affirming dismissal of Fifteenth Amendment claim where plaintiffs did not allege that they were denied any fundamental right in relation to voting). Therefore, Plaintiffs’ Fifteenth Amendment claim is due to be dismissed for this alternative reason. H. The Thirteenth Amendment is Not Implicated (Count V) Plaintiff’s claim under the Thirteenth Amendment advanced in Count V of the pleadings is similarly without merit. The Thirteenth Amendment prohibits both slavery and involuntary servitude, except as punishment for a crime when an individual has been duly convicted. U.S. Const., amend. XIII, § 1. The Thirteenth Amendment reaches only slavery or involuntary servitude. Whatever may be otherwise said about their allegations in this case, Plaintiffs have not
22

claimed that they were forced into slavery or involuntary servitude. Plaintiffs are still entitled to be paid for the work they choose to perform at an amount at least equal to the federal minimum wage, and employers are of course free to pay them more. Therefore, Plaintiffs’ Thirteenth Amendment claim is without merit and is due to be dismissed for this alternative reason.
I. Intentional Race Discrimination (Count VII) As an initial matter, because in their Count VII Plaintiffs assert multiple claims, it constitutes an example of “shotgun” style pleading which has been “repeatedly condemned” by the Eleventh Circuit. See PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 806 n. 4 (11th Cir. 2010); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 (11th Cir. 2008). Indeed, the Eleventh Circuit has stated that such pleadings “wreak havoc on the judicial system” and “divert already stretched judicial resources into disputes that are not structurally prepared to use those resources efficiently.” Wagner v. First Horizon Pharma. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006); see also Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996) (stating that multiple claims should be presented separately in adherence to Federal Rule of Civil Procedure 10(b)). But that is not the only defect that plagues the allegations in this count. Substantively, this count fails to present anything other than conclusory allegations. Plaintiffs have made no specific factual assertions which indicate that Act 2016-18 has a discriminatory effect. On its very face, the Act applies statewide, prohibiting “[a]ny [local] ordinance, policy, rule, or other mandate” that is inconsistent with its prescribed, uniform minimum wage. Ala. Act No. 2016-18, § 2(b); see also id. § 6(d). “Absent discriminatory effect, judicial inquiry into legislative motivation is unnecessary, as well as undesirable.” Crawford v.
23

Bd. of Educ. of City of L.A., 458 U.S. 527, 544 n.31 (1982) (citation omitted) (equal protection case).
Where, as here, there are legitimate reasons supporting the legislature’s decision, “only the clearest proof [of illicit motive] will suffice.” Smith v. Doe, 538 U.S. 84, 92 (2003) (quotation marks omitted); accord Flemming v. Nestor, 363 U.S. 603, 617 (1960) (requiring clearest-proof requirement); see also McCleskey v. Kemp, 481 U.S. 279, 298-99 (1987) (requiring judicial deference in the face of legitimate legislative reasons). Because there are no specific factual allegations to support these conclusory, shotgun allegations, the claims asserted in Count VII are due to be dismissed for this alternative reason.
J. Political Process Doctrine (Count IX) Under the so-called political process doctrine, states may not alter the procedures of government to target racial minorities. Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. By Any Means Necessary (BAMN), 134 S. Ct. 1623 (2014) (citing Hunter v. Erickson, 393 U.S. 385, 394 (1969) (Harlan, J. concurring)). The traditional equal protection analysis focuses on discriminatory intent. The political process doctrine, on the other hand, looks at the discriminatory results of government restructuring. The continued vitality of the political process doctrine as a whole is in question, see Schuette, 134 S. Ct. at 1653-54 (Sotomayor, J., dissenting); Romer v. Evans, 517 U.S. 620, 23-24, 632 (1996); however, that is not the dispositive point here. Plaintiffs argue that the “political process” doctrine applies to “facially neutral” legislation that restructures the political process. They contend that the court needs a factual record to decide whether the effect of the legislation particularly burdened or injured racial minorities by restructuring the political process and unduly restricting their ability to enact
24

policies addressing racial disparities in employment. They further allege that Act 2016-18 suppresses black citizens’ economic opportunities. And they argue that the election of African Americans to county legislative delegations has forced the Legislature to make changes to preserve white control over local governments.
Because Act 2016-18 is facially neutral, it will be subject to strict scrutiny review “only if it can be proved that the law was ‘motivated by a racial purpose or object,’ or is unexplainable on grounds other than race.” Hunt v. Cromartie, 526 U.S. 541, 546 (1999). Even in the view of the dissent in Schuette, there is no violation unless the challenged government action “has a racial focus, targeting a policy or program that ‘inures primarily to the benefit of the [racial] minority.’” Schuette, 134 S. Ct. at 1659 (Sotomayor, J., dissenting) (quoting Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 472 (1982) (emphasis added)).
Here, the Act has no racial classifications and, on its face, calls for uniform economic policy throughout the state. Plaintiffs’ political process claim makes nothing more than conclusory allegations, not supported by any alleged factual information, that the Act places a special burden on racial minorities. Thus, even to the extent the political process doctrine has continuing vitality (an issue this court need not decide here), the allegations of Plaintiffs’ Amended Complaint fail to state such a claim. Therefore, Plaintiffs’ political process claim is without merit and is due to be dismissed for this alternative reason. IV. Conclusion
For all these reasons, the court concludes that Plaintiffs’ claims are due to be dismissed and Defendants are entitled to judgment as a matter of law. A separate order will be entered.
25

DONE and ORDERED this January 31, 2017. _________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE
26

 
 Case: 17-11009 Date Filed: 07/25/2018 Page: 1 of 30
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11009 ________________________
D.C. Docket No. 2:16-cv-00690-RDP
MARNIKA LEWIS, ANTOIN ADAMS, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, GREATER BIRMINGHAM MINISTRIES, MARIKA COLEMAN, JOHN ROGERS, PRISCILLA DUNN, JUANDALYNN GIVAN, LOUISE ALEXANDER, WILLIAM MUHAMMAD, RODGER SMITHERMAN, OLIVER ROBINSON, ALABAMA LEGISLATIVE BLACK CAUCUS, MARY MOORE,
Plaintiffs - Appellants,
versus
GOVERNOR OF ALABAMA, in his Official Capacity as Governor of the State of Alabama, ATTORNEY GENERAL, STATE OF ALABAMA, in his Official Capacity as Attorney General of the State of Alabama, STATE OF ALABAMA, THE,

Case: 17-11009 Date Filed: 07/25/2018 Page: 2 of 30
BIRMINGHAM, CITY OF, THE, WILLIAM A. BELL, SR.,
Defendants - Appellees. ________________________ Appeal from the United States District Court for the Northern District of Alabama ________________________
(July 25, 2018) Before WILSON and JORDAN, Circuit Judges, and CONWAY,∗ District Judge. WILSON, Circuit Judge:
For a single day in February 2016, Marnika Lewis and Antoin Adams secured a pay raise. The Mayor of Birmingham, Alabama, William Bell, had just affixed his signature to Birmingham Ordinance No. 16-28, which guaranteed Lewis, Adams, and all other wage earners in the city $10.10 per hour. But the following afternoon, Alabama Governor Robert Bentley signed the Minimum Wage and Right-to-Work Act (The Minimum Wage Act or the Act) into law. The Minimum Wage Act nullified Birmingham Ordinance No. 16-28, preempted all local labor and employment regulation, and mandated a uniform minimum wage throughout Alabama—which, then and now, sits at $7.25 per hour. At the heart of this appeal is whether Lewis and Adams have stated a plausible claim that the
∗ Honorable Anne C. Conway, United States District Judge for the Middle District of Florida, sitting by designation.
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Case: 17-11009 Date Filed: 07/25/2018 Page: 3 of 30
Minimum Wage Act had the purpose and effect of discriminating against Birmingham’s black citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment. Because they have, we reverse the dismissal of that claim. We affirm the dismissal of all other claims.
I. The events giving rise to this proceeding began in April 2015, when the Birmingham City Council passed a resolution calling upon the state legislature to raise the minimum wage to $10 per hour across Alabama. At that time, no Alabama municipality had a minimum wage above the federal floor of $7.25. See 29 U.S.C. § 206(a)(1)(C). After the state refused the city’s request, the city council adopted its own minimum wage law that August. The unanimous ordinance, which was scheduled to take effect in July 2016, raised the minimum wage to $8.50 per hour, and to $10.10 in 2017. The ordinance declared the need “to take legislative steps to help lift working families out of poverty, decrease income inequality, and boost [Birmingham’s] economy.” Birmingham, the largest city in Alabama, has more total residents living in poverty (30% of its citizens) than anywhere else in the state.1 The city is also home to the largest black population in Alabama (72%), which is reflected in the racial composition of its city council.
1 All census data is derived from Quick Facts: Birmingham City, Alabama; Mountain Brook City, Alabama, United States Census Bureau, https://www.census.gov/quickfacts/fact/table/ birminghamcityalabama,mountainbrookcityalabama/PST045216.
3

Case: 17-11009 Date Filed: 07/25/2018 Page: 4 of 30
About a week after the ordinance’s approval, a white state representative from the neighboring community of Mountain Brook (where only 1.5% of residents are black and just 3% of residents live below the poverty line) introduced a bill in the Alabama House of Representatives designed to quash Birmingham’s ordinance and establish a uniform minimum wage throughout the state. The bill stalled, but at the start of the 2016 session, a variation of the bill (now called HB 174) was introduced by the same representative, this time with the support of fiftytwo additional sponsors, all of whom were white.
Things progressed quickly. Within a week of its introduction on February 9, 2016, HB 174 sailed through the House Committee on State Government and won the approval of a majority of the House, 71-31. No black member of the House voted in favor of the bill. Thirty-six hours later, the bill cleared the Alabama Senate Committee on Governmental Affairs and was on its way to the Senate floor.
Meanwhile, the Birmingham City Council moved to accelerate the implementation of its own minimum wage law. On February 23, it adopted Ordinance No. 16-28, raising the minimum wage for Birmingham workers to $10.10 per hour, adjusted annually, effective immediately. Mayor Bell signed it into law the following day. Notice of the new minimum wage was slated for publication in the Sunday edition of the Birmingham News.
4

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But on February 25, just a day after Birmingham raised its minimum wage, the Alabama Senate approved the Minimum Wage Act, 23-12, rendering Ordinance No. 16-28 null and void. The Act lacked support from any black senators. Governor Bentley signed it into law less than two hours later.
The Minimum Wage Act, codified at Alabama Code §§ 25-7-40 et seq., “establish[es] within the Legislature complete control over regulation and policy pertaining to collective bargaining . . . or the wages, leave, or other employment benefits provided by an employer to an employee . . . in order to ensure that such regulation and policy is applied uniformly throughout the state.” Id. § 25-7-45(a). To that end, the Act “occupies and preempts the entire field of regulation” in these areas “to the complete exclusion of any policy, ordinance, rule, or other mandate promulgated or enforced by any . . . political subdivision of th[e] state.” Id. § 257-45(b).
A few months after the Alabama Legislature passed the Minimum Wage Act, Lewis and Adams—who live in Birmingham and make less than $10.10 per hour—along with several public interest groups, sued the Governor and the Attorney General of Alabama, claiming racial discrimination under multiple theories. The plaintiffs amended their complaint to include claims under the Thirteenth, Fourteenth, and Fifteenth Amendments and § 2 of the Voting Rights Act. They also added the State of Alabama, the City of Birmingham, and
5

Case: 17-11009 Date Filed: 07/25/2018 Page: 6 of 30
Birmingham Mayor William Bell as defendants, while dropping the governor from the suit. The defendants moved to dismiss for lack of standing and failure to state a claim.
The district court agreed with the defendants and dismissed the complaint. It concluded that the plaintiffs lacked Article III standing to sue any of the defendants; that the attorney general was an improper defendant under Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908); that § 2 of the Voting Rights Act did not abrogate Eleventh Amendment state sovereign immunity; and that, in any event, the plaintiffs had failed to assert any plausible claims. The plaintiffs now appeal the dismissal of their Fourteenth and Fifteenth Amendment claims against the attorney general and the City of Birmingham,2 and their Voting Rights Act claim against the State of Alabama.
II. We review both subject matter jurisdiction and Eleventh Amendment sovereign immunity issues de novo. Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1333–34 (11th Cir. 1999). Likewise, we review the grant of a Rule 12(b)(6) motion to dismiss de novo, “accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff.” Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008). “‘[W]hen standing becomes an issue
2 The plaintiffs do not challenge the dismissal of the Mayor of Birmingham on appeal. 6

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on a motion to dismiss, general factual allegations of injury resulting from the defendant’s conduct may be sufficient to show standing.’” Moody v. Warden, 887 F.3d 1281, 1286 (11th Cir. 2018) (quoting Bischoff v. Osceola Cnty., 222 F.3d 874, 878 (11th Cir. 2000)).
III. A. We begin, as we must, by addressing whether the plaintiffs have standing to sue each of the defendants for each of the claims asserted. See Jackson v. Okaloosa Cty., Fla., 21 F.3d 1531, 1536 (11th Cir. 1994). This is a threshold requirement that “springs from the nature and limits of the judicial power of the United States.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95, 118 S. Ct. 1003, 1012 (1998) (alteration adopted). If the plaintiffs lack standing, “the ‘case’ or ‘controversy’ requirement of Article III, § 2 of the U.S. Constitution is not satisfied, and the case must be dismissed.” Koziara v. City of Casselberry, 392 F.3d 1302, 1304 (11th Cir. 2004). “[T]he irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). The plaintiffs must show: (1) that they have suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there is a causal connection, so that the injury is fairly
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traceable to the challenged action of the defendant; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560–61, 112 S. Ct. at 2136. An injury in fact must be a cognizable harm, but that harm may be “physical, economic, reputational, contractual, or even aesthetic.” Koziara, 392 F.3d at 1305. “[I]n evaluating Article III’s causation (or ‘traceability’) requirement, we are concerned with something less than the concept of ‘proximate cause.’” Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th Cir. 2003). “‘Proximate cause’ . . . ‘is not a requirement of Article III standing.’” Moody, 887 F.3d at 1287 (citation omitted). “[E]ven harms that flow indirectly from the action in question can be said to be ‘fairly traceable’ to that action for standing purposes.” Focus on the Family, 344 F.3d at 1273.
An organization has suffered a concrete injury and thus “has standing to sue on its own behalf if the defendant’s illegal acts impair its ability to engage in its projects by forcing the organization to divert resources to counteract those illegal acts.” Fla. State Conference of NAACP v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008).
On appeal, the plaintiffs allege (1) that the Minimum Wage Act denies Birmingham’s black citizens economic opportunities and abridges their right to vote on the basis of race; (2) that these harms are fairly traceable to the Act and to
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the defendants due to their enforcement roles; and (3) that their injuries can be redressed by enjoining the attorney general from enforcing the Act or by ordering the city to start enforcing Birmingham’s minimum wage ordinance. The defendants contest each of these claims.
As an initial matter, we have little trouble concluding that the plaintiffs have suffered concrete injuries as a result of the Minimum Wage Act. According to the amended complaint, Lewis and Adams work in Birmingham and earn less than $10.10 per hour. Birmingham Ordinance No. 16-28 guaranteed them $10.10 per hour, adjusted annually to a cost of living index. And the Minimum Wage Act nullified Ordinance No. 16-28, in effect depriving Lewis and Adams of a significant increase in their hourly wage. If the Act is unlawful, they suffer an injury in fact with each working hour. Likewise, the plaintiff organizations, which are devoted to social, economic, and political improvements for Alabama’s black citizens, have put forth sufficient facts demonstrating they have diverted resources to counteract the effects of the Minimum Wage Act on their operations. The plaintiffs have met Article III’s injury requirement.
Next, we address whether these injuries can be attributed to these defendants. See generally Hollywood Mobile Estates Ltd. v. Seminole Tribe, 641 F.3d 1259, 1265–66 (11th Cir. 2011). We start with the attorney general. The attorney general’s broad authority to interpret and enforce the Minimum Wage Act
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illustrates his Article III connection to the defendants’ harm, which is the direct consequence of the Act’s continued enforcement. Alabama imbues the attorney general with sweeping authority to interpret, enforce, and defend the laws and interests of the state, see Ala. Code §§ 36-15-1; 36-15-12; 36-15-21, which includes the responsibility to examine the laws’ “constitutional validity,” id. § 3615-1(7). What’s more, the attorney general is given sole authority to direct and control all litigation concerning the interests of the state, id. § 36-15-21, and is empowered to “institute and prosecute, in the name of the state, all civil actions and other proceedings necessary to protect the rights and interests of the state,” id. § 36-15-12. Undoubtedly that authority applies to the Minimum Wage Act. Indeed, the defendants conceded at oral argument that if Birmingham implemented its minimum wage ordinance in spite of the Minimum Wage Act, the attorney general could sue the city to compel compliance.
And in fact, the attorney general recently did just that. After Birmingham erected a plywood barrier around one of its Confederate monuments, the attorney general sued the city and mayor to enforce the Alabama Memorial Preservation Act, citing his general authority under Ala. Code § 36-15-12 “to institute and prosecute, in the name of the state, all civil actions and other proceedings necessary to protect the rights and interests of the state.” See Complaint at 1–2,
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Alabama ex rel. Att’y Gen. Steve Marshall v. City of Birmingham, No. 01-CV2017-903426.00 (Jefferson Cty. Cir. Ct. Aug. 16, 2017).3
Of course, the preceding discussion naturally leads us to conclude that an
injunction against the attorney general “would amount to a significant increase in
the likelihood that the plaintiff[s] would obtain relief that directly redresses the
injury suffered.” Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1290 (11th
Cir. 2010). Aside from the attorney general’s authority to direct and control
enforcement litigation, he is also responsible for determining whether Alabama’s
statutes are constitutional, Ala. Code § 36-15-1(7), and for reporting invalidated
laws to the governor and judiciary committees of the legislature. Id. § 36-15-1(8).
We have little doubt that an injunction declaring the Minimum Wage Act
unconstitutional and prohibiting the attorney general from enforcing it—thereby
requiring him to announce its invalidity to the governor and the legislature—would
3 Because we independently take judicial notice of the attorney general’s recently filed complaint, we deny Plaintiffs-Appellants’ Request for Judicial Notice as moot. The defendants argue that because the Alabama Memorial Preservation Act explicitly contemplates a role for the attorney general (to collect fines), the situation in Alabama v. Birmingham is categorically different from the one here. We disagree. The attorney general’s complaint in Alabama v. Birmingham asserts standing to sue solely based on his general enforcement authority granted in Ala. Code §§ 36-15-1; 36-15-12. And under Count 1, which seeks a declaratory judgment, the attorney general quotes from Ala. Code § 36-15-12 when proclaiming “the responsibility and duty of the Attorney General to protect the rights and interest of the state in the enforcement of its laws, including the Alabama Memorial Preservation Act.” Id. at 4. The complaint in Alabama v. Birmingham provides a template for how the attorney general might likewise “protect the rights and interests of the state” in the enforcement of the Minimum Wage Act.
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go a long way toward redressing the plaintiffs’ injuries. The plaintiffs have fulfilled the Article III standing requirements to sue the attorney general.
The City of Birmingham, on the other hand, is not a proper defendant for these claims. The plaintiffs allege that the city’s failure to enforce its own minimum wage law sufficiently connects it to their injuries sustained under the Minimum Wage Act. But the city’s refusal to implement a nullified law does not make it the cause of the plaintiffs’ injuries. And besides, the attorney general has the authority to enforce the Minimum Wage Act against the City of Birmingham, whether it wills to resist state supremacy or not. Thus, ordering Birmingham to implement Ordinance No. 16-28 would only kick the (wrong) can down the road and leave the plaintiffs subject to the same allegedly discriminatory statute from which they seek relief.4 The plaintiffs’ injuries are not traceable to the City of Birmingham, which is powerless to redress them. Accordingly, we affirm the dismissal of the city from the suit, but we reverse the district court’s holding that the plaintiffs lack Article III standing to assert their claims against the attorney general and the State of Alabama.
4 Contrary to what the plaintiffs claim, an injunction against the City of Birmingham is unnecessary to afford them full relief. According to the city, Ordinance No. 16-28 is still on the books. If the Minimum Wage Act were declared unconstitutional, then the ordinance would govern Birmingham residents unless the city sees some reason to repeal or alter it. This is the city’s political prerogative, not ours.
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B. Before we move on to the merits, two other matters need addressing. Besides dismissing the plaintiffs’ claims for lack of Article III standing, the district court also found that they were barred on sovereign immunity grounds. Thus, we must determine whether the attorney general was an improper substitute for the state under Ex parte Young, and whether Eleventh Amendment immunity bars the Voting Rights Act claim against the State of Alabama—that is, whether § 2 of the Voting Rights Act abrogated state sovereign immunity. The Eleventh Amendment generally bars suits against a state by its own citizens. See Hans v. Louisiana, 134 U.S. 1, 10–15, 10 S. Ct. 504, 505–07 (1890). Under the longstanding doctrine enunciated in Ex parte Young, however, “a suit alleging a violation of the federal constitution against a state official in his official capacity for injunctive relief on a prospective basis is not a suit against the state, and, accordingly, does not violate the Eleventh Amendment.” Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011). This exception to state sovereign immunity “gives life to the Supremacy Clause,” Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 426 (1985), by providing private parties a means to contest continuing violations of federal law by the states. See Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S. Ct. 899, 903 (2004); Edelman v. Jordan, 415 U.S. 651, 664, 94 S. Ct. 1347, 1356 (1974) (“[Ex parte Young] has permitted the Civil War
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Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect.”). But where the state officer lacks any responsibility to enforce the statute at issue, the foundation supporting the Ex parte Young “fiction” erodes. In that case, “the state is, in fact, the real party in interest,” and the suit remains prohibited by the Eleventh Amendment. See Summit Med. Assocs., 180 F.3d at 1336, 1341.
In determining whether the Alabama Attorney General is, in fact, a proper party in interest, we turn to Ex parte Young for guidance. There, the Supreme Court permitted a Fourteenth Amendment suit against the Minnesota Attorney General because “[h]is power by virtue of his office sufficiently connected him with the duty of enforcement to make him a proper party.” Ex parte Young, 209 U.S. at 161, 28 S. Ct. at 454. The same is true here. As discussed above, Alabama law grants the attorney general broad authority to interpret, enforce, and defend the laws and interests of the state, see Ala. Code §§ 36-15-1; 36-15-12; 36-15-21, which includes the authority to examine the “constitutional validity” of the state’s laws, id. § 36-15-1(7), and to institute, direct, and control all civil actions necessary to protect the state’s interests, id. §§ 36-15-21; 36-15-12. The attorney general is sufficiently connected to the enforcement of the Minimum Wage Act to satisfy Ex parte Young’s demands.
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Nevertheless, the defendants claim that the text of the Minimum Wage Act itself must authorize the attorney general to enforce it. This position contradicts precedent and, as demonstrated by recent litigation, practice. “The important and material fact,” under Ex parte Young, is whether “the state officer, by virtue of his office, has some connection with the enforcement” of the Minimum Wage Act, “and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists.” 209 U.S. at 157, 28 S. Ct. at 453. We have no doubt the connection exists here, and that the plaintiffs have standing to assert their claims against the attorney general, for whom the Eleventh Amendment provides no shield.
Next, we consider whether the plaintiffs can sue the State of Alabama under § 2 of the Voting Rights Act. This requires us to determine whether § 2 validly abrogated the states’ Eleventh Amendment immunity from suit. We join the Fifth and Sixth circuits in concluding that § 2 did abrogate state sovereign immunity, and thus find that we have jurisdiction to hear the plaintiffs’ claim against Alabama. See OCA-Greater Houston v. Texas, 867 F.3d 604, 614 (5th Cir. 2017); Mixon v. State of Ohio, 193 F.3d 389, 398–99 (6th Cir. 1999); see also Ga. State Conf. of NAACP v. State, 269 F. Supp. 3d 1266, 1274 (N.D. Ga. 2017) (three-judge district court); Ala State Conf. of NAACP v. State, 264 F. Supp. 3d 1280, 1291–92 (M.D. Ala. 2017); Hall v. Louisiana, 974 F. Supp. 2d 944, 953 (M.D. La. 2013);
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Reeves v. U.S. D.O.J., 355 F. Supp. 2d 510, 515–16 (D.D.C. 2005) (three-judge district court).
In determining whether Congress has validly abrogated the states’ sovereign immunity, we first ask “whether Congress has unequivocally expressed its intent to abrogate the immunity;” if it has, then we must determine “whether Congress has acted pursuant to a valid exercise of power.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S. Ct. 1114, 1123 (1996) (internal quotation marks omitted and alterations adopted). As to the first inquiry, we agree with the Sixth Circuit that it is “unmistakably clear in the language of the statute,” id. at 56, 116 S. Ct. at 1123, that Congress intended § 2 to be enforced directly against the states. See Mixon, 193 F.3d at 398. The text of the statute explicitly prohibits “any State” from imposing voting qualifications, practices, or procedures that abridge the right to vote on account of race or color. 52 U.S.C. § 10301(a). The defendants insist that because the statute only provides an implied right of action, § 2 cannot have abrogated Eleventh Amendment immunity. We disagree. Congress “clearly intended” § 2 to be enforceable by private action, Morse v. Republican Party of Va., 517 U.S. 186, 232, 116 S. Ct. 1186, 1212 (1996), and Congress clearly intended § 2 to be enforceable directly against the states. Accordingly, we find that Congress unequivocally expressed its intent to abrogate the states’ Eleventh
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Amendment immunity through § 2. See Seminole Tribe, 517 U.S. at 55, 116 S. Ct. at 1123.
In so doing, Congress acted pursuant to a valid exercise of constitutional power: § 2 of the Fifteenth Amendment. The Civil War Amendments, which “were specifically designed as an expansion of federal power and an intrusion on state sovereignty,” City of Rome v. United States, 446 U.S. 156, 179, 100 S. Ct. 1548, 1563 (1980), abrogated on other grounds by Shelby Cty., Ala. v. Holder, 570 U.S. 529, 133 S. Ct. 2612 (2013), “fundamentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe, 517 U.S. at 59, 116 S. Ct. at 1125. Recognizing this, the Supreme Court has held that the enforcement provision of the Fourteenth Amendment, U.S. Const. amend. XIV, § 5, extended federal power “to intrude upon the province of the Eleventh Amendment and . . . allowed Congress to abrogate the immunity from suit guaranteed by that Amendment.” Seminole Tribe, 517 U.S. at 59, 116 S. Ct. at 1125; Fitzpatrick v. Bitzer, 427 U.S. 445, 455–56, 96 S. Ct. 2666, 2671 (1976). The Voting Rights Act, which “is designed to implement the Fifteenth Amendment and, in some respects, the Fourteenth Amendment,” United States v. Bd. of Comm’rs of Sheffield, Ala., 435 U.S. 110, 126–27, 98 S. Ct. 965, 976–77 (1978), was enacted pursuant to an identical enforcement provision, U.S. Const. amend. XV, § 2, which the Supreme Court has referred to as a “parallel power to enforce the provisions of
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the Fifteenth Amendment.” City of Boerne v. Flores, 521 U.S. 507, 518, 117 S. Ct. 2157, 2163 (1997). The textual, historical, and jurisprudential justifications for Congress’ power to abrogate state sovereign immunity through § 5 of the Fourteenth Amendment apply with equal force and validity to congressional action under § 2 of the Fifteenth Amendment. Like the Sixth Circuit, we see no reason to treat the identical provisions differently. See Mixon, 193 F.3d at 399. Accordingly, we conclude that Congress validly abrogated state sovereign immunity in § 2 of the Voting Rights Act; therefore, the Eleventh Amendment does not prohibit the plaintiffs’ claim against the State of Alabama.
IV. Having settled all jurisdictional disputes, we now reach the heart of the matter. Our final task is to determine whether the plaintiffs’ claims survive a 12(b)(6) motion to dismiss; that is, whether the amended complaint “contain[s] 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, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)). First, we address the plaintiffs’ two Fourteenth Amendment claims. We then turn to their voting claims under the Fifteenth Amendment and § 2 of the Voting Rights Act.
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A. The plaintiffs allege two equal protection violations in their amended complaint: (1) the Minimum Wage Act purposely discriminates against Birmingham’s black citizens by denying them economic opportunities on account of their race; and (2) the Act violates the political-process doctrine by transferring control from the majority-black Birmingham City Council to the majority-white Alabama Legislature, in order to “uniquely burden the ability of Plaintiffs to obtain employment-related ordinances that Birmingham’s African-American community strongly favored.” We address each allegation in turn.
1. Intentional Discrimination Claim In order to prevail on an equal protection challenge to a facially neutral law, plaintiffs must prove both discriminatory impact and discriminatory intent or purpose. See I.L. v. Alabama, 739 F.3d 1273, 1286 (11th Cir. 2014). “Discriminatory intent means that racial discrimination was a substantial or motivating factor behind enactment of the law.” Id. (alteration adopted) (internal quotation marks omitted). Because “[o]utright admissions of impermissible racial motivation are infrequent,” Hunt v. Cromartie, 526 U.S. 541, 553, 119 S. Ct. 1545, 1552 (1999), “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at 266, 97 S.
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Ct. at 564. “Subjects of proper inquiry in determining whether racially discriminatory intent existed” include: the racial “impact of the official action;” the “historical background of the decision;” the “specific sequence of events leading up” to the challenged law; departures from substantive and procedural norms; and “legislative or administrative history.” Id. at 266–68, 97 S. Ct. at 564–65.
Our starting point is the law’s impact. See id. at 266, 97 S. Ct. at 564. The Minimum Wage Act denied 37% of Birmingham’s black wage workers a higher hourly wage, compared to only 27% of white wage workers. What’s more, black wage workers in Birmingham make, on average, $1.41 less per hour than white wage workers, and $2.12 less per hour statewide. Given these numbers, we find it plausible that the Minimum Wage Act “bears more heavily on one race than another.” Young Apartments, Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1045 (11th Cir. 2008).
The defendants, however, maintain that these “cherry picked” statistics fail to demonstrate disparate impact because the Minimum Wage Act applies statewide and inures to the general benefit. To accept this argument would be to ignore the allegations in this case. The Minimum Wage Act was passed in direct response to Birmingham’s minimum wage ordinances, which made it the only municipality in Alabama guaranteeing an hourly wage above the federal floor. Thus, it was not “cherry picking” for the plaintiffs to focus on Birmingham, the community at
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which the law was primarily directed and where its impact was most transparent. This is not the place to debate the Minimum Wage Act’s long term macroeconomic merits. What we know from the pleadings is that the Act immediately denied a significant wage increase to roughly 40,000 Birmingham residents, the vast majority of whom were black. These facts are more than sufficient to support a plausible allegation that the Minimum Wage Act burdens black citizens more than white ones.
This leads us to the more challenging question: have the plaintiffs alleged facts plausibly supporting a conclusion that the Minimum Wage Act was enacted with a discriminatory purpose? A sensitive inquiry into the direct and circumstantial evidence leads us to conclude that they have. Arlington Heights, 429 U.S. at 266, 97 S. Ct. at 564.
The plaintiffs’ amended complaint presents detailed factual allegations which go to the heart of multiple Arlington Heights considerations, including the disproportionate effect of the Minimum Wage Act on Birmingham’s poorest black residents; the rushed, reactionary, and racially polarized nature of the legislative process; and Alabama’s historical use of state power to deny local black majorities authority over economic decision-making. The Minimum Wage Act responded directly to the legislative efforts of the majority-black Birmingham City Council, which represents more black citizens (and more black citizens living in poverty)
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than any other city in Alabama. The Act swiftly nullified efforts of those Birmingham City Council members to benefit their majority-black constituents even though the Alabama legislature had previously “failed to take any action to establish a statewide minimum wage law and had [ ] been indifferent to efforts to establish such a law.” D.E. 18 at ¶ 83. The Act was introduced by a white representative from Alabama’s least diverse area, with the help of fifty-two other white sponsors, and was objected to by all black members of the House and Senate. And it was accelerated through the legislative process in sixteen days with little or no opportunity for public comment or debate. These facts plausibly imply discriminatory motivations were at play.
Furthermore, the plaintiffs put forth extensive evidence suggesting that the Minimum Wage Act reflects Alabama’s longstanding history “of official actions taken for invidious purposes.” Arlington Heights, 429 U.S. at 267, 97 S. Ct. at 564. Rooted into the foundations of the state’s 1901 Constitution, Hunter v. Underwood, 471 U.S. 222, 229, 105 S. Ct. 1916, 1920–21 (1985), Alabama’s “deep and troubled history of racial discrimination,” I.L., 739 F.3d at 1288, has consistently impeded the efforts of its black citizens to achieve social and economic equality. See Dillard v. Crenshaw Cty., 640 F. Supp. 1347, 1356–60 (M.D. Ala. 1986); Wayne Flynt, Alabama’s Shame: The Historical Origins of the 1901 Constitution, 53 Ala. L. Rev. 67, 70–76 (2001). Although the defendants
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question the relevance of this history, we have repeatedly reaffirmed its importance when determining whether neutral laws may nonetheless bear discriminatory purposes. See Burton v. City of Belle Glade, 178 F.3d 1175, 1189 (11th Cir. 1999). Here, the plaintiffs allege that the circumstances of the Minimum Wage Act reflect a motivation consistent with Alabama’s many historical “barriers [erected] to keep black persons from full and equal participation in the social, economic, and political life of the state.” Dillard, 640 F. Supp. at 1360. We believe their “allegations entitle them to make good on their claim.” Gomillion v. Lightfoot, 364 U.S. 339, 341, 81 S. Ct. 125, 127 (1960).
The defendants respond that the Minimum Wage Act is a neutral, economic law similar to the one adopted by twenty-two other states, and that the plaintiffs’ allegations of discrimination cannot overcome the law’s obvious legitimate purpose. Likewise, the district court held that because legitimate reasons support the legislation, Arlington Heights is inapposite, and “only the clearest proof will suffice” to establish discriminatory intent. This position gravely misstates the law.
The inquiry before us is simply whether the plaintiffs have plausibly stated a claim of disparate impact and discriminatory intent. If they establish their allegations, the defendants will have their turn to prove that “the same decision would have been made for a legitimate reason,” Burton, 178 F.3d at 1189—a factual demonstration which cannot be settled on their motion to dismiss.
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But most perturbing is the so-called “clearest proof” standard applied by the district court and defended on appeal. Recklessly plucked from an unrelated line of precedent, this requirement runs contrary to decades of established equal protection jurisprudence. The district court derived the “clearest proof” rule from a line of cases dealing with ex post facto challenges to civil statutes. See Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1147 (2003); Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367 (1960). Even a slight bit of context illustrates the danger of extracting this law from its intended setting: ‘“only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Smith, 538 U.S. at 92, 123 S. Ct. at 1147 (emphasis added). This standard has no place in equal protection law, which remains governed by the longstanding framework established in Arlington Heights, 429 U.S. at 266, 97 S. Ct. at 564. See also Veasey v. Abbott, 830 F.3d 216, 231 n.12 (5th Cir. 2016) (rejecting “clearest proof” standard in voting rights context).
Requiring the “clearest proof” of discriminatory purpose not only ignores the history of equal protection law but also turns a blind eye to the realities of modern discrimination. Today, racism is no longer pledged from the portico of the capitol5 or exclaimed from the floor of the constitutional convention;6 it hides,
5 See Inaugural Address of Governor George C. Wallace, January 14, 1963, at 2, Alabama Department of Archives & History, http://digital.archives.alabama.gov/cdm/ref/collection/
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abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619, 111 S. Ct. 2077, 2082 (1991) (“Racial discrimination” is “invidious in all contexts.”). Recognizing this truth over forty years ago, the Supreme Court mandated that we review both direct and circumstantial evidence to determine whether, absent an outright admission, some discriminatory purpose may yet exist; and it planted signposts to help guide this inquiry. Arlington Heights, 429 U.S. at 266, 97 S. Ct. at 564; see also Hunt, 526 U.S. at 553, 119 S. Ct. at 1552. Here, a sensitive but thorough examination of the plaintiffs’ detailed allegations leads us to conclude that they have plausibly alleged a discriminatory motivation behind the Minimum Wage Act, despite the law’s neutrality and rationale. This is all that is required for their claim to survive a motion to dismiss. We say nothing of “the ability of petitioners to sustain their allegations by proof,” but we do hold that they have the right to try. Gomillion, 364 U.S. at 341, 81 S. Ct. at 127. Accordingly, we reverse the dismissal of their Fourteenth Amendment intentional discrimination claim against the attorney general.
voices/id/2952 (“I draw the line in the dust and toss the gauntlet before the feet of tyranny . . . and I say . . . segregation now . . . segregation tomorrow . . . segregation forever.”). 6 See 1 Journal of the Proceedings of the Constitutional Convention of the State of Alabama, Commencing May 21st, 1901, at 9 (1901) (“And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.”).
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2. Political-Process Claim The plaintiffs’ second theory for equal protection relief rests on the politicalprocess doctrine. This doctrine evolved from the Supreme Court’s recognition that the Fourteenth Amendment guarantee to “full participation in the political life of the community” extends to “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 467, 102 S. Ct. 3187, 3193 (1982) (citation omitted). Historically, this equal protection principle has prohibited majorities from restructuring the political process to frustrate the ability of minorities to enact legislation explicitly addressing “racial issues.” See, e.g., Seattle, 458 U.S. at 474, 102 S. Ct. at 3197 (school integration); Hunter v. Erickson, 393 U.S. 385, 386, 89 S. Ct. 557, 558 (1969) (fair housing). However, the Supreme Court’s most recent consideration of the doctrine has called its former interpretations into question. In Schuette v. Coalition to Defend Affirmative Action, ___ U.S. ___, 134 S. Ct. 1623 (2014), five justices repudiated the traditional political-process framework, either in part, id. at ___, 134 S. Ct. at 1631–37 (plurality opinion), or in whole, id. at ___, 134 S. Ct. at 1643 (Scalia, J., concurring in the judgment). These justices were in agreement that the broad
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rationale of Seattle, which would require courts “to determine and declare which political policies serve the ‘interest’ of a group defined in racial terms,” “has no support in precedent,” “raises serious constitutional concerns,” and “must be rejected.” See id. at ___, 134 S. Ct. at 1634 (plurality opinion); id. at ___, 134 S. Ct. at 1640 (Scalia, J., concurring in the judgment). But see id. at ___, 134 S. Ct. at 1659 (Sotomayor, J., dissenting) (reaffirming the traditional Seattle framework). While refusing to overturn Hunter and Seattle, the plurality opinion suggested that these cases are “best understood” as those where “the state action in question . . . had the serious risk, if not purpose, of causing specific injuries on account of race.” Id. at ___, 134 S. Ct. at 1633 (plurality opinion). But see id. at ___, 134 S. Ct. at 1640 (Scalia, J., concurring in the judgment) (calling this interpretation “cloudy and doctrinally anomalous”).
Mindful of the doctrine’s historical standing and the Supreme Court’s recent directives, we turn, cautiously, to whether the plaintiffs have stated a plausible political-process claim. A comparison to the salient precedent, in light of the Court’s recent interpretation, leads us to conclude that they have not. The minimum wage laws at issue here are neutral, economic regulations that impact a significant percentage of both black and white hourly wage workers. Cf. Schuette, ___U.S. at ___, 134 S. Ct. at 1653 (Sotomayor, J., dissenting) (“Hunter and Seattle” recognized that “[w]hen the majority reconfigures the political process in a
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manner that burdens only a racial minority, that alteration triggers strict judicial scrutiny.”). Thus, while we acknowledge the social and economic history behind the plaintiffs’ assertion that the minimum wage is a racial issue, their claim still falls outside the Supreme Court’s limited application of the political-process doctrine to laws explicitly addressing racial harms such as segregation, Seattle, 458 U.S. at 474, 102 S. Ct. at 3197, and discrimination in the housing market, Hunter, 393 U.S. at 386, 89 S. Ct. at 558. See Schuette, ___U.S. at ___, 134 S. Ct. at 1635 (plurality opinion) (rejecting broad interpretation of Seattle because it would apparently have “no limiting standards” and could be read to include “wage regulations”). And to the extent that the plaintiffs allege that the minimum wage policy was “racialized” because the “Birmingham African-American community strongly favored” it, that argument clashes with the Supreme Court’s clear instructions in Schuette, ___ U.S. at ___, 134 S. Ct. at 1634, and cannot sustain their claim. Accordingly, we affirm the dismissal of the plaintiffs’ Fourteenth Amendment political-process claim.
B. Finally, we address whether the plaintiffs have stated plausible voting rights claims under the Fifteenth Amendment and § 2 of the Voting Rights Act. In their amended complaint, the plaintiffs allege that the Minimum Wage Act abridges their right to vote on account of race, because it “reverses a scheme of local control
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by citizens of Birmingham over the power to enact minimum wages” and “prohibits the majority-black electorate of the City of Birmingham from exercising their electoral power over local government.” The plaintiffs’ voting claims fall short for the simple reason that their allegations have nothing to do with voting.
“The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Thornburg v. Gingles, 478 U.S. 30, 47, 106 S. Ct. 2752, 2764 (1986). The plaintiffs allege that the Minimum Wage Act affects their ability to participate in the political process because it now occupies a field in which a majority-black legislature previously enacted laws that they support. But this grievance is simply not one recognized by § 2 of the Voting Rights Act. Section 2, which gives effect to the Fifteenth Amendment’s guarantees, protects against any “standard, practice, or procedure . . . which results in a denial or abridgement of the right . . . to vote on account of race or color,” due to unequal opportunity “to participate in the political process and to elect representatives of [one’s] choice.” 52 U.S.C. § 10301. The Supreme Court has emphasized that the statute protects only one right—the right to vote—and that “the opportunity to participate and the opportunity to elect [are] inextricably linked.” Chisom v. Roemer, 501 U.S. 380, 397, 111 S. Ct. 2354, 2365 (1991). But here, the plaintiffs have not alleged any
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denial, abridgment, or dilution of their voting ability in connection with any election—past or future—as a result of the Minimum Wage Act. And we find no authority under § 2 for a free-floating political process right unrelated to any vote or election. Therefore, because the plaintiffs have not plausibly alleged the invasion of any legal rights established by the Fifteenth Amendment or § 2 of the Voting Rights Act, we affirm the dismissal of those claims against the attorney general and the State of Alabama.
V. The plaintiffs have stated a plausible claim that the Minimum Wage Act had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment. Accordingly, we reverse the dismissal of that claim against the Attorney General of Alabama. We affirm the dismissal of all other claims and all other defendants. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

David J. Smith Clerk of Court

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
July 25, 2018

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 17-11009-BB Case Style: Marnika Lewis, et al v. Governor of Alabama, et al District Court Docket No: 2:16-cv-00690-RDP

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.11. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.
Pursuant to Fed.R.App.P. 39, each party to bear own costs.
The Bill of Costs form is available on the internet at www.ca11.uscourts.gov
For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Carol R. Lewis, BB at (404) 335-6179.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Djuanna Clark Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs